Topic 1 The Australian Legal System

Business and Corporations Law
2nd EDITION
Fitzpatrick Symes Veljanovski Parker
Chapter 1
The Australian Legal System
David Parker
2014 Reed International Books Australia Pty Limited trading as LexisNexis

FUNDAMENTALS OF THE AUSTRALIAN LEGAL SYSTEM
What is Law? (1.1)
What is law?
Legal rules to regulate public and private matters
Non legal rules: customs and conventions

What is Law? (1.1) cont.
What do laws do?

Guidance for private and public matters
Sets rights and duties between individuals and the
individual and the state
Resolve disputes
Protection, prevention, compensation and
punishment

Sources of law
Statutory law passed by parliament or delegated
bodies
Case law or precedent created by courts

Different laws
Laws for a public purpose
Laws for a private purpose
Laws which affect both private and public purposes
Consider the good Samaritan legislation

What is a good law system?

Law is understandable
Accessible
Applies equally
What about tax law, is this understandable,

accessible or applying equally?

The rule of law and natural justice (1.2)
The rule of law sets various presumptions

Courts must apply law uniformly
Every person is entitled to a fair hearing
Every person is treated equally
Law should not be applied retrospectively
Administrative and executive bodies may be
subject to review by courts

The rule of law and natural justice (1.2) cont.
Natural justice
Everyone must have notice of a hearing and be able to
prepare
No person who has an interest in a matter can be in a
judicial position
Parties are permitted to ask questions and have
representation

Separation of powers
Legislators make laws (statute) but cannot judge or
carry out the law
The judiciary decides the law, it should not make
law or enforce it
The executive carries out the law, but does not
decide it or create the law

However!
Courts in fact do make law, eg precedent
Parliament does have an executive role, eg
ministers
The executive does make regulations, eg statutory
authorities such as the Fire Authority does make
rules

Does Australia have a good system of checks and

balances on authority?
What are some of the other presumptions in law

that protect our rights?
Do all the different presumptions give us a fair

system?

Where does our law come from? (1.3)
Anglo Saxon law

Norman Law (the French invaders!)
Consider words in our law, eg mortgage, tort,

estoppel

THE HISTORICAL FOUNDATIONS OF THE COMMON LAW SYSTEM
Introduction (1.4)
The Normans used the local courts in each part of

England to decide disputes.
The judges travelled on circuits and met back in
London.
Local law was applied, unless bad law, but a
common law began to develop with the recording
(reporting) of decisions

Common law system (1.4)
Reporting of decisions: stare decisis (let the

previous decision stand)
The Court of Exchequer began

Common law system (1.4) cont.
What is common law system?

It refers to:
A system where the judge create precedent as rules,
alongside statute
A system that uses an adversarial means of resolving
disputes before a passive judge
Distinguish this from the civil law system

The Development of Government under a common law system (1.5)
Council of Barons began to assume greater power:

see the Magna Carta which limited the Kings
power
The power to tax moved from the King
Houses of parliament began to form, with the
House of Commons and the House of Lords
The royal prerogative moved to the parliament (in
particular to the PM)

The sovereignty of Parliament (1.5)
Royal power has now been eroded

The lower house dominates government power (in
the UK and Australia)
Australian operates under the Westminster System
of government as does the UK

THE HISTORICAL FOUNDATIONS OF AUSTRALIAN LAW
Introduction (1.6)
The first law of Australia
The UK set English law in the colony of NSW 1788
What of indigenous law?

Terra Nullius? (1.6)
The challenge to Terra Nullius
Mabo v State of Queensland
Not all indigenous land rights were extinguished by

UK rule

The colony begins to self govern (1.6)
The Australian Courts Act 1828: the government of

the colony could begin to formulate its own law
The Australia Constitution Act 1850: new legislative
councils created in different parts of Australia
Each colony had its own government

The Commonwealth of Australia Constitution Act 1900 (UK) (1.6)
The Australian Constitution is actually an Act of the

British Parliament!
The Statute of Westminster 1942: no new UK

would apply in Australia
The Australia Act 1986

Some interesting cases (1.6)
State Government Insurance Commission (SA) v

Trigwell (1979)
Dugan v Mirror Newspapers Ltd (1978)
Ward v The Queen (1980)

The move to Federation (1.7)
The founding fathers push for federation of

Australia
Why did the colonies feel the need to federate?
Threats from foreign powers, a need for uniform
currency and customs?

