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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
2Copyright Guy Harley 2004
Dates for 2nd Semester Classes start - 13 July Assessment – 6 September 2004 Classes finish – 4 October 2004 Exams – 14 to 22 October
3Copyright Guy Harley 2004
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
4Copyright Guy Harley 2004
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
5Copyright Guy Harley 2004
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.
6Copyright Guy Harley 2004
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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8Copyright Guy Harley 2004
9Copyright Guy Harley 2004
Resources (cont.) Course Website
www.bus.cqu.edu.au/CSTUDENT Library Online journals & databases
Butterworth Online www.austlii.edu.au
Learning Support Unit
10Copyright Guy Harley 2004
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
12Copyright Guy Harley 2004
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
13Copyright Guy Harley 2004
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
16Copyright Guy Harley 2004
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
17Copyright Guy Harley 2004
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
18Copyright Guy Harley 2004
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.
20Copyright Guy Harley 2004
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.
21Copyright Guy Harley 2004
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
22Copyright Guy Harley 2004
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
23Copyright Guy Harley 2004
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