Introduction to

Business Law

Lecture 1, Week 1:

What is Law?
2105AFE Summer Semester 2014-15
1

Administration
My name: Sharon Hayes LLB (Hons) B Bus
My office during semester: N72 Room 0.05
My email: s.hayes@griffith.edu.au
When emailing any member of Staff at Griffith ALWAYS
include:
Course name and Code: Intro to Business Law 2105AFE
Your name and Student number: James Bond s.1007007
Specifics of what you are requesting. If you dont provide all these
details, I will reply to ask for them and this just wastes your time....you have
to see my email and respond ....and then wait for me to respond again....
Be polite: practice addressing the staff with the same respect you would
show your superior or employer Dear Sharon is perfect! Hey doesnt
quite sound the same.

Consultation Hours:
During Semester (1st December 2014 19th December 2014)
and (5th Jan to 20th February 2015) I am available as follows:

In Person: Thursday 12pm to 12.50pm,2and 5.00pm

to 6.00pm

Administration
Relevance of law to business students:
The Australian legal system courts, how law is
made etc.
Contract law
Australian Consumer Law (ACL)
Law of Torts
Partnership law
Is this useful to you? As an accountant? An economist? Financial
advisor? Financial planner? Stockbroker?
Will you have an employment contract?
Will you be in a partnership one day?
Will you be dealing with consumers? Are you a consumer now?
What if someone is injured at your workplace? Or what if a client
suffers financial losses due to your advice?

Prescribed text and online resources: Introduction

3

to Business Law, 8th Edition, Gibson & Fraser, Compiled for

Administration
Teaching method (How to do well):
1.Listen to the lecture (preferably in person)
2.Do your tutorial homework questions
3. Attend the tutorial classes!! CRUCIAL Tutorials are
where
we practice answering law questions in our legal
format, ILAC.

I
what is our legal question to ask?
Law: which laws do we use to answer it?
ILAC
Application: how do we apply the law to our facts to

Oooooohhh!!
ssue:

make an argument that answers our problem?

Conclusion: briefly recaps what we determined.

Answer the homework questions before class so that you can pay
attention and make notes in class to improve your answer.

Tutorials commence on Tuesday 16th

December
Course Profile: Please read carefully!! We have 12 lectures
4 in which
over 9 weeks so make sure you know the weeks
extra classes occur.

Administration
Column 1
Thursday 1st Week Lecture 1
4th December
No Tutorial

Column 2
Thursday 5th Week Lecture 7
15th January
Tutorial (6)

Thursday 2nd Week

11th December

Thursday 6th Week

22nd January

Lecture 8
Tutorial (7)

Lecture 3
Tutorial (1 +
2)
Thursday 3rd Week Lecture 4
18th December
Tutorial (3)

Thursday 7th Week

29th January

Lecture 9
Tutorial (8)

Tuesday 8th Week

3rd February

Lecture 10
Tutorial (9)

Tuesday 4th Week

6th January

Lecture 5
Tutorial (4)

Thursday 8th Week

5th February

Lecture 11
Tutorial (10)

Thursday 4th Week

8th January

Lecture 6
Tutorial (5)

Thursday 9th Week

12th February

Lecture 12
Tutorial (11)

Lecture 2
No Tutorial

Tuesday 3rd Week

16th December

Administration
Assessment:
1. Mid-semester Exam: Online Open Book Date and
Time T.B.C. Module 1 (Introduction to Law) and Module
2 (Law of Contract) 40 Multiple Choice Questions, 90
minutes - Weight 20%

2. ILAC Assignment: Provide advice in relation to a

hypothetical legal situation, using the ILAC method.

Based on Module 3 (Consumer law)
and Module 4 (Law of Torts). Assignment details will be
available on learning@Griffith site. Due date 6th
February 2015, must be submitted electronically via
SafeAssign - Weight 20%

3. End of Semester Exam: Multiple Choice questions

plus problem (ILAC) questions

Based on Module 3 (Consumer Law), Module 4 (Law of
Torts) and Module 5 (Partnership Law).
6
Exam will take place during the
exam period

Administration
Learning@Griffith:
Information & announcements are posted via
learning@Griffith please make sure you check it several
times per week!
I also communicate via email for announcements so
remember to check your Griffith email regularly.