THE AUSTRALIAN CONSTITUTION
Introduction (1.8)
The Crown is the head of government

The Constitution outlines the powers and functions
of the:
Legislature
Judicature
Executive

Introduction (1.8) cont.
Is a written constitution but contains many

conventions, eg the Westminster Convention
The High Court is the only court that interprets the
constitution

Commonwealth and State Powers (1.9)
Under s 51 powers of government are:

Exclusive (to either the states or the
Commonwealth) if not Commonwealth then
becomes a residual power of the States
Concurrent (shared by both states and
Commonwealth)
Note: if there is a conflict in a concurrent power

the Commonwealth will prevail s 109

Exclusive Powers (1.9)
Commonwealth: defence, currency, bankruptcy etc
State: road law and commercial law

Increasing Commonwealth power (1.9)
Taxation is a shared power, but the Commonwealth

controls the purse strings and can influence State
spending
The Commonwealth has introduced a number of
statutes in cooperation with all states, eg the
Competition and Consumer Act 2010: thereby
achieving uniformity of law in Australia
The High Court tends to rule in favour of the
Commonwealth when interpreting the constitution

The states do not like to give up powers involuntarily (1.9)
New South Wales v Commonwealth

Pirrie v McFarlane (1925)

The States under the Constitution (1.10)
The Constitution establishes each state as a self-

governing body
The Commonwealth has used its international
power to expand its jurisdiction (Tasmanian Dams
case)
The Commonwealth collects the bulk of tax
revenue (how did they do this when it is a shared
power?)
The Commonwealth reimburses the states but with
some direction as to how it spends those funds.

Rights and safeguards under the Constitution (1.11)
Some rights are specified within the constitution,

eg no discrimination between states, freedom of
interstate trade, freedom of religion.
But
Freedom of speech, assembly and many other
rights are not mentioned, but assumed as
conventions

Changing the Constitution (1.12)
Under s 128 the Commonwealth constitution can

only be changed by the introduction of bill into
parliament, and then a referendum passed by a
majority of people in a majority of states.

The Legislature (1.13) cont.
Commonwealth and State parliaments are

established.
The Federal Parliament is composed of the Queen,
a Senate and House of Representatives (bicameral
parliament)
The PM must come from H of R: the biggest party
forms the government
Which state has a unicameral parliament?

The Legislature (1.13) cont.
The House of Representatives: members elected

proportionately within each state
The Senate: 12 members from each State
(irrespective of the size of the state), this is a house
of review
Bills must be passed both the lower house and
senate, before being presented to the Crown

Double dissolution and joint sitting (1.14)
Stalemate: the Senate is refusing to pass legislation

put to it by the government
What happens then?

The government can request a dissolution of both
houses, an election is held. If the government is
returned the two houses meet as one (joint sitting)
and the legislation is put to that sitting for a vote.
Has this ever happened in Australia?

The Executive (1.15)
Executive power is vested with the Crown.

The Crown (or rather the representative of the
Crown) appoints the PM and various Ministers who
form the federal Executive Council
Ministers report to the parliament and must act

responsibly under the Westminster System

The Judiciary (1.16)
The High Court is established as the pre-eminent

court of Australia, it hears:
Matters concerning the interpretation of the
Australian Constitution
Disputes between the states
Disputes between a state and the Commonwealth
Final appeals from state and federal court
hierarchies

COMMON LAW
Introduction (1.17)
A common law system uses both statutory law and

court made law (precedent).
Some law is mostly precedent, while some is
mostly statutory.
Statutory law can replace precedent at any time
because of the sovereignty of parliament
(consolidation and codification of various pieces of
law)

