First Principles of Business Law 2014 Leslie Lam Chapter 1: Government and Law in Australia
The Concept of Law
Natural laws: how things work in society (parents look after their offspring) Moral and religious laws: belief
Custom: peer pressure, tradition (fashion)
National law: Government of country recognise and enforce law Law as a regulator of behaviour
- Restricts the use of force (unauthorised violence) - Prohibit and punish
- Permit and reward
- Creation of right and duties Law vs Justice
- Not all laws are just
- Balance justice predictability Anatomy
- Catergories
o Criminal, contract, tort, consumer protection etc.
- Legal concepts:nature of a category i.e. intention to be bound, consideration, agreement
- Legal principles: give effect to a view,value or policy i.e. it is a contract is parties intend to be legally bound - Legal rules: which principles are given effect
- Legal meanings: meanings and significance of words i.e consideration and “frustration”
- Legal authorities: court or parliament Development of Western European legal systems Roman Law
- First system, used as a basis of law English System
- England develops its own laws (common law) - It is the legal foundation for Australia
Establishment of Australia
- 1: Colonies/ States QLD,VIC,NSW,TAS,WA,SA
- 2: Britain allowed colonies to be self-governing (commonwealth of Australia Constitutional Act 1990) - 3: New Federal Australian Government to address national issues
Powers of Australian Government
The Crown
Legislature Executive Courts Local Government
Political Parties
The Crown
- The Queen
- Queens representatives
o Federal: Governor General o State: Governor
o Have powers in Aust. Constitution
Appoint people
Royal assent: pass legislatures
Commission judges The Executive
- Consist of : crown(governors), Prime minister (chosen by party), cabinet(PM and senior ministers), statutory offices
- Law making powers o Legislation
Resolve conflicts(commonwealth vs state)
Commonwealth prevails over state law (if state is inconsistent with cth) o Can coexist
o Formal assent o Legal regulations The courts
Original/ first hearing: case to trial for FIRST time
Appeal: Decision in court is to taken to higher court for reconsideration Don’t have direct power to make new law
The High court
Superior Courts (Supreme Court) Inferior Courts
Further ranked: Intermediate and Lower courts Local Government
Chapter 2: Legislation
Legislation (act/ statute): Made by government, states, territories Local laws (by-laws): Made by local councils
Bicameral: two houses/chambers Unicameral: single house
Lower house Upper house
Cth House of representatives Senate
NSW Legislative Assembly Legislative Council
VIC Legislative Assembly Legislative Council
WA Legislative Assembly Legislative Council
QLD Legislative Assembly -
ACT(territory) Legislative Assembly - NT(territory) Legislative Assembly - NI Norfolk (territory) Legislative Assembly -
SA House of Assembly Legislative Council
TAS House of Assembly Legislative Council
Legislative Powers State Governments
- General Legislative power (wide range) - Only operates within its borders - Share with cth
Territories
- Has broad power, but can be overridden by cth Commonwealth
- Limited powers (exclusive to cth parliament and shared with states)
Legislative process
Bills(The completed draft)
Drafting: Considered by cabinet , experts in drafting Explanatory memorandum: summarise and explain effect Review: by minister, other ppl (make more changes) Procedure of Legislature
House of origin: bill first intro
House of review: where bill proceeds to - First reading
o House votes to approve introduction of bill o Only long title read out
o NO DEBATE - Second Reading
o Speech: outline reasons and effect o DEBATE and VOTE
- Committee stage (optional): consider in detail - Third reading
o VOTE and little debate
- Bicameral: all readings in house of review
No amendments: next stage or Amendments: back to house of origin Govt. can dissolve -> general election
Royal assent
- Queens representatives
- Theoretical power for queen to reject law Commencement
- Bill becomes Act
- Published on “Government Gazette”
- 28 days later become effective (unless otherwise specified) Structure
Title
Table of provision (index) Notes (useful info) Royal assent
Parts and divisions (sectioning)
Purpose (help in interpretation unclear provisions) Commencement
Definitions
Sections (provisions and clauses) Citing legislature
Name of Act
Year legislation was enacted
Cth/state/territory legislation that enacted it Interpretation of legislature
Literal approach
Find ordinary meaning by using a dictionary
Golden rule: if result is absurd, can avoid drafting errors by not using literal approach Specifically defined words
