TUTORIALS START THIS WEEK

TABL 1710
Business and the Law

Tutorials go from week 2 (this week) to week 13

inclusive
You must be enrolled in a tutorial and you must attend
the tutorial in which you are enrolled
There is an 80% attendance requirement for tutorials in
this course
If you need to attend another tutorial for a week, please
let the Lecturer-in-Charge AND your tutor know: do not
just turn up to another tutorial!
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all tutorials are completely FULL

Lecture 2

Legislation and Case Law

Lecturer: Dr Leela Cejnar

2015 The University of New South Wales

Sydney 2052 Australia
The original material prepared for this guide is copyright. Apart from fair dealing for the purposes of private study, research, criticism or review,
as permitted under the Copyright Act, no part may be reproduced by any process without written permission.
Enquiries should be addressed to the Head of School, Taxation and Business Law, UNSW, Sydney

MOODLE

PRESCRIBED TEXT

All course information will be on Moodle

Paul Latimer
Australian Business Law, 34th edn, CCH, 2015

Course Outline
Tutorial Program
Lecture Slides
Discussion Forum (one for each tutorial: opens week
commencing 23 March)
Major Assignment: will be uploaded on Moodle in
week 4 (due Monday 4 May, beginning of Wk 9)

(or 33rd edn, CCH, 2014 is acceptable

BUT do not use any editions prior to 2013)

Weekly topic/readings

Lecture 1: Review

See Course Schedule in the Course Outline

From week 3: see references to textbook
paragraph numbers in lecture slides

Sources of Law
Parliament (Legislation/Statutes/Acts of Parliament/Enacted)
Courts (Judge-made law/Case law/Common law/Unenacted)
Classifications of law
International (treaties etc) /domestic (Australian)
Public (government) /private (individuals/organisations)
Substantive (actual rights)/procedural (process)
Common law/civil law
Civil law Codes (eg used in Europe, some parts of Asia etc)
Common law Courts/Judges/Cases
civil actions (emphasis on remedies)
criminal actions (emphasis on punishment)
different standards of proof

Lecture 1: Review

Lecture 1: Review
Origins of Australian Law
Inherited English system of law
Federation/Constitution 1901
Levels of Government: Federal/State
Westminster system: constitutional monarchy/separation of
powers/responsible government
Separation of powers: Parliament/Executive/Judiciary
3 separate institutions (doctrine of separation of powers)
Parliament: 2 houses (House of Reps/Senate)

Development of Australian Legal System

1788: Arrival of first fleet
1823: Court system established in NSW
1828-1853: development of NSW parliament
1901: Federation
- Establishment of Australian Commonwealth
- Federal/State system of government

1986: Australia Act (to be discussed)

1992: High Courts Mabo decision (Native Title)

How Laws Made/Structure of an Act

Executive: Governor-General/Prime Minister and

Cabinet/Government Ministers, Government Departments
and the Public Service
Judiciary: the Judges and the Courts
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Lecture 2:

Overview Lecture 2
Legislation and Case Law

What is legislation
How laws are made
Statutory Interpretation
The process of using legislation to solve legal problems
What is the Judiciary
the court system
the role of the courts
Court hierarchy
Alternative methods to courts
Basic procedure in a court
Doctrine of Precedent
The process of using case law to solve legal problems
Legal Research

On completion of this week in you should have an

understanding of:
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How laws are made

The rules of statutory interpretation
The Australian court structure and hierarchy
How judges make law
The doctrine of precedent and how it operates
Some alternatives methods (ie other than the courts) to
resolving legal disputes

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Legislation
Legislation refers to the laws created by
parliament (ie. Federal or State/Territory)
Legislation can last for ever or until it
is changed

Parliamentary
Draftsman

Legislation is also known as:

Statute Law
Acts of Parliament
enacted law

Cabinet

Political Party

Ministers

Department Heads

Backbench
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How laws are

made?

