T1, 2021 business law lecture 1 - intro to law

1. 2105AFE
Introduction to Business Law
Welcome Aboard!
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2. Course Co-ordinator / Lecturer
Name : Mark Magner
Email: mark.magner@staff.griffithcollege.edu.au
When emailing please include:
Your name and student number: E.g. John Smith – 10002578
The campus you are enrolled in: E.g. Griffith College
The name and code of the course: E.g. Intro to Business Law – 2105AFE
Specifics of what you are requesting:
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3. ASSESSMENT
• Weekly tutorial homework check (2 Mks x 7) 14%
Tutes 1-7 (Marked as to genuine attempt)
• In-Class Quiz ( 15 multiple choice - 1 mark each) 15% Week 6
• Mid Trimester Exam (15 multiple choice - 1 mark each) 15%
Week 9
• Hand-in Assignments (4 x 4%) 16%
Weeks 9,10,11,12 (Marked as to merit)
• End of Semester Exam (Narrative ILAC answers and or short
answer) 40% Week 13-14
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4. Do I need the textbook ?
Answer: Yes, you need the textbook. You will also need
the text to complete the weekly homework
Prescribed Textbook
Students should purchase the following prescribed textbook:
• Required Text:
- French, B. (ed) (2018) Business Law in Practice, Thomson Reuters:
Australia. ISBN: 9780455243801
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5. Course Content
• The Australian legal system - common law, statute
law, interpretation of statutes, courts system, legal
precedents.
• Law of contract
• Consumer protection law
• Law of torts – negligence/ negligent misstatement
• Law of partnership
• Law of corporations
• Law of anti-discrimination
• Law of employment
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6. Workshops & Tutorials
• Important:
You should prepare answers to the Tutorial Questions every
week and bring them to the class.
Weekly homework is an assessment item to be completed
individually.
BEWARE! - Plagiarism will not be tolerated.
You must not submit copied work from other
students from QIBT/Griffith College or GU past or
present.
When the tutor discusses the answers to the questions,
students must write down the missing points in your
answers. This can be done only if you have prepared the
answers beforehand.
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7. Passing this course
• Do not miss lectures and tutorials as marks are given every
week!
• Listen to the lecturer /tutor!
• Do not play with your phone in class!
• Do not carry on private conversations during the lectures!
• Do not aim and work to get only 50% marks for the course!
• Be proactive / positive about learning – don’t cut corners
• Submit all assessments if you want to pass
• Meet regularly with lecturer/ tutor if you have any
learning difficulty
• Note: Hints and study tips are given every week
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8. Lecture 1
Introduction to the Study of Law
OBJECTIVES
• What are the characteristics of the Australian legal
system?
• What are the sources of law making?
• Rules of Statutory Interpretation
• Summarise the history of common law and equity.
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9. WHAT IS LAW?
• Law is a set of rules that regulates the behaviour
of members of a society.
• Simply, Law means a rule of conduct or
procedure recognised by a community as binding
or enforceable by authority.
The Rule of Law
The rule of law is: “the principle that every person and
organisation (including the government) is subject to the
same laws.”
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10. The Legal System
The authority that binds the law is known as the
legal system.
An effective legal system must contain:
– Certainty: A law that is uncertain provides
inconsistency and unpredictability
- Flexibility: A law that is incapable of reflecting changing
moral and social values cannot provide just outcomes
– Fairness: A law that is not fair cannot be impartial or just
– Accessibility: A law that is inaccessible cannot provide fair and just
outcomes
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11. Morals, Ethics and the Law
• Morals - are rules which are concerned with what is right and
what ought to be done.
• Ethics - are a standard of behaviour which applies not only to
the individual but to all persons to act in a morally correct and
honourable way.
• Law – is set of rules regulating people’s interactions with each
other and setting standards of conduct between each other
which are enforceable through sanction.
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12. Morals, Ethics and the Law
• The Purpose of Ethics is to provide guidance for individuals in
respect to their relationships with others. Many businesses have
now adopted business…
– Codes of Ethics (or conduct) to guide employees when considering ethical
issues during the decision-making process.
• The Purpose of the Law is to regulate / govern the conduct of all
members of society both natural and legal
• The Competition and Consumer Act (Cth.) 2010 – Is an example
of a statute/law that enshrines the need for ethical business
dealings
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13. The Pursuit of Justice
• Justice: what right-minded members of the community
believe to be right or fair. As such justice is always going to
be an objective ideal rather than an exact formula.