COMMON LAW
Common law has certain characteristics

It uses an adversarial system (though not always!)
Certain presumptions exist, eg presumption of
innocence before proof of guilt

COMMON LAW
Common law and precedent (1.18)
The doctrine of precedent

Once a principle of law is established in case law,
this will be followed as a precedent has been set.
Binding precedent: decisions of superior courts
must be followed by inferior courts

COMMON LAW
Common law and precedent (1.18) cont.
Reference to precedent depends on the reporting

of cases
A court may be persuaded to follow a precedent if
not bound by that decision
Each case has a main principle: the ratio decidendi
(reason for the decision)
Comments made by a judge: obiter dicta, may be
important as steps of reasoning

COMMON LAW
Persuasive precedent (1.19)
Eminent courts outside a jurisdiction may make an

interesting and new decision which may persuade
other courts of the need to change a precedent

COMMON LAW
Reversing, overruling, disapproving and distinguishing (1.20)
If a wrong decision is made and a new precedent

required, the appellant court may overrule the
original precedent
If a wrong decision is made, but the wrong law has
been applied, the precedent remains and the
decision is reversed
A court may apply existing precedent but
disapprove of the decision to be made because it is
outmoded or unfair (opening the way for a new
precedent in the future)

COMMON LAW
Reversing, overruling, disapproving and distinguishing (1.20) cont.
A court may distinguish a precedent: where it finds

differences with the original precedent so it does
not have to follow the precedent

COMMON LAW
Law reports (1.21)
Law reports are the published and authorised

statements of decisions made in the courts, (noting
that some reports may not be authorised and less
persuasive in court)
A law report has a citation which states:
The name of the law report
The year, the volume and the page at which it can be
found.
Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49
Where would we find this report?

COMMON LAW
Law reports (1.21) cont.
A law report usually has a headnote outlining the

case, the arguments, the court and the findings.
The parties are listed along with all those involved
in the case.
The headnote will list different cases referred to,
the summing up of different judges

COMMON LAW
Equity (1.22)
Common law courts became a bit inflexible in

historical times.
Litigants could call upon the Kings mercy when
unfairness occurred, (who passed such requests to
his Chancellor)
The Chancellors court developed its own rules
called equity (decisions based on fairness)
In 1873, common law and equity rules were
merged

COMMON LAW
Equity (1.22) cont.
In the merged legal system, equity will prevail over

common law
Note equitable remedies, eg injunction.
Trust law is equitable law
Note the maxims of equity: he who seeks equity
must do equity

COMMON LAW
Legal systems of the world (1.23)
Australia inherited its common law system from

the UK
Historically some significant law was developed
under Roman law, which was the forerunner of
Napoleonic codes and the civil law system.
Much of the world is divided between the common
law and civil law system.

COMMON LAW
Other legal systems (1.23)
Indigenous law
Judaic law
Islamic law
Socialist law

COMMON LAW
Civil law systems (1.23)
Non adversarial
The judge plays a key role and asks questions and
controls the case
Rules of evidence less complex
Lawyers assist the court, not determine
proceedings
Different presumptions as to proof and innocence
may exist

COMMON LAW
The adversarial system (1.24)
A combative or argumentative style of contest in

order to bring out the points of contention
between the parties.
The judge keeps order and ensures rules of court
are met
Note the move towards a more inquisitorial system
in Australia (eg within the tribunals)

COMMON LAW
Different branches of the law (1.25)
Public law
Criminal law, administrative law, corporate law
Private law
Tort law and contract law (civil law)
The difference is that public law is often a

prosecution of action by the state, private law
requires the affected party to take action.