All Lecture slides and Weekly Reading Guides

will be available on learning@Griffith prior to the
class (48 hours)
Be prepared for class bring your printed notes to class so that
you may add notes BUT these are not a substitute for class
attendance.

Problems? Concerns?
Changes in Circumstances?

Student Etiquette
This Goes Without Saying....
Be Polite and Respectful:

Address your colleagues and communicate with them

appropriately.
When dealing with Staff or Administration, use your
Griffith email address and use your manners.
Never treat any comments or questions asked as
stupid or ridiculous.
Arrive on time, try not to disrupt the other students.
Leave your mobile phone on silent during classes.
Introduce yourself to the person next to you make a
friend so that you have someone to provide
information you miss or help brainstorm for your
assignments.
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Course Profile
Course Overview
The course is designed to provide students with:
1. An overview of the Australian courts and the legal
system;
2. A working knowledge of contract law, the tort of
negligence, consumer protection and partnership law;
3. The skills necessary to answer legal problems in contract
law, the tort of negligence, consumer protection and
partnership law;
4. The foundational knowledge to proceed with future law
courses such as Company Law, Law of Finance and Revenue
Law Theory and Policy

Modules: 1) An Introduction to Law

2) Contract Law
3) Consumer Protection Law
4) The Law of Torts

Course Profile
After successfully completing this course, you
should be able to:
1. Possess a working knowledge of key legal
principles covered
2. Explain how the Australian legal system works
3. Apply legal knowledge to complex factual
situations, through oral and/or written
communication, and achieve a reasoned
conclusion using a legal method known as ILAC
4. Apply your legal knowledge to select the
preferred solution to a factual situation.
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What is Law?
What is law?
A set of rules, developed over a long period of time
regulating peoples interactions with each other and which
sets standards of conduct between individuals and
individuals, individuals and the government and which are
enforceable through sanction.

Characteristics of an effective legal system:

Certainty: Law should be clear and certain, people need
to know what to adhere to or comply with.
Flexibility: Law must be adaptable and responsive, and
capable
of reflecting change.
Accessibility: Everyone needs access to the law,
otherwise there cannot be fair and just outcomes
Fairness/Obeyed: A law that is not fair will not be
obeyed, it will not be accepted.
11

What is Law?
Ethics and the Law
Ethics is concerned with what is right and what
ought to be and not accepting what is, as
members of society. BUT it is not necessarily
law!
Purpose of the Law is to govern the conduct of
all members of society both natural and legal
Purpose of Ethics is to provide guidance for
individuals in respect to their business
relationships
12

Sources of Law in Australia

1.

Statutory law and delegated legislation

Laws established by the people through parliamentary

representatives and other government bodies.

Called Acts of Parliament, statutes or legislation.

Delegated legislation - laws established (as above) to

enable the council or government to make laws

2. The Common Law

Created through reported decisions of judges in superior

courts; called judge made law.

Usually includes the law of equity.

13

Sources of Law in Australia

Parliament
Judges

Federal

Equity

(make law)

State

Parliament create Laws

set of
that become legislation
case law

Common Law

Makes decisions on a
facts to create
14

Legislation
Australia is a Federation (1901):
Before Federation in 1901, Australia consisted of a group of
British colonies
The Commonwealth of Australia Constitution Act (1900)
The six colonies became the Commonwealth of Australia
on January 1901
Passed by British parliament but decided on by Australians
This Constitution established a federal system of government
with 2 tiers:
1. Central government (called the Federal or
Commonwealth Government)
2. State or Territory Governments - laws can be
overridden by the Central government
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The Constitution
The Commonwealth Constitution gives parliament power
to make law.
Federal and State parliaments create law when they pass
legislation, this is generally known as a Statute.
Example of Statute: Competition and Consumer Act
2010 (Cth)
Parliaments can also give the law making power to others
where appropriate Delegated Legislation, e.g.
government authorities (specialised knowledge may be
necessary)
local councils (better able to deal with local

The Constitution sets out the powers in relation to...