i.e.- Dependent upon an individual society’s definition
of good and evil at a particular point in time.
i.e. - what a society believes is fair and just may
change over time.
(Pictured right: Lady Justice (the symbol that justice is blind, meaning that
justice regards no race, colour, gender or creed )
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14. International Law
• International law is concerned with regulating the
conduct between nation states.
• International law also applies to private individuals
engaged in international transactions.
• International law is governed by treaties between
assenting nations.
• International law is not binding on a nation until it
is ratified by domestic legislation
The ‘United Nations’ is the body that facilitates and
attempts to regulate international law /relations
Pictured top right: UN HQ in New York Pictured bottom right: the UN Symbol
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15. Sovereignty
Definition: Sovereignty
• The supreme, absolute, and uncontrollable power by which any
independent state is governed – the supreme political authority –
paramount control of the constitution and frame of government and
its administration. (Black’s Law Dictionary)
• In international law – the independence of a state; freedom from
external interference in the conduct of a state’s affairs.
(Butterworths Concise Australian Legal Dictionary)
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16. Sovereign States
Definition: Sovereign State (aka A ‘Nation State’)
• An entity which has acquired the attributes of statehood.
• A sovereign state is not subject to any other state in any respect
• A sovereign state has the sole right to make laws over its
constituents e.g. to maintain and enforce laws via a police force,
or to raise an army.
• A sovereign state has the sole ability to enter into international
relations on behalf of its population
• Australia is a sovereign state
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17. Origins of Australian Sovereignty
In 1788, British common law
(as accepted in International Law
at the time) recognised three methods
by which the Crown could
‘legitimately’ acquire new territory
and claim sovereignty over an
area of land.
The accepted methods of acquiring sovereignty were:
1. Military Victory
2. Treaty (cession)
3. Settlement (Doctrine of Reception) – ‘terra nullius’ – (EMPTY
LAND or land belonging to no-one)
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18. Sovereignty via ‘Terra Nullius’
Definition: Terra Nullius
• The basic principle of declaring a land ‘terra nullius’
was that the existing laws and customs of that land
would no longer apply once the declaration was made.
• The principle of ‘terra nullius’ was widely used by the
British colonists to deny the existence of indigenous
peoples, their law and their government.
• Under the principle of ‘terra nullius’, indigenous peoples
were deemed to be non-existent
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19. Terra Nullius
Australia was considered terra nullius because:
•Indigenous Australians in 1788 appeared
to the British to have no system of property
ownership as recognised by the Western world.
•As such the indigenous people of Australia
appeared to the British to be nomadic, uncivilised and
incapable of cultivating the land and were not considered to be
the owners of their land in accordance with European principles.
•Therefore, in accordance with European principles, the land was
empty and capable of acquisition via the doctrine of terra nullius
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20. Mabo No.2 v. Qld
The long held fiction of Australia being ‘terra nullius’
at the time of colonisation was overturned in:
• Mabo v. Queensland (No. 2) (1992)
In Mabo the High Court acknowledged that Australia
had not been terra nullius and that common law recognises
a form of native title to land. The significance of the
overturning of ‘terra nullius’ was initially that it brought into
question the validity of the Constitution and subsequently the
whole Australian legal system however…..
In a now famous statement Brennan J stated that: “The court is not free to adopt rules that accord
with contemporary notions of justice and human rights if their adoption would fracture the
skeleton of principle which gives the body of our law its shape and internal consistency” So what
did Brennan J mean by this statement?
That the High Court did not have the authority to overthrow the legal system
and Constitution.
(Pictured right: Eddie Koiki Mabo 1936-1992)
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21. History of Australian Law
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Federation 1901
Before Federation in 1901, Australian law was in effect
British law. Australia at that time consisted of a group of
six British colonies.
With the enactment of the Commonwealth of Australia
Constitution Act 1900 (Imp) the six colonies became the
Commonwealth of Australia on 1 January 1901.
From this date a national parliament was established
with its jurisdiction set down in the Commonwealth
Constitution. It is the Commonwealth Constitution that
empowers federal parliament with the power to make
laws. The constitution provides the rules of government.
(Where there is a conflict between Commonwealth and State law,
the Commonwealth law will prevail)

