Flinders Law School
BEDFORD PARK SA 5042
GPO Box 2100
Adelaide SA 5001
Tel: +61 8 8201 3539
Fax: +61 8 8201 3630
law.office@flinders.edu.au
http://ehlt.flinders.edu.au/law/
CRICOS Provider No. 00114A
Bachelors of Business/Commerce
BUSN1019
LAW FOR BUSINESS
TOPIC GUIDE &
STATEMENT OF ASSESSMENT
Semester 2, 2011
Topic Co-ordinator: Jeff Fitzpatrick
Acknowledgements
Materials in this Topic Guide have been developed by Mr Jeff Fitzpatrick, in association with Drs Vivienne Brand and Sulette
Lombard.
Handout No 1
FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 LAW FOR BUSINESS
TOPIC OUTLINE 2011
CONTENTS
Table of Contents
TOPIC CO-ORDINATOR .........................................................................................................3
TOPIC CONTENT ....................................................................................................................3
TOPIC OBJECTIVES ..............................................................................................................3
LEARNING OUTCOMES .........................................................................................................4
WHY STUDY BUSINESS LAW? .............................................................................................4
ASSESSMENT ........................................................................................................................5
LECTURES..............................................................................................................................5
TUTORIALS ............................................................................................................................6
WRITTEN ASSIGNMENT ........................................................................................................6
WRITTEN ASSIGNMENT DEADLINE .....................................................................................8
WRITTEN ASSIGNMENT LATE SUBMISSIONS ....................................................................8
ACCESS PLANS .....................................................................................................................9
END-OF-SEMESTER EXAMINATION ...................................................................................10
STUDENT WORKLOAD ........................................................................................................10
TEXTBOOK & OTHER RECOMMENDED TEXTS/ REFERENCES ......................................11
PLAGIARISM & ACADEMIC DISHONESTY .........................................................................12
NOTES ON ANSWERING LEGAL QUESTIONS...................................................................14
STUDENT EVALUATION OF TEACHING .............................................................................16
LECTURE & TUTORIAL PROGRAM ....................................................................................17
WRITTEN ASSIGNMENT QUESTION ...................................................................................18
TUTORIALS ..........................................................................................................................21
PAST EXAMINATION PAPER ..............................................................................................54
STYLE GUIDE .......................................................................................................................59
STATEMENT OF ASSESSMENT METHODS - 2011 ............................................................65
ASSIGNMENT COVER SHEET .............................................................................................70
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TOPIC CO-ORDINATOR
Coordinator
Jeff Fitzpatrick
Law and Commerce Building Room 2.17
8201 3898
Email: jeff.fitzpatrick@flinders.edu.au
Please contact the Topic Coordinator (Jeff Fitzpatrick) with any requests for extensions
and for changes to tutorial times. You must not expect that the Topic Coordinator will be
available for consultation without a prior appointment.
TOPIC CONTENT
Law for Business covers the following six (6) topics:
I. The Australian Legal System
II. Agency and Business Structures
III. Law of Contract
IV. Law of Property
V. Trade Practices
VI. Law of Torts
TOPIC OBJECTIVES
Law for Business aims to:
• introduce, and familiarise, you with the areas of law that are relevant to business;
• develop your appreciation of the Australian system of commercial law that has been
developed and enforced by the Parliaments and the Courts;
• enable you to recognise legal problems in business and implications when they arise in
commercial and business practice and settings; and
• provide you with the knowledge and tools to be able to seek legal advice or to make
appropriate referrals to legal professionals, when and where required.
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LEARNING OUTCOMES
On completion of Law for Business you should:
• understand and be able to describe the process of law-making and the structure and
hierarchy of courts in the Australian legal system;
• understand and be able to apply the principles of the law of torts, contract, trade
practices, agency and property to various factual scenarios relevant to business;
• be familiar with a range of legal business structures and be able to identify and describe
their defining legal characteristics;
• be able to analyse a factual scenario and identify relevant legal issues;
• be able to recognise some of the legal implications relevant to the provision of
financial, accounting or other professional advice;
• be able to evaluate a factual situation and determine when and where professional legal
advice is prudent or desirable;
• have the knowledge and skills to conduct preliminary research and seek professional
advice in relation to legal problems;
• have developed skills in clear written and oral communication of legal principles; and
• have developed skills in appropriate referencing and citation practice.
It should be clear from the Topic Objectives and Learning Outcomes detailed above that
Law for Business is intended to introduce you to the major areas of law that are relevant
to business. It does not attempt to provide you with sufficient knowledge for you to be
able to advise your employer or clients on complex legal issues. However, it will help
you recognise legal issues and have the awareness to seek the necessary professional
legal advice where appropriate.
WHY STUDY BUSINESS LAW?
Law does not exist nor operate in a vacuum. The reason why commercial and business
arrangements are customarily carried out in particular ways is often the result of legal
restrictions, rules, customs or advantages that apply to particular situations, industries or
businesses.
Accountants, entrepreneurs, managers, financiers and other business professionals must
have a basic and fundamental understanding of the legal system, and the major areas of
commercial law, in order to provide an accurate service to their employers or clients.
When they give financial or other advice or service, it is necessary for them to be
familiar with the legal fundamentals of the transaction or dealing, and be aware of the
legal consequences which may result.
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Business executives can also benefit greatly from having a basic but sound knowledge of
the law. Commercial litigation can arise as a result of one or more parties in a business
negotiation not having been fully aware of the legal consequences that flow from the
resultant contract, or being unaware of their legal rights at the time that the deal was
negotiated. Such costly mistakes and litigation can often be avoided if businesses are
better equipped with basic legal knowledge and are able to recognise when it is prudent
or appropriate to seek professional legal advice.
Accountants and business professionals cannot give legal advice. To do so is beyond
the scope of their duties, is prohibited by law and various rules of conduct for
professional bodies, and may result in an action for negligence that can prove very
costly.
ASSESSMENT
The components of assessment are:
 Assignment
 Examination (2 hours + 30 mins reading)
40%
60%
Grading is:
0% - 49% –––––––––––– Fail (F)
50% - 64% –––––––––––– Pass (P)
65% - 74% –––––––––––– Credit (C)
75% - 84% –––––––––––– Distinction (D)
85% - 100% ––––––––––– High Distinction (HD)
See:
http://www.flinders.edu.au/ppmanual/student/assessment2.html
http://www.flinders.edu.au/current-students/exams-assess-results/grades-andassessment/
http://www.flinders.edu.au/teaching/teaching-strategies/assessment/grading/.
To successfully complete Law for Business, you must achieve, at the minimum, an
overall “Passing” grade obtained through performance in the Topic’s instruments of
assessment and a “Pass” in the end-of-semester examination.
Please note that a grade of “Pass” or better in Law for Business is mandatory before
being allowed to enrol in BUSN2042 Corporations Law.
LECTURES
Law for Business has one (1) two-hour lecture per week on:
Friday, 11:00 am – 12.50 am, North 4 lecture theatre, Law/Commerce
The Lecture Program is included below.
It is expected that students will attend lectures, as often critical information relating to
the Topic will be disseminated (including, for example, any changes to teaching
arrangements, discussion of material to be included in the examination and so forth).
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Lecture audio will be available on FLO if recorded. The recording of lectures and
placement on FLO is not the responsibility of the Topic Coordinator.
TUTORIALS
Tutorials will commence in the second week of the semester. Weekly tutorial questions
are included in this Guide (below). The Tutorial Program is shown below.
You are strongly advised to attend all tutorials. Tutorials are aimed at providing the
opportunity for you to practise analysing and discussing legal issues and prepare for the
written assessment and final examination. You will maximise the benefit of tutorials by
preparing answers and being able to enter into discussions of the problems at tutorials.
Simply attending, sitting in a tutorial and not participating will be of little assistance to
your learning.
WRITTEN ASSIGNMENT
The written assignment is problem-based. The purpose is to reinforce concepts taught
and to give you opportunity to get constructive feedback on your performance before
attempting the end-of-semester examination.
Group option (maximum of 3 students per group)
You have the OPTION of submitting your assignments on a group basis. Group work
can allow for the benefit of shared understandings and many people (but certainly not
all), learn better if they work with others. However, this is an option: if you do not wish
to work in a group, or have trouble organising a group to work with, you may simply
submit your own work for individual assessment.
If you wish to submit your assignment answer as part of a group:
1. Select your own group of 2 or 3 people (no more!).
2. All members of the group should sign their own cover sheet (including the
plagiarism declaration and word count) and all cover sheets should be stapled
(in family name alphabetical order) to the front of the assignment.
3. Lodge ONE COPY ONLY of the assignment with 2 or 3 coversheets
(depending on the size of the group) attached IN FAMILY NAME
ALPHABETICAL ORDER.
