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Learning outcomes
By the end of this topic you will be able to:
draw on your background of knowledge of sources of Australian Law when
studying commercial law
refer to these foundations in your legal research as an undergraduate.
Introduction to Legal Research
It is a good idea to check through Introduction to Legal Research before
beginning to work through these modules, as this gives you a comprehensive
overview of the many legal resources available to you, how best to use theseresources and excellent practical advice about effective searching methodologies.
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University. Disclaimer About Privacy.
Click play for information about this module from your
course coordinator, Mary Toohey.
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Classification of law
The 'law' can be classified in many different ways. One helpful method is to use
the modern definition of separating law into 'enacted' or 'Parliament' made lawand 'unenacted' or 'judge' made law.
A more traditional approach is to classify the law by examining what specific
areas it deals with.
For example:
i. civil and criminal law
ii. historical division of law into principles of common law and equity.
Civil law is generally what this course is all about - individuals suing one another,
usually over commercial matters.
Criminal law is where the police, or the crown, or government authorities are
involved. They are prosecuting an individual for a crime that person is accused
of.
There is also a further division based on geographical limits. For example,
England and her ex-colonies are seen to have a common law system, whereas
other European states have a civil code system. See, for example, the Roman
Civil Code and The Napoleonic Code.
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Reading
Latimer 1-180
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Sources of law - Legislation
Australian states have their own constitutions and generally the states are
authorised to make laws "for the peace, order and good government" of thestate. However these wide legislative powers given to the state parliaments must
be understood in the light of the Commonwealth constitution.
Australia as a political entity was established by the Commonwealth of Australia
Constitution Act 1900, an Act of the Imperial British Parliament and the
Commonwealth Constitution, was a schedule attached to the Act.
The Commonwealth Constitution gave the Commonwealth parliament both
concurrent and exclusive legislative powers. Concurrent powers are those
legislative powers shared with the States. An example of this is education.Section 51 of the Constitution is considered to be the main source of concurrent
powers, although some of these powers are effectively exclusive powers by virtue
of Section 109. Section 109 states if that if there is any inconsistency between
Federal and states laws (concurrent laws), the Federal laws will prevail.
Exclusive powers are legislative powers set out in the Constitution that are only
to be utilised by the Commonwealth government, eg Section 52 and Section 90.
If there are powers not listed in the Commonwealth Constitution, these may be
regarded as residual and are therefore the domain of the State legislatures.
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Reading
Latimer 1.200 - 1.340
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Delegated legislation
Delegated legislation is also referred to as subordinate or secondary
legislation.
The empowering Act delegates the authority to make regulations, rules and by
laws to the people and groups such as Governor in Council, government
ministers and statutory authorities.
Delegated legislation must come within the legislative powers conferred in the
empowering Act, or the resultant delegated legislation may be declared Ultra
Vires and therefore invalid.
Delegated legislation is tabled in Parliament but is not subject to the same
scrutiny and parliamentary procedures that occurs with statutes, however at both
Federal and State level, parliamentary committees examine delegated legislation
that is tabled in parliament to ensure that there is consistency and coherence.
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Reading
Latimer 1.180
Delegated legislation is enacted law made under the authority of an
Act of Parliament. This Act is often referred to as the 'empowering Act'.
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Sources of law - Common law
Common law includes:
i. decisions made by judges where no legislation applies, for example
contract law and negligence. In other words common law was developed
by judges who followed their own decisions and those of fellow judges in
similar cases.
ii. judges interpretations of particular statutes and regulations. Once
parliament passes a law, there is no recourse back to parliament to ask
them what they meant by the particular law that they have passed.
Therefore, it is left to the courts to interpret the meaning of legislation.
Common law is found in the decisions of judges of the senior courts. These
decisions are found in the law reports e.g. C.L.R. (Commonwealth Law Reports),
V.R. (Victorian Reports) , and N.S.W.L.R (New South Wales Law Reports). The
law reports were traditionally compilations of cases from a particular court, orgroup of courts, taken over a period of time. The cases were bound into large
volumes and usually accessed through law libraries. These days law reports are
now more readily available through CDs and internet sources.
Each case has a citation (or reference), which is used in the citing of the case
that supports a legal principle. Examples are found in your text.
The citation follows the name of the litigants and tells us that the case was
decided in1987, that the case was decided by the High Court (CLR refers to
Commonwealth Law Reports which reports High Court decisions), and that the
case is reported in volume 76 commencing at page 387.
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Reading
Latimer 1-350--1-370
Definition of Common Law
Laws made by judges in adjudicating disputes, often referred to as case
law.
Case law
Waltons Stores Interstate Ltd v Maher (1987)76 CLR 387.
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Sources of law - Equity
Equity is a form of common law or 'judge made law ' that was developed to
overcome some of the shortcomings of the common law system.
Common law did not provide many causes of action and restricted remedies
mainly to monetary compensation.
The Courts of Chancery were established in England to administer the principles
of equity through the legal system.
Today equity and common law are joined together in the one court system,
however the principles of equity are still used and have some impact on business
law.
Copyright notice. Excepting external documents referenced, all web content is Copyright 2005 RMIT
University. Disclaimer About Privacy.
Reading
Latimer 1-010
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The doctrine of Precedent
Common Law refers to the legal principles found in the decisions of the courts. It
is important that similar cases have similar outcomes to promote consistency andjustice within the legal system.
The doctrine of precedent ensures some consistency of decisions as the concept
of precedent involves courts following previous decisions of senior courts.
