1. 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)

2. 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)

3. 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 – June
Exam results released – approx 19 July

4. 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

5. 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.

6. 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%

7. 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

8. 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

9. 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%

10. 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.

11. Text Books
Sweeney B and O’Reilly J, Law in Commerce, Butterworths, Sydney, 2004.
School of Law and Legal Studies LCC Printed Materials 2002

12. 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.

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

16. Resources (cont.) School of Business web site
A.C.N. Website
Libraries
LaTrobe Online
UTS

17. 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

18. Problem Solving No “right” answer A weighing up of competing factors
Comparing & contrasting cases
Must explore all possibilities

19. 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

20. The Australian Legal System
Week 1
The Australian Legal System

21. 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

22. Unconscionable Conduct
Sources of Law
Parliament
The Courts
Federal
State
Equity
Common Law
Trade Practices Act
Fair Trading Act
Promissory estoppel
Unconscionable Conduct
Contract Law

23. 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

24. 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

25. 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.

26. Legislation (Cont.) Legislation overrides inconsistent Case Law
One important role of Judges is to interpret legislation
Outdated
Incomplete
Ambiguous
Unforseen circumstances

27. Pecking Order
Legislation
Regulation
Equity
Common Law

28. 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

29. 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

30. 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
SECT 51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i) trade and commerce with other countries, and among the States;
(ii)taxation; but so as not to discriminate between States or parts of States;
(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
(iv) borrowing money on the public credit of the Commonwealth;
(v) postal, telegraphic, telephonic, and other like services;
(vi)the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
(vii) lighthouses, lightships, beacons and buoys;
(viii) astronomical and meteorological observations;
(ix) quarantine;
(x) fisheries in Australian waters beyond territorial limits;
(xi) census and statistics;
(xii) currency, coinage, and legal tender;
(xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;
(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;
(xv) weights and measures;
(xvi) bills of exchange and promissory notes;
(xvii) bankruptcy and insolvency;
(xviii) copyrights, patents of inventions and designs, and trade marks;
(xix) naturalization and aliens;
(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
(xxi) marriage;
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
(xxiii) invalid and old-age pensions;
(xxiiiA) the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;
(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;
(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;
(xxvii) immigration and emigration;
(xxviii) the influx of criminals;
(xxix) external affairs;
(xxx) the relations of the Commonwealth with the islands of the Pacific;
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
(xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;
(xxxiv) railway construction and extension in any State with the consent of that State;
(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;
(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;
(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
SECT 52 Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
(iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

31. Courts The hierarchy of courts Role of the High Court
Original Jurisdiction
Appellate jurisdiction
Conferred jurisdiction
Federal Courts
State Courts

32. Federal Magistrates Service
Privy Council
FEDERAL COURTS
VICTORIAN COURTS
Appeals Abolished
High Court
Court of Appeal
Federal Court
Categories of courts The Courts system in Victoria can seem complicated. Because laws are made by both State and Federal governments, and as a result of the Constitution, there are both State and Federal courts and tribunals. Sometimes there might be more than one law involved and so there might be more than one court or tribunal relevant to your situation.
Victorian Courts
Small cases, either involving disputes about small amounts of money (up to $40,000) or less serious crimes, are dealt with in the Magistrates' Court of Victoria. The County Court of Victoria deals with more serious crimes or amounts of money between $40,000 and $200,000. Most appeals from the Magistrates' Court are heard in the County Court. The Supreme Court of Victoria hears very serious criminal cases, such as murder, and also hears cases about large disputes over money and businesses. It can also hear appeals about decisions made in the County Court.
The Court of Appeal is really part of the Supreme Court. It hears appeals from decisions of single judges of the Supreme Court
Federal Magistrates Service
The Federal Magistrates' Service is a Federal court that hears some of the smaller cases that might otherwise go to the Family Court or the Federal Court of Australia. Its jurisdiction includes family law and child support, administrative law, bankruptcy, consumer protection, human rights, privacy law and migration matters. The service shares those jurisdictions within the Family Court of Australia and the Federal Court of Australia. Some work in those jurisdictions will also continue to be done in state courts.
Family Court Divorce cases, and disputes about who should look after children after there has been a break up between two parents, as well as disputes about dividing property after a marriage breakdown, are all heard in the Family Court. The Family Court is a Commonwealth Court.
Federal Court
The Federal Court of Australia looks after a number of Federal law matters such as trade disputes, industrial disputes, bankruptcy, federal anti-discrimination laws, and so on. The Court is a superior court of record and a court of law and equity. It sits in all capital cities in Australia and elsewhere in Australia from time to time. The Court's original jurisdiction is conferred by over 120 statutes of the Australian Parliament. The Court exercises appellate jurisdiction over decisions of single judges of the Court, decisions of the Supreme Courts of the Australian Capital Territory and Norfolk Island, decisions of the Federal Magistrates Service in non-family law matters and certain decisions of Australian State Supreme Courts exercising federal jurisdiction.
High Court Jurisdiction
The Australian Constitution vests two types of jurisdiction in the High Court: original and appellate. One of the High Court's principal functions is to decide disputes about the meaning of the Constitution.
Family Court
Supreme Court
County Court
Federal Magistrates Service
Magistrates Court

33. 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

34. 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

35. Precedent Two types Binding Persuasive Must be followed and applied
Not binding.
Considered by the Court and may be followed

36. Precedent (Cont.) Persuasiveness depends on quality of decision
jurisdiction of the court that gave the decision

37. 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

38. 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

39. 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

40. 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.

41. 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

42. 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

43. Citing Cases – Medium Neutral
Smith v Jones (2001) HCA 203, [20]
Year of decision
Court designator
Judgment number
Paragraph number

44. 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

45. Form and Structure (Cont.)
Internal Division
Part
Division
Section
Sub sections
Paragraphs
Purpose or Objects clause
Older Acts have a Preamble

46. Form and Structure (Cont.)
Definitions Sections
Headings
Allows easy reference and research

47. Interpretation of Legislation
3 Approaches
Literal Approach
Golden Rule
Purpose Approach
The purpose Approach is now required b y the Acts Interpretation Acts

48. 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

49. 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

50. 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.

51. 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?

52. 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

53. 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

54. 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

55. Principles of Interpretation (Cont.)
Statutes that should be construed narrowly
Penal statutes
Taxation Acts
Acts that change common law