Chapter 1: The Parliament
Chapter 2: The Executive

16

The Constitution
Doctrine of the Separation of
Powers:
Seeks to confine the exercise of the
Legislative, Executive and Judicial
branches of government exclusively to
their respective institutions (Parliament,
Executive and the Courts).
1. The Parliament (Legislature): The
Queen, The Senate, and House of
Representatives - make the law by
passing a Bill so that it becomes an Act of
Parliament.
2. The Executive: The Prime Minister
and the Cabinet members - administer
the law, by formulating policy and its
administration
3. The Judiciary: The High Court and

17

Note:
Bicameral
Parliament
means 2
houses upper
house (senate)
+ lower house
(house of reps)
QLD only has
1 house
(Legislative
Assembly) so it
is Unicameral
18

The Constitution
The Parliament (Legislature)
Section 1 of the Constitution provides that the
legislative power of the Commonwealth is vested in
the Federal Parliament,
These powers are allocated between federal and state:
Exclusive powers exercisable ONLY by FEDERAL
parliament

examples: s.52 - seat of government; s.90 - customs and excise

duties; s.114 - military forces; s.115 - currency matters; s.122 government of the territories

Concurrent powers exercisable by EITHER FEDERAL or

STATE parliaments. Section 51 is the most important

concurrent power but unlikely in practice to be exercised by
the State.
NOTE: s.109 Where there is an inconsistency between federal law
made under an exclusive power and any state law,19the state law
shall be invalid.

The Constitution

Commonwealth
Government

But dont forget

s.109!

Exclusiv
s.e90: Custom,
Excise and
bounties
s. 92: Free trade
between the
states

State
Governments
Residual
Education

Concurre
ntSection
51

Local
Government
Transport

s. 114: Military
forces
s. 115: Currency
20

The Constitution
Where there is any inconsistency between laws made
under the Exclusive Powers provisions of the
Commonwealth Constitution and a State, section 109
provides that the State laws, to the extent of the
inconsistency, shall be invalid.
To change the Constitution requires a referendum
which is set out in section 128 of the Constitution
Must be approved by an absolute majority of both Houses
of Parliament, Referendum (vote) approved by majority of
the voters in a majority of the states, and The GovernorGeneral gives Royal Assent.
Of the 44 proposals to change the Constitution, only 8 have
been successful! (most recent success 1977)21

22

Legislation
Delegated legislation:

The law making power of parliament can also be

delegated (transferred to others).

E.g. Councils Brisbane City Council & Gold Coast City

Council, or Government agencies Centrelink, ACCC

Four forms of delegated legislation:

Regulations: Practical legal guidelines that provide
administrative support for a statute
(Legal) Rules: Administrative procedures that are
written as support to legislation and are therefore
enforceable
By-Laws: Laws that apply to a particular geographical
area
Ordinances: Laws that apply to a particular
23 territory

Legislation
Recognising a statute.
Section 180 Corporations Act 2010 (Cth)
Section 180: The section of the Act being dealt with
Corporations Act : The name of the Act (short title)
2010: The year in which the Act was first made
Cth: Commonwealth, name of the Parliament that
passed the Act. Could say (Qld) or (Vic) etc

24

Common Law
Three meanings of Common Law:
1. As a source of law
Judge made law (compared to legislation)
2. As a system of law
Common Law system as opposed to a Civil Law
system
3. As a division of law
Common Law as opposed to Equity
See diagram on next slide

25

Common Law

26

Common Law
Origins and development of the common
law
Before the Norman conquest in 1066
Local, customary law
William the Conqueror, Henry II & the growth of
Common Law
King as ultimate authority
Henry II (late 12th Century): Replacement of Feudal
courts with Royal Courts and professional judges
(Crown Officials) who recorded and began to apply
the customary laws throughout England (thereby
becoming part of common law)
Appointment of judges; Uniform system of law
27
across England

