Guy Harley Bachelor of Law (University of Adelaide – 1978)

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 • guy@harley.net.au

2. Dates for 2nd Semester • Classes start - 13 July • Assessment – 6 September 2004 • Classes finish – 4 October 2004 • Exams – 14 to 22 October

3. 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

4. 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

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

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

9. Resources (cont.) • Course Website • www.bus.cqu.edu.au/CSTUDENT • Library • Online journals & databases • Butterworth Online • www.austlii.edu.au • Learning Support Unit

10. 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

11. 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

12. 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

13. 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)

14. Introductory & Contract LawLecture 1 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter 1

15. 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

16. 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

17. 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

18. 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

19. 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.

20. 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.

21. Civil & Criminal Law • 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

22. Procedural & Substantive Law • 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

23. Public & Private Law • Public Law • Relations between citizens and the state • Private Law • Relations between citizens

24. Public & Private Law - Examples • Public Law • Criminal • Administrative • Constitutional • Revenue • industrial • Private Law • Contract • Tort • Family • Property • Company

25. 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

26. The English Legal System • Adversarial System • Civil • Plaintiff • Defendant • Criminal • The Crown • The Accused

27. The English Legal System • Adversarial System (cont.) • Decision makers • Jury • Judge • Lawyers • Solicitors • Barristers

28. 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

29. Criminal Cases • Minor • Complaint • Summary trial by magistrate • Conviction • Sentence • Serious • Information • Committal hearing • Indictment • Trial by judge and jury • Conviction • Sentence

30. Civil Cases • Summons • Pleadings • Discovery of documents • Pre-trial hearings • Settlement conferences • Trial • Judgement • Orders

31. Proving a Claim (cont.) • Affidavit • Subpoena • Witnesses • Oral evidence • Documents • Official records

32. 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

33. Alternative Dispute Resolution • Negotiation • Mediation • Conciliation • Arbitration • Litigation • Annihilation