COMMON LAW
Different branches of the law (1.25)
Criminal law (1.26) may result in a penalty imposed

on a wrongdoer
Civil law will result in a remedy of some type
Criminal law has certain presumptions and
procedures.
Criminal law can be composed of indictable
offences or offences heard summarily
Prosecution v Defendant

COMMON LAW
Criminal law (1.27)
Presumption of innocence
Prosecution must prove beyond reasonable doubt
(unlike civil law on the balance of probabilities)
Prosecution has greatest burden of proof
Note different procedures, ie pre trial evidence
required for serious offences (committal hearing)

COMMON LAW
Classical elements of criminal law (1.27)
Actus reus (wrongful act)

Mens rea (wrongful intention)
Both must be present to prove a crime, and
coexisting
Note the move to strict liability (no need for proof
of intention)
Introduction of civil liability offences: requiring
proof on balance of probabilities

COMMON LAW
Civil law (1.28)
Plaintiff brings the case against the defendant

(under civil law)
The plaintiff must prove the case on the balance of
probabilities
Apellant may bring an action against respondent
Note the rise of class actions

COMMON LAW
Refining the issues in a civil matter (1.27)
Pleadings
Exchanges of demands such as statement of claim,
interrogatories, discovery in order to clarify the
issues and prompt a settlement.

COMMON LAW
The legal profession (1.27)
Judges
Barristers (QC or SC)
Solicitors
Distinction between solicitors and barristers has

been abolished in some states.

COMMON LAW
The sources of Australian law (1.29)
Primary (most important) sources of law are

statute and precedent.
Secondary (less important) sources of law are
commentary, texts and commercial customs that
explain the law.
Comments made by observers may lead to a

change in a precedent or statute.

STATUTE OR LEGISLATIVE LAW
Introduction (1.30)
Laws made by parliament are called statutory law,

legislation and Acts of Parliament.
Statute can be created by Commonwealth and
State parliament
Statute can be changed by parliament as the need
arises
A statute is indicated by its name, date and origin.
Income Tax Assessment Act 1997 (Cth)(ITAA97)

An Act is then divided further into divisions, parts,

sections and subsections, eg s 15-2 refers to
section 15 and subsection 2 of that section
An Act may contain marginal notes, diagrams,
tables and examples
Regulations may be listed at the end of the Act

Creating legislation (1.30)
Only parliament can create legislation

Legislation comes from public pressure, business
pressure or for political reasons
The legislation is drafted (by experts)
A bill is introduced into either the lower or upper
house (money bills must go first to the lower
house)
The bill is read three times

Reading the bill (1.30)
A bill is presented (announced)

Second reading is held and it goes to committee stage
The third reading involves vigorous debate and
possible amendment, after which there is a vote.
The bill passes to the upper house for the same
process.
Ultimately the Crown must approve the bill before it
becomes law.
The new Act is gazetted and information is
disseminated on the new law

Statutory interpretation (1.31)
An Act is only made up of words

Words can have several meanings, particularly
when combined
Words may be ambiguous
New situations arise which only legislation must
regulate

Rules of interpretation (1.31)
Literal rule: words in a statute are interpreted with

their literal meaning, though this may lead to an
inappropriate outcomes if a strict literal
interpretation was applied
Golden rule: if the literal rule leads to an unfair
result, then common sense interpretation may be
applied

Rules of interpretation (1.31) cont.
Mischief rule: what is the mischief that is to be

regulated, the law is therefore interpreted
according to that purpose
Purposive approach: what was the purpose of the
Act, the legislation will be interpreted in an effort
to apply the purpose of the legislation in a matter
presented to the court
Note the Acts Interpretation Act s 15ABencourages
courts to apply the purpose of the legislation

Maxims under statutory interpretation (1.31)
Ejusdem Generis
noscitur a sociis
expressio unius est exclusio alterius literally
of leges posteriores priores contrarias abrogant
generalia specialibus non derogant

Statutory intervention (1.32)
The Acts Interpretation Act interprets various words

found in statute
Consider the word person, how is this word
interpreted?
Courts will look for the purpose of the Act, sometimes
this will be stated within the Act itself
The legislation itself may have a dictionary section
Other aids may be contained within the legislation, eg
margin notes, explanatory notes, explanatory
memorandum and even examples

