TABL 1710

Business and the Law

Lecture 2

Legislation and Case Law

Lecturer: Lyn Brady

2016 The University of New South Wales

Sydney 2052 Australia
The original material prepared for this guide is copyright. Apart from fair dealing for the purposes of private study, research, criticism or review,
as permitted under the Copyright Act, no part may be reproduced by any process without written permission.
Enquiries should be addressed to the Head of School, Taxation and Business Law, UNSW, Sydney

TUTORIALS START THIS WEEK

Tutorials go from week 2 (this week) to week 13
inclusive
You must be enrolled in a tutorial and you must attend
the tutorial in which you are enrolled
There is an 80% attendance requirement for tutorials in
this course
If you need to attend another tutorial for a week, please
let the Lecturer-in-Charge AND your tutor know: do not
just turn up to another tutorial!
Note: No changes can be made to your enrolment as
all tutorials are completely FULL
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MOODLE
All course information will be on Moodle
Course Outline
Tutorial Program
Lecture Slides
Discussion Forum
Major Assignment
Legal Research Material

PRESCRIBED TEXT:
NEW TEXT FOR TABL 1710
Used for the first time last semester:

Andy Gibson and Douglas Fraser

Business Law, 9th edn, Pearson
Custom Text for UNSW Business TABL 1710 Business and the Law

Students must buy the CUSTOM TEXT for TABL 1710

Only available at UNSW Bookshop
Copies purchased elsewhere will not have all the printed chapters
that you will need

DO NOT USE PREVIOUS TEXTBOOKS THAT HAVE

BEEN USED IN THIS COURSE
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Weekly topic/readings
See Moodle every week under heading:
Lecture Slides and Weekly Readings

Lecture 1: Review
Sources of Law
Parliament (Legislation/Statutes/Acts of Parliament/Enacted)
Courts (Judge-made law/Case law/Common law/Unenacted)
Classifications of law
International (treaties etc) /domestic (Australian)
Public (government) /private (individuals/organisations)
Substantive (actual rights)/procedural (process)
Common law/civil law
Civil law Codes (eg used in Europe, some parts of Asia etc)
Common law Courts/Judges/Cases
civil actions (emphasis on remedies)
criminal actions (emphasis on punishment)
different standards of proof
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Lecture 1: Review
1823 Court system and legislative council established
1828 to 1853 development of the NSW parliament and limited selfgovernment
1865 Colonial Laws Validity Act gives right to make some laws
independent of Britain (ie: beginning of some legislative
independence)
1901 Federation: Commonwealth of Australia established (see
next slide)
1931 Statute of Westminster gives right for Commonwealth
Parliament to repeal or amend laws made by Britain and states
future British laws will have no force in Australia
1986 Australia Act removes all remaining legislative and judicial
dependence and High Court becomes final court of appeal
See pp 25-30, Gibson & Fraser

Lecture 1: Review
Origins of Australian Law
Inherited English system of law
Federation/Constitution 1901
Levels of Government: Federal/State
Westminster system: constitutional monarchy/separation of
powers/responsible government
Separation of powers: Parliament/Executive/Judiciary
3 separate institutions (doctrine of separation of powers)
Parliament: 2 houses (House of Reps/Senate)
How Laws Made/Structure of an Act
Executive: Governor-General/Prime Minister and
Cabinet/Government Ministers, Government Departments
and the Public Service
Judiciary: the Judges and the Courts
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Lecture 2:

What is legislation
How laws are made
Statutory Interpretation
The process of using legislation to solve legal problems
What is the Judiciary
the court system
the role of the courts
Court hierarchy
Alternative methods to courts
Basic procedure in a court
Doctrine of Precedent
The process of using case law to solve legal problems
Legal Research
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Overview Lecture 2
Legislation and Case Law
On completion of this week in you should have an
understanding of:

How laws are made

The rules of statutory interpretation
The Australian court structure and hierarchy
How judges make law
The doctrine of precedent and how it operates
Some alternatives methods (ie other than the courts) to
resolving legal disputes

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Legislation
Legislation refers to the laws created by
parliament (ie. Federal or State/Territory)
Legislation can last for ever or until it
is changed
Legislation is also known as:
Statute Law
Acts of Parliament
enacted law
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How laws are made

See pp 25-30, Gibson & Fraser

Parliamentary
Draftsman

How laws are

made?