Use definitions to override meaning => definition section
Relevance of Purpose
Meaning consistent with objective of act
- Intrinsic: In long title, structure of act, info in other sections of act - Extrinsic: In parliamentary reports, papers, background documents Rules of interpretation
“shall” leaves no room for discretion, “may” does Definition of a word applies to all its grammatical forms Presumptions
- Rules of natural justice adhered
- New law doesn’t have retrospective effect (apply to before it commences) - Legal right enforced by bringing it to court
- Legislation doesn’t bind to crown
Chapter 3: Case Law
How judges “make” law
- Rule that is not Australian law (but is natural law or moral) can be applied => unwritten rule becomes part of law
- Interpret unclear acts to shape law - EXTEND the application of law - No rules: decide case on its facr Common law vs Equity
Common law: Makes up majority of case law (from England) Equity: Appeals from common law => attention to fairness
All courts apply rules on common law and equity when deciding cases Procedures
Original hearings /appeals Plaintiff vs defendant Applicant vs respondent
Appeals: appellant vs respondent Procedure of civil case
Purpose:
Exchange of pleadings: written documents => define dispute Proving facts: witnesses and artefacts
Ascertaining the law: Argument => address court Deciding the case: judge finds rules and law relevant
Law reports
Structure:
- Court and Key dates
o When judgement was given => date it becomes a precedent - Name of case
o Plaintiff and defendant order: original hearing or appeal?
- Catchwords
o Key words for summary - Headnotes
o Outline of report
- Judges - Judgements
o Summary of material facts
o The question that needs to be decided o Review relevant law
o Apply law and draw conclusions
o Make and order to give effect to decisions Citing report
Taylor v Johnson (1983) 151 CLR 422 - Name of parties
- Found in 151 volume of Commonwealth law reports(1983 volume) page 422 System of Courts
- No separate courts for common law and equity - Legislation overrides case law
- Use common law before equity - There are hierarchies
o Magistrates (local) court < County(district) court < supreme court< court of appeal (the full court of supreme court) < High court
The doctrine of precedent
Doctrine of precedent: case decided in the past models how a case is decided in the future - Must be followed when:
o Two cases are sufficiently similar (cant reasonably distinguish) o Previous decision is of superior court in the same hierarchy is binding
Not bound by own court
Binding precedents : binding is older case decided by higher court in same heirachy Persuasive precedents:
- Not sufficiently similar on facts
- No decided by higher court in same hierarchy
Stare Decisis: Let the decision stand, previous decisions of superior courts must be followed unless distinguished Ratio Decidendi
Reasoning for the binding PART of the previous decision - Defined type of situation
- Contain precise rule of law Obiter dicta
Judgement that falls outside ratio decidendi to distinguish the cases o Taylor v Johnson
o Balfour v Balfour o Cohen v Cohen o Merritt v Merritt
SAMPLE OF CHEATSHEET Carlill v Carbolic Smoke Ball Co
Intention to be bound: Stating that 1000 pound deposited into bank already Consideration given: act of buying smoke ball in expectation of promise Offer: intended to be for everyone Carlill accepted by buying smoke ball
Balfour v Balfour: Agreement made while married to pay allowance to wife INTENDED to be bound Cohen v Cohen: Owe dress allowance from marriage (domestic agreement) NOT INTENTDED to be bound
Merritt v Merritt: separated agree give house after mortgage (written) INTENDED (goodwill broken down, can’t rely) Ermogenous v Greek Orthodox: archbishop, G.O. won’t pay leave (argued not intended)INTENDED (religion not excuse) , bound
Esso Petroleum v Commissioners of Customs and Excise: Petrol promotion (free coin) INTEDEND (commercial situation), bound
Masters v Cameron: Agree to sell farm (written but “agreement subject to preparation of formal contract”) NOT INTENDED bound
Thomas v Thomas: $1 a year (consideration) for house ENFORCEABLE (benefit ≠consideration)
Stilk v Myrick: Captain and crew, past consideration is bad (UNENFORCEABLE) note: diff if crew gave extra consideration Musumeci v Windell: W lease shop to M. Reduction in rent IS ENFOCEABLE (past consideration but gains practical benefit) Placer Development v Cth: No details of subsidy agreed (UNENFORCEABLE), vague illusory agreement
Partridge v Crittenden: Birds, RSPCA, Ad=only an invitation to enter negotiation. Compare with smoke ball, acceptable offer