Delegated legislation (1.33)
Delegated bodies are councils, executory bodies,

statutory corporations, eg the tax office sets
regulations.
Delegated legislation is the giving of permission to
a body to make rules and regulations within a
particular, restricted, area
Delegated legislation is published and scrutinised
by a parliamentary committee
It is possible to appeal against a rule created by a
delegated body

THE HIERARCHY OF THE COURT SYSTEM IN AUSTRALIA
Introduction (1.34)
The hierarchy of courts refers to the level of

importance of different courts.
More important courts create binding precedent
over lesser courts, they also hear appeals from
lower courts

State courts (1.35)
Each state has inferior courts, which are the courts

at lowest point in the hierarchy, eg the Magistrates
Court.
These courts have limited jurisdiction, are presided
over by a Magistrate, are not courts of record and
do not create law
These courts hear minor civil matters and lower
level criminal matters (summary offences)

Inferior courts (1.34)
Are usually more flexible in applying the law and in

the penalties that can be applied
Some other courts may exist as part of the lower
level, eg
Coroners Court
Childrens Court
Koori Court
Drug COurt

Intermediate courts (1.36)
Intermediate courts hear more serious matters,

including appeals from lower courts.
The jurisdiction is much greater for civil and
criminal matters
The court is presided over by a judge, it is a court
of record, more formal and may hear appeals from
its own court

Superior courts (1.37)
Superior courts are the highest court in the court

hierarchy, they have unlimited jurisdiction and can
hear any matter (except matters reserved for the
High Court)
Superior courts (usually called the Supreme Court)
can hear appeals from its own court and lesser
courts, it is a court of record and sets precedent

The Federal Circuit Court of Australia (1.38)
The Federal Circuit Court (formerly the Federal

Magistrates Court hears quite serious matters, eg
up to $700,000 in consumer matters, with
unlimited jurisdiction in some other areas.
The court has various divisions dealing with Fair
Work, Migration Review, Refugee Review and
Administrative Review.

The High Court (1.39)
The High Court is the highest court in Australia and

hears only very serious matters and appeals from
lower courts
The court determines disputes between states,
between the Commonwealth and the states, and
interpretation of the constitution
Theophanous v The Herald and Weekly Times
(1994)
New South Wales v Commonwealth (1990)

The Federal Court (1.40)
The Federal court deals with matters under the

Commonwealth jurisdiction, ie bankruptcy, excise
and immigration
Other matters may be heard if shared with the
states
Hears appeals from territory courts, the
administrative appeals and some state courts on
federal matters

The Family Court (1.41)
The Family Court is a specialist jurisdiction which

hears matters on divorce, property, custody and
financial settlements at the end of a marriage

The Administrative Appeals Tribunal (1.42)
The AAT reviews decisions of executive

administrative bodies such as government
departments and statutory bodies.
Appeals could be over licences, building permits,
immigration etc.
Delegated bodies must reach certain standards of
natural justice and must act within their powers

Australian Competition Tribunal (1.43)
The Tribunal hears applications for review of

determinations of the Australian Competition and
Consumer Commission.

Cross-vesting of jurisdiction (1.44)
If a matter contains legal matters within both a

federal and state jurisdiction, a court in either
jurisdiction can all matters because both
jurisdictions vest power to hear matters to the
other.
There are some restrictions, eg federal criminal law
must be heard by a federal court

Tribunals (1.47)
Tribunals are a forum for determining a resolution

to dispute, as an alternative to a court.
Tribunals are less formal, less adversarial and more
inquisitorial in their nature.
Tribunals are more specialised and expert on a
restricted range of matters compared to courts
Tribunals cannot enforce a decision like a court

Federal tribunals (1.48)
National Native Title Tribunal;

Migration Review Tribunal;
Refugee Review Tribunal;
Social Security Appeals Tribunal;
Copyright Tribunal of Australia;
Defence Force Discipline Appeal Tribunal;
Australian Competition Tribunal;
Censorship Board; and
Human Rights and Equal Opportunity Commission.

