Guy Harley Bachelor of Law University of Adelaide

Guy Harley § Bachelor of Law (University of Adelaide – 1978) § Barrister and Solicitor in Adelaide for 18 years § Master of Business (e. Business) (University of SA 2001) § Contact Information § guy@harley. net. au Copyright Guy Harley 2004 1

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

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 Copyright Guy Harley 2004 3

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 Copyright Guy Harley 2004 4

Text Books § Turner C. , 2003, “Australian Commercial Law”, 24 th Ed, Lawbook Co, Sydney § Gibson A, Rigby S & Transmitt G, 2003, “Commercial Law in Principle”, 2 nd Ed, Lawbook Co, Sydney. Copyright Guy Harley 2004 5

Resources § Lecturer’s web site § § § § www. harley. net. au Lecture slides Tutorial exercises Notices Course outline including assessment Links Writing guides Copyright Guy Harley 2004 6

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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 Copyright Guy Harley 2004 9

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 Copyright Guy Harley 2004 10

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 Copyright Guy Harley 2004 11

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 Copyright Guy Harley 2004 12

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) Copyright Guy Harley 2004 13

Introductory & Contract Law Lecture 1 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter 1 Copyright Guy Harley 2004 14

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 Copyright Guy Harley 2004 15

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 Copyright Guy Harley 2004 16

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 Copyright Guy Harley 2004 17

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 Copyright Guy Harley 2004 18

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. Copyright Guy Harley 2004 19

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. Copyright Guy Harley 2004 20

Civil & 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 Copyright Guy Harley 2004 21

Procedural & 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 Copyright Guy Harley 2004 22

Public & Private Law § Public Law § Relations between citizens and the state § Private Law § Relations between citizens Copyright Guy Harley 2004 23

Public & Private Law - Examples § Public Law § § § Criminal Administrative Constitutional Revenue industrial § Private Law § § § Contract Tort Family Property Company Copyright Guy Harley 2004 24

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 Copyright Guy Harley 2004 25

The English Legal System § Adversarial System § Civil § Plaintiff § Defendant § Criminal § The Crown § The Accused Copyright Guy Harley 2004 26

The English Legal System § Adversarial System (cont. ) § Decision makers § Jury § Judge § Lawyers § Solicitors § Barristers Copyright Guy Harley 2004 27

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 Copyright Guy Harley 2004 28

Criminal Cases § Minor § § Complaint Summary trial by magistrate Conviction Sentence § Serious § § § Information Committal hearing Indictment Trial by judge and jury Conviction Sentence Copyright Guy Harley 2004 29

Civil Cases § § § § Summons Pleadings Discovery of documents Pre-trial hearings Settlement conferences Trial Judgement Orders Copyright Guy Harley 2004 30

Proving a Claim (cont. ) § Affidavit § Subpoena § Witnesses § Oral evidence § Documents § Official records Copyright Guy Harley 2004 31

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 Copyright Guy Harley 2004 32

Alternative Dispute Resolution § § § Negotiation Mediation Conciliation Arbitration Litigation Annihilation Copyright Guy Harley 2004 33