Voters
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Structure of an Act

1st Reading
2nd Reading
3rd Reading
Parliamentary
Draftsman draft a
Bill. It is then put
forward to
Parliament by the
party/person who
wants to see it
become law

House of
Representatives
(Lower House)

1st Reading
2nd Reading
3rd Reading

Committees

Senate (Upper
House)

On Proclamation Date the

Bill (now called an Act)
becomes LAW

Governor
Generals
consent

Short title
Table of Provisions
Purpose
Commencement
Definitions section:
also throughout Act
see also Acts Interpretation Act 1901 (Cth) and of Acts
Interpretation Act of various states
Headings for each section:
headings do not form part of the Act but can be used to assist
interpretation
Sections of the act
can be divided into subsections, paragraphs and subparagraphs

See Latimer at 1-200

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Delegated Legislation

Citing Legislation

Delegated or subordinate legislation consists of:

Competition and Consumer Act 2010 (Cth)

Civil Liability Act 2002 (NSW)

Rules
Regulations
By-laws
Orders and administrative guides

Does not need to be passed by both houses of

parliament
Made by the Governor General on the advice of
the Executive
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Finding legislation
See http://www.austlii.edu.au/: resource of
Australian and international legal materials

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Statutory interpretation
Other role Courts have is to interpret legislation made by
parliament
But only if legislation is unclear if it is clear, valid and
unambiguous, courts must apply the legislation
If it is unclear courts can make law to clarify the
legislation and that becomes part of the judge made law
(ie decisions in cases)

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Statutory interpretation

Statutory interpretation

When the source of the law is a statutory provision:

BUT: if there is an inconsistency between case law and

legislation, legislation prevails

A judge who interprets the meaning of the words of

the statute also creates precedent
This may be used in future cases to determine the
meaning of the same statutory words or provisions

Always remember if there is a law in a statute or

legislation, it takes precedence over the case law/judge
made law

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Rules of Statutory Interpretation

Rules of Statutory Interpretation

To assist in interpretation of statutes, judges created

set of common law rules:
Literal rule
court gives effect to the literal meaning of the legislation
Golden rule
court gives effect to the literal meaning unless that leads to some
absurdity
this rule is no longer used
Mischief rule
where words are ambiguous, inconsistent or illogical, the court
interprets the legislation to overcome the mischief

Increasing frustration (from the Parliament) with Judges

failing or refusing to give effect to Parliaments intention
when interpreting statutory provisions
Parliament created the Interpretation statutes:
Acts Interpretation Act 1901 (Cth)
Interpretation Act 1987 (NSW)

Interpretation statutes deal with:

How to interpret statutory provisions (the purposive rule)
Define commonly used terms

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Rules of Statutory Interpretation

Rules of Statutory Interpretation

Purposive Rule
Section15AA of the Acts Interpretation Act 1901 (Cth)
the court must consider the purpose of the legislation
The purposive rule is now the ONLY rule available
to Judges when interpreting the words of a statute

First place to look for the meaning of a word used in a

statute is IN THE STATUTE ITSELF
Intrinsic materials
Definitions section:
- within the Act
- or cross-reference to a definition in another Act

Secondly, look at a dictionary/rules of grammar/other

precedent cases that may have defined or explained
the meaning of the word or phrase (or similar
words/phrases)
Consider any extrinsic materials (See next slide)
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Statutory Interpretation

Statutory Interpretation

Extrinsic materials
Section 15AB
When the legislation is ambiguous the Court may rely
on extrinsic material to interpret the meaning of the
section

What are extrinsic materials?

Examples:
Explanatory memorandum
Parliamentary debates/Second reading speeches
Parliamentary committee reports
Law reform commission reports
International treaties

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Applying legislation to
resolve legal problems

Case law

ASK:
Is particular legislation potentially relevant to the
problem/case that has arisen?
When was the legislation enacted?
Which section(s) of the legislation are relevant to the
problem?
Is there an interpretation question (for example, what
was the purpose of enacting the legislation?)
Applying the relevant sections of the legislation to the
facts of the problem/case, what decision is a court likely
to make?

