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LAW OF COMMERCIAL CONTRACT
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
• (02) 4570 1116• [email protected]
LAW OF COMMERCIAL CONTRACT
A.C.N. Staff Alyson Moore, Managing Director Roz Grant, General Manager Robert Veel, Academic Director
(academic matters) Ritzuko Fukumi, Registrar
(enrolment, attendance and fees) Emily Hill, Marketing Manager
(social program during semester) Hue Vang
(network manager)
LAW OF COMMERCIAL CONTRACT
Dates for March Semester Classes start 17 March Tutorials start – 24 March No Easter Break Evaluations – weeks 4 and 10 Classes finish – June 4 Exams – 12-20 June Exam results released – approx 19 July
LAW OF COMMERCIAL CONTRACT
Academic Support Thursdays 12.00pm –2.00pm – help with
planning assignments, study skills, reading & writing
Essay writing for exams Mon 29 March & 5 April, 4.30pm – 6.30pm
Answering multiple choice questions Mon 3 May 4.30pm – 6.30pm
Answering short answer questions Mon 17 May 4.30pm – 6.30pm
LAW OF COMMERCIAL CONTRACT
Assessment Rules Assessments must be submitted on due date or
penalty will apply. Students who miss assessments because of
illness must provide a medical certificate within 72 hours.
Students must complete an assessment cover sheet (lecturer must sign it).
All cases of plagiarism must be reported to Academic Director.
LAW OF COMMERCIAL CONTRACT
Supplementary Exams Grade ‘SP’: Students who miss final exam because of
illness may apply for special consideration. A medical certificate must be supplied within 72 hours.
Grade ‘SA’ Students who gain a mark of 45-49% and have passed 2/3 of their annual enrolment may be entitled to a supplementary exam
Grade ‘SAH’ Students who gain an overall mark of >50% but fail the exam hurdle (<50% in exam) may be entitled to sit a supplementary exam
Failure rate for supplementary/special exams is about 60%
LAW OF COMMERCIAL CONTRACT
Academic Progression Rules Students must pass exams to pass subject Students must pass 50% of their annual
enrolment (Nov-October) to stay in program Students must complete diploma before
commencing degree studies
LAW OF COMMERCIAL CONTRACT
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
LAW OF COMMERCIAL CONTRACT
Course Assessment Exam 75% You must pass the exam to pass the course Internal assessment 25%
Test (week 4) 5% Tutorial presentation (weeks 5 to 12) 5% Essay plan (week 8) 5% Essay (week 10) 10%
LAW OF COMMERCIAL CONTRACT
Course Assessment (cont.) Penalty for late submission of assessments is
5% per day off maximum possible mark Extension are only granted for serious medical
or personal events. Requests for an extension must be made in
advance and must be accompanied with medical or other evidence.
LAW OF COMMERCIAL CONTRACT
Text Books Sweeney B and O’Reilly J, Law in
Commerce, Butterworths, Sydney, 2004. School of Law and Legal Studies LCC
Printed Materials 2002
LAW OF COMMERCIAL CONTRACT
Course Objectives By the completion of the subject, you should:
be familiar with the law of contract, the sale of goods, and negligence,
understand how such law develops through the courts and the legislatures, and
appreciate that this law is a social phenomenon, reflecting social values and regulating social relations.