4. One mark will be allocated for the assignment and this will be the mark
assigned to each group member.
5. Group management issues are the responsibility of the members of the group
and not the teaching staff. Remember: whatever one member contributes to
the assignment, and any consequences that flow from that contribution,
is the responsibility of the group and all members must bear the
consequences.
6. If you have difficulty locating others who might like to work in a group with
you, use BUSN1019’s FLO’s discussion board to nominate your interest and
locate others who might live near you or otherwise be likely candidates to
work with you.
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Note: If any issue arises concerning the possibility of a group assignment needing an
extension on the deadline, all group members must speak to the Topic Coordinator, Jeff
Fitzpatrick regarding such a request before the due date. Any resolution of such a
situation will be at the Coordinator’s discretion.
Written assignment marking criteria
In marking assignments the following criteria will be considered:
 A clear and logical structure
 Accuracy of identification of relevant issues
 Evidence of ability to analyse issues
 Strength of argument put forward to justify conclusions
 Clarity of thought and expression (including grammar and spelling)
 Adequacy of referencing (including footnotes and bibliography)
 Word count (the stipulated word length should be considered as a minimum and
maximum word count limit)
Written assignment requirements
Your assignment must comply with the style requirements set out in the Australian
Guide to Legal Citation (see http://mulr.law.unimelb.edu.au/go/AGLC3). In
particular, all assignments must contain full acknowledgment of sources. Failure to
adequately reference sources and to include a bibliography amounts to plagiarism
and may result in a fail grade for the assignment. In some cases more serious steps
may be taken. In the past this has included students receiving a ‘Fail’ grade for an
assignment and/ or for the topic as a whole. Adequate referencing means that all sources
used in preparing the assignment (including textbooks and legislation) must be identified
in a Bibliography at the end of the assignment, and all use of sources (including quotes,
paraphrasing or other use of ideas from any source) must be comprehensively footnoted
in the assignment. Harvard style referencing is not used for law assignments. If you
are unclear on how to reference your sources adequately, seek assistance from the
Flinders Business School ‘Steps to Success’ program1 (see
https://www.flinders.edu.au/sabs/business/current_students/sts), or the Student
Learning Centre (SLC – go to http://www.flinders.edu.au/currentstudents/slc/whatweoffer/services.cfm for information on services offered ), or the
International Student Services Unit (see http://www.flinders.edu.au/internationalstudents/services/international-student-services-unit/international-student-servicesunit_home.cfm), before handing up the assignment. Further information on academic
dishonesty and plagiarism is set out below.
1
Contact Steps-to-Success co-ordinator Wei Cui; telephone: 8201 2474; email: wei.cui@flinders.edu.au.
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WRITTEN ASSIGNMENT DEADLINE
BUSN1019 Law for Business is a topic provided by the Law School. Each assignment
must include a completed Law School Assignment Cover Sheet per student. A copy is
provided below. The Law School Assignment Cover Sheet is also available on FLO, or a
hard copy can be collected from outside the Law School Office ‘window’.
All written assignments must be physically lodged before the specified time on the due
date at the Law School Office Student Services Area (Office window of Room 2.42,
Law and Business Building). If the Office is closed, place your assignment in the chute
marked “BUSINESS LAW “.
Do not fax or email your assignment to the Law School Office or to the Topic
Coordinator.
The Written Assignment deadline is before 4 pm on Monday 5 September, 2011.
Note: The deadline “before 4 pm” means just that – it does not mean at, or after,
4pm. The Law School Office stamps every assignment received, showing the date and
time of lodgement at 4 pm every day. Therefore, it is imperative that you lodge your
assignment before 4 pm on the due date. It is your responsibility to ensure the work is
lodged before the deadline. Allow time for processing by office staff before the 4 pm
deadline: any assignment stamped after the deadline will be penalised for lateness.
There is no overnight “grace period” on lodgement of assignments in the Law School.
Any assignment lodged after 4 pm on the due date but before 9am the next day will NOT
be treated as having been handed in on time. In other words, if you fail to lodge your
assignment before the deadline, you will be penalised for lateness.
WRITTEN ASSIGNMENT LATE SUBMISSIONS
Penalty
Any assignment stamped after 4 pm on or after the due date will have 10 marks deducted
for every 24 hour period that that assignment is late unless an extension has been
granted. This is a penalty of 10% of the total mark possible for the assignment (that is,
100%) for every 24 hours (or part thereof) it is overdue after 4 pm on the due date
(including Saturdays & Sundays).
Request for extension
An extension will be granted where documentary evidence is provided from a medical or
other health professional, received before the due date for lodgement. Any request for
an extension for late lodgement of an assignment must be made on the appropriate form
and before the assignment is due. The “Request an Extension form” is available at
http://websearch.cc.flinders.edu.au/search?q=Request+for+extension+form&Go2=Go
&entqr=0&sort=date%3AD%3AL%3Ad1&output=xml_no_dtd&client=default_fronte
nd&Go2=Go&ud=1&oe=UTF-8&ie=UTF8
J Fitzpatrick 12 July 2011
8&proxystylesheet=default_frontend&site=default_collection, or from outside the Law
School Office ‘window’.
Extension Request Forms are to be lodged at the Law School Office and addressed to
the Coordinator for the topic, Jeff Fitzpatrick. Where the extension application is
accompanied by a doctor’s certificate or letter from a health professional, an extension
will automatically be granted for the number of days covered by the certificate or
recommended by the health professional (up to a maximum of 1 week). Documentary
evidence must therefore specify a number of days allowance to be made. Please note that
no initial or cumulative extension of more than 1 week will be granted. If, at the end of
one week, assessment work required is still overdue, it will be at the discretion of the
Coordinator as to whether that student remains eligible to complete that piece of
assessment. If a student is granted an extension for an assignment beyond the return date
for that assignment (as listed in the Statement of Assessment Methods (SAM) below),
then the student will be required to complete that assignment on subject matter not dealt
with by those students submitting assignments before the return date.
If a Request for an Extension form is lodged without supporting documentation from a
medical or other health professional, the Coordinator may contact you to obtain further
verification.
Note: do not email extension requests and supporting documentary evidence or simply
attach such material to a late assignment. You must lodge extension requests and
supporting evidence at the Law School Office before the due date.
If you are going to be absent from this Topic before the assignment deadline for
extra-curricular reasons (e.g. pre-booked holidays; weddings; work; military;
religious; hobby or personal commitments), please prioritise your time to complete
the assignment before its due date. You can submit the assignment any time before
its deadline.
Request for extension and group work assignments
If any issue arises concerning the possibility of a group assignment needing an extension
on the deadline, all group members must speak to the Topic Coordinator, Jeff Fitzpatrick
regarding such a request and its resolution will be at the Coordinator’s discretion.
ACCESS PLANS
If you have an Access Plan, please advise the Topic Coordinator at the start of the
semester and provide the Coordinator with a copy of that plan. Where arrangements can
be altered to give effect to the plan they will be, but this will of course always be subject
to other obligations (eg. accordance with related University policy, any external
accreditation requirements (where applicable) and the availability of resources). Students
may seek guidance from the Health and Counselling Unit at Student Services. As Access
Plans state, it is the responsibility of the student to negotiate appropriate modifications to
assessment with the Topic Coordinator.
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Note: Access Plans are arranged between students and the University Disability Liaison
Officer and they are NOT binding on the Topic Coordinator. They are intended ONLY
as a guide to the students’ optimal assessment needs.
END-OF-SEMESTER EXAMINATION
The examination held at the end of the semester. The examination will be for two hours
with thirty (30) minutes reading time. The examination will be on any aspect of Topics
1 to VI inclusive in BUSN1019 Law for Business.
You must obtain a ‘Pass’ in the written examination in order to successfully complete
the subject.
.
The exam will be open book, so you may take any books (including Library books),
notes or written materials into the exam that you wish to use.
The exam will be marked on the basis of the following criteria:
 A clear and logical structure
 Accuracy of identification of relevant issues
 Evidence of ability to analyse issues
 Strength of argument put forward to justify conclusions
 Clarity of expression
Past examination papers for BUSN1019 Law for Business, or its predecessors
BUSN1010 Introduction to Business Law, or COMM1009 Law for Business, are
available on line, via the Flinders University Library’s website at
http://www.flinders.edu.au/library/ under “Readings & Past Exams”.