Case law is also known as:

common law
precedent
unenacted law

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Role of the judges and the courts

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The police vs the courts

Judges/courts impose a legally binding decision on the

parties to the dispute
The courts have criminal and/or civil jurisdiction
Jurisdiction = power and authority conferred upon a
court to hear and determine a matter

The role of the police

Police enforce the laws created
The role of the courts
The courts are involved in the administration of the
law as well as the resolution of disputes

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The adversary system

Features of the adversary system
Two opposing sides who argue their case in a court presided
over by a neutral third party (e.g. Judge)
One side will win; one side will lose
In a civil case parties prove their case on the balance of
probabilities
In a criminal case the Crown proves the case beyond
reasonable doubt

http://www.fedcourt.gov.au/videos/The_Court_Room_sml.wmv

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The parties

The parties (contd)

Plaintiff - the person starting a civil action

Defendant - the person defending a civil action
The plaintiff has the burden of proof (onus) to prove the
case on the balance of probabilities

For appeals:
Appellant - a person appealing against a previous decision and
who can be either the plaintiff or defendant from the first case
Respondent - the party who was successful in the first action

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The parties (contd)

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The Australian Legal Profession

For criminal matters:

Crown
represents the state in a criminal action against an accused
R is an abbreviation of Regina or Rex and refers to the Crown
Accused - the person against whom a criminal action is brought by
the State
The Crown has the burden of proof (onus) to prove the case beyond
reasonable doubt

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Solicitors and Barristers

Solicitors
Most of their work is of a non-litigious nature such as
conveyancing, preparation of wills, commercial, family law
matters, preparation of court documents
Barristers
Generally do not deal directly with the public, though in most
states they now can. Their main roles are preparation of legal
opinions, and court appearances

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The judiciary

The judiciary (contd)

Justices of the Peace

Magistrates

Bulk of their work involved in witnessing of documents

Trained, full-time salaried public servants selected from among the

clerks of the court and the legal profession
They preside over inferior courts and are the sole determiners of
both fact and law

To be eligible for appointment as a Justice of the Peace in NSW,

you must:
be at least 18 years of age
be nominated by a Member of NSW Parliament
be an Australian citizen
be of good character
consent in writing to confidential inquiries being made as your suitability for
appointment, including a criminal records check
not be an undischarged bankrupt
establish that your appointment as a justice of the peace is required for your
employment or to fulfil a community-based need for the appointment

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The judiciary (contd)

The jury
The jury determines questions of fact
In criminal trials:
All accused are entitled to a jury of 12 in all cases in intermediate
and superior courts where the accused pleads not guilty to an
indictable offence
In civil cases:
Because of cost, they are not used as much as they once were

Judges
Appointed to all courts above the inferior courts and generally
appointed from members of the Bar
Duties include:
deciding questions of fact and law;
ensuring rules of evidence are followed;
passing sentence in criminal cases or determining appropriate
compensation in civil cases; and
hearing appeals

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How does a dispute get to Court?

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The courts

Plaintiff
Solicitor issues a
letter of demand

Features of the court hierarchy:

Defendant

system of appeals (lower to higher court)

different forms of hearings for different types of cases

Issue of originating process

(summons/statement of claim)

The Defence document

builds precedent

Court
Pre trial mentions
Discovery/Interrogatories/Exchange of
Affidavits
Matter set down for trial
Trial (or Hearing)

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Australian court system

The court system

Original and Appellate Jurisdiction
A courts jurisdiction is established by its enabling Act
Original jurisdiction is the authority to hear a case
when the case is first brought before a court
Appellate jurisdiction is the authority of a court to
hear appeals from decisions of courts of a lower level
in the same court hierarchy

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State court system

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State court system (contd)