22. The Separation of Powers
The functions of the government are allocated to different institutions:
– Laws are made by a legislature
– Laws are administered by an executive
– Laws are interpreted by judiciary
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Australian (Commonwealth) Constitution
Legislature
Commonwealth
Parliament
Executive
Ministers &
Departments
Judiciary
Federal courts

23. Sources of Law:
There are two sources of Law in Australia:
• Statute Law (legislation)
• Common Law (case law)
(1) What is statute law? (Laws made by politicians in federal,
state and territory parliaments)
Statute Law is enacted by parliament. It is also referred to as
legislation or an act of parliament.
For example:
Competition and Consumer Act 1974 (Cth.)
Civil Liability Act 2003 (Qld.)
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24. Recognising a Statute
• Competition and Consumer Act 2010 (Cth) – Section 18
Name of statute Year in which Name of Parliament section of statute
statute first made that made the law
• Civil Liability Act 2003 (QLD) - Section 9
?
? ? ?

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Cth Hierarchy
High Court of Australia
Full Court or Family and
Federal Court
Federal Magistrates
Court
Federal Tribunals (e.g.
AAT, Native Title
Tribunal)
State Hierarchy
High Court of Australia
Full Court of Supreme Court / Court
of Appeal
State / Territory Supreme Court
State Intermediate Courts (e.g.
District Court)
State / Territory Minor Courts (e.g.
Magistrates Court)
State Tribunals (e.g. QCAT)
Court Hierarchy

26. Continued:
What is Common Law? (laws based on court decisions)
Common law (aka case law) is law made by the courts.
The basic principle underlining common law is that:
• The decisions of superior courts become ‘binding precedent’
for later cases involving similar issues and circumstances.
whereas…
• The decisions of lower courts merely provide
‘persuasive precedent’
This is known as the ‘doctrine of precedent’
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27. Recognising a Case:
Cameron v Anderson (2003) 107 CLR 553
Cameron : Plaintiff
V : Versus/against
Anderson : Defendant
2003 : Year in which case was reported in the law report
107 : Volume number of the law report
CLR : Abbreviated name for law report – Commonwealth
Law Report
533 : page number that the court’s decision begins on.
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28. Sourcing Legal Materials
• The Australian Legal Information Institute (Austlii)
• For this course the most relevant electronic source
for sourcing legal information is ‘austlii.’
The website address for Austlii is:
www.austlii.edu.au
Austlii will enable to source both statute (legislation) and
common law (case law).
Your weekly tute questions will require you to source answers
from Austlii.
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29. Civil vs Criminal Law
• Criminal law: - covers offences with which an individual
can be charged by the state. This is enforced by the state
either through the police in magistrates courts or in more
serious cases the Department of Public Prosecutions
(DPP).
• Civil law: Enforcement has to be undertaken by individual
persons. So the case law will be named from the parties
involved.
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30. Civil vs Criminal Law
Parties Aims Outcome Proof
Civil law Plaintiff
commences
action against
Defendant
Compensation
for individuals
Damages,
specific
performance
or an
injunction
On the
balance of
probabilities
(the plaintiff
must prove
that the
defendant is
guilty)
Criminal
law
Prosecutor
(Government)
commences
proceedings
against
Defendant
Punishment of
the offender
Prison terms,
fines, good
behaviour
bonds,
community
service orders
Beyond a
reasonable
doubt
(The state
must prove
that the
defendant is
guilty) 30

