1. BUSN1019 LAW FOR BUSINESS, SEMESTER 2 2018
• Lecture Week 2 – Legal Framework Part 2
• Topic Coordinator and Lecturer: Michael McNamara
2. Lecture Outline
• Doctrine of Precedent
• Court Hierarchy
• High Court of Australia
• Adversary System
• Interaction Between Legislation and Case Law
• Legal Problem Solving – IRAC
3. A Quick Recap
• There are two main sources of law in our common law system:
• Laws made by, or with the authority of, parliament (“Legislation”)
• Includes statutes and delegated legislation
• Laws made by judges (“Case Law”)
• Includes common law and equity
4. Case Law: The Doctrine of Precedent
• Like cases should be dealt with in similar ways
• Let’s use our imaginations!
• Imagine if …
5. Court Hierarchy
• A dual system:
• Federal legal system
• State legal system
• Courts are graded in order of importance—‘hierarchy of courts’.
• Jurisdiction of courts
• Original jurisdiction:
Certain matters can be heard for the first time
• Appellate jurisdiction:
Hearing a matter on appeal from another court
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7.
8. The High Court of Australia
The High Court of Australia:
• is the final court of appeal within the Australian legal system
• was established under s 71 of the Australian Constitution
• has limited original jurisdiction in those cases authorised by the
Constitution
• has appellate jurisdiction in both civil and criminal matters arising from
the state supreme courts and federal courts
• does not consider itself bound by its previous decisions
9. Adversary System of Justice
• Features
• Two opposing or adverse sides in a dispute
• An independent person hears the dispute and ensures compliance with certain rules
• Overall concept that the competitive arena will produce the best arguments and the
truth will be ascertained by the decision maker, be it judge or jury
• Something to Remember - Legal Costs
• Evidence and Matters of proof:
• Standard of proof: the degree of proof required in order to succeed
• Burden of proof: which party is required to prove its case
10. The Adversarial System, Truth and Justice
“The adversarial system is not concerned with truth, but with
procedural truth or legal truth, as distinct from substantive fact.”
Justice Spigelman ‘Truth and the Law’ Bar News, Winter 2011, 99.
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13. That’s Great! But What Exactly is Case Law
• Judges provide reasons for their decision
• Sometimes these reasons are very long!
• From these reasons, legal principles can be extracted
• Ratio decidendi
• Obiter dictum
• These reasons are published in law reports and online
14. Case Law – Let’s Take A Look!
• Cohen v Cohen 42 CLR 91
• This is an example of how cases are cited. This is a case from the
High Court of Australia
• Legal Principle / Ratio = an domestic agreement between husband and
wife for a dress allowance is not legally enforceable
• This case sets a precedent for other cases with similar issues and facts
• Remember the doctrine of precedent – treat like cases the same!
15. Let’s Recap Again
• There are two main sources of law in our common law system:
• Laws made by, or with the authority of, parliament (“Legislation”)
• Includes statutes and delegated legislation
• Laws made by judges (“Case Law”)
• Includes common law and equity
16. Legal Problem Solving –
How Do To Interpret Legislation
• Need to balance the:
• Literal words
AND
• The purpose
Read the words in light of the purpose!
17. Legal Problem Solving –
Using Precedent
• Need to identify a precedent with a similar fact pattern
• Isolate the relevant legal principle that is relevant to the problem
at hand
• Consider the facts of the problem at hand and how they are
similar to, or differ from, the precedent case
• Argue, based on the relevant legal principle and the facts at
hand, whether the precedent should be followed
18. Legal Problem Solving –
Relationship Between Legislation and Case Law
• When is legislation used?
• Whenever there is relevant legislation, that legislation is the starting point.
• As a general principle, legislation overrides preexisting case law
principles.
• When is case law used?
• Case law principles are used if there is no relevant legislation. Here
judges apply the legal principles developed by judges in previous
decisions.
• Although legislation overrides preexisting case law principles, sometimes
legislation is unclear or ambiguous. In this situation, other case law is
developed to clarify the meaning of legislation.
19. Legal Problem Solving –
IRAC
• I – Issue
• R- Rule
• A – Analysis or Application
• C – Conclusion
Note: This is a guideline, not a straight-jacket! Legal problem solving is
not rigid, but there are parameters. You need to get a sense of the
process and how it flows, rather than viewing it as a formula.
20. Give me an “I” - Issue
• Legal issues arise from interpretation of the facts (e.g. from a
problem question or an assignment)
• In this Topic you will be given clear guidance in the assignment
or question about what the issue is
• Phrase any legal issues as questions to start with (great way to
make sure you answer them!)
21. Give me a “R” - Rule
• Here we are talking about legal rules or “the law”
• What does the law say?
• Often lawyers need to research what the law is in relation to a
particular issue. You will be directed to the relevant law for
issues dealt with in this topic.
• Remember there are two sources of law? What are they?
22. Give me an “A” – Analysis
• Application of law to facts
• In the application stage you might go back and forth between
arguments
• Remember, there is often more than one plausible argument
• There is often not a definitely correct or ‘perfect’ analysis
• It is about the strength of an argument
• Use ‘if…then...’ statements
23. Give me a “C” - Conclusion
• State your conclusion
• Be careful in how you state your conclusion – don’t be too
definitive if some aspect is uncertain.
• Either way, be clear!
• Don’t write ‘I believe’ or ‘I think’
24. Legal Problem Solving Example
• Summary Offences Act
1953 (SA)
50—Unlawfully ringing doorbells
A person who, without reasonable
excuse, disturbs another by wilfully
pulling or ringing the doorbell of a house
or by knocking at the door of a house is
guilty of an offence.
Maximum penalty: $250.
http://www.istockphoto.com/au/illustrations/ringing-
doorbell?excludenudity=true&sort=mostpopular&medi
atype=illustration&phrase=ringing%20doorbell
25. Legal Problem Solving Example
• Steve is an annoying 38 year old man-child who suffers from a
severe case of arrested development. In other words, he is
very immature and does stupid things. Steve is the type of
person who will get into a fight in the street or yell at people
from his car.
• For fun, Steve hides in a bush at the front of his neighbour’s
house. He then repeatedly throws a small bouncy ball at the
door until his neighbor opens the door to see who is there.
• Is Steve guilty of an offence?
26. IRAC in Action
• Issue – Has Steve committed an offence?
• Rule – Steve will have committed an offence if he, without reasonable excuse,
disturbs another by wilfully pulling or ringing the doorbell of a house or by knocking
at the door of a house (section 50 of the Summary Offences Act 1953 (SA))
• Analysis – Steve could argue that he hasn’t committed an offence because he
hasn’t actually “knocked” and didn’t actually “ring” the doorbell of his neighbour’s
house. He has just thrown a ball. However the wording needs to be considered in
the context of the purpose of the legislation. Section 50 seems to be aimed at
preventing someone from disturbing another person, in their house, by making them
think someone is at the front door.
• Conclusion – Steve’s behavior is likely to fall within the scope of section 50 in which
case he will have committed an offence.