State tribunals (1.49)
Each state has different tribunals

The busiest are usually the small claims tribunals
Each tribunal has its own jurisdiction and limits on what it can
hear, eg
disputes over the purchase and supply of goods and services;
discrimination issues;
domestic building works;
guardianship and administration;
disability services, health, privacy and mental health;
legal profession services;
residential and retail tenancies;
consumer credit;
planning and land valuation

Alternative dispute resolution (1.50)
Some courts have annexed various means of

mediation and facilitation in order to see if parties
can settle a matter rather than going to court.
The parties themselves within their contractual
arrangements may determine the body who is to
hear any disputes
There are professional mediators and arbitrators
who can determine a resolution to various
disputes.

TORTS
The nature of a tort (1.51)
A tort is some action or omission by a wrongdoer

that has infringed a right or interest of another
party, causing that party some injury or loss which
is actionable under law.
It gives the injured party the right to pursue some
right of redress or compensation against the
tortfeasor (the wrongdoer).

TORTS
The nature of a tort (1.51) cont.
Torts are a set of wrongs, either to property,

person, reputation, economic well being, but also
to economic well being and various breaches of
other rights
Tort law is overlaid with statutory law which has

placed a number of limitations on the use of torts

TORTS
The nature of a tort (1.51) cont.
The party suffering a tort may be seeking

compensation, or some non monetary remedy, a
court order to cease certain behaviour
Remedies could be nominal amounts
Usually a remedy is sought to place the person into
the position they were in before the tort occurred

TORTS
Torts and their intersection with crime and contract law (1.52)
A wrongful action may be both a tort and a crime,

or even a breach of contract as well.
Misrepresentation is a tort and a breach of
contract

TORTS
Torts and their intersection with crime and contract law (1.52)
A tort can occur through a deliberate act or by

carelessness (negligence)
Some torts have strict liability, the fact that the
wrong occurred is sufficient as proof

TORTS
Defences to torts (1.52)
If a party consented to the risk of injury: for instance in

a sporting match or some risky activity like bungy
jumping;
Contributory negligence: where the injured has not
taken sufficient care and contributed to their own
injuries, e.g. not wearing a seatbelt or helmet, or
perhaps crossing the road against the lights;
Conducting an illegal act: consenting to being in a
stolen car which is being driven negligently;
Unavoidable accident: an accident occurs for which no
one is particularly at fault;
NEGLIGENCE
Introduction (1.54)
The tort of negligence imposes a duty on all

persons to exercise reasonable care in their
actions, or even a required action, so that their
daily activities will not foreseeably harm another.
Note: the neighbourhood principle

NEGLIGENCE
Proving negligence (1.54)
Was a plaintiff owed a duty of care?

Was the damage foreseeable?
If yes, What is the standard of care required, eg was a professional
involved?
Did damage occur, and what type of damage, eg to property or
economic loss?
Are there any defences available to the defendant, eg voluntary
assumption of risk, contributing negligence?
If the defendant is found to be negligent what are the appropriate
remedies, consider the nature of the tort, eg negligence versus
trespass to property?
Was the damage actually caused by the breach? Use the but for
test.
Was the damage too remote, could it have been reasonably
foreseen?
NEGLIGENCE
Donoghue v Stevenson [1932] (1.54)
What happened?
How did this snail become some famous?
Why didnt Mrs D sue the retailer?
Why was the case so important?
What was the duty of care established by this
case?

NEGLIGENCE
Important parts of negligence (1.54)
Duty of care? What is the relationship?

Foreseeability? Is it reasonable to expect an injury?
What was the breach of duty of care, what
behaviour would reasonably be expected?
What is the proximity between the parties and the
reasonable duty of care expected?
Was the injured party vulnerable?
What was the causation?