STUDENT WORKLOAD
Flinders University uses unit points, not only to define its degree requirements but also to
provide guidance to students on how to plan their study time. Law for Business is worth
4.5 units. Hours are linked to unit points as an indication of the estimated minimum work
time necessary to achieve an average grade. The University’s Education and Research
Policy2 indicates that normally it is expected that a unit point will be equivalent to
approximately two hours of student effort per week (including both time spent in formal
classes and individual study time during the specified teaching period; ie, during the
entire semester, including the mid-semester break). Thus, for a 4.5 unit topic,
approximately nine (9) hours of student effort would be expected per week, while for a 6
unit topic the approximate student effort per week expected would be twelve hours. The
Policy further provides that this is not a legal statement, nor a guarantee of a successful
result with the investment of this effort. See:
http://www.flinders.edu.au/ppmanual/student/SecC_expected.html
2
http://www.flinders.edu.au/ppmanual/student/SecC_expected.html
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TEXTBOOK & OTHER RECOMMENDED TEXTS/
REFERENCES
Textbook
Barron, Fundamentals of Business Law (6th Ed, 2009) with 2011 Update.
Any page references given in lectures or tutorials will be the 6th edition only.
Note: If you choose to use the 5th (or earlier) edition it is your responsibility to update it
in keeping with the 6th edition.
Please bring this textbook to all lectures and tutorials
Highly Recommended Texts3
Fitzpatrick, Symes, Veljanovski and Parker, Business and Corporations Law.
Gibson and Fraser, Business Law.
Pentony, Graw, Lennard and Parker, Understanding Business Law.
Vermeesch and Lindgren, Business Law of Australia.
Recommended Texts4
Chew, Business Law Guidebook.
Ciro and Goldwasser, Law and Business: Text and Tutorials.
Fleming, The Law of Torts.
Gamble, DuPlessis and Neal, Principles in Business Law
Graw, An Introduction to the Law of Contract.
Latimer, Australian Business Law Workbook.
Pendleton and Vickery, Australian Business Law Principles and Applications.
Terry and Giugni, Business & The Law.
Turner, Australian Commercial Law.
References5
Butterworth’s Business and Law Dictionary.
Melbourne University Law Review, Australian Guide to Legal Citation (or online at
http://mulr.law.unimelb.edu.au/go/AGLC3).
Internet sites
Oxford English Dictionary http://www.oed.com (available on-line via the Flinders
University Library portal, http://www.flinders.edu.au/library/
Australian Legal Information Institute (AustLII), http://www.austlii.edu.au
Australian Competition and Consumer Commission, www.accc.gov.au
Australian Securities and Investment Commission, www.asic.gov.au
District Court (SA), www.courts.sa.gov.au/courts/district/index.html
Federal Parliament, www.aph.gov.au
High Court of Australia, www.hcourt.gov.au
IPAustralia, www.ipaustralia.gov.au
3
Please refer to the latest edition of each text cited wherever possible.
Please refer to the latest edition of each text cited wherever possible.
5
Please refer to the latest edition wherever possible.
4
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J Fitzpatrick 12 July 2011
Magistrate’s Court (Small Claims Division) (SA),
www.courts.sa.gov.au/courts/magistrates/index.html
South Australian Parliament, www.parliament.sa.gov.au
Supreme Court of SA, www.courts.sa.gov.au/supreme/index.html
PLAGIARISM & ACADEMIC DISHONESTY
The University has a policy and procedures dealing with academic dishonesty which are
set out in full online at:
http://www.flinders.edu.au/ppmanual/student/assessment1.html. The following is an
extract from the key section dealing with what “Academic Integrity” means:
Academic Integrity
2.1
Academic integrity means that all work which is presented is produced by the student alone,
with all sources and collaboration fully acknowledged.
2.2
Any failure to meet the requirements of academic integrity in any form of academic work will
be regarded as a breach of the requirements of academic integrity and, depending on the
circumstances and the nature of the breach, consequences including penalties may be expected
to follow. Breaches of academic integrity may include plagiarism, collusion, fabrication,
falsification, double submission of work and misconduct in examinations.
2.2.1
Plagiarism
Plagiarism is the use of another person's words or ideas as if they were one's own. It may occur
as a result of lack of understanding and/or inexperience about the correct way to acknowledge
and reference sources. It may result from poor academic practice, which may include poor note
taking, careless downloading of material or failure to take sufficient care in meeting the
required standards. It may also occur as a deliberate misuse of the work of others with the
intent to deceive. It may include, but is not restricted to:
 presenting extracts, without quotation marks and/or without appropriate referencing,
from books, articles, theses, other published or unpublished works, films, music,
choreography, working papers, seminar or conference papers, internal reports,
computer software codes, lecture notes or tapes, numerical calculations, data or work
from another student. In such cases, it is not adequate merely to acknowledge the
source. This applies to material accessed in hard copy, electronically or in any other
medium;
 close paraphrasing of sentences or whole paragraphs with or without
acknowledgement by referencing of the original work;
 adopting ideas or structures from a source without acknowledgment;
 using source codes and data from other's work without acknowledgement;
 arranging for someone else to undertake all or part of a piece of work and presenting
that work as one's own;
 submitting another student's work whether or not it has been previously submitted by
that student.
2.2.2
Collusion
Collusion occurs when a student submits work as if it has been done individually when it has
been done jointly with one or more other person unless the topic coordinator has indicated that
this is acceptable for the specific piece of work in question.
2.2.3
Other breaches of the requirements of academic integrity
Other breaches of the requirements of academic integrity may include:
 fabrication or falsification of data or results of laboratory, field or other work;
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J Fitzpatrick 12 July 2011


submission of the same piece of work for more than one topic unless the topic
coordinator(s) have indicated that this procedure is acceptable for the specific piece of
work in question;
providing another student with the means of copying an essay or assignment.
Your assignment must contain full acknowledgement of sources and failure to
adequately reference sources in footnotes, or to include a Bibliography, amounts to
plagiarism and may result in a “Fail” grade for that assignment. In some cases,
academic dishonesty may have more drastic consequences; for example, a “Fail” grade
for the Topic as a whole, or for flagrant plagiarism or academic dishonesty, expulsion
from the University.
‘Adequate referencing’ means that all sources used in the preparing the assignment,
including textbooks, legislation and subject materials, must be identified in a
Bibliography at the end of the assignment and all sources used (including quotes,
paraphrasing and any other “borrowing” of ideas from any material) must be
comprehensively footnoted (not end-noted) in the assignment. Harvard style referencing
is not used in law assignments.
A Business Law Style Guide is included below. For further information on how to
reference your sources properly, consult the Australian Guide to Legal Citation; see:
http://mulr.law.unimelb.edu.au/go/AGLC3
One significant step you can take to ensure you avoid inadvertently using material from
the text without acknowledgment is to make careful record of the source of all notes at
the time they are taken (i.e. which publication, what page, whether an exact quote or a
paraphrase). This way you will not have to search through the textbook or other sources
at the end of your assignment drafting to check where a particular idea, or concept, or
quote, came from. If you take a direct quotation from any source you must identify the
quoted material with quotation marks: not to do this is plagiarism. Use of a footnote
alone is not adequate – when quoting, you must always use a footnote and quote
marks, and this is true whether you are quoting from a book, a lecture, or any other
source.
With all footnotes, try and pinpoint the precise page(s) that ideas and/ or quotations
have come from in your source material.
A concept that causes many students to become confused is the idea that you do not need
to give citations for things that are common knowledge. ‘Common knowledge’ is
regarded as anything that most of the population would know about (as opposed to a
legal idea or concept that is generally accepted in the legal community but unknown
outside of it – that sort of thing does need footnoting to a source). So a reference to the
date of the Norman Conquest (1066) or the date of Federation in Australia (1901) will
not require a referencing footnote, whereas a statement about the separate legal entity
status of a company will.
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NOTES ON ANSWERING LEGAL QUESTIONS
Uncertainty
Students answering legal questions often expect that for every problem there is a precise
and correct legal answer. This is not the case. It is fundamental to our system of law that
each party to a dispute is entitled to put forward his or her interpretation of the relevant
law and it is for the judge or jury (depending on whether it is a civil or criminal matter)
to decide which party’s argument bears greatest weight and should succeed.
Therefore, when answering legal problems, you should acknowledge the possible
arguments available for both parties and then develop the legal argument which you
consider strongest. Remember that you are only expressing an opinion and that, on the
facts, it may be possible to argue equally well for both sides. In fact, in most practical
situations this is often the case.
Advising a Client
In many legal problems you are asked to provide a particular party with legal advice. The
instruction to advise requires you to analyse the legal issues of the problem and suggest a
resolution or possible conclusion to these problems. Your advice should address the
arguments for or against a particular result with respect to each issue.
In preparing your answer, setting out the arguments for one party and then listing the
counter arguments for the other party may be helpful. However, if you intend to adopt
this approach in answering the problem, beware of being repetitive in your discussion.
Avoid restating principles of law you have already discussed or re-explaining
conclusions you have already reached. A simpler approach is to discuss and resolve
separately each legal issue raised in the problem before moving on to discuss the next
issue.