31. Civil v Criminal Law
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32. Rules of Statutory Interpretation
• There are a number of rules that the courts have adopted to assist in
interpretation. The main ones are:
(1) Literal rule
(aka the ‘plain meaning’ approach)
(2) Golden rule
(aka the ‘commonsense’ approach)
(3) Purpose rule
(aka the ‘mischief’ approach)
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33. Literal Rule
• Whenever possible we should interpret an Act literally.
The Flick Knife Case (Fisher v Bell)
– Facts: Constable Fisher saw a flick knife with a price tag
displayed in Bell’s 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”
– The term offensive weapon included flick knives.
• Applying the Literal Rule, what do you think was the Court’s
decision?
• Applying the literal rule, the knife had not been “sold, lent or
given” – it had merely been placed in the window and so Bell had
not committed an offence under that piece of legislation.
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34. Golden Rule
• Don’t be too literal
Court can modify a literal interpretation of the statute to remedy an
absurd or inappropriate result.
The Stop Case (Lee v Knapp)
• The driver in an accident stopped momentarily and then drove off
before doing anything else. The driver said he stopped and so
complied with the legislation.
• Held that the Act required the driver to stop for a sufficient time to
supply information about the accident to those persons with
legitimate interests.
• A literal interpretation would have prevented a driver being found
guilty of not stopping properly after an accident.
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35. Purpose Rule
• This applies where the meaning of a term is ambiguous or uncertain,
the courts will favour an interpretation that is consistent with the
purpose of the act.
• Case: Smith v Hughes [1969] 1 WLR 830
The Street Offences Act 1959 UK prohibited solicitation by prostitutes “in
a street”. To get around the legislation, prostitutes stood on balconies or
at their windows calling out to passers by.
Held that the mischief that the legislation was designed to overcome
was to prevent people who used the street being solicited. Hence the
words “in the street” should be interpreted to include calling out from
balconies.
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36. 36
Introduction to Business Law
2105AFE
Lecture 1b: The Australian Legal System

37. 37
Lecture 1b: Objectives
On completion of this chapter, you should be able to:
explain the roles of the police and the courts in the legal system
describe the court system at state and federal levels
explain the roles of parties to a legal action
describe some of the duties performed by barristers and solicitors
explain the main role of the jury in the court system.
describe and explain the meaning of ratio decidendi and obiter dictum
explain the doctrine of precedent
describe the practices followed by the courts in relation to judicial precedent

38. The Role of the Police & the Courts
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The role of the police
Police enforce the laws created by the government.
The role of the courts
The courts are involved in the administration of the law as
well as the resolution of disputes.
Courts impose a legally binding decision on the parties to
the dispute.
The courts have a criminal and civil jurisdiction.
Jurisdiction (definition) Authority of the Court to hear a case
and make a decision – Criminal & Civil jurisdictions
Criminal jurisdiction:
- State brings an action against the accused
-Court where the matter is to be heard depends on the
serious of the offence but all actions must start in the Magistrates Court
- Summary offences (NON-gaolable)
- Indictable offences (gaolable)

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The Courts
Civil jurisdiction: an individual or organisation
commences an action against another individual
or organisation
Original and Appellate Jurisdiction
A court’s 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.
Hierarchy of Courts (definition): Courts are ranked according to their ability to hear matters
and in civil matters the amount of money involved
Each level of the court system has a jurisdiction.
(Pictured right: The High Court of Australia in Canberra ACT)

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Court Hierarchies
• The Australian court system consists of a Federal court hierarchy and the
various State and Territory court hierarchies.
• The hierarchy is ‘the ranking of courts according to their ability to hear a
case’.
• A court hierarchy:
– allows for a system of appeals.
– allows different forms of hearing according to the gravity (seriousness)
of the case.
– fosters specialisation of judges in that similar cases are tried in similar
courts (e.g. Federal Court judges can specialise in federal matters such as
taxation).
– increases the likelihood that mistakes can be corrected on appeal by
higher courts – i.e. the “Big Brother” function of the higher courts.