Inferior (or Local) Courts

Inferior (Local) Courts

Inferior or local courts are located at the bottom of the

Court Hierarchy

There is less emphasis on formality than in higher

courts

Generally presided over by a Magistrate

Still expected to follow procedural

rules and the laws of evidence

The aim of these courts is to settle disputes locally,

quickly and cheaply

The jurisdiction of local courts differ from State to

State

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State court system (contd)

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State court system (contd)

Intermediate (County or District) Courts

Supreme Courts

Form the middle level court in most hierarchies with

original civil jurisdiction
In their criminal jurisdiction they deal with the bulk of
indictable offences except for the more serious crimes
and they have limited appellate jurisdiction

Highest court in each State or Territory, a court of

record, presided over by a Judge
They have unlimited original jurisdiction in both civil
and criminal matters but hear only most serious cases
They have appellate jurisdiction
Vic, NSW, Qld, the ACT and NT have established
separate Courts of Appeal

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State court system (contd)

Federal court system

Specialist Courts
There are a number of other courts, set up with
specialist expertise, in the various states and
territories. These include:
Family Courts
- Family Violence Court
- Family Matters Court
Land and Environment Courts

Federal Circuit Court of Australia

In April 2013 the Federal Magistrates Court of Australia
was re-named the Federal Circuit Court of Australia
Examples of matters dealt with:
minor family law, bankruptcy and trade practices
matters
applications under the Judicial Review Act 1991 (Cth)
appeals from the Administrative Appeals Tribunal

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Federal court system (contd)

Federal court system (contd)

Family Court

Federal Court of Australia

Established by the
Family Law Act 1975 (Cth)
Exercises both an original and appellate jurisdiction
over all matrimonial matters
Appeals only lie on questions of law to Full Court of
the Family Court

Jurisdiction established by the Federal Court of Australia

Act 1976 (Cth)
In its original jurisdiction the court hears such matters
relating to bankruptcy, trade practices, intellectual
property and taxation
Its appellate jurisdiction hears appeals from single
judges of the Supreme Courts of the Territories, as
well as appeals from decisions of single judges of the
Federal Court
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Federal court system (contd)

Federal court system (contd)

High Court

High Court

Established under s 71 of the Australian Constitution

Australia Act 1986 effect of it:

Limited original jurisdiction conferred by s 75 of Commonwealth

Constitution, over matters:
arising under any treaty
affecting consuls or other representatives of other countries
in which the Commonwealth, or a person suing or being
sued on behalf of the Commonwealth, is a party
between States, or between residents of different States, or
between a State and a resident of another State
in which an order (writ of mandamus or injunction) or prohibition
is sought against an officer of the Commonwealth

Appeals to UK Privy Council cease

High Court of Australia becomes our final court of appeal
Australia has complete legislative independence from UK

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Appellate jurisdiction in both civil and criminal matters arising from the
State Supreme Courts and Federal Courts

Appeals within Federal & Supreme

Cts

Federal court system (contd)

High Court

High Court

Appeals do not lie as of right

By leave only, that is

not automatic

Approval to hear an appeal must first be granted by

the High Court

Court of Appeal/Full Court/Court of

Criminal Appeal

The High Court is the final court of appeal within the

Australian legal system

(2 3 Judges)
Single Judge

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Court hierarchy

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The Doctrine of Precedent

The Court hierarchy has three significant purposes:

It provides a system of appeals
It allows different forms of hearing according to the
gravity or seriousness of the case

A court is bound to follow previous decisions of

higher court in the same hierarchy
Court hierarchy critical to understanding operation of
precedent

It is instrumental in building up precedent

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The Doctrine of Precedent

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The Doctrine of Precedent

Binding precedent

Exceptions:
if any inconsistency with a higher courts decision
wrong in law

Facts same/similar
Court which made the precedent is in the same hierarchy AND is
a court of higher authority/superior court
- decision of High Court binding on all courts in Australia
- decision of District Court not binding on Supreme Courts

