law of commercial contract guy harley bachelor of law (university of adelaide – 1978) barrister...

LAW OF COMMERCIAL CONTRACT

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

• (02) 4570 1116• [email protected]


A.C.N. Staff Alyson Moore, Managing Director Roz Grant, General Manager Robert Veel, Academic Director

(academic matters) Ritzuko Fukumi, Registrar

(enrolment, attendance and fees) Emily Hill, Marketing Manager

(social program during semester) Hue Vang

(network manager)


Dates for March Semester Classes start 17 March Tutorials start – 24 March No Easter Break Evaluations – weeks 4 and 10 Classes finish – June 4 Exams – 12-20 June Exam results released – approx 19 July


Academic Support Thursdays 12.00pm –2.00pm – help with

planning assignments, study skills, reading & writing

Essay writing for exams Mon 29 March & 5 April, 4.30pm – 6.30pm

Answering multiple choice questions Mon 3 May 4.30pm – 6.30pm

Answering short answer questions Mon 17 May 4.30pm – 6.30pm


Assessment Rules Assessments must be submitted on due date or

penalty will apply. Students who miss assessments because of

illness must provide a medical certificate within 72 hours.

Students must complete an assessment cover sheet (lecturer must sign it).

All cases of plagiarism must be reported to Academic Director.


Supplementary Exams Grade ‘SP’: Students who miss final exam because of

illness may apply for special consideration. A medical certificate must be supplied within 72 hours.

Grade ‘SA’ Students who gain a mark of 45-49% and have passed 2/3 of their annual enrolment may be entitled to a supplementary exam

Grade ‘SAH’ Students who gain an overall mark of >50% but fail the exam hurdle (<50% in exam) may be entitled to sit a supplementary exam

Failure rate for supplementary/special exams is about 60%


Academic Progression Rules Students must pass exams to pass subject Students must pass 50% of their annual

enrolment (Nov-October) to stay in program Students must complete diploma before

commencing degree studies


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


Course Assessment Exam 75% You must pass the exam to pass the course Internal assessment 25%

Test (week 4) 5% Tutorial presentation (weeks 5 to 12) 5% Essay plan (week 8) 5% Essay (week 10) 10%


Course Assessment (cont.) Penalty for late submission of assessments is

5% per day off maximum possible mark Extension are only granted for serious medical

or personal events. Requests for an extension must be made in

advance and must be accompanied with medical or other evidence.


Text Books Sweeney B and O’Reilly J, Law in

Commerce, Butterworths, Sydney, 2004. School of Law and Legal Studies LCC

Printed Materials 2002


Course Objectives By the completion of the subject, you should:

be familiar with the law of contract, the sale of goods, and negligence,

understand how such law develops through the courts and the legislatures, and

appreciate that this law is a social phenomenon, reflecting social values and regulating social relations.


Resources www.harley.net.au

Lecture slides Tutorial exercises Notices Course outline including assessment Links Writing guides


Resources (cont.) School of Business web site

www.latrobe.edu.au/business/studmats/subjects.htm

A.C.N. Website http://resource.auscampus.net

Libraries LaTrobe Online UTS


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


Problem Solving No “right” answer A weighing up of

competing factors Comparing &

contrasting cases Must explore all

possibilities


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

Begin reading your textbook TODAY Attend free classes on essay writing Ask your lecturer to explain if you don’t

understand something. Give priority to your study over part time work


Week 1

The Australian Legal System


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


Sources of Law

Parliament The Courts

Equity Common Law

Contract LawUnconscionable Conduct

Promissory estoppel

Trade Practices Act

Fair Trading Act

Federal State


Court Based Law Common Law

The oldest source of law Developed over centuries in England by judges Also called

Judge made law Traditional law

Equity Developed by Court of Exchequer to overcome

injustices Prevails over inconsistent Common Law


Court Based Law Fusion

Australian colonies had fused courts to save money

1870’s – Judicature Act reforms in UK Now – Equity often referred to as part of

Common Law Precedent

Both Equity & Common Law on the Doctrine of Precedent


Legislation Law made by Parliament 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.


Legislation (Cont.) Legislation overrides inconsistent Case Law One important role of Judges is to interpret

legislation Outdated Incomplete Ambiguous Unforseen circumstances


Pecking Order

1. Legislation

2. Regulation

3. Equity

4. Common Law


Federal System of Government History

Separate colonies of UK Federation – 1901

Promote free trade between the states Limit Federal powers to protect states’

independence Division of Powers between States and

Commonwealth governments


Federal System of Government (cont.)• Australian Constitution Act 1900

• Established 3 Branches of Government• The Governor-General (Queen’s rep)• Federal Parliament: House of

Representatives & the Senate• The Courts• This is called the “Separation of Powers”

• Divides Legislative Power between the States and the Commonwealth


Division of Powers Commonwealth Powers

Section 51 – non-exclusive powers Section 52 – exclusive powers are limited to those set out in sections 51 &