Common Law
Origins and development of the common law
(cont)
17th Century: Parliamentary sovereignty developed
18th Century: 1788: First Fleet arrived
End of penal transportation: late 1860s.
Reception of English Law in Australia (or anywhere) 3
possible ways:
Military Victory (Conquest): Where the British
conquered a people, the British could impose on them the
laws they wished. But until that time, the local laws
remained in force.
Treaty (Cession): Where a nation ceded or gives up their
sovereignty to another nation by way of a treaty. The British
could impose the laws they wished but until that time, the
local laws remained in force.
28
Settlement - The Doctrine of Reception: If the land was

Common Law
How to Recognise a Case:
(2003) 107 CLR 553

Cameron v Anderson

Cameron: Plaintiff (matter heard by Court for first

time) or Appellant (if matter on appeal to higher
court)
v: should not be read as versus but and because in
the court it is said as Cameron and Anderson
Anderson: Defendant (matter heard by Court for first
time) or Respondent (if matter on appeal to higher
court)
2003: Year in which case was reported in the law
report
107: volume number of law report
CLR: abbreviated name for law report 29

Classification of Law
Classification of Laws (Overview)
Common Law System

Civil Law System

Used in Australia
Can be Civil or Criminal

Used in Western Europe

Civil Law Jurisdiction

Criminal Law Jurisdiction

Non-criminal law, the Plaintiff

takes action to enforce the law

Enforced by State & Federal

Governments through the DPP

Public Law

Private Law

Deals with government and its

relationship with the people

Deals with disputes between

individuals or organisations

International Law

Municipal Law

Regulates the conduct

between nation states (different
countries)

Regulates relations between

people or organisations within
the same state (country)
30

Classification of Law
Different legal systems:
Common Law System
Sources of law include both legislation and judge
made law
Accusatorial/adversarial
Commonwealth nations

Civil Law System:

Primary source of law is legislation
Inquisitorial
Western Europe, Indonesia, Japan etc

Other systems
Islamic, Talmudic, Hindu

Common law and civil law are the

31
two dominant systems in the western
world.

Classification of Law
Different jurisdictions:
Civil Law:
All law that doesnt involve a criminal element
Examples: Contract law, Tort law, Property law

Criminal Law:

State and Federal governments enforce the

criminal laws, through the Police & the Department
of Public Prosecutions

Examples: Theft, Murder, Rape,

Standard of proof : Degree of proof required for a person

to succeed
or win their case.
Criminal cases: beyond reasonable doubt
Civil Cases: on the balance of probabilities
Burden of proof : Which party is required to prove its
case in the
proceeding to succeed.
Civil cases: Plaintiff to prove on balance32of
probabilities...

Classification of Law
Different arenas:
Public Law:
Laws between a person and government
For the benefit of society as a whole
Examples: constitutional law, taxation law,
criminal law

Private Law:
Laws between person and person
Person is broad legal entity, organisation,
individual
Protects a persons private rights and interests
Examples: family law, property law, contract law,
33
tort law

Statutory Interpretation
Why is it necessary to interpret statutes?
1. Words may be ambiguous
2. Statutes can never cover all eventualities
3. Parliament lays down the framework; Courts fill in
the details

Rules of statutory interpretation:

Statutes in many instances are broadly framed and may
require interpretation by a judge in applying the law
to an individual matter/case
Judges rely on several sources:
Previous cases (that have interpreted the legislation)
Common law rules of statutory interpretation

Literal Rule
Golden Rule
Mischief Approach

34

(Continues)

Statutory Interpretation
Rules of statutory interpretation (cont.)
Judges rely on:
Legal Maxims to be used to aid in interpretation
Examples:
1. ejusdem generis of the same class, kind or
nature
dogs, cats, guinea pigs and other animals
2. noscitur a sociis a word is known by the
company it keeps
the words of a statute are to be construed in light of
their
context
3. generalia specialibus non derogant the
general does not
detract from the specific
if theres conflict between a specific and general
provision,
the specific provision will usually take
precedence

The Acts Interpretation Act.

35

Statutory Interpretation
Common Law rules of statutory
interpretation:
A.

Literal rule instructs the court to give literal

(ordinary) meaning to the words used in the
legislation, consulting dictionaries, even if it leads to
an absurd result

B.