LAW OF COMMERCIAL CONTRACT
Resources www.harley.net.au
Lecture slides Tutorial exercises Notices Course outline including assessment Links Writing guides
LAW OF COMMERCIAL CONTRACT
Resources (cont.) School of Business web site
www.latrobe.edu.au/business/studmats/subjects.htm
A.C.N. Website http://resource.auscampus.net
Libraries LaTrobe Online UTS
LAW OF COMMERCIAL CONTRACT
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
LAW OF COMMERCIAL CONTRACT
Problem Solving No “right” answer A weighing up of
competing factors Comparing &
contrasting cases Must explore all
possibilities
LAW OF COMMERCIAL CONTRACT
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
Begin reading your textbook TODAY Attend free classes on essay writing Ask your lecturer to explain if you don’t
understand something. Give priority to your study over part time work
LAW OF COMMERCIAL CONTRACT
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
LAW OF COMMERCIAL CONTRACT
Sources of Law
Parliament The Courts
Equity Common Law
Contract LawUnconscionable Conduct
Promissory estoppel
Trade Practices Act
Fair Trading Act
Federal State
LAW OF COMMERCIAL CONTRACT
Court Based Law Common Law
The oldest source of law Developed over centuries in England by judges Also called
Judge made law Traditional law
Equity Developed by Court of Exchequer to overcome
injustices Prevails over inconsistent Common Law
LAW OF COMMERCIAL CONTRACT
Court Based Law Fusion
Australian colonies had fused courts to save money
1870’s – Judicature Act reforms in UK Now – Equity often referred to as part of
Common Law Precedent
Both Equity & Common Law on the Doctrine of Precedent
LAW OF COMMERCIAL CONTRACT
Legislation Law made by Parliament 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.
LAW OF COMMERCIAL CONTRACT
Legislation (Cont.) Legislation overrides inconsistent Case Law One important role of Judges is to interpret
legislation Outdated Incomplete Ambiguous Unforseen circumstances
LAW OF COMMERCIAL CONTRACT
Federal System of Government History
Separate colonies of UK Federation – 1901
Promote free trade between the states Limit Federal powers to protect states’
independence Division of Powers between States and
Commonwealth governments
LAW OF COMMERCIAL CONTRACT
Federal System of Government (cont.)• Australian Constitution Act 1900
• Established 3 Branches of Government• The Governor-General (Queen’s rep)• Federal Parliament: House of
Representatives & the Senate• The Courts• This is called the “Separation of Powers”
• Divides Legislative Power between the States and the Commonwealth
LAW OF COMMERCIAL CONTRACT
Division of Powers Commonwealth Powers
Section 51 – non-exclusive powers Section 52 – exclusive powers are limited to those set out in sections 51 &
52 States retain balance of legislative areas
There is an area of overlap s109 - Commonwealth legislation prevails
over inconsistent State legislation
LAW OF COMMERCIAL CONTRACT
Courts The hierarchy of courts Role of the High Court
Original Jurisdiction Appellate jurisdiction Conferred jurisdiction
Federal Courts State Courts
LAW OF COMMERCIAL CONTRACT
High Court
Federal Court Family Court
Federal Magistrates Service
Court of Appeal
County Court
Magistrates Court
Supreme Court
FEDERAL COURTS VICTORIAN COURTS
Privy Council
Appeals Abolished
LAW OF COMMERCIAL CONTRACT
Rule of Law All person treated equally Enforced through
An independent judiciary System of Appeals Publication of laws Free press reporting of cases Stare decisis
LAW OF COMMERCIAL CONTRACT
Stare Decisis Where a court has decided a case in a
particular way, then subsequent cases involving similar facts should be decided in the same way
Precedent Binding - Courts must follow a decision of a higher
court in the same hierarchy Persuasive - Courts will consider decisions of
other courts
LAW OF COMMERCIAL CONTRACT
Precedent Two types
Binding Persuasive
Binding Must be followed and applied
Persuasive Not binding. Considered by the Court and may be
followed
LAW OF COMMERCIAL CONTRACT
Precedent (Cont.) Persuasiveness depends on
quality of decision jurisdiction of the court that gave the
decision
LAW OF COMMERCIAL CONTRACT
Rules of Precedent Lower courts must follow decisions of higher
courts in the same hierarchy A judge does not have to follow decisions of
Judges at the same level. However, will be persuasive.