Cabinet

Political Party

Ministers

Department Heads

Backbench

Voters
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1st Reading
2nd Reading
3rd Reading
Parliamentary
Draftsman draft a
Bill. It is then put
forward to
Parliament by the
party/person who
wants to see it
become law

House of
Representatives
(Lower House)

1st Reading
2nd Reading
3rd Reading

Committees

Senate (Upper
House)

On Proclamation Date the

Bill (now called an Act)
becomes LAW

Governor
Generals
consent
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Structure of an Act

Short title
Table of Provisions
Purpose
Commencement
Definitions section:
also throughout Act
see also Acts Interpretation Act 1901 (Cth) and of Acts
Interpretation Act of various states

Headings for each section:

headings do not form part of the Act but can be used to
assist interpretation

Sections of the Act

can be divided into subsections, paragraphs and
subparagraphs
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Delegated Legislation
Power to make necessary rules that will enable legislation to work is
delegated to another authority (such as a government dept or local
government)
Delegated or subordinate legislation consists of:
Rules
Regulations
By-laws
Orders and administrative guides
Does not need to be passed by both houses of parliament
Made by the Governor General on the advice of the Executive

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Citing Legislation
Competition and Consumer Act 2010 (Cth)
Civil Liability Act 2002 (NSW)
See p 98, Gibson & Fraser

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Finding legislation
See http://www.austlii.edu.au/: resource of
Australian and international legal materials

Statutory interpretation
One of the roles of the Courts is to interpret legislation
made by parliament
But only if legislation is unclear if it is clear, valid and
unambiguous, courts must apply the legislation
If it is unclear courts can make law to clarify the
legislation and that becomes part of the judge made law
(ie decisions in cases)
See pp 103-109, Gibson & Fraser

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Statutory interpretation
When the source of the law is a statutory provision:
A judge who interprets the meaning of the words of
the statute also creates precedent
This may be used in future cases to determine the
meaning of the same statutory words or provisions

Statutory interpretation
BUT: if there is an inconsistency between case law and
legislation, legislation prevails
Always remember if there is a law in a statute or
legislation, it takes precedence over the case law/judge
made law

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Rules of Statutory Interpretation

To assist in interpretation of statutes, judges created
set of common law rules:
Literal rule (or plain meaning rule)
court gives effect to the literal meaning of the legislation
Golden rule
court gives effect to the literal meaning unless that leads to some
absurdity or injustice
this rule is no longer used
Mischief rule (or purpose rule)
where words are ambiguous, inconsistent or illogical, the court
will ask what mischief was the Act trying to remedy (ie: what
was the purpose of the Act) BUT problem was courts did not rely
on extrinsic material to work out purpose
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Rules of Statutory Interpretation

Because of inadequacies of Golden and Mischief Rules:
increasing frustration (from the Parliament) with Judges failing or
refusing to give effect to Parliaments intention when interpreting
statutory provisions
Parliament created the Interpretation statutes:
- Acts Interpretation Act 1901 (Cth)
- Interpretation Act 1987 (NSW)
Interpretation statutes deal with:
How to interpret statutory provisions (the proper purposive rule)
Define commonly used terms

Rules of Statutory Interpretation

Purposive Rule
Section15AA of the Acts Interpretation Act 1901 (Cth)
the court must consider the purpose of the legislation
The purposive rule is now the ONLY rule available
to Judges when interpreting the words of a statute
See p 106, Gibson & Fraser

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Rules of Statutory Interpretation

First place to look for the meaning of a word used in a
statute is IN THE STATUTE ITSELF
Intrinsic materials
Definitions section
- within the Act
- or cross-reference to a definition in another Act

