Guy Harley Bachelor of Law (University of Adelaide – 1978)

1Copyright Guy Harley 2004

Guy Harley Bachelor of Law (University of Adelaide –

1978) Barrister and Solicitor in Adelaide for 18 years Master of Business (eBusiness) (University of

SA 2001) Contact Information

guy@harley.net.au

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Dates for 2nd Semester Classes start - 13 July Assessment – 6 September 2004 Classes finish – 4 October 2004 Exams – 14 to 22 October

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Course Assessment Exam 60%

Open book Electronic translator (non-programmable) 3 hrs + 15 minutes reading time Multiple choice, short essays and problem questions

Internal assessment 40% Short answers Essay (1500 words)

Must use legal referencing style www.law.unimelb.edu.au/mulr/aglc.htm

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Plagiarism Copying the work of someone else and

passing it off as your own Failing to acknowledge the source of

information you have used Plagiarism is STEALING You will receive a mark of zero for a

substantially plagiarised assignment If you plagiarise more than twice you may

have your enrolment cancelled

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Text Books Turner C., 2003, “Australian Commercial Law”,

24th Ed, Lawbook Co, Sydney Gibson A, Rigby S & Transmitt G, 2003,

“Commercial Law in Principle”, 2nd Ed, Lawbook Co, Sydney.

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Resources Lecturer’s web site

www.harley.net.au Lecture slides Tutorial exercises Notices Course outline including assessment Links Writing guides

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Resources (cont.) Course Website

www.bus.cqu.edu.au/CSTUDENT Library Online journals & databases

Butterworth Online www.austlii.edu.au

Learning Support Unit

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Resources (cont.) Free legal web sites

www.austlii.edu.au www.worldlii.org www.findlaw.com.au www.law.com http://www.lectlaw.com/ref.html

Be careful of: USA web sites News web sites

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What is required of you? Spend the same amount of time in private

study as you do in class Read textbook and notes every week Attend lectures and TAKE NOTES Prepare for tutorials in advance Be prepared to ask and answer questions Complete all assessments on time Participate fully in all group activities

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Do you want to pass this subject? In an Australian university

learning is YOUR responsibility. It is up to you to be self-disciplined and keep up to date

Emphasis is on applying knowledge NOT memorising data

Begin reading your textbook TODAY Ask your lecturer to explain if you don’t

understand something. Give priority to your study over part time work

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Course Objectives

An introduction to business law in Australia Law of contract

Topics Australian Legal System Interpreting & applying cases and legislation Law of contract Law of Tort (introduction)

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Introductory & Contract LawLecture 1

Turner “Australian Commercial Law” Chapter 1Gibson “Commercial Law in Principle” Chapter 1

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What is ‘Law’? A definition: A set of rules which citizens must obey

or else suffer a penalty More complex in reality as the ‘rules’ are affected by

social, economic, political and international considerations

Law regulates our everyday lives as well as when we are engaged in business

Looking at the various classifications of law can help us understand how law affects us

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Basis of Law

Jurisprudence Giving a wise interpretation to the laws and making a

just application of them to all cases as they arise. Judging the same questions in the same manner

Natural Law standards of conduct derived from traditional moral

principles and/or God's law and will

Legal Positivism the rule of law amounts simply to regular compliance

with clear, general and validly enacted rules

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Sources of Law The law which might govern a transaction or an

offence can be found by consulting: common law equity statutes delegated legislation custom international law

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Common Law The oldest source of law Developed over centuries in England by judges Relies on the Doctrine of Precedent supported by

Law Reports Eventually two strands evolved: common law and

equity Equity prevails over inconsistent Common Law

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Legislation Law made by Parliament and bodies it delegates to STATUTES or ACTS contain the broad policy and

are debated in Parliament Sometimes the Act will delegate power to another

body eg Governor, Minister, Council to pass more detailed rules

These are called DELEGATED LEGISLATION and can take the form of Regulations, Ordinances etc.

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Legislation (Cont.) Legislation overrides inconsistent Case Law However one important role of Judges is to interpret

ambiguous legislation There is continuing debate about who should ‘make’

the law: only Parliamentarians as elected representatives of the people? BUT the precedent system historically has enabled judges to develop the law in new directions. Negligence law is a good example.

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Civil & Criminal Law Criminal Law

The rules of statute and common law which direct that certain actions are punishable by the state.

Offences against the community A penalty is imposed on the wrongdoer

Civil Law Anything not criminal Protection and enforcement of personal rights Does not impose penalties

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Procedural & Substantive Law Substantive Law

The law that creates and defines the rights and obligations which govern society

Procedural Law The rules and methods employed to obtain

one's rights and enforce obligations In particular, how the courts are conducted

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Public & Private Law Public Law

Relations between citizens and the state Private Law

Relations between citizens

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Public & Private Law - Examples Public Law

Criminal Administrative Constitutional Revenue industrial

Private Law Contract Tort Family Property Company

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The English Legal System

Rule of Law Jurisdiction

The limits on a legal bodies powers Geographical Monetary Orders that an be made

Courts interpret & apply the law

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The English Legal System

Adversarial System Civil

Plaintiff Defendant

Criminal The Crown The Accused

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The English Legal System

Adversarial System (cont.) Decision makers

Jury Judge

Lawyers Solicitors Barristers

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Proving a Claim

Standard of Proof Civil Cases

Balance of Probabilities Criminal Cases

Beyond Reasonable Doubt

Burden of Proof Civil Cases - Plaintiff Criminal Cases - Prosecution Presumptions

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Criminal Cases

Minor Complaint Summary trial by magistrate Conviction Sentence

Serious Information Committal hearing Indictment Trial by judge and jury Conviction Sentence

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Civil Cases

Summons Pleadings Discovery of documents Pre-trial hearings Settlement conferences Trial Judgement Orders

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Proving a Claim (cont.)

Affidavit Subpoena Witnesses

Oral evidence Documents

Official records

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Appeals

A party who disputes a court’s decision can appeal to a “higher” court

Usually limited to legal arguments Adversarial

Appellant Respondent

Can keep appealing to the next higher court if there is one

Hierarchy of Courts

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Alternative Dispute Resolution

Negotiation Mediation Conciliation Arbitration Litigation Annihilation