NEGLIGENCE
Consider (1.54)
Overseas Tankship (UK) Ltd v Morts Dock

Engineering Co Ltd [1961] AC 388 (Wagon Mound
(No 1) case)
Caltex Oil (Aust) Pty Ltd v e Dredge Willenstad
Johnson Tiles Pty Ltd v Esso Australian Pty Ltd

NEGLIGENCE
Negligence Reforms (1.55)
Various reforms have been introduced to limit the

costs of negligence, eg limit liability for recreational
services, particularly where dangerous activities
are involved;
allow for an apology without this being an
admission of liability;
limit claims of negligence by people injured in the
process of committing a crime, e.g. an injured
passenger in a stolen vehicle cannot sue: Gala v
Preston;

NEGLIGENCE
Negligence Reforms (1.55) cont.
Set new negligence standards for professionals

who provide treatment according to appropriate
standards (in some instances this only applies to
doctors);
limit the availability of damages where intoxicants
have contributed to the injury;
protect Good Samaritans and volunteers from
claims of negligence;
abolish punitive, exemplary and aggravated
damages for personal injury claims;

NEGLIGENCE
Negligence Reforms (1.55) cont.
Amend Competition and Consumer Act 2010 (Cth)

to prevent claims for damages for personal injury
of death caused by breaches of the CCA;
set a statutory cap on general damages for claims
for personal injury and death;
set a maximum amount for loss of earnings;
limit claims for economic loss; and
restrict advertising of personal injury legal services
to factual matters.

NEGLIGENCE
Other types of torts (1.56)
Trespass to land
Private and public nuisance
Trespass to person
False imprisonment
Trespass to goods
Trespass to airspace
Detinue
Conversion

NEGLIGENCE
Fraud (1.56)
Fraud or wilful misrepresentation, otherwise

referred to as fraud or deceit involves:
Making some statement, or words to the effect
that the statement is false;
A false statement relating to present or past facts.
A statement which is known to be untrue, or is
carelessly made irrespective of whether it is true or
not;

NEGLIGENCE
Fraud (1.56)
The intention that another person will act on the

misrepresentation that the other party enters
into a contract or performs some act relying on the
statement made to them.
The other person acting on that representation.
A financial loss by the person acting on the
misrepresentation

Topic 1 The Australian Legal System

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Business and Corporations Law

2014 Reed International Books Australia Pty Limited trading as LexisNexis

2014 Reed International Books Australia Pty Limited trading as LexisNexis

What do laws do?

2014 Reed International Books Australia Pty Limited trading as LexisNexis

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Consider the good Samaritan legislation

2014 Reed International Books Australia Pty Limited trading as LexisNexis

What is a good law system?

What about tax law, is this understandable,

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The rule of law sets various presumptions

2014 Reed International Books Australia Pty Limited trading as LexisNexis

2014 Reed International Books Australia Pty Limited trading as LexisNexis

2014 Reed International Books Australia Pty Limited trading as LexisNexis

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Does Australia have a good system of checks and

What are some of the other presumptions in law

Do all the different presumptions give us a fair

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Anglo Saxon law

Consider words in our law, eg mortgage, tort,

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The Normans used the local courts in each part of

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Reporting of decisions: stare decisis (let the

2014 Reed International Books Australia Pty Limited trading as LexisNexis

What is common law system?

Distinguish this from the civil law system

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Council of Barons began to assume greater power:

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Royal power has now been eroded

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The first law of Australia

The UK set English law in the colony of NSW 1788

What of indigenous law?

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The challenge to Terra Nullius

Mabo v State of Queensland

Not all indigenous land rights were extinguished by

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The Australian Courts Act 1828: the government of

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The Australian Constitution is actually an Act of the

The Statute of Westminster 1942: no new UK

The Australia Act 1986

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State Government Insurance Commission (SA) v

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The founding fathers push for federation of

2014 Reed International Books Australia Pty Limited trading as LexisNexis

The Crown is the head of government

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Is a written constitution but contains many

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Under s 51 powers of government are:

Note: if there is a conflict in a concurrent power

2014 Reed International Books Australia Pty Limited trading as LexisNexis

Commonwealth: defence, currency, bankruptcy etc

State: road law and commercial law

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Taxation is a shared power, but the Commonwealth