Business Law 2020 BLAW Unit1-1 Students 1x4 PDF

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Foundation Studies

Business Law

Unit 1

The Australian Legal System 1.1 Introduction to Law and the Australian Legal System Lecturer: Hui Thong © 2020 UNSW Foundation Studies, UNSW Global Pty Ltd. UNSW Sydney NSW 2052 Australia. The original material prepared is copyright protected. Apart from fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act 1968 (Cth), no part may be reproduced by any process without written permission.

Prepared by: H Thong

Prescribed Materials 2

Students must buy the following book 

Chew, Charles YC Business Law: Guidebook

2nd edition oup.com.au

Business Law

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Prescribed Materials 3 

UNSW Foundation Studies, Business Law: Learning Guide and Lecture Handouts  available

on Moodle under each sub-unit

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Recommended Materials 4 

Alderson, Peter Legal Dictionary for Australians

cengage.com.au

Business Law

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Assessment Schedule 5

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Assessment Timeline 6

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Unit 1.1 7

Overview  The nature of law  Business law  The Australian legal system  Common

law legal system  Sources of law  Australian court hierarchy  Doctrine of precedent Business Law

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The Nature of Law 8   

A system of rules (legal rules) Legally enforceable Recognised, applied and enforced by the government of a state

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The Nature of Law 9 

A body of principles established by:  Parliament

(i.e. elected representatives), and  Courts (i.e. judges)

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The Nature of Law 10    

Regulate, control, influence behaviour Set standards of conduct Resolve conflict: Hear and settle disputes Provide security

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Business Law 11 



Selected rules of law that are of particular relevance to business activities A set of rules to determine the rights, duties and obligations of people who are engaged in commercial activities

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The Australian Legal System 12  

  

Common law system as a system of law Main feature: Judges’ decisions in pending cases are informed by the decisions of previously settled cases (See: Doctrine of precedent) Developed in the United Kingdom Australia was a British colony Distinct from civil law systems Business Law

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Sources of Law 13 



Enacted law: Body of law enacted (made) by parliaments Also known as:  Statute

law  Legislation  Act of Parliament

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Sources of Law 14 



Unenacted law: Body of law made by the courts. Principles and rules based on decisions of judges. Also known as:  Common

law  Case law  Precedent

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Sources of Law 15

Identifying Legislation  Each Act has a name e.g. Competition and Consumer Act 2010 (Cth) Act of Commonwealth Parliament

Competition and Consumer Act 2010 (Cth) The name of the Act

The year of enactment

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The enacting legislature (This Act was made by the Commonwealth Parliament)

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Sources of Law 16

Identifying Case Law  After a case is decided, a written ḙlaw reportḚ is published 

Each case has its own citation, e.g.

L Shaddock & Partners Pty Ltd v Parramatta City Council (1981) 150 CLR 225 The name of the case

The year of the law report

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The law report series

Sources of Law 17

Identifying Case Law  A plaintiff is the party who initiates a lawsuit (an action) before a court  A defendant is the party defending an action Harvey v Facey [1893] AC 552 Plaintiff

Defendant Read as “and” Business Law

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What is a Court? 18 



Place where disputes are heard and resolved through a legal process Courts are ranked in a hierarchy from the lowest to the highest level of authority in the legal system Business Law

hcourt.gov.au

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Court Hierarchy 19

The court hierarchy has three significant purposes:  Allows different forms of hearing according to the seriousness of the case  Administrative  

convenience & economy of operation

Provides a system of appeals Instrumental in building up precedent

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Basic Court Structure in Australia

State/Territory Courts

Commonwealth Courts

20

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Australian Court Hierarchy 21 



Each state and territory has its own judiciary hierarchy. High Court of Australia is a Commonwealth court, the Supreme Court is a state court but the High Court is at the top of both the Commonwealth and the State court systems.

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Doctrine of Precedent 22

Rules of the Doctrine of Precedent Lower courts in a judicial hierarchy are bound by earlier decisions of courts higher up in the same judicial hierarchy  A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding  Generally, a court is not bound by its own decisions (persuasive) 



A court can overrule its previous decisions – when a decision is clearly wrong or in the interest of justice

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Doctrine of Precedent 23 

Promote certainty, consistency and predictability within the legal system/in judicial decision-making

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Doctrine of Precedent 24

Binding precedent  Decisions of a previous case of a higher court in the same judicial hierarchy that the lower court is obliged to follow  Example:  Decisions

of the High Court are binding on all courts in

Australia

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Doctrine of Precedent 25

Persuasive precedent  Decisions of a superior court in a different/same level of hierarchy have persuasive value  Seriously considered; may or may not be followed  Examples: Decisions of Supreme Court of NSW persuasive but not binding on decisions of Supreme Court of Victoria  Decisions of overseas courts (eg. UK) are persuasive in Australia 

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Doctrine of Precedent 26 

Ratio decidendi  ‘The

reason for the decision’  Binding 

Obiter dicta  ‘Remarks  Not

in passing’ binding; may be persuasive Business Law

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Rules of the Doctrine of Precedent – Application

A case came before the Supreme Court of Victoria which handed down a decision. The impact this decision has on later decisions by: a) the Victorian District Court is ________. b) the Supreme Court of NSW is _________. c) the High Court of Australia is _________.

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End of Lecture 28

Students must:  Read prescribed reading for Unit 1.1  Attempt Tutorial Exercises BEFORE going to Tutorial

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