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The Court Hierarchy in Australia
High Court of Australia
Full Court of the
Federal Court
Full Court of the
Family Court
Full Court/
Court of Appeal
State Supreme
Court
State Supreme
Courts
District/County Court
Federal Court
of Australia
Family Court
of Australia
Federal
Magistrates
Court
(FMC) Magistrates Court/
Local Court/Court of
Summary Jurisdiction
Federal
Tribunals
(AAT, ACT,
IRT) State
Tribunals
(SCT,CCT,
QCAT)

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High Court of Australia
Original jurisdiction Appellate Jurisdiction
Constitutional questions
Legislative power of FP
Disputes between the states
Cases involving foreign affairs
State Supreme Courts
Other courts in the FCS
High Court of Australia
A Chief Justice and 6
Justices

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The High Court of Australia (HCA)
• The High Court sits at the top of the Federal
and State hierarchies.
• Original jurisdiction: the HCA can hear the
following disputes between:
– State Government and the Cth. Government
– Two State governments
– Residents of different states
– Foreign affairs matters
• Appellate jurisdiction: the Court can hear appeals from State Supreme Courts and
the Full Court of the Federal and Family Courts.
• Special leave, or special permission, must be granted to appeal a matter to the
High Court.
Website: www.hcourt.gov.au (Pictured right: Inside the HCA)

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Federal Court of Australia
Federal Court
Original Jurisdiction Appellate Jurisdiction
Industrial disputes
Bankruptcy matters
Federal tax disputes
Enforcement of the TPA
Intellectual Property
Federal Magistrates Court
A single judge of the F.C.
A single judge of the SC
Commonwealth matters

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Federal Courts
• Original Jurisdiction: The FMC deals primarily with
Family Law matters and hears simple bankruptcy,
human rights, administrative law, industrial law
and trade practices law matters up to $200,000.
• Appellate Jurisdiction: Hears appeals from Federal
Tribunals).
Federal Magistrates Court (FMC)
Family Court
No fault divorce
Federal Court
Traditional Commonwealth matters

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Family Court
Family Court
Original Jurisdiction Appellate Jurisdiction
All family law matters
• Appeals from FMC

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The Federal Court Hierarchy
Federal Magistrates Court (FMC)
The Federal Magistrates Court was established in 1999.
• It provides a cheaper, faster and more efficient method of resolving less
complex civil and family law disputes. In property proceedings, the
value of the family assets must not be greater than $700,000.
• It has both original and appellate jurisdiction.
Original
FMC
Appellate
Bankruptcy
Human Rights
Administrative law
Trade practices law
Federal Tribunals
Administrative
Review Tribunal

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State Court Hierarchy
Court of Appeal
State Supreme Court
Full Court
(3 judges)
State Supreme Court
Single Judge
District Court (DC)
(County Court)
Magistrates Court (MC)
(Local Court)
State Tribunals

49. 49
continued
Supreme Court
Single judge
Appeal Court
Civil Appeals from
lower courts
Criminal
3 judges
State Supreme Court Lower Courts
Capital Offences (Murder etc.)
with jury
Civil and Criminal
Jury
(for Civil Matters)
The SC hears serious criminal matters such as murder and civil matters where
the amount of damages claimed exceeds $750,000.

