Part A

The facts of this question occur in New South Wales.

Clothe the Resistance Pty Ltd is an Indigenous-owned startup business that designs and sells t- shirts bearing protest slogans. Sales have been down lately and Yara Reid, the owner and Sales Manager of Clothe the Resistance, is a little worried. On 18 May 2021, she receives a phone call from Justine Davis, one of the organisers of the Black Lives Matter (BLM) movement, which is organising a street march against lack of government action on the rising number of Indigenous deaths in custody. Justine places an order for 100 custom-made t-shirts bearing the slogan, 'Stop Black Deaths', and agrees to pay $1,500.00 for the t-shirts. She says to Yara, 'There is only a few days left until the march. We're marching on 25 May'. Yara assures Justine that she will have the t- shirts delivered to them by close of business on 24 May.

Yara is over the moon that the organisers of BLM have noticed her prints and protest slogans. This could be a major new client and she wants to make a good impression. She gets onto the website of Print on Demand, a printing business that prints t-shirts with customised designs. She has placed orders with them in the past and they always delivered goods within 5 business days. She scrolls through the homepage very quickly. She notices that the website looks different. There is a banner with a rolling slideshow of images and text. In small print was a sign that clearly read: 'Delays expected due to COVID-19'. She did not notice the sign because the slideshow moved too quickly, and she did not have enough time to notice the text. She ordered 100 prints on the 'All Day Everyday Flat Rate Tee', confirmed the order and paid the total amount of $1,000. A few minutes later, she received an email confirming the order.

On 23 May, Yara receives an email from Print on Demand notifying her that they are unable to deliver on time as several of their drivers are now close contacts of COVID-19 and have been directed to isolate for 7 days by NSW Health. Yara is desperate and states in her reply, 'Time is of the essence. I need the t-shirts by tomorrow morning at the latest. What if I add an extra $500 to the price?'. A Customer Service Representative at Print on Demand accepts the payment and tells Yara that the t-shirts will be delivered by midday on 24 May, but the t-shirts do not arrive until 26 May, a day after the BLM March.

Print on Demand's failure to deliver on time has meant that Clothe the Resistance was unable to supply the t-shirts to the BLM organisers and it is likely that Yara has lost a potential new and important client.

Advise Yara in relation to the following issues:

Assuming that there is an enforceable contract, has the sign on the Print on Demand's website been effectively incorporated into the contract? (5 marks)

Has Clothe the Resistance provided sufficient consideration to make Print on Demand's promise to deliver the t-shirts, binding? (5 marks)

Has Print on Demand breached the time requirements of the contract such that Clothe the Resistance can terminate the contract? (5 marks)

Has the contract between Clothe the Resistance and Print on Demand been frustrated? (3 marks)

Legal Theory/Essay Question: With reference to the problem question and the cases of Williams v Roffey Bros & Nicholls (Contractors) Ltd (1990) 1 All ER 512 and Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723, should the 'practical benefit' test be adopted by the High Court of Australia? (7 marks)

Part B

In Australia the racial contract began with invasion and colonisation; indeed, it may be thought of as a racial colonial contract. Aboriginal peoples were dispossessed from their lands, disenfranchised, dominated and disqualified from the very category of personhood through legislation and policies that ensured their social, political and economic exclusion. Within the earlier iterations of the racial contract, Indigenous peoples were treated as sub-persons and explicitly excluded from equal status.

HOW DOES THE CASE OF Australian Securities and Investments Commission v Kobelt [2019] HCA 18, LINK TO THE STATEMENT ABOVE?