In assignments, avoid writing in point form;6 use a narrative form of writing where
appropriate. You may use a mixture of “first person” and “third person” expression but
avoid use of, “In my opinion...” or “I think...”. This is subjective. You need to state what
the law says as a means of working towards some objective conclusion.
Steps
In answering any legal problem it is necessary to:
1) IDENTIFY THE RELEVANT FACTS IN THE PROBLEM
Before you “put pen to paper” (or, more accurately, “fingers to the keyboard”), you must
read through the problem and identify those facts which are relevant at law. For example,
consider the following scenario:
6
Point form style may be used in examination answers.
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J Fitzpatrick 12 July 2011
One day Jennifer offers to sell her car, a red Mercedes-Benz roadster, to her
neighbour Janine for $100,000. Janine rejects Jennifer’s offer. That night Janine
dreams of driving around in a Mercedes roadster, the wind in her hair and the
sun on her face. The following morning Janine calls Jennifer to buy the car for
$100,000. Jennifer refuses. Advise Janine.
As this problem is about forming a contract, the irrelevant facts are that the car is a red
Mercedes roadster, the content of Janine’s dream or that she and Jennifer are neighbours.
What is relevant is that Jennifer made an offer to Janine, Janine rejected Jennifer’s offer
and then Jennifer later refused Janine’s offer. You must ascertain the important facts so
as to discern what underlying legal issues must be addressed in advising Janine. Here,
those key legal issues are the rules of Offer and Acceptance in determining whether a
simple contract has been negotiated or not.
So, what you are doing here is planning your answer to this problem. All “problem”
questions in law follow three steps:
1. Find “the Law”. That is, describe the relevant legal principles, rules and/ or cases
underlying the relevant facts
2. Critically apply that law to the facts
3. Reach a conclusion by way of final advice to “your client” (in this case, Janine).
Having done your plan, you are now ready to write.
2) DISCUSS THE LAW AS IT IS RELEVANT TO THOSE FACTS
This is step 1, Find “the Law”. Once you have identified the facts that raise legal issues,
you must ascertain and discuss the law which these facts raise. For example, in the above
problem, you would need to discuss the law on Offer and Acceptance. What you must
NOT do is merely copy out “slabs” from your textbook, quote large parts of cases or
restate your lecture notes in giving your answer. You should aim to use footnotes to refer
to the references used in your answer.
If the relevant law comes from case law, the appropriate authorities should be stated and
where there are conflicting authorities, the different legal arguments should be briefly
discussed and reconciled.
It is important in answering legal problems that you:
a) DO NOT RESTATE THE FACTS as a bald list at the beginning of your answer;
b) DO NOT RESTATE THE QUESTION at the beginning of your answer; and
c) DO NOT MAKE ASSUMPTIONS to help “flesh out” vague facts or fill gaps in the
factual information (in other words, simply “make things up”!).
3) APPLY THE LAW TO THE RELEVANT FACTS
Step 2, Applying the law to the facts, is often the hardest part in answering a legal
problem. You must now apply the law to the facts to ascertain whether the facts fit into
the relevant legal categories or rules. But, this step is essential to answering a legal
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J Fitzpatrick 12 July 2011
problem. You must consider and discuss how the relevant law can be applied to the facts
so that a legal argument develops which will lead to and support your ultimate
conclusion. Here you may have to consider arguments that are “for” and “against” a
particular point of view. Bring in key words and phrases from the facts to illustrate or
demonstrate the particular legal point being made. Often, case law decisions will help
your analysis of the facts, particularly where the facts of a case are (almost) identical to
those in your problem.
Do not jump straight from stating the law to reaching a conclusion on the outcome
of the problem. You must give the reasons leading to that conclusion. It is a step-by-step
process of logical thinking that you are following.
4) STATE YOUR CONCLUSIONS
Step 3, reach a conclusion. Having argued how the law can be best applied to the facts,
you must now reach a conclusion on what you consider are the legal options for your
client (Janine). You may then suggest what may be the “best” option. Do not vacillate
and try to “sit on the fence”! Make a decision or suggest a resolution of the matter by
identifying the different strengths and weaknesses in the various arguments you have
raised.
A possible variation?
Where the facts raise a number of legal issues, it may be easier to state the law on each
issue, discuss that law in relation to the facts and reach a conclusion, before proceeding
to discuss the next issue.
Above all else ...
Whatever format you use, be logical and clear in your structure and writing. Always start
from the general position of “the Law”, apply it to the facts and reach a particular
conclusion (usually in the form of final advice to your client).
For further information on how to answer legal questions, read Barron pages XXIII –
XXVI (6th Ed).
STUDENT EVALUATION OF TEACHING
Student evaluation of teaching (SET) is Flinders University's standard, mandatory
instrument for gathering data from students about their response to teaching, supervision
and Topics. The purpose of SET is to provide staff with valid and reliable information
with which to make informed decisions about improving student learning outcomes.
Student Evaluation of Teaching may be done at the last lecture or on-line. Students
enrolled in the Topic on the day that an on-line survey goes “live” will receive an email
informing them of the survey, as well as further reminder emails. For further details on
SET, go to: http://planning.flinders.edu.au/?content=set&page=set_staff
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J Fitzpatrick 12 July 2011
LECTURE & TUTORIAL PROGRAM7
Wk
1
Fri8
Lect9
29/7
JF10
Topic
No
1
2
5/8
MB
11
11
Topic
Text reading
Tutorial
Topic Guide
Australian Legal System
Barron Chpt 1
No Tutorials this week
Australian Legal System
Agency& Business
Structures
Barron Chpt 2, 18
1 Aust Legal System
Agency& Business
Structures
Barron Chpt 4, 7,
18, 19
2 Agency & Business
Structures
Contract
Barron Chpt 7, 8
3 Contract
3
12/8
MB
4
19/8
ES12
5
26/8
ES
Contract
Barron Chpt 8, 9
4 Contract
6
2/9
ES
Contract
Barron Chpt 9
5 Contract
111
Major Assignment due MONDAY 5 SEPTEMBER 2011 before 4 pm Room 2.42 LCB
7
9/9
MB
1V
Property
8
16/9
MB
V
Trade Practices
Barron Chpt 10,
17
Barron Chpt 13,
15
6 Contract
7 Property
MID-SEMESTER BREAK (19/9-3/10)
9
7/10
MB
VI
MB
Trade Practices
Tort (Negligence)
Tort (Negligence)
Barron Chpt 3
No Tutorials this week
Barron Chpt 3
8 Trade Practices
10
14/10
11
21/10
JF
Revision
9 Tort (Negligence)
12
28/10
JF
Revision
10 Contract/ Tort
(Negligence)
Major Assignment available for collection FRIDAY 10 OCTOBER 2011 after 9 am Room 2.42 LCB
Exam period 12/11-26/11
End-of-semester Examination (O
OPEN BOOK) – you will be advised the specific
date by the University’s Examinations Office.
7
This program may be subject to change without notice.
Friday
9
Lecturer
10
Jeff Fitzpatrick
11
Margaret Barron
12
Esther Stern
8
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J Fitzpatrick 12 July 2011
WRITTEN ASSIGNMENT QUESTION
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
WRITTEN ASSIGNMENT
Due Date: Monday 5 September 2011 before 4 pm at Law School Student Services
Area: Room 2.42 Law & Business Bldg
Value: 40%
Word Length: 1800 words (to be treated as the minimum and maximum limit)
Re-read the “Notes on Answering Legal Questions” above and Barron pages XXIII –
XXVI (6th Ed). Conciseness of expression is important in answering this assignment,
so please do not exceed the word limit! Answer all questions. Clearly number each
answer to each question. All assignments must contain full acknowledgement of
sources and failure to adequately reference sources via footnotes, and include a
Bibliography at the end of the paper, amounts to plagiarism and will result in a “Fail”
grade for this part of the assessment. Use the “Business Law Style Guide” below or
see: http://mulr.law.unimelb.edu.au/go/AGLC3.
If you wish to submit your assignment answer as part of a group:
(maximum of 3 students per group)
You have the OPTION of submitting your assignments on a group basis. Group work
can allow for the benefit of shared understandings and many people (but certainly not
all), learn better if they work with others. However, this is an option: if you do not wish
to work in a group, or have trouble organising a group to work with, you may simply
submit your own work for individual assessment.
If you wish to submit your assignment answer as part of a group:
1. Select your own group of 2 or 3 people (no more!).
2. All members of the group should sign their own cover sheet (including the
plagiarism declaration and word count) and all cover sheets should be stapled
(in family name alphabetical order) to the front of the assignment.
3. Lodge ONE COPY ONLY of the assignment with 2 or 3 coversheets
(depending on the size of the group) attached IN FAMILY NAME
ALPHABETICAL ORDER.