52 States retain balance of legislative areas

There is an area of overlap s109 - Commonwealth legislation prevails

over inconsistent State legislation


Courts The hierarchy of courts Role of the High Court

Original Jurisdiction Appellate jurisdiction Conferred jurisdiction

Federal Courts State Courts


High Court

Federal Court Family Court

Federal Magistrates Service

Court of Appeal

County Court

Magistrates Court

Supreme Court

FEDERAL COURTS VICTORIAN COURTS

Privy Council

Appeals Abolished


Rule of Law All person treated equally Enforced through

An independent judiciary System of Appeals Publication of laws Free press reporting of cases Stare decisis


Stare Decisis Where a court has decided a case in a

particular way, then subsequent cases involving similar facts should be decided in the same way

Precedent Binding - Courts must follow a decision of a higher

court in the same hierarchy Persuasive - Courts will consider decisions of

other courts


Precedent Two types

Binding Persuasive

Binding Must be followed and applied

Persuasive Not binding. Considered by the Court and may be

followed


Precedent (Cont.) Persuasiveness depends on

quality of decision jurisdiction of the court that gave the

decision


Rules of Precedent Lower courts must follow decisions of higher

courts in the same hierarchy A judge does not have to follow decisions of

Judges at the same level. However, will be persuasive.

Judge does not have to follow decisions of higher court in a different hierarchy although they will be persuasive

Highest court in hierarchy can overrule its previous decisions


The Court’s Decision (Cont.) Ratio Decidendi

Consists of those parts of the decision that were necessary to decide that particular case

Obiter Dictum Statements made by Judge that are not

necessary to decide the case Remarks in passing


Applying Ratio Decidendi Can be difficult to discern Commentators often dispute what is

decisions Ration Decidendi Can be widened or narrowed by later

decisions Facts are rarely exactly the same


Example - Donoghue v Stevenson A drink manufacturer has a duty to persons who might drink

their product to take care that the bottle does not contain dead snails

A person has a duty to act in such a way that his or her conduct does not cause harm to others.

A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.

People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.


Citing Cases – Volumes by Number Smith v Jones (2001) 145 CLR 203, 207

Name of parties Year of publication Volume number Report name First page of judgment Page on which specific passage appears


Citing Cases – Volumes by Year Smith v Jones [1945] 2 All ER 203, 207

Name of Parties Year of Volume Volume number if more than one volume in

a year Report name Page on which specific passage appears


Citing Cases – Medium Neutral Smith v Jones (2001) HCA 203, [20]

Year of decision Court designator Judgment number Paragraph number


Form and Structure Number of the Act Table of Provisions Title of Act

Short Title Long Title

Date of Assent Often identifies starting date of law Unless Act specifies otherwise, Act starts 28 days

after Assent Proclamation date ie when published in

Government Gazette


Form and Structure (Cont.) Internal Division

Part Division Section Sub sections Paragraphs

Purpose or Objects clause Older Acts have a Preamble


Form and Structure (Cont.) Definitions Sections Headings

Allows easy reference and research


Interpretation of Legislation 3 Approaches

1. Literal Approach

2. Golden Rule

3. Purpose Approach

The purpose Approach is now required b y the Acts Interpretation Acts


Approaches to InterpretationLiteral The Court will give the words of a Statute

their ordinary meaning even if it produces an absurd, unjust, inconsistent or meaningless result

Dictionary meaning - but which dictionary? Sometimes the “legal” meaning is used More popular in the past


Approaches to Interpretation (Cont.)The Golden Rule

“...the grammatical and ordinary use of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the [document], in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further”

Grey v Pederson (1857) 10 ER 1216 per Lord Wensleydale


Approaches to Interpretation (Cont.) Purpose Approach Courts try to determine the intention of

Parliament when it passed the Act. Seeks to discover the wrong that Parliament

tried to correct by the statute and interpret the Act accordingly.


Approaches to Interpretation (Cont.)Purpose Approach 4 elements:

What was the law before the Act? What mischief did the prior law not provide for? What remedy did Parliament establish to remedy

that mischief? How can the Court interpret the Act in order to

correct the mischief? How do you discover the intentions of Parliament?


Principles of Interpretation Act to be read as a whole Words to be presumed to have consistent

meanings throughout Act Technical words to be given technical

meaning Certain rules give rise to presumptions


Principles of Interpretation (Cont.) Means versus Includes

“Means” is an exhaustive definition “includes” is not exhaustive

Mandatory versus Discretionary Mandatory - the thing must be done Discretionary - there is a choice “may” = discretion “shall” = mandatory


Principles of Interpretation (Cont.) Ejusdem Generis

“of the same kind” Expressio Unius

where something is expressly referred to, everything else is excluded

Special provisions prevail over general provision


Principles of Interpretation (Cont.) Statutes that should be construed narrowly

Penal statutes Taxation Acts Acts that change common law

law of commercial contract guy harley bachelor of law (university of adelaide – 1978) barrister...

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