tabl1710 lecture wk2

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TABL 1710Business and the Law

Lecture 2Legislation and Case Law

Lecturer: Dr Leela Cejnar

2015 The University of New South WalesSydney 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

TUTORIALS START THIS WEEK

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!

Note: No changes can be made to your enrolment as all tutorials are completely FULL

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MOODLE

All course information will be on MoodleCourse OutlineTutorial ProgramLecture SlidesDiscussion 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)

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PRESCRIBED TEXT

Paul LatimerAustralian Business Law, 34th edn, CCH, 2015

(or 33rd edn, CCH, 2014 is acceptable BUT do not use any editions prior to 2013)

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Weekly topic/readings

See Course Schedule in the Course Outline From week 3: see references to textbook

paragraph numbers in lecture slides

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Lecture 1: Review

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

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Lecture 1: Review Development of Australian Legal System1788: Arrival of first fleet1823: Court system established in NSW1828-1853: development of NSW parliament1901: Federation

- Establishment of Australian Commonwealth- Federal/State system of government

1986: Australia Act (to be discussed)1992: High Courts Mabo decision (Native Title)

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Lecture 1: Review Origins of Australian Law

Inherited English system of law Federation/Constitution 1901Levels of Government: Federal/StateWestminster system: constitutional monarchy/separation of

powers/responsible governmentSeparation of powers: Parliament/Executive/Judiciary

3 separate institutions (doctrine of separation of powers)Parliament: 2 houses (House of Reps/Senate)

How Laws Made/Structure of an ActExecutive: Governor-General/Prime Minister and

Cabinet/Government Ministers, Government Departments and the Public ServiceJudiciary: the Judges and the Courts

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Lecture 2: 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

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Overview Lecture 2Legislation and Case Law

On completion of this week in you should have anunderstanding of:

9 How laws are made9 The rules of statutory interpretation9 The Australian court structure and hierarchy9 How judges make law9 The doctrine of precedent and how it operates9 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

Legislation is also known as: Statute Law Acts of Parliament enacted law

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Ministers

Backbench

Political Party

Department Heads

Voters

ParliamentaryDraftsman

Cabinet

How laws are made?

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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)

Senate (Upper House)

Governor Generals consent

1st Reading2nd Reading3rd Reading

Committees

1st Reading2nd Reading3rd Reading

On Proclamation Date the Bill (now called an Act) becomes LAW

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Structure of an Act 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

Delegated or subordinate legislation consists of:RulesRegulationsBy-lawsOrders 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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Citing Legislation

Competition and Consumer Act 2010 (Cth) Civil Liability Act 2002 (NSW)

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)


When the source of the law is a statutory provision:

A judge who interprets the meaning of the words of the statute also creates precedentThis may be used in future cases to determine the

meaning of the same statutory words or provisions

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BUT: if there is an inconsistency between case law and legislation, legislation prevails

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 InterpretationTo 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

Rules of Statutory Interpretation

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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Purposive RuleSection15AA of the Acts Interpretation Act 1901 (Cth) the court must consider the purpose of the legislationThe 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

Extrinsic materialsSection 15ABWhen the legislation is ambiguous the Court may rely

on extrinsic material to interpret the meaning of the section

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Statutory Interpretation

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 toresolve legal problems

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?

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Case law

Case law is also known as:

common law precedent unenacted law

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Role of the judges and 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

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The police vs the courts

The role of the policePolice enforce the laws created

The role of the courtsThe courts are involved in the administration of the

law as well as the resolution of disputes

3131http://www.fedcourt.gov.au/videos/The_Court_Room_sml.wmv

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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

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The parties

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

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The parties (contd)

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)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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The Australian Legal Profession

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

BarristersGenerally 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

Justices of the Peace Bulk of their work involved in witnessing of documents 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)

Magistrates 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

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The judiciary (contd)

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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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

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How does a dispute get to Court?

Solicitor issues a letter of demand

Issue of originating process(summons/statement of claim)

Plaintiff

Defendant

The Defence document

Pre trial mentions

Discovery/Interrogatories/Exchange of Affidavits

Matter set down for trial

Court

Trial (or Hearing) 4242

The courts

Features of the court hierarchy: system of appeals (lower to higher court)

different forms of hearings for different types of cases

builds precedent

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Australian court system

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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

Inferior (or Local) Courts Inferior or local courts are located at the bottom of the

Court Hierarchy

Generally presided over by a Magistrate

The aim of these courts is to settle disputes locally, quickly and cheaply

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State court system (contd)

Inferior (Local) Courts There is less emphasis on formality than in higher

courts

Still expected to follow procedural rules and the laws of evidence

The jurisdiction of local courts differ from State to State

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Intermediate (County or District) 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

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Supreme Courts 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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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

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Federal court system

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

mattersapplications under the Judicial Review Act 1991 (Cth)appeals from the Administrative Appeals Tribunal

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Federal court system (contd)

Family Court 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

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Federal Court of Australia 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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High Court Established under s 71 of the Australian Constitution Australia Act 1986 effect of it:

Appeals to UK Privy Council cease High Court of Australia becomes our final court of appeal Australia has complete legislative independence from UK


High Court 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 Appellate jurisdiction in both civil and criminal matters arising from the

State Supreme Courts and Federal Courts

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High Court Appeals do not lie as of right

Approval to hear an appeal must first be granted by the High Court

The High Court is the final court of appeal within the Australian legal system

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Appeals within Federal & Supreme Cts

High Court

Court of Appeal/Full Court/Court of Criminal Appeal

(2 3 Judges)

Single Judge

By leave only, that is not automatic

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Court hierarchy

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

It is instrumental in building up precedent

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The Doctrine of Precedent

A court is bound to follow previous decisions ofhigher court in the same hierarchy

Court hierarchy critical to understanding operation of precedent

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

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The Doctrine of Precedent Binding precedent 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 notbinding 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 High Court

Full Federal Court

Single Judge

Full Supreme Court

Single Judge

Federal Magistrates Court

District Court

Local Court

Federal State

Highly Persuasive

Highly

Persu

asive

Binding Binding

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Stare decisis

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

Another term for the doctrine of precedent

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Ratio Decidendi

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

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Spotting the Ratio

The structure of a typical judgement is usually as follows: Summary of Evidence Findings of Fact Review of arguments Law and decision

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?

Ratio is usually buried here

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Obiter Dictum

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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Finding case law

Case law is published in authorised reports Each court has its own report seriesHigh 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

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Case reports

Mabo v Queensland (1992) 175 CLR 1The v is read as andDate is usually the year of the trial or appealLetters are abbreviation for the law report seriesNumber after the round brackets is the volume

number of the law report series

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Case reports

Donoghue v Stevenson [1932] AC 562Square brackets [ ] indicate the the law report series

are in volumes by yearFinal numbers (eg 562) are the page numbers which

indicates what page the report starts on

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Terminology Affirm/ApproveTo uphold a judgment

Reverse/OverruleSet aside a judgment on appeal

AppliedUsing relevant case law to decide a case

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Terminology

FollowedApplying the law made in a previous case without

amendment Not FollowedNot applying the law made in a previous case

DistinguishedStating 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 toresolve legal problems

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?

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Alternative methods to courts

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 includeTribunals,Ombudsmen, andAlternative dispute resolution

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Alternative Dispute Resolution (ADR)

Has arisen because of the disadvantages of court litigation

Types of ADR arbitration mediation negotiation expert determination

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In-class exercise on Lecture Topics 1 and 2

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

tabl1710 lecture wk2

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