Business Law: Topic 1: Introduction To The Australian Legal System Part 1
Business Law: Topic 1: Introduction To The Australian Legal System Part 1
Business Law
RULES:
- Not legally binding;
- Apply to a sub-set of society; and
- Enforced by a sub-set of society
5 LAW AS A REGULATORY TOOL
BUSINESS
The law is relevant to the following aspects of running a business:
• Business Structure
• Registering a business name
• Leasing Premises
• Obtaining appropriate licences and permits
• Employment Contracts
• Purchase/Supply/Sale Contracts
• Liability for injuries to employees or customers
•Consumer and Competition Law
7 LEGAL SYSTEMS
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ORIGIN OF EQUITY
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CHARACTERISTICS OF EQUITY
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SOURCES OF LAW
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STATUTE
STATUTE LAW
LAW also
also
COMMON
COMMON LAW
LAW also
also known
known as:
as:
known
known as
as LEGISLATION
LEGISLATION
CASE
CASE LAW
LAW ACTS
ACTS OF
OF
PRECEDENTS
PRECEDENTS PARLIAMENT
PARLIAMENT
If there is clash between Statute Law and Common Law, Statute Law overrides
Common Law because of parliamentary sovereignty.
SOURCES OF LAW- CONTD…
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Within the Common Law (Case Law), there are 2 further sources of law.
EQUITY
EQUITY LAWLAW
COMMON
COMMON LAW LAW originating
originating from
from the
the
originating
originating from
from the
the Courts
Courts of
of Chancery
Chancery in in
Common
Common LawLaw Courts
Courts of
of England.
England.
England.
England.
If there is a clash between common law and equity law, equity law will prevail.
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COMMON LAW
16 COMMON LAW
• Before we can consider this doctrine we need to understand the following concepts:
• A. COURT HIERARCHY
• B. MATERIAL FACTS
•
AUSTRALIAN COURT
HIERARCHY
20 MATERIAL FACTS
• PERSUASIVE
• A previous decision with the same MATERIAL FACTS
MAY (NOT MUST) BE FOLLOWED by a judge in an INFERIOR COURT in the same COURT
HIERACHY
OR by a judge in a different COURT HIERACHY (for eg in a different state)
•
24 DOCTRINE OF PRECEDENT
Ratio Decidendi
The reason for deciding based on the application of a
rule of law to material facts before the case
Obiter Dicta
An additional statement of opinion made by the judge
that was not essential to the decision. It may be
persuasive though in a future similar case.
LEGAL CASES AS PRECEDENT
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LEGAL CASES AS PRECEDENT
Advantages of precedent:
• promotes consistency
• certainty
• efficiency
• justice – equality and fairness.
Disadvantages of precedent:
• precedent may not be relevant to today’s circumstances,
but has to be followed;
• slow to respond to community changes;
• may require an Act of Parliament to change.
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STATUTE LAW
29 STATUTE LAW
• It can often react faster to, and better reflect, current community needs
than the common law.
• It is important to cite Acts (or statutes) appropriately
• Federal (Commonwealth): Corporations Act 2001 (Cth)
• State: Partnership Act 1892 (NSW)
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31 STATUTE LAW
NSW
Bicameral (Two houses)
Lower House – Legislative Assembly (93 seats)
Upper House – Legislative Council (42 seats)
Government Leader – The Premier
Queen’s Representative – The Governor
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THE LEGISLATURE/PARLIAMENT
Commonwealth
Bicameral
Lower House – House of Representatives (151 seats)
Upper House – The Senate (76 seats)
Government Leader – The Prime Minister
Queen’s Representative – The Governor General
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