4. One mark will be allocated for the assignment and this will be the mark
assigned to each group member.
5. Group management issues are the responsibility of the members of the group
and not the teaching staff. Remember: whatever one member contributes to
the assignment, and any consequences that flow from that contribution,
is the responsibility of the group and all members must bear the
consequences.
6. If you have difficulty locating others who might like to work in a group with
you, use BUSN1019’s FLO’s discussion board to nominate your interest and
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J Fitzpatrick 12 July 2011
locate others who might live near you or otherwise be likely candidates to
work with you.
Note: If any issue arises concerning the possibility of a group assignment needing an
extension on the deadline, all group members must speak to the Topic Coordinator, Jeff
Fitzpatrick regarding such a request before the due date. Any resolution of such a
situation will be at the Coordinator’s discretion.
Read the following facts. Using only principles, concepts and law discussed in
BUSN1019 (including the Partnership Act 1891 (SA)), answer each question:
Bertha is a bricklayer. She operated as a sole trader. Bertha personally owned the
utility vehicle, cement mixer and all the other tools and equipment needed for
bricklaying. Sam, Bertha’s partner, played no part in the bricklaying business.
Bertha had experienced a bricklaying boom during the Government’s Building
Education Revolution scheme which had funded the construction of school halls
around Australia. Bertha wanted to change her form of business structure to
minimise her taxation. Bertha decided to form a partnership with Sam.
1. Bertha asks you for advice on the nature and type of partnership she and
Sam could set up, the advantages and disadvantages of each type and
how they could go about forming such a partnership, to be called BESA
Constructions. Advise Bertha.
Eventually, BESA Constructions was formed as a general partnership. Bertha
decided to allow Sam to make contracts on its behalf up to a limit of $15,000.
Sam introduced Bertha to the trade counter staff at Cunnings Hardware store but
did not disclose Sam’s contractual limit. A few months later Sly, Cunnings store
manager, negotiated a ‘special price’ with Sam on irrigation piping, mortar mix
and other bricklaying paraphernalia. Sam truly believed that this was a good deal
and ordered $30,000 worth of material. When BESA Constructions received this
bill, Bertha was incensed. Sam explained Sly’s costing to prove the alleged
saving.
2. Advise Bertha on BESA Constructions’ options regarding payment of the
Cunning’s $30,000 bill.
Stacey had recently completed a TAFE bricklaying apprenticeship. Stacey started
doing casual labouring work for BESA Constructions. Stacey often accompanied
Sam on shopping trips to Cunnings for building materials. After a while, Stacey
went to Cunnings alone to order and collect goods for BESA Constructions. One
day on a construction site, the motor on Bertha’s rusty old cement mixer burnt
out. Stacey had to mix large quantities of mortar by hand so that the bricklaying
could continue. The next day at Cunnings, Stacey commented on the rigour of
hand mixing mortar. It did not require much effort for Sly to talk Stacey into
purchasing a brand new, heavy duty Ezi-mix concrete mixer worth $10,000 for
BESA Constructions. When BESA Constructions received this bill Bertha refused
to pay it.
3. Advise Bertha on whether BESA Constructions is liable to pay Cunnings
for the Ezi-mix mixer.
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J Fitzpatrick 12 July 2011
One month later Stacey complained of a sore back and stopped labouring for
BESA Constructions. Bertha and Sam later received a letter from CoverWork
Insurers stating that Stacey’s spine was damaged as a result of wrongful work
practices by BESA Constructions.
4. Advise Bertha and Sam on their liability for Stacey’s injury.
After the Stacey matter was settled, Bertha and Sam agreed to end the BESA
Constructions partnership. Sam expected to receive at least half of the value of
all BESA Constructions property when it was distributed. Bertha disagreed.
5. Advise Sam on the distribution of BESA Constructions assets on
dissolution.
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J Fitzpatrick 12 July 2011
TUTORIALS
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 1 Australian Legal System
Week beginning Monday, 1 August 2011
Multiple Choice Questions
(Barron Chpt 1 & 2)
1. “The term “law” means:
(a) a set of rules that govern the behaviour of members of a society
(b) a set of legal rules that govern the way members of a society act towards one
another
(c) a set of rules of social behaviour that govern the way members of a society act
towards one another.
2. The three branches of English law include:
(a) common
(b) etiquette
(c) black letter law
3. If there is a clash of principles:
(a) statute law takes precedence over common law
(b) statute law takes precedence over common law and equity
(c) equity takes precedence over common law
4. The ‘keeper of the Constitution’ is the:
(a) High Court
(b) Supreme Court
(c) Federal Court
5. Education is a law-making power held by the Commonwealth Parliament:
(a) concurrently with the States
(b) exclusively
(c) residually
6. In order for a Bill to become an Act of Parliament, it must pass through:
(a) three stages
(b) four stages
(c) six stages
(d) eight stages
(e) nine stages
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J Fitzpatrick 12 July 2011
7. Case law is a term used to describe:
(a) law made by Parliament
(b) common law and equity
(c) delegated legislation
(d) common law only
8. Laws made by parliament are called:
(a) enacted laws
(b) Acts of parliament
(c) statutes
(d) all of the above
9. The District Court of South Australia is confronted with a decision of the Supreme
Court of South Australia. The judge decides to ‘distinguish’ the precedent. This means:
(a) the facts of the case before the court are different from the facts in the precedent
(b) that the precedent was incorrectly decided and will not be applied in the present case
(c) the court will apply the precedent to the present case
(d) the court will reverse the decision made in the precedent case
10. The golden rule of statutory interpretation means that:
(a) the word should be given as literal or ordinary meaning
(b) the word should be interpreted in accordance with the purpose of the act
(c) legislation should not be interpreted retrospectively
(d) none of the above
11. The Supreme Court of South Australia is confronted with a decision of the Supreme
Court of New South Wales on similar facts. Such a decision would be regarded as:
(a) an original precedent
(b) a presumptive precedent
(c) a persuasive precedent
(d) a binding precedent
12. The Court that has an Industrial Division and a General Division is:
(a) the Federal Court of Australia
(b) the Supreme Court in each state
(c) the High Court of Australia
(d) the Family Court of Australia
13. The standard of proof in criminal matters is:
(a) on the balance of possibilities
(b) on the balance of probabilities
(c) beyond a reasonable doubt
(d) none of the above
14. The ratio decidendi of a case is:
(a) the reason for the decision
(b) an application of the doctrine of separation of powers
(c) a statement appearing at the beginning of the report of the case in a law report
(d) a comment made by the way
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J Fitzpatrick 12 July 2011
15. Catherine sues Michael for breach of contract. In these proceedings Catherine is
called the:
(a) appellant
(b) defendant
(c) respondent
(d) plaintiff
16. Common law is made by:
(a) the courts
(b) parliament
(c) tribunals
(d) bodies delegated law-making power by parliament
17. If Slim owed Trusty $10,000, in which South Australian Court would the action be
commenced:
(a) Magistrates Court, Civil Claims Division
(b) District Court
(c) Magistrate’s Court, Minor Civil Claims Division
(d) Supreme Court
Short Answer Questions
1. What is the main distinction between private and public law?
2. Explain the distinction between exclusive and concurrent law-making powers in
the Constitution. Give an example of each power?
3. What are the historical differences between common law and the law of equity?
4. What is the doctrine of separation of powers?
5. Define subordinate legislation and discuss the types of bodies that may make
such legislation.
6. What is “judge-made” law?
7. Explain what is meant by comments that are made obiter dicta in a case.
8. Describe the hierarchy of courts in Australia
9. Explain the features of the adversary system of justice.
10. What is the role of a judge in court proceedings?
11. List the stages in a trial
12. List the main parts of an act of parliament
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J Fitzpatrick 12 July 2011
13. What are the rules of statutory interpretation
14. What is the difference between a “court” and a “tribunal”?
Problem Questions
(Examination Question 1 (c))
An Act refers to a “vehicle” and you wonder if it includes your bicycle. What are the
most likely approaches a court would use to interpret this word?