Secondly, look at a dictionary/rules of grammar/other

precedent cases that may have defined or explained
the meaning of the word or phrase (or similar
words/phrases)
Consider any extrinsic materials (See next slide)

Statutory Interpretation
Extrinsic materials
Section 15AB
When the legislation is ambiguous the Court may rely
on extrinsic material to interpret the meaning of the
section

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Statutory Interpretation
What are extrinsic materials?
Examples:
Explanatory memorandum
Parliamentary debates/Second reading speeches
Parliamentary committee reports
Law reform commission reports
International treaties

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Applying legislation to
resolve legal problems
ASK:
Is particular legislation potentially relevant to the
problem/case that has arisen?
When was the legislation enacted?
Which section(s) of the legislation are relevant to the
problem?
Is there an interpretation question (for example, what
was the purpose of enacting the legislation?)
Applying the relevant sections of the legislation to the
facts of the problem/case, what decision is a court likely
to make?
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Case law
Case law is also known as:
common law
precedent
unenacted law
See pp 90-96, Gibson & Fraser

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Role of the judges and the courts

Judges/courts impose a legally binding decision on the
parties to the dispute
The courts have criminal and/or civil jurisdiction
Jurisdiction = power and authority conferred upon a
court to hear and determine a matter

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The police vs the courts

The role of the police
Police enforce the laws created
The role of the courts
The courts are involved in the administration of the
law as well as the resolution of disputes

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http://www.fedcourt.gov.au/videos/The_Court_Room_sml.wmv

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The adversary system

Features of the adversary system
Two opposing sides who argue their case in a court presided
over by a neutral third party (e.g. Judge)
One side will win; one side will lose
In a civil case parties prove their case on the balance of
probabilities
In a criminal case the Crown proves the case beyond
reasonable doubt
See p 72, Gibson & Fraser

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The parties
Plaintiff - the person starting a civil action
Defendant - the person defending a civil action
The plaintiff has the burden of proof (onus) to prove the
case on the balance of probabilities

See p 73, Gibson & Fraser

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The parties (contd)

For appeals:
Appellant - a person appealing against a previous decision and
who can be either the plaintiff or defendant from the first case
Respondent - the party who was successful in the first action

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The parties (contd)

For criminal matters:
Crown
represents the state in a criminal action against an accused
R is an abbreviation of Regina or Rex and refers to the Crown
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

36

The Australian Legal Profession

Solicitors and Barristers
Solicitors
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
See pp 75-78, Gibson & Fraser

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The judiciary
Justices of the Peace
Bulk of their work involved in witnessing of documents
To be eligible for appointment as a Justice of the Peace in NSW,
you must:
be at least 18 years of age
be nominated by a Member of NSW Parliament
be an Australian citizen
be of good character
consent in writing to confidential inquiries being made as your suitability
for appointment, including a criminal records check
not be an undischarged bankrupt
establish that your appointment as a justice of the peace is required for
your employment or to fulfil a community-based need for the
appointment
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The judiciary (contd)

Magistrates
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

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The judiciary (contd)

Judges
Appointed to all courts above the inferior courts and generally
appointed from members of the Bar
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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The jury
The jury determines questions of fact
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 cases:
Because of cost, they are not used as much as they once were

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How does a dispute get to Court?

Plaintiff
Solicitor issues a
letter of demand

Defendant

Issue of originating process

(summons/statement of claim)

The Defence document

Court
Pre trial mentions
Discovery/Interrogatories/Exchange of
Affidavits
Matter set down for trial
Trial (or Hearing)

42

The courts
The Court hierarchy has three significant purposes:
It provides a system of appeals
It allows different forms of hearing according to the
gravity or seriousness of the case
It is instrumental in building up precedent

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Australian court system

(See p 48, Gibson & Fraser)

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The court system

Original and Appellate Jurisdiction
A courts 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

45

State court system

Inferior (or Local) Courts
Inferior or local courts are located at the bottom of the
Court Hierarchy
Generally presided over by a Magistrate
The aim of these courts is to settle disputes locally,
quickly and cheaply

46

State court system (contd)