Two forms of precedent exist:
i. Binding precedent (traditionally referred to as star decisis):
A decision from a more senior court in the same hierarchy of courts
binds judges in lower courts to follow that decision of the senior court.The facts of the cases must be substantially similar.
ii. Persuasive precedent
Decisions from courts in other jurisdictions or lower courts in the
same hierarchy which need not be followed by other courts but can be
used as a guide when deciding similar fact cases. Persuasive
precedent may also be the 'obiter dicta', being merely observations of
the court, which were not the basis of the court's decision.
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Reading
Latimer 1-400
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Precedent / Ratio Decidendi / Obiter Dicta
In cases of binding precedent, not all of the judgement is binding. The only
binding aspect of the case is the 'ratio decidendi'- the legal reason for thedecision.
A judge deciding a case may make other statements of law relating to the case
and the legal arguments presented by the parties, however these statements
may only be 'obiter dicta' and are not the judges legal reason for the decision.
Determining the ratio and the obiter can be a difficult task, however it is
important that courts relying on precedent identify the correct ratio decidendi.
This helps to avoid a party appealing against the decision on the basis of an
incorrect interpretation of the precedents.
Precedents only operate where there are similar circumstances between the
precedent and a current case. Sometimes there may be small but significant
differences between the cases, so in these circumstances the judges may
'distinguish' on the facts.
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Reading
Latimer 1-380
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Precedent and the Australian court
The operation of precedent relies on a hierarchy of courts. The key to a binding
precedent is the senior courts making decisions that are followed at a later timeby lower courts in the same hierarchy.
The Australian court hierarchy includes federal and state courts. An
understanding of the Federal and State court hierarchy is necessary to appreciate
the operation of precedent in the Australian context.
The Australian state courts
Reading
Latimer 1-380
Reading
Latimer 1-070
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Each state has its own court hierarchy, however the structures are similar to
each other.
Magistrate's Court
This court is the lowest court in the hierarchy and generally hears minor civil
matters , such as one person suing another, e.g. regarding a car accident. The
Magistrate's Court has a summary jurisdiction in criminal matters. This means
that juries do not sit in criminal matters in the Magistrate's Court and the
criminal matters heard are regarded as relatively minor. Magistrates also sit in
specialised courts, such as the Coroner's and Children's Court. The Coroner's and
Children's Court are regarded as being on the same level in the hierarchy as the
Magistrate's Court.
County Court
This court is regarded as the intermediate court. The court's jurisdiction includes
hearing most indictable offences and in civil matters the court hears "unlimited"
personal injury claims and property damage claims up to $200,000. The County
Court also hears appeals from the Magistrate's Court in criminal matters.
Supreme Court
This is the highest court in the state hierarchy, with unlimited jurisdiction in civil
and criminal matters (as set out in statute). The court also hears appeals from
the lower courts and also has a permanent Court of Appeal to hear appeals from
the Supreme Court in its original jurisdiction.
The Australian Federal court system
The Commonwealth also has its own hierarchy of courts. The lowest court in this
hierarchy is the Federal Magistrate's Court.
The Federal Magistrates Court
Latimer 1-080
Latimer 1-090
Reading
Latimer 1-070
Latimer 1-110
Latimer 1-100
Latimer 1-140
Latimer 1-130
Latimer 1-160
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This court was established in the year 2000 and has jurisdiction in federal areas
of law, for example bankruptcy, and trade practices, with claims of up to
$200,000.
The Federal Court
This court was established in 1976 and has original and appellate jurisdiction to
hear matters arising out of federal law, for example to do with bankruptcy,
taxation and trade practices. Note the Full Court of the Federal Court is an
appellate court, which hears appeals from a single judge of the Supreme Court,the Supreme Courts of the Territories and the State Courts exercising federal
jurisdiction.
Family Court
This is a specialised court dealing with marriage breakdowns, property
settlements and residential and custodial arrangements affecting the children of
broken down marriages.
High Court
This is the most senior court in the federal court system. Specifically it has three
main functions:
1. special original jurisdiction; this allows it to hear disputes between states
and between the commonwealth and states.
2. final Court of Appeal within the Australian legal system;
3. guardian and interpreter of the Australian Constitution.
Note: There are also numerous administrative bodies, tribunals and arbitration
bodies under both the State and federal system.
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Civil and criminal law
Before leaving this introductory module, some discussion is needed of the words
'criminal' and 'civil '. Students very often confuse the terminology between civil
and criminal matters. The legal terminology differs from criminal to civil, so a
clear understanding is needed of the 'correct' language.
In criminal matters, the following words are important:
accused
defendant
prosecuting
prosecutor
penalty
conviction
beyond reasonable doubt.
These terms are not used when referring to civil matters.
Criminal cases are referred to in the following way:
In Civil cases the following words are important. Make sure you know the
definition and use of each:
Plaintiff
applicant
defendant
sue
remedy
damages
appellant
R v Smith
This indicates an indictable criminal offence. Note: "R" refers to the
Crown as prosecuting and Smith is the one accused of the offence.
Smith v R
This indicates an indictable criminal matter on appeal.
Lee(informant) v Smith
This indicates a summary offence. The informant may be a police officer,
by-laws officer or health inspector.
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respondent
On the balance of probabilities.
Civil cases are referred to in the following way:
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Smith v Brown
This indicates that Smith is the Plaintiff and Brown the defendant.
Note: if Brown appeals against a decision, Brown becomes the Appellant
and the appeal case will be cited as Brown v Smith.
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