24
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 2 Agency & Business Structures
Week beginning Monday, 8 August 2011
Multiple Choice Questions
(Barron Chpt 4, 18, & 19)
1. The relation that exists between persons carrying on a business in common with a
view to a profit is called a:
(a) company
(b) joint venture
(c) trust
(d) partnership
2. The liability of partners in contract is:
(a) joint and several
(b) joint
(c) limited
(d) none of the above
3. The authority that a partner appears to have to a third party is called:
(a) express authority
(b) real authority
(c) apparent authority
(d) actual authority
4. A company limited by shares is formed on the basis that the liability of members is:
(a) unlimited
(b) limited to an amount members have agreed to pay in the event the company is wound
up
(c) limited to the amount of unpaid calls on their shares
(d) none of the above
5. Which of the following statements is false?
(a) a public company must have at least three shareholders in order to incorporate
(b) a public company may be listed on the stock exchange
(c) a public company must have a minimum of three directors
(d) the name of a public company must include the word ‘Limited’
6. A director of a company will breach a duty to their company if:
(a) they hold shares in their own company
(b) they make a decision that they believe will benefit the company but which in actual
fact results in additional costs for the company
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J Fitzpatrick 12 July 2011
(c) they use company information in order to obtain a personal advantage
(d) all of the above
7. The person on whose behalf trust property is held is called:
(a) the settlor
(b) the beneficiary
(c) the trustee
(d) the testator
8. In order for a valid trust to be created the following must exist:
(a) certainty that a binding trust is intended
(b) certainty as to the property to be the subject of the trust
(c) certainty as to the persons who are intended to benefit pursuant to the trust
(d) all of the above
9. The following is an advantage of operating a business as a partnership:
(a) unlimited liability
(b) ease of raising capital
(c) sharing of management responsibilities
(d) none of the above
10. Which of the following business names would require registration?
(a) J.A.
(b) John Adamson
(c) J.W. Adamson & R.A. Johnson
(d) none of the above
Short Answer Questions
1. Explain the liability of a sole trader.
2. Why would a person choose to form a partnership as opposed to operating a
business as a sole trader?
3. What is meant by the term “joint and several liability”?
4. On what grounds will a court dissolve a partnership?
5. State the reasons why a business name should be registered.
6. What is the difference between a “joint venture” and a “partnership”?
7. What is the major difference between a “partnership” and a “company”?
8. A company is a separate legal entity. What does this mean? Briefly explain the
consequences of treating a company as a separate legal entity.
9. Define a “trust”.
10. What are the duties owed by a trustee?
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J Fitzpatrick 12 July 2011
Past Exam Questions
(2004 Exam Q 2)
Hi Yo is an accountant who lives and works in the city. She also owns a hobby farm
seventy kilometres south of the city which she visits on weekends. Yo has twenty head of
cattle on this property, all branded “Y”. Next door to Yo’s farm lives Go Bro, a full-time
farmer. Bro keeps an eye on Yo’s farm when she is away. One night, a freak storm hits
the local area. Yo’s fence is broken by a falling tree and her stock wander onto the road.
Bro tries to contact Yo but he is unaware that she had suddenly flown overseas before the
storm to visit a dying relative. Yo did not have time to inform anyone of her trip. Bro
rounds up Yo’s cattle, and arranges to have the tree removed and Yo’s fence repaired.
When Yo returns from overseas, Bro explains what happened and presents her with bills
from the tree removalist and fence repairer totalling $2 200.
Following this incident, Yo decides to get rid of her cattle and asks Bro to sell them at
the local mid-week stock sale. Yo instructs Bro that she wants at least $100 per head. At
the sale, Bro negotiates to sell Yo’s cattle to Mo, a mutual neighbour, for $80 per head.
The following weekend when she visits her farm, Yo is not happy when she hears of
Bro’s negotiation. Bro explains that Mo was the only cash purchaser he could find at the
sale. All other prospective buyers wanted to pay a small deposit and take Yo’s cattle on
ninety days credit.
Six months later, Yo and Bro decide to begin growing genetically modified wheat on
their respective farms. They seek advice on what type of business structure would best
suit this purpose. Whatever type of business structure they form, Yo and Bro are agreed
that it should be called “YoBroGro”.
1. Explain whether Yo will have to pay the costs incurred by Bro following the
storm?
2. Is Yo bound by Bro’s sale of her cattle to Mo and what options does Yo have in
relation to Bro?
3. Advise Yo and Bro on three advantages and disadvantages of forming a
partnership or company for their wheat growing business.
4. Advise Yo and Bro on whether, and how, they could use the name “YoBroGro”
for either a partnership or company.
27
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 3 Contract
Week beginning Monday, 15 August 2011
Multiple Choice Questions
(Barron Chpt 7)
1. A valid contract is a contract that:
(a) an injured party is entitled to rescind
(b) is of no legal effect
(c) is unenforceable
(d) the courts will enforce
2. An executory contract is a contract:
(a) where both parties to the contract still have obligations to perform
(b) an injured party is entitled to rescind
(c) where one party to the contract has performed their side of the bargain
(d) that is of no legal effect
3. Intention to create legal relations is not presumed to be present in:
(a) contracts made under seal
(b) implied contracts
(c) business agreements
(d) domestic agreements
4. An “offeree” is:
(a) the person who makes the offer
(b) the person to whom the offer is made
(c) the person who is not aware of the offer
(d) none of the above
5. Mark writes to Robyn offering to sell her his guitar for $200. The letter of offer is
dated 1 August 2011. Robyn decides to accept and posts a letter of acceptance at 4pm on
5 August 2011. At 5pm on the same day Mark telephones Robyn and says the offer has
been revoked. In this case the contract is:
(a) valid
(b) void
(c) voidable
(d) illegal
6. A “promisor” is:
(a) the recipient of the promise being made
(b) the third party who benefits from a contract
(c) the person undertaking to perform a promise
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J Fitzpatrick 12 July 2011
(d) all of the above
7. For a simple contract, consideration can be:
(a) past or present
(b) present or future
(c) past
(d) none of the above
8. Where the act, that is to be the consideration for a contract, is performed at a time
before the contract is made, the consideration is said to be:
(a) future
(b) past
(c) present
(d) executory
9. An agreement lacking consideration:
(a) will never be enforceable
(b) may be enforceable
(c) is illegal
(d) is void
10. Which of the following is not an element of promissory estoppel?
(a) The promisee has altered their position in reliance on a new promise.
(b) The promisee has provided consideration for the promise.
(c) It would be impossible for the promisee to return to their original position without
detriment.
(d) It would be unfair for the promisor to renege.
11. A deed is a contract:
(a) under seal and in writing
(b) under seal
(c) in writing
(d) none of the above
Short Answer Questions
1. Define a “voidable contract”. Give an example of such a contract.
2. What is the difference between an “executed” contract and an “executory”
contract?
3. With intention, what does the court presume?
4. What is the difference between an “offer” and an “invitation to treat”?
5. What is the effect of the postal rule?
6. What is a “gratuitous promise”?
7. Define past consideration.
8. Distinguish a formal contract from a simple contract.
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J Fitzpatrick 12 July 2011
Problem Questions
1. May and Kim were engaged to be married. Prior to their marriage, May agreed to pay
Kim a gambling allowance of $10,000 per year, to be paid in quarterly instalments of
$2,500. May paid the allowance for one year and then stopped payment. After Kim had
separated from May, he sought to recover $20,000 arrears of the agreed allowance.
Advise May.
2. On 1 August, LiYuan writes to Ghengis offering to sell 500 litres of petrol for $2.00
per litre, stating that the offer ‘will remain open only until 5 pm on 5 August’. Ghengis
receives the letter at 9 am on 5 August and immediately tries to telephone LiYuan.
LiYuan, however, is out and, therefore, Ghengis leaves a message on LiYuan’s
answering machine asking LiYuan if she would agree to $1.75 per litre. At 10 am the
same morning, Ghengis changes his mind and sends LiYuan an email stating: ‘Disregard
my earlier phone call. I accept your offer of $2 per litre. LiYuan returns to her office at 1
pm the same day and, on hearing Ghengis’s telephone message, she immediately sells
the petrol to Bill. At 2 pm, LiYuan opens up her email and reads Ghengis’s message.
Advise Ghengis.
3. Habib leased a number of bicycles from Mary, intending to rent them to guests staying
in his backpacker accommodation. Due to a downturn in tourism, Habib found it difficult
to maintain his monthly payments. Habib talked to Mary about a reduction and Mary
agreed to halve the rent. Six months later, Mary suddenly demands that Habib pay the
full rent, including alleged “arrears”.
Advise Habib.
30
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 4 Contract
Week beginning Monday, 22 August 2011
Multiple Choice Questions
(Barron Chpt 8)
1. Contracts made by minors are not regarded as binding upon the minor unless they are:
(a) made in writing
(b) contracts for necessaries
(c) beneficial contracts of service
(d) both (b) and (c)
2. Minors will be bound where they:
(a) take out a loan
(b) pay by cheque
(c) take out a loan to purchase necessaries
(d) pay cash for goods and services
3. Where both parties to a contract are mistaken and they make the same mistake, this is
called a:
(a) mutual mistake
(b) common mistake
(c) unilateral mistake
(d) mistake of law
4. Non est factum:
(a) is a defence to an action for breach of contract that means ‘it is not his deed’
(b) allows a person to be careless when entering contracts so that they are not bound by
the contract
(c) makes a mortgage document a transfer
(d) is a type of condition in a contract
5. A general presumption of undue influence will not arise when:
(a) there is a doctor and patient relationship
(b) there is a religious adviser and devotee relationship
(c) there is a parent and child relationship
(d) there is a husband and wife relationship
Short Answer Questions
1.What is the effect of the Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) ?