Judge does not have to follow decisions of higher court in a different hierarchy although they will be persuasive
Highest court in hierarchy can overrule its previous decisions
LAW OF COMMERCIAL CONTRACT
The Court’s Decision (Cont.) Ratio Decidendi
Consists of those parts of the decision that were necessary to decide that particular case
Obiter Dictum Statements made by Judge that are not
necessary to decide the case Remarks in passing
LAW OF COMMERCIAL CONTRACT
Applying Ratio Decidendi Can be difficult to discern Commentators often dispute what is
decisions Ration Decidendi Can be widened or narrowed by later
decisions Facts are rarely exactly the same
LAW OF COMMERCIAL CONTRACT
Example - Donoghue v Stevenson A drink manufacturer has a duty to persons who might drink
their product to take care that the bottle does not contain dead snails
A person has a duty to act in such a way that his or her conduct does not cause harm to others.
A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.
People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.
LAW OF COMMERCIAL CONTRACT
Citing Cases – Volumes by Number Smith v Jones (2001) 145 CLR 203, 207
Name of parties Year of publication Volume number Report name First page of judgment Page on which specific passage appears
LAW OF COMMERCIAL CONTRACT
Citing Cases – Volumes by Year Smith v Jones [1945] 2 All ER 203, 207
Name of Parties Year of Volume Volume number if more than one volume in
a year Report name Page on which specific passage appears
LAW OF COMMERCIAL CONTRACT
Citing Cases – Medium Neutral Smith v Jones (2001) HCA 203, [20]
Year of decision Court designator Judgment number Paragraph number
LAW OF COMMERCIAL CONTRACT
Form and Structure Number of the Act Table of Provisions Title of Act
Short Title Long Title
Date of Assent Often identifies starting date of law Unless Act specifies otherwise, Act starts 28 days
after Assent Proclamation date ie when published in
Government Gazette
LAW OF COMMERCIAL CONTRACT
Form and Structure (Cont.) Internal Division
Part Division Section Sub sections Paragraphs
Purpose or Objects clause Older Acts have a Preamble
LAW OF COMMERCIAL CONTRACT
Form and Structure (Cont.) Definitions Sections Headings
Allows easy reference and research
LAW OF COMMERCIAL CONTRACT
Interpretation of Legislation 3 Approaches
1. Literal Approach
2. Golden Rule
3. Purpose Approach
The purpose Approach is now required b y the Acts Interpretation Acts
LAW OF COMMERCIAL CONTRACT
Approaches to InterpretationLiteral The Court will give the words of a Statute
their ordinary meaning even if it produces an absurd, unjust, inconsistent or meaningless result
Dictionary meaning - but which dictionary? Sometimes the “legal” meaning is used More popular in the past
LAW OF COMMERCIAL CONTRACT
Approaches to Interpretation (Cont.)The Golden Rule
“...the grammatical and ordinary use of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the [document], in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further”
Grey v Pederson (1857) 10 ER 1216 per Lord Wensleydale
LAW OF COMMERCIAL CONTRACT
Approaches to Interpretation (Cont.) Purpose Approach Courts try to determine the intention of
Parliament when it passed the Act. Seeks to discover the wrong that Parliament
tried to correct by the statute and interpret the Act accordingly.
LAW OF COMMERCIAL CONTRACT
Approaches to Interpretation (Cont.)Purpose Approach 4 elements:
What was the law before the Act? What mischief did the prior law not provide for? What remedy did Parliament establish to remedy
that mischief? How can the Court interpret the Act in order to
correct the mischief? How do you discover the intentions of Parliament?
LAW OF COMMERCIAL CONTRACT
Principles of Interpretation Act to be read as a whole Words to be presumed to have consistent
meanings throughout Act Technical words to be given technical
meaning Certain rules give rise to presumptions
LAW OF COMMERCIAL CONTRACT
Principles of Interpretation (Cont.) Means versus Includes
“Means” is an exhaustive definition “includes” is not exhaustive
Mandatory versus Discretionary Mandatory - the thing must be done Discretionary - there is a choice “may” = discretion “shall” = mandatory
LAW OF COMMERCIAL CONTRACT
Principles of Interpretation (Cont.) Ejusdem Generis
“of the same kind” Expressio Unius
where something is expressly referred to, everything else is excluded
Special provisions prevail over general provision