50. 50
Supreme Court (SC)
• Supreme Courts are known as superior courts and are also known as courts of record because
their decisions are recorded in Law Reports.
• The courts below the Supreme Courts are called inferior courts.
• Appellate jurisdiction: the SC hears appeals from the DC before a single judge. The SC also has
an appeals division. The Court of Appeal (three judges) in Queensland hears appeals from the
decision of single SC judge and sometimes from the DC.
• Original jurisdiction: the SC in Queensland hears serious criminal matters such as murder and
civil matters where the amount of compensation claimed is more than $750,000. The matter is
heard by a single judge.
• Jury: A jury is used for criminal matters heard for the first time, and for some civil claims such as
defamation.
– A jury is a group of ordinary citizens who decide a matter.

51. 51
continued
District Court
Single Judge
Civil Appeals from
lower courts
Criminal
With jury
No jury From A$150,000 to A$750,000

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District Court (DC)
• The (DC) is essentially an intermediate court
Original jurisdiction:
The (DC) hears civil disputes and claims between
$150,000 & $750,000 and some serious criminal
matters
Appellate jurisdiction: DC judge may hear an appeal
from the decision of the Magistrates Court.
NB. There are no intermediate courts in Tas, the NT and the ACT.

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Magistrates Court – Local Court
MC
Single Magistrate
Criminal Civil
•Original jurisdiction in civil matters is claims from $25,000-
$150,000.
•The court has no appellate jurisdiction, although it has a limited
ability to review and deal with objections to some administrative
decisions of tribunals.
Coroner's Court Children’s Court
Committal Proceedings

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Magistrates Court (MC)
• Original jurisdiction: Magistrates Courts are often known as summary courts because
they deal with minor or summary offences and committal hearings and civil matters
where the amount claimed is between $25,000-$150,000.
– Criminal jurisdiction
• Summary offences / Summary trials
• Indictable offences
• Committal Hearings: A preliminary hearing on a serious (indictable) criminal matter
(e.g. murder) to determine whether the prosecution has sufficient evidence
indicating that the person charged may be guilty (prima facie). If so, the accused will
be sent to a higher court for trial by a judge and jury.
– Committal with cross
– Full hand-up
• The Magistrates Court can also function as Drug Court, Children’s Court, Coroner’s
Court, Traffic Court, Probations, Murri Court, Domestic Violence and an Industrial
Court

55. QCAT
In Queensland civil claims of less than $25,000 are the
jurisdiction of the Queensland Civil and Administrative
Tribunal (QCAT)
QCAT also has the power to review disputes relating to:
Debt, residential tenancy, consumer & trader, family,
building, anti-discrimination, retail shop leases and
appeals relating to administrative decisions.
See: www.qcat.qld.gov.au
55

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Alternative methods to courts
• Alternative methods of dispute
settlement have grown in the last
few years because of delays, costs,
ignorance and intimidation in the
traditional court system.
These include:
Tribunals, Ombudsmen, and
Alternative dispute resolution such
as mediation, conciliation and arbitration.

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Judicial and quasi-judicial tribunals
• Tribunals (definition): A body established by statute to regulate specific matters.
– Tribunals are not courts.
– Are subject to review by the courts.
• Why Tribunals?: Increasing number of cases in the court system and the need for
specialisation
• Negotiation, Mediation, Conciliation, Expert Determination, Adjudication
(Arbitration)
Three key differences:
– Tribunals review administrative decisions while courts review decisions of courts
lower in the hierarchy
– Judges (i.e. former lawyers) preside over courts, non-lawyers often preside over
tribunals
– Tribunals are limited to jurisdiction outlined in the statute which created them

58. 58
Judicial and quasi-judicial tribunals
Australian Competition
and Consumer Commission
(ACCC)
Queensland Civil & Administrative
Tribunal (Qld)
–Examples:

59. 59
Specialist Tribunals
• In addition to courts there are a number of Federal and state tribunals that play
an important role in our legal system.
Key differences between courts and tribunals:
• Tribunals are not courts. Lawyers preside over courts; non-lawyers often preside
over tribunals;
• Higher level of formality in courts than in tribunals
• Tribunals review administrative decisions; courts review court decisions;
• Evidence will be taken from witnesses but the tribunal will not be bound by the
strict rules of evidence. The aim is to reduce the cost and formality of
proceedings.
• Courts have a wider jurisdiction to hear matters, Tribunals are limited to
jurisdiction outlined in statute.
• Proceedings before tribunals are cheaper.