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J Fitzpatrick 12 July 2011
2. What must a person who is of unsound mind, or intoxicated due to alcohol or drugs,
prove in order to escape liability for a contract made whilst in that condition?
3. List the factors that vitiate reality of consent.
4. Explain the difference between “common mistake” and “mutual mistake”?
5. If the subject matter of a contract is destroyed before a contract is made through no
fault of either party, what effect does this have on the contract?
6. Define “unilateral mistake”. In what ways can it occur?
7. What is the difference between a fraudulent misrepresentation, innocent
misrepresentation and negligent misrepresentation?
8. What remedies are available if fraudulent misrepresentation, innocent
misrepresentation and negligent misrepresentation is proved?
9. Define “undue influence”.
10. What are the six relationships in which undue influence can occur and why are they
“special”?
11. Can undue influence occur outside of these six special relationships, and, if so, how?
12. Explain the difference between duress and undue influence.
13. When will a contract be regarded as being unconscionable?
14. What is a contract in restraint of trade?
Problem Question
(Examination 2007 Q 1 Part C)
Mrs Amedia is from Iran. She arrived in 2005 with her twin sons who are both 25 years
of age. The sons want to start a small business. They decide to buy a franchise called
Cibbi, which sells coffee and cakes. They require a loan to buy the franchise and
approach the Kind Bank which informs them that they will require a guarantor. The only
guarantor that they have is their mother. They take their mother into the bank; she is very
impressed with the manager, who offers her tea and cake. He asks her to sign the
guarantee. Mrs Amedia has limited English, but on the basis of her trust for the sons and
because the manager appears so trustworthy she signs to be a guarantor of the loan. It
turns out that the sons cannot pay the loan and the bank requests Mrs Amedia pay the
loan for $100,000. This is her life savings; she comes to you for advice. Does she have to
pay back the loan? Please advise Mrs Amedia.
32
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 5 Contract
Week beginning Monday, 29 August 2011
Multiple Choice Questions
(Barron Chpt 9)
1.
(a)
(b)
(c)
(d)
Express terms of a contract can be classified as:
Conditions
Collateral contracts
Content
Warranties
2. If there has been a breach of a warranty, then the injured party can:
(a) rescind the contract and claim damages
(b) only claim damages
(c) only rescind the contract
(d) none of the above
3. A condition subsequent in a contract is a condition that:
(a) is implied by the courts, by statute, or by custom or trade usage
(b) upon the happening of a specific event, the contract will be terminated
(c) must be satisfied before a valid contract exists
(d) is none of the above
4. How can terms be implied into a contract?
(a) by the courts
(b) by statutes
(c) by custom or trade usage
(d) all of the above
5. Exemption clauses can be divided into:
(a) Conditions precedent
(b) Exclusion terms
(c) Limiting terms
(d) A tort
6. The doctrine of privity provides that:
(a) Only the parties to a contract have rights and obligations under it
(b) Persons not party to a contract cannot enforce or seek to enforce the terms of the
contract
(c) Only the parties to a contract can sue or be sued on the contract
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J Fitzpatrick 12 July 2011
(d) All of the above
7. “Frustration” means:
(a) The possibility of performing a contract that has the effect of not discharging the
contract
(b) The impossibility of performing a contract that has the effect of discharging the
contract
(c) The impossibility of continued performance of a contract
(d) The possibility of non-performance of a contract
8. A contract will have been frustrated when:
(a) the parties are unable to perform their duties under the contract
(b) the parties are unwilling to perform their duties under the contract
(c) there has been an unforeseen increase in the burden of performance
(d) there has been a decrease in the burden of performance
Short Answer Questions
1. What are the key questions and relevant considerations for determining if a statement
has become a term of a contract?
2. Why is it significant to determine whether an express term is a condition or a
warranty?
3. List the ways in which a contract may be discharged.
4. What are the exceptions to the rule that performance must correspond exactly with the
terms of the contract in order for it to be discharged?
5. Describe the difference between actual performance and tender?
6. What is meant by the term “novation of contract”?
7. What is the difference between “accord” and “satisfaction”?
8. How can a contract be discharged by the operation of the law?
9. What are the reasons why a contract may be frustrated?
10. What is the effect of frustration of a contract and why did the SA Parliament enact
the Frustrated Contracts Act 1988 (SA)?
Problem Question
(Examination 2007 Q 1 Part B)
Yang travels throughout South Australia as a travelling salesman. He was staying one
night at a hotel in a small country town called Port Pirie. In the morning of his departure
he finds that he has been robbed. His laptop computer has been taken from his room. He
goes to manager of the hotel and says that he wants to claim for damages from the hotel.
The manager explains that this will not be possible as there was an exclusion clause on
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J Fitzpatrick 12 July 2011
the back of the hotel door in his room. The clause stated that “The Port Pirie Hotel will
not be liable for any loss or damage occurring during the occupation of the room.”
Please advise Yang
(Examination 2007 Q 1 Part A)
Sandra has been looking forward to a long and restful holiday. She decides to book a
river house boat to travel down the South Australian leg of the River Murray. Sandra
makes the booking through the South Australian Tourism office. Sandra pays for the
holiday on the 5th of January 2007 for her annual holiday in the first week of July 2007.
She plans to travel down the river on the house boat for seven days. In June 2007 the
South Australian Government announces that due to water shortages there will be no
travelling or water activity on the River Murray and that all house boat travel is
cancelled. Sandra had paid for the whole week in advance. The South Australian
Tourism Office says that they cannot refund the money as the contract has been formed
and it is not their fault the Government has banned all water activity on the river.
Advise Sandra.
35
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 6 Contract
Week beginning Monday, 5 September 2011
Multiple Choice Questions
(Barron Chpt 9)
1. Renunciation during performance is:
(a) Rescission
(b) Impossibility of performance
(c) Repudiation
(d) None of the above
2. Quantum meruit means:
(a) as much as he would have earned had the contract been completed
(b) as much as the “injured party” has earned up the point of breach by the other side
(c) damages to the innocent party for part performance of contractual obligations
(d) all of the above
3. An award of damages:
(a) is a remedy for breach of contract
(b) aims to compensate a party who has suffered as a result of a breach of contract
(c) is payable for losses that will ordinarily flow from a breach of contract
(d) is all of the above
Short Answer Questions
1. What is the difference between anticipatory and actual breach?
2. List the remedies available for breach of contract
3. Under what circumstances can the quantum meruit remedy be applied?
4. What are the main categories of damages?
5. What does “damages are payable only for a foreseeable loss” mean?
6. What is the aim of damages and how are damages measured?
7. Explain the duty to mitigate.
8. What is the difference between liquidated damages and unliquidated damages?
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J Fitzpatrick 12 July 2011
9. What equitable remedies are available for breach and when are they used?
10. How can a person lose their right to sue for breach of contract?
Problem Questions
(Adaption of 2008 Examination Q 1)
Trinni is a very well known television fashion show presenter. Trinni owns an overseas
manufactured dishwasher which frequently breaks down. Trinni phones her regular
repair person, Ginger, who is an employee of Dish Repair Pty Ltd. As it is a Sunday,
Ginger agrees to come out on the basis of an “all inclusive” charge of $350. Before
Ginger touches the dishwasher, she gets Trinni to sign a contract which contains the
following clause:
All repair work has been completed satisfactorily. If any defect arises, or breakdown occurs, from this repair work within the next three months, it will be
rectified free of charge.
After Ginger has repaired the dishwasher, Trinni pays her $350 and Ginger asks Trinni to
sign a receipt. Trinni trusts Ginger and signs immediately. On the back of this receipt is
the following statement:
Neither Dish Repair Ltd nor its employee, Ginger, accept any liability for loss or
damage, howsoever caused, that may arise from this repair work, regardless of
when such loss or damage may arise.
The next day, Trinni uses the dishwasher and it floods, causing $5000 worth of damage
to her wooden kitchen floor and nearby carpet.
Advise Trinni whether she may take any action for breach of contract against
Ginger and Dish Repair Pty Ltd.
(Variation on 2008 Examination Q 2)
QUESTION 2.
In 2007, Windesol Pty Ltd [Windesol] contracted with the South Australian
Government [SAG] to construct a wind power energy plant at Cape Jervis to provide
electricity for Kangaroo Island. Windesol commenced construction in January 2008,
with the plant to be ready for use by November 2011. In August 2008, Windesol suffers
some financial problems due to the world-wide economic crisis, which led the SAG to
extend the Cape Jervis plant’s completion date to November 2012. This extension gave
Windesol confidence to issue a share prospectus in order to raise more capital.