Golden rule states that if a literal interpretation

would lead to an absurd result, the words should be
given a meaning that would avoid the absurdity

C.

Mischief rule states that the statute is to be

interpreted with the primary aim of preventing the
mischief the statute was designed to prevent. The
judge determines the mischief by looking at the
purpose of the legislation.
36

Statutory Interpretation
Case 1.

Fisher v. Bell (1961)

Facts: Constable Fisher saw a flick knife with a

price tag displayed in Bells shop window. He
charged Bell under the Restriction of Offensive
Weapons Act 1959 which stated: Any person who sells, lends or gives an
offensive weapon to any other person
commits an offence
(An offensive weapon included flick knives)
Issue: Applying the Literal Rule, what would have
been the Courts decision?
Held: No offence was committed as he did not
sell, lend or give the knife. Displaying the goods
for sale was not the same as selling 37
the knife
when using the plain meaning.

Statutory Interpretation
Case 2.

Lee v. Knapp (1967)

Facts: The Act required drivers of motor vehicles

involved in an accident to stop after an accident.
The driver charged under the Road Traffic Act
claimed that he had not breached the Act because
he stopping briefly and then drove off.
Issue: Was the driver in breach of the provision?
Held: The Court held that the driver was required
to stop for a sufficient period of time to supply
information about the accident to those persons
with legitimate interests.
Golden Rule

1. Which common law rule of interpretation did the

Court applyNoinBreach
this case?
The driver did stop
38
2. Applying the literal rule, what would have
been the

Statutory Interpretation
Case 3. Re Sigsworth (1935)
Facts:
A son had murdered his mother. The
mother had not made a will, but in accord with
rules set out in the Administration of Justice Act
1925 her next of kin would inherit her possessions.
There was no ambiguity in the wording of the Act
Issue: How was the court to interpret the statute?
Held:
The court was not prepared to let a
murderer benefit from his crime. This would be an
absurd result.
Which rule do you think should apply in this
situation?

THE GOLDEN RULE

If the LITERAL RULE doesnt seem right, see if the words are
39
ambiguous: If wording is clear golden rule may
be used to
avoid absurd result. If wording is ambiguous mischief

Statutory Interpretation
Case 4: Smith v Hughes [1960]
Facts: The Street Offences Act 1959 prohibited
soliciting by prostitutes in the street. To try to get
around the operation of the Act, the prostitutes
began to try to attract business by standing at their
windows or on their balconies and calling out to
passers-by.
Issue: Did the Act extend to include the activities
of prostitutes who attempted to attract business
from windows or balconies or did it only catch the
activities of prostitutes who were actually soliciting
on the street?
Held: The court applied the mischief approach to
interpretation in this case. What was the result?
40 In the
The court extended the meaning of
street

Statutory Interpretation
Acts Interpretation Acts
There is a federal Acts Interpretation Act (AIA) and
most states have their own AIA as well.
Section 15AA(1) Acts Interpretation Act 1901 (Cth),
says that courts must use the purpose approach to
interpret statutes
Section 15AB of the AIA allows courts to use extrinsic
(outside) material when interpreting statutes.
Examples: reports by ministers, reports of parliamentary
proceedings, explanatory memoranda
41

How to Answer a Hypothetical

Question
See the reading guide for week 1
ILAC Method
Issue: The legal problem(s) that you must answer
Law: Principle(s) from case law and/or section(s) of statute
that will help you answer the Issue.
Application: Applying the Law to the relevant facts in the
hypothetical to answer the issue.
Conclusion: Maximum two sentences at the end of your
answer which summarises the answers to the legal issues and
the remedies available
(if any) to the innocent party.