60. 60
**Break** Ombudsman
– “Agent or representative of the people”
– They investigate complaints about
administrative actions and governmental
decision-making.
Examples:
• Commonwealth Ombudsman
• Telecommunications Industry Ombudsman
• Banking & Financial Services Ombudsman

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The Adversarial System
Features of the adversary system:
- Two opposing sides argue their case in a court
presided over by a neutral third party (e.g.
Magistrate/Judge).
– Traditionally - One side will “win”; one side
will “lose”
– In a civil case – parties prove their case.
‘on the balance of probability’.
– In a criminal case – the Crown proves the
case ‘beyond reasonable doubt’.

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Adversary System - Proof
• Standard of proof: degree of proof required for a
person to succeed in (or “win”) their case.
– Criminal cases: “beyond reasonable doubt” (BRD)
– Civil Cases: “on the balance of probabilities” (BOP)
– Difference: The standard of proof is lower in civil cases
than criminal cases.
• Burden of proof: The party that is required to prove
its case in the proceeding. This can be a decisive
factor in deciding whether to proceed with an action
or not.
– Civil cases: Plaintiff to prove
– Criminal cases: Prosecution to prove

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The parties (Criminal action)
Original jurisdiction:
– Crown (R) - represents the state in a criminal action against an accused.
– 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.
For criminal matters:
– The Prosecutor (DPP) must establish:
• That the accused had the intention or mens rea, to commit the crime; and
• That the accused carried out the act or conduct.
• If the accused is found guilty, the court will apply what it considers to be the
‘appropriate remedy’.
• A case can only be appealed on a point of law or fresh evidence - not fact.

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The Legal Profession & Jury
Solicitors and Barristers
Solicitors (Legal practitioners)
– Most of their work is of a non-litigious nature such as
conveyancing, preparation of wills, commercial, family law
matters, preparation of court documents.
Barristers
– Generally 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. The jury
determines questions of fact.
The Jury
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 matters:
– Because of cost, juries are not used as frequently.

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The Judiciary
Justices of the Peace
– Honorary positions, with the bulk of their work involved in
witnessing of documents.
– In QLD, SA and WA they can preside in a Magistrates Courts.
Magistrates
– Former lawyers or 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.
Judges
– Appointed to all courts above the inferior courts and generally
appointed from members of the Bar (barristers).
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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Definition: Doctrine of Precedent: Decisions (based on precedent) are
binding on lower courts
Definition: Precedent: A judgment that is authority for a case on similar
facts.
* The Doctrine of Precedent provides that once a precedent is
established, then cases based on similar facts in the future will be
decided by relying on the legal principles outlined in that precedent.
The Doctrine of Precedent*
(aka Case Law)

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Doctrine of Precedent
• According to the doctrine of precedent, in reaching its
decision the court MUST follow decisions of courts higher
than itself in the same hierarchy of courts within the
particular jurisdiction.
• Decisions of courts outside the particular hierarchy are not
binding but may be persuasive depending upon the status of
the court.
Rules of precedent:
(a) Binding precedent
(b) Persuasive Precedent

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Persuasive and Binding Precedent
(1) A binding precedent is one that must be followed.
e.g.:
The Magistrates Court of QLD is bound by a decision made
by the District Court of QLD.
(2) A persuasive precedent is one that is not required to be
followed but has influenced the court nevertheless.
e.g.:
A New South Wales District Court is not bound by a decision
of the Victorian Supreme court.