Inferior (Local) Courts
There is less emphasis on formality than in higher
courts
Still expected to follow procedural
rules and the laws of evidence
The jurisdiction of local courts differ from State to
State

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State court system (contd)

Intermediate (County or District) Courts
Form the middle level court in most hierarchies with
original civil jurisdiction
In their criminal jurisdiction they deal with the bulk of
indictable offences except for the more serious crimes
and they have limited appellate jurisdiction

48

State court system (contd)

Supreme Courts
Highest court in each State or Territory, a court of
record, presided over by a Judge
They have unlimited original jurisdiction in both civil
and criminal matters but hear only most serious cases
They have appellate jurisdiction
Vic, NSW, Qld, the ACT and NT have established
separate Courts of Appeal

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State court system (contd)

Specialist Courts
There are a number of other courts, set up with
specialist expertise, in the various states and
territories. These include:
Family Courts
- Family Violence Court
- Family Matters Court
Land and Environment Courts
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NSW Civil and Administrative Tribunal (NCAT)

NCAT is the one-stop-shop for specialist tribunal services in NSW

it deals with a broad and diverse range of matters in the following
areas: Administrative review, Consumers and Traders, Commercial,
Discrimination, Dividing Fences, Guardianship, Professional
discipline, Residential and Strata.
The NCAT Legislation sets out provisions related to establishing the
Tribunal, how proceedings are commenced, procedures and powers
of the Tribunal, and the appointment of Tribunal Members.
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Regulation 2013

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Federal court system

Federal Circuit Court of Australia
In April 2013 the Federal Magistrates Court of Australia
was re-named the Federal Circuit Court of Australia
Examples of matters dealt with:
minor family law, bankruptcy and trade practices
matters
applications under the Judicial Review Act 1991 (Cth)
appeals from the Administrative Appeals Tribunal

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Federal court system (contd)

Family Court
Established by the
Family Law Act 1975 (Cth)
Exercises both an original and appellate jurisdiction
over all matrimonial matters
Appeals only lie on questions of law to Full Court of
the Family Court

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Federal court system (contd)

Federal Court of Australia
Jurisdiction established by the Federal Court of Australia
Act 1976 (Cth)
In its original jurisdiction the court hears such matters
relating to bankruptcy, trade practices, intellectual
property and taxation
Its appellate jurisdiction hears appeals from single
judges of the Supreme Courts of the Territories, as
well as appeals from decisions of single judges of the
Federal Court
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Federal court system (contd)

High Court
Established under s 71 of the Australian Constitution
Australia Act 1986 effect of it:
Appeals to UK Privy Council cease
High Court of Australia becomes our final court of appeal
Australia has complete legislative independence from UK

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Federal court system (contd)

High Court
Limited original jurisdiction conferred by s 75 of Commonwealth
Constitution, over matters:
arising under any treaty
affecting consuls or other representatives of other countries
in which the Commonwealth, or a person suing or being
sued on behalf of the Commonwealth, is a party
between States, or between residents of different States, or
between a State and a resident of another State
in which an order (writ of mandamus or injunction) or prohibition
is sought against an officer of the Commonwealth

Appellate jurisdiction in both civil and criminal matters arising from

the State Supreme Courts and Federal Courts

Federal court system (contd)

High Court
Appeals do not lie as of right
Approval to hear an appeal must first be granted by
the High Court
The High Court is the final court of appeal within the
Australian legal system

57

Appeals within Federal &

Supreme Cts
High Court
By leave only, that is
not automatic

Court of Appeal/Full Court/Court of

Criminal Appeal
(2 3 Judges)

Single Judge

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The Doctrine of Precedent

A court is bound to follow previous decisions of
higher court in the same hierarchy
Court hierarchy critical to understanding operation of
precedent

59

The Doctrine of Precedent

Exceptions:
if any inconsistency with a higher courts decision
wrong in law

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The Doctrine of Precedent

Binding precedent
Facts same/similar
Court which made the precedent is in the same hierarchy AND is
a court of higher authority/superior court
- decision of High Court binding on all courts in Australia
- decision of District Court not binding on Supreme Courts

