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Guy Harley Bachelor of Law (University of Adelaide – 1978) Barrister and Solicitor in Adelaide for 18 years PowerPoint PPT Presentation


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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] A.C.N. Staff Alyson Moore, Managing Director Roz Grant, General Manager

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Guy Harley Bachelor of Law (University of Adelaide – 1978) Barrister and Solicitor in Adelaide for 18 years

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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]


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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)


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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


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Academic Support

  • Thursdays 12.00pm –2.00pm – help with planning assignments, study skills, reading & writing

  • Essay writing for examsMon 29 March & 5 April, 4.30pm – 6.30pm

  • Answering multiple choice questions Mon 3 May 4.30pm – 6.30pm

  • Answering short answer questionsMon 17 May 4.30pm – 6.30pm


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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.


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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%


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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


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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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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%


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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.


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Text Books

  • Sweeney B and O’Reilly J, Law in Commerce,Butterworths, Sydney, 2004.

  • School of Law and Legal Studies LCC Printed Materials 2002


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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.


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Resources

  • www.harley.net.au

    • Lecture slides

    • Tutorial exercises

    • Notices

    • Course outline including assessment

    • Links

    • Writing guides


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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


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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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Problem Solving

  • No “right” answer

  • A weighing up of competing factors

  • Comparing & contrasting cases

  • Must explore all possibilities


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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

  • 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


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Week 1

The Australian Legal System


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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


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Sources of Law

Parliament

The Courts

Federal

State

Equity

Common Law

Trade Practices Act

Fair Trading Act

Promissory estoppel

Unconscionable Conduct

Contract Law


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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


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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


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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.


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Legislation (Cont.)

  • Legislation overrides inconsistent Case Law

  • One important role of Judges is to interpret legislation

    • Outdated

    • Incomplete

    • Ambiguous

    • Unforseen circumstances


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Pecking Order

  • Legislation

  • Regulation

  • Equity

  • Common Law


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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


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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


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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


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Courts

  • The hierarchy of courts

  • Role of the High Court

    • Original Jurisdiction

    • Appellate jurisdiction

    • Conferred jurisdiction

  • Federal Courts

  • State Courts


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Privy Council

FEDERAL COURTS

VICTORIAN COURTS

Appeals Abolished

High Court

Court of Appeal

Federal Court

Family Court

Supreme Court

County Court

Federal Magistrates Service

Magistrates Court


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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


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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


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Precedent

  • Two types

    • Binding

    • Persuasive

  • Binding

    • Must be followed and applied

  • Persuasive

    • Not binding.

    • Considered by the Court and may be followed


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Precedent (Cont.)

  • Persuasiveness depends on

    • quality of decision

    • jurisdiction of the court that gave the decision


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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


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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


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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


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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.


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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


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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


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Citing Cases – Medium Neutral

  • Smith v Jones (2001) HCA 203, [20]

    • Year of decision

    • Court designator

    • Judgment number

    • Paragraph number


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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


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Form and Structure (Cont.)

  • Internal Division

    • Part

    • Division

    • Section

    • Sub sections

    • Paragraphs

  • Purpose or Objects clause

    • Older Acts have a Preamble


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Form and Structure (Cont.)

  • Definitions Sections

  • Headings

    • Allows easy reference and research


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Interpretation of Legislation

  • 3 Approaches

    • Literal Approach

    • Golden Rule

    • Purpose Approach

  • The purpose Approach is now required b y the Acts Interpretation Acts


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Approaches to Interpretation

Literal

  • 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


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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


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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.


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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?


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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


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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


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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


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Principles of Interpretation (Cont.)

  • Statutes that should be construed narrowly

    • Penal statutes

    • Taxation Acts

    • Acts that change common law


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