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Cth Hierarchy
High Court of Australia
Full Court or Family and
Federal Court
Federal Magistrates
Court
Federal Tribunals (e.g.
AAT, Native Title
Tribunal)
State Hierarchy
High Court of Australia
Full Court of Supreme Court / Court
of Appeal
State / Territory Supreme Court
State Intermediate Courts (e.g.
District Court)
State / Territory Minor Courts (e.g.
Magistrates Court)
State Tribunals (e.g. QCAT)
Court Hierarchy

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Finding cases

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Differences between Statutes
(legislation) and Common Law
Major differences between statute and
common law
Statutes (Legislation) Common law (Case
Law)
Made by parliament Made by judges
Operate
prospectively
Operates reactively
Written in one text Dispersed

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Statutes (Parliament) Common law (Judges)
Democratic Above partisan politics
Clear and known Less certainty and consistency
Responsive to community Not as responsive
Takes the initiative Has to await litigation
Can be very broad Directed at particular issues
Easy to change Change is usually slow
Is ‘political’ Can’t dodge hard issues
Advantages and Disadvantages

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Precedent -Advantages
• Certainty: Lawyers are able to identify the precedents that are
relevant to a particular legal issue and advise their clients.
• Flexibility: Judge made law can be adapted to modern times
and unforseen circumstances.
• Transparency: Judges are less open than politicians to
pressure from community groups to change the law.
• Equality: A court can uphold the rights of weaker members of
society.
• Reality: Judges deal with real life situations and can consider
whether previous decisions were “good” law.

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Precedent - Disadvantages
• Difficulty in separating the ratio decidendi
from the obiter dicta.
• Difficulty in understanding a judge’s decision.
• Conservatism: Judges can be very conservative
and not want to change the law, particularly
their own decisions.
• Slow development of the law.

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Recognising a Statute
Section 180, Corporations Act 2001 (Cth.)
• Section 180: The section of the Act being dealt with
• Corporations Act: The name of the Act
• 2001: The year in which the Act was first made
• Cth.: (Commonwealth) Name of the Parliament that
passed the Act.
Section 5, Partnership Act 1891 (Qld.)
• Section 5: The section of the Act being dealt with
• Partnership Act: The name of the Act
• 1891: The year in which the Act was first made
• Qld: Name of the Parliament that passed the Act.

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Recognising a Statute
Section 180, Corporations Act 2001 (Cth)
Section of Act Name of Statute Year enacted Name of Parliament Year
enacted
• e.g. s180CA- Care and diligence--civil obligation only

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Finding Statutes and Precedent
Statutes - (aka Acts or legislation) and Precedent -
(aka Cases) can be located on line at:
1. Austlii - www.austlii.edu.au
2. Qld legislation - www.legislation.gov.au
3. Australian Law Online - www.law.gov.au

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• Ratio decidendi:
– The ratio is the expressed reason(s) for the decision of a case
• Obiter dictum (dicta):
– Statements made by a judge not necessary to decide a case
(sayings by the way, remarks made in passing)
– These statements are NEVER binding, but only PERSUASIVE /
INFLUENTIAL
Case Law

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Ratio decidendi
• Only what is called the ratio decidendi is binding. The ratio decidendi is the
part of the decision which is binding.
• The ratio decidendi is the reason for the decision, or the principle
underlying the decision, or the legal proposition which the court has
applied to the material facts of the case in order to arrive at its decision.
Donoghue v Stevenson (1932)
• “Each person has a duty of care to avoid conduct that could reasonably be
expected to harm a ‘neighbour’”. (This is the ratio decidendi – the essential
legal principle of the case.

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Obiter dicta
• Obiter dicta are the other legal arguments and statements of principle
found in the decision but not forming part of the ratio decidendi.
• An opinion voiced by a judge that has only incidental bearing on the case
in question and is therefore not binding. Also called dictum.
• The obiter are not binding on other courts, but may be persuasive.