Persuasive precedent
Seriously considered; may or may not be followed
Decided by court on the same level of hierarchy or in a different
hierarchy
- decision of Supreme Court of NSW persuasive but not
binding on decision of Supreme Court of Victoria
- decisions of overseas courts (eg. UK) are persuasive in Australia

Court was equally divided

See pp 94-95, Gibson & Fraser
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The Doctrine of Precedent

Binding

The High Court

Binding

Full Federal
Court

Full Supreme
Court

Single Judge

Single Judge
District Court

Federal Magistrates
Court

Federal

Local Court

State

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The Doctrine of Precedent

Summary of Rules of Precedent

See p 96, Gibson & Fraser

Stare decisis
Stare decisis
the decision stands ; or
to stand by what has been decided
Another term for the doctrine of precedent

64

Ratio Decidendi
Latin translated as the reason for the decision
What the case stands for
Rationale behind a courts decision and the legal
grounds on which the decision stands
Ratio Decidendi of a higher court is binding on lower
courts
Makes the case a precedent for the future

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Spotting the Ratio

The structure of a typical judgement is usually as
follows:

Summary of Evidence
Findings of Fact
Review of arguments
Law and decision

Ratio is usually buried here

Look for clues eg judge may start a sentence with the

legal principle is or the law has always held that
manufacturers must .
Ask yourself what principle does the case stand for?

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Obiter Dictum

Latin translated as a remark in passing or material

said by the way
Judicial observations that do not form part of the
reasoning of the case
Unlike ratio decidendi obiter dicta are not binding on
lower courts
However obiter dicta may be of persuasive authority,
particularly the obiter dicta of eminent judges or of
higher courts

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Finding case law

Case law is published in authorised reports
Each court has its own report series
High Court: Commonwealth Law Report
Various legal publishers also publish their own law report series
dedicated to particular areas of law
CCH Australia Australian Torts Reporter; Australian Trade
Practices Reporter etc
Consult textbooks, legal encyclopaedias, current law publications,
case digests
See also http://www.austlii.edu.au/: resource of Australian and
international legal materials

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Case Report Headnotes

How to read a Case Headnote
See p 91, Gibson & Fraser

Case reports
Mabo v Queensland (1992) 175 CLR 1
The v is read as and
Date is usually the year of the trial or appeal
Letters are abbreviation for the law report series
Number after the round brackets is the volume
number of the law report series

70

Case reports
Donoghue v Stevenson [1932] AC 562
Square brackets [ ] indicate the the law report series
are in volumes by year
Final numbers (eg 562) are the page numbers which
indicates what page the report starts on

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Terminology

Adopted/Affirmed/Approved
Reversed
Overruled
Distinguished
Disapproved

See p 96, Gibson & Fraser

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Applying case law to

resolve legal problems
ASK:
What are the key facts of the problem/case
Identify the legal issues or problems that arise
Look for previous cases (precedent) that may indicate
how the course might decide the present problem/case
Apply the relevant case law to the facts of the
problem/case.
Are there any difference in circumstances that might
affect the decision a court is likely to make?

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Alternative methods to courts

Alternative methods of dispute settlement have grown in the last few
years because of the delays, costs, ignorance and intimidation of the
traditional court system
These include
Tribunals,
Ombudsmen, and
Alternative dispute resolution

See pp 59 to 71, Gibson & Fraser

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Alternative Dispute Resolution (ADR)

Has arisen because of the disadvantages of court litigation

Types of ADR
arbitration
mediation
negotiation
expert determination

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In-class exercise
on Lecture Topics 1 and 2

In tutorials in week of 15 August

CLOSED BOOK
Worth 5 marks
Revise using lecture slides and questions in Tutorial
Program

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Next week: Lecture 3

Introduction to Contract Law
Nature and role of contract law
Requirements for a valid contract
Readings see Gibson & Fraser:
Ch 5, pp 117-120
Ch 6, pp 132-157
Ch 8, pp 187-202

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