42

How to Answer a Hypothetical

Question
Incredibly simplified so you can recognise the different stages of
the process
Sues father does not allow her to drive his car in the wet weather but
Sue decides to drive to the shops whilst her father is having a nap even
though it has a broken headlight. Sue is pulled over by Police.
I Issue(s): Has Sue committed an offence by driving her fathers car
with a broken headlight?
L Law(s): Section 215 Transport Operations (Road Use Management
Road Rules) Regulation 2009
A Application: S. 215 (1)(a) of the Act states that a driver must not
drive at night or in hazardous weather conditions causing reduced
visibility unless the headlights, tail-lights and number plate light fitted
to the drivers vehicle are operating effectively and are clearly visible.
Sue is driving her fathers car in rainy conditions which can be
considered hazardous. The car has a broken headlight which means that
it is not operating effectively. Therefore, Sue is breaching the law by
driving in hazardous weather conditions with a broken headlight.
43
C Conclusion: it is likely that Sue will be charged for
breaching
section 215 by driving with a broken headlight.

Reading a Case
Activity: Attempt for next weeks lecture.
Soper v Gold Coast City Council
Questions:
1.What is the proper reference for this case?
2.In what court was the case heard?
3.Who was the appellant and who was the respondent?
4.What were the relevant facts of this case?
5.What was the issue?
6.What law did the Court rely on?
7.How did the Court apply the law?
8.What was the Courts conclusion?
44

Reading a Case

This is an example of the main information on the first and last

pages of the Masters & Cameron case (EXPLANATIONS IN RED)

http://
www.austlii.edu.au/cgi-in/sinodisp/au/cases/cth/HCA/1954/72.html?stem=0&synonym
s=
0&query=title(master%20and%20cameron%20)
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 (30 November 1954)

HIGH COURT OF AUSTRALIA

MASTERS v. CAMERON [1954] HCA 72; (1954) 91 CLR 353
Vendor and Purchaser
High Court of Australia
Dixon C.J.(1), McTiernan(1) and Kitto(1) JJ.
CATCHWORDS
Vendor and Purchaser - Sale of land - Contract - "Subject to the preparation of a formal contract of sale &which shall be
acceptable to my solicitors on the above terms and conditions" - Whether concluded contract - Nature of sum paid as a
"deposit" - Intention of parties.

FIRST PAGE of CASE Key parts

Masters v Cameron - name of the parties [1954] The year
HCA 72; (1954) 91 CLR 353 (30 November 1954) Court Citation
and Date HIGH COURT OF AUSTRALIA - The court hearing the
45
case

Reading a Case
CATCHWORDS
Vendor and Purchaser - Sale of land - Contract - "Subject to the preparation of a formal contract of sale &which shall
be
acceptable to my solicitors on the above terms and conditions" - Whether concluded contract - Nature of sum paid as
a
"deposit" - Intention of parties.
HEARING
Perth, 1954, October 21, 22;
Sydney, 1954, November 30. 30:11:1954
CATCHWORDS
APPEAL
from the Supreme Court-ofSummary
Western Australia.of major legal principles:

Vendor and Purchaser - Sale of land - Contract - "Subject to the

preparation of a formal contract of sale &which shall be
acceptable to my solicitors on the above terms and conditions" Whether concluded contract - Nature of sum paid as a "deposit" Intention of parties.
HEARING - When and where the matter was heard and the
court from which the matter was appealed
Perth, 1954, October 21, 22;
Sydney, 1954, November 30. 30:11:1954
APPEAL from the Supreme Court of Western Australia. The
court from which the decision was appealed.
46

Reading a Case
DECISION
November 30.
....... {Body of Judgement}
ORDER
Appeal allowed with costs.
Judgment of the Supreme Court discharged.

DECISION - The date of the decision of the High Court

November 30.
Key parts (Often found on last page, but may be in the
middle of the case if it is not unanimous)
ORDER
Appeal allowed with costs - The result in this case the
High Court awarded costs and over-ruled the previous
judgement (upheld (allowed) the appeal)
Judgment of the Supreme Court discharged - The result
- in this case it over-ruled the judgment of the Supreme
Court)
47

Online Research
1.

2.

(AUSTLII) - www.austlii.edu.au
a. Under the search box, click on [Advanced Search]
b. Enter search query: ###
c. Select the AustLII Database(s) to search: All Case
Law Databases
Qld legislation - www.legislation.qld.gov.au

48

Thank You

That concludes our

first lecture.........
Thanks for listening

49