Persuasive precedent
Seriously considered; may or may not be followed
Decided by court on the same level of hierarchy or in a different
hierarchy
- decision of Supreme Court of NSW persuasive but not
binding on decision of Supreme Court of Victoria
- decisions of overseas courts (eg. UK) are persuasive in Australia

Court was equally divided

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The Doctrine of Precedent

Binding

The High Court

Full Federal
Court

Hig

Single Judge

Federal Magistrates
Court

Stare decisis

Binding

Full Supreme
Court

Stare decisis
the decision stands ; or
to stand by what has been decided

Single Judge

Another term for the doctrine of precedent

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District Court

Local Court

Federal

State

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Ratio Decidendi

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Spotting the Ratio

Latin translated as the reason for the decision

What the case stands for
Rationale behind a courts decision and the legal
grounds on which the decision stands
Ratio Decidendi of a higher court is binding on lower
courts
Makes the case a precedent for the future

The structure of a typical judgement is usually as

follows:

Summary of Evidence
Findings of Fact
Review of arguments
Law and decision

Ratio is usually buried here

Look for clues eg judge may start a sentence with the

legal principle is or the law has always held that
manufacturers must .
Ask yourself what principle does the case stand for?

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Obiter Dictum

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Finding case law

Case law is published in authorised reports
Each court has its own report series
High Court: Commonwealth Law Report
Various legal publishers also publish their own law report
series dedicated to particular areas of law
CCH Australia Australian Torts Reporter; Australian
Trade Practices Reporter etc
Consult textbooks, legal encyclopaedias, current law
publications, case digests
See also http://www.austlii.edu.au/: resource of
Australian and international legal materials

Latin translated as a remark in passing or material

said by the way
Judicial observations that do not form part of the
reasoning of the case
Unlike ratio decidendi obiter dicta are not binding on
lower courts
However obiter dicta may be of persuasive authority,
particularly the obiter dicta of eminent judges or of
higher courts

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Case reports

Case reports

Mabo v Queensland (1992) 175 CLR 1

Donoghue v Stevenson [1932] AC 562

The v is read as and

Date is usually the year of the trial or appeal
Letters are abbreviation for the law report series
Number after the round brackets is the volume
number of the law report series

Square brackets [ ] indicate the the law report series

are in volumes by year
Final numbers (eg 562) are the page numbers which
indicates what page the report starts on

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Terminology

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Terminology

Affirm/Approve
To uphold a judgment
Reverse/Overrule
Set aside a judgment on appeal
Applied
Using relevant case law to decide a case

Followed
Applying the law made in a previous case without
amendment
Not Followed
Not applying the law made in a previous case
Distinguished
Stating differences between the precedent that is
proposed as relevant and the present case
- Later court asked to follow precedent that has different facts
- Some facts might need to be treated/considered in different
light
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Applying case law to

resolve legal problems

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Alternative methods to courts

ASK:
What are the key facts of the problem/case
Identify the legal issues or problems that arise
Look for previous cases (precedent) that may indicate
how the course might decide the present problem/case
Apply the relevant case law to the facts of the
problem/case.
Are there any difference in circumstances that might
affect the decision a court is likely to make?

Alternative methods of dispute settlement have grown in

the last few years because of the delays, costs,
ignorance and intimidation of the traditional court system
These include
Tribunals,
Ombudsmen, and
Alternative dispute resolution

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In-class exercise
on Lecture Topics 1 and 2

Alternative Dispute Resolution (ADR)

Has arisen because of the disadvantages of court

litigation
Types of ADR
arbitration
mediation
negotiation
expert determination

In tutorials in week of 23 March

CLOSED BOOK
Revise using lecture slides and questions in Tutorial
Program
Students will be allowed to collaborate but no materials
will be allowed
Worth 10%

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Lecture 3
Introduction to Contract Law
Making a Contract:
Nature and role of contract law;
Requirements for a valid contract

READ Latimer Ch 5 at 5-010 to 5-485

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