However, when Windesol’s contract extension became known publicly, SAG was
heavily criticised by the news media for being “slow” in “electrifying” Kangaroo
Island. Consequently, in February 2009, SAG ordered that Windesol must finish the
contract by November 2010. SAG wanted the plant operating by November 2010 to
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coincide with a political election to be held then. This new completion date caused a
slump in investor confidence as members frantically sold their Windesol shares before
the price fell too far.
In September 2009, Save the Yellow Tail Cockatoo [STYTC], an environmental group
opposed to the use of the Cape Jervis site for a wind energy plant, obtained an
injunction reducing the height of the wind turbines to protect the endangered Yellow
Tail Cockatoo at Cape Jervis. Having agreed to complete the Cape Jervis plant by
November 2010, STYTC’s order placed an extra burden on Windesol, delayed
construction from proceeding as planned, caused costs to escalate and will result in
Windesol’s non-completion of the Cape Jervis plant by November 2010. The Windesol
– SAG contract contains very heavy penalties for non-completion by November 2010.
Q. 2.1. Explain whether Windesol will be bound by SAG’s November 2010
completion date?
Q. 2.2. Explain whether Windesol will be liable to the SAG for non-completion by
November 2010?
38
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 7 Property
Week beginning Monday, 12 September 2011
Multiple Choice Questions
(Barron Chpt 10)
1. Land is regarded as:
(a) real property
(b) personal property
(c) intellectual property
(d) none of the above
2. Ownership of property implies a person has:
(a) possession of property
(b) title to property
(c) both property and possession of property
(d) all of the above
3. The owner of a house decides to install a split-system air conditioning unit. The owner
intends to leave the unit in place indefinitely as removing it would cause substantial
damage to the walls. This air conditioning unit would be classified as:
(a) a fitting
(b) a fixture
(c) a chattel
(d) an easement
4. Permission to do something on land that would otherwise be unlawful is called a:
(a) lease
(b) licence
(c) mortgage
(d) contract
5. A yearly periodic tenancy can be terminated by giving:
(a) one month’s notice
(b) six months’ notice
(c) one year’s notice
(d) one week’s notice
6. The tenant of the premises makes the following promise to the landlord:
(a) to pay the rent
(b) to repair the premises
(c) to pay rates and taxes
(d) none of the above
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J Fitzpatrick 12 July 2011
7. When a tenant relinquishes their lease and the landlord consents this is called:
(a) forfeiture of lease
(b) surrender of lease
(c) expiry of term
(d) none of the above
8. A lease can be brought to an end:
(a) by expiry of term
(b) by a notice to quit from the landlord
(c) by forfeiture of lease
(d) by all of the above
9. Residential tenancy legislation does not apply to the following premises:
(a) motels
(b) hospitals
(c) hotels
(d) all of the above
10. The Torrens system of land registration created the concept of indefeasibility of title.
This means:
(a) a person who is registered on the title to land, as the owner, has an unquestionable
title to the land
(b) an unregistered owner of land will receive priority over registered owners
(c) priority between competing registered landowners is determined by the date their
interest was created
(d) none of the above
11. A person who has an unregistered interest in land can protect their interest by:
(a) lodging a caveat
(b) lodging a transfer
(c) granting a lease
(d) granting a mortgage
12. A mortgagee pursuant to a Torrens title mortgage has the following remedy in event
of default by the mortgagor:
(a) appoint a receiver
(b) foreclose
(c) sell the property
(d) all of the above
13. A mortgage that is registered on a certificate of title is regarded as:
(a) an equitable mortgage
(b) a legal mortgage
(c) an old system mortgage
(d) an illegal mortgage
(Barron Chpt 17)
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J Fitzpatrick 12 July 2011
14. Intellectual property is regarded as:
(a) choses in action
(b) personal property
(c) real property
(d) none of the above
15. Copyright law protects:
(a) ideas and the expression of ideas
(b) ideas
(c) the expression of ideas
(d) none of the above
16. An author has written a novel. This property would be characterised by the law as:
(a) real property
(b) intellectual property
(c) personal property
(d) a chattel
17. An original work must:
(a) be the first of its kind
(b) be published
(c) originate with the author
(d) be a literary idea
18. An infringement of a copyright will have occurred if:
(a) a person performed an act in respect of the work without the authorisation of the
owner
(b) a person performed an act in respect of the work without the consent of the owner
(c) the infringing act was performed in relation to a substantial part of the work
(d) all of the above
19. Which of the following is not a statutory remedy available for an infringement of
copyright:
(a) an injunction
(b) damages
(c) an account of profits
(d) none of the above
20. Which of the following areas of intellectual property law protects the visual form of
an article?
(a) patent law
(b) design law
(c) copyright law
(d) trademarks law
21. The aim of patent law is:
(a) to give an inventor the sole right to exploit an invention
(b) to force disclosure of an invention so improvements can be made upon it
(c) to provide protection for novel inventions
(d) all of the above
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J Fitzpatrick 12 July 2011
22. A logo used by a dog food company could gain protection under the law relating to:
(a) copyright
(b) patents
(c) registered designs
(d) trade marks
23. The term of a standard patent is:
(a) two years
(b) ten years
(c) fifteen years
(d) twenty years
Short Answer Questions
(Barron Chpt 10)
1. Explain the difference between ownership of property and possession of property.
2. Define “personal property”. Give an example of an item of personal property.
3. What is a “periodic tenancy”?
4. Where a tenant remains in possession of premises after the expiry of a previous
tenancy, without the consent of the landlord, and does not pay rent, what type of
tenancy is created?
5. List the usual covenants undertaken by a tenant in a lease.
6. How can a lease be terminated?
7. How does a residential tenancy differ from a commercial lease?
8. What is the difference between a joint tenancy and a tenancy in common?
9. Define a “mortgage”. Who are the “mortgagor” and the “mortgagee”?
10. Outline the remedies available to a mortgagee when a mortgagor fails to make
repayments pursuant to the mortgage.
(Barron Chpt 17)
11. Why should intellectual property be protected by the law?
12. Copyright subsists in original works. What is meant by the term “original”?
13. When will an infringement of copyright occur?
14. In order for a design to be registered pursuant to the Designs Act 1906 (Cth),
what must you show about the design?
15. When will an infringement of a registered design occur?
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J Fitzpatrick 12 July 2011
16. What are the advantages of registering a trademark?
17. Describe the kinds of inventions that cannot be patented.
Problem Question
(Examination 2009 Part B Q 3B.2)
Q3B.2. Both Copyright and the Torrens Title system of land registration protect
property. What is the difference between these concepts and type of
property each protects?
(Examination 2008 Part B Q 2)
Q 2. Define and explain the concept of “property” in law, giving specific examples from
the areas of real, personal and intellectual property.
43
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 8 Trade Practices
Week beginning Tuesday, 10 October 2011
Multiple Choice Questions
(Barron Chpt 13)
1. The Competition and Consumer Act 2010 (Cth) applies to:
(a) sole traders and partnerships when they are engaged in interstate or overseas trade
and commerce
(b) corporations
(c) sole traders, partnerships and corporations
(d) both (a) and (b)
2. Whereabouts in the Competition and Consumer Act 2010 (Cth) do you find the
Australian Consumer Law?
(a) Part XI Division 2 of the Competition and Consumer Act 2010 (Cth)
(b) Table of provisions of the Competition and Consumer Act 2010 (Cth)
(c) Schedule 2 of the Competition and Consumer Act 2010 (Cth)
3. Under the Australian Consumer Law a person is taken to have acquired goods as a
consumer if:
(a) The amount paid did not exceed $30,000
(b) The goods are of a kind ordinarily acquired for personal, domestic or household
consumption or use
(c) The goods were purchased exclusively for resale or for use in the manufacturing
process
4. Which of the following requirements must be present to successfully establish a
breach of s18 of the Australian Consumer Law?
(a) the corporation has engaged in prohibited conduct
(b) the conduct occurred in the course of trade or commerce
(c) the conduct is misleading or likely to mislead or deceive
(d) all of the above
5. When a corporation has breached s18 of the Australian Consumer Law, the court can
order:
(a) criminal prosecution
(b) damages
(c) both (a) and (b)
(d) none of the above
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6. Matters considered relevant when determining whether conduct is unconscionable, as
prohibited by the Australian Consumer Law, include:
(a) whether there was any undue influence or pressure exerted on the consumer
(b) whether the consumer signed an agreement with the trader
(c) whether the consumer was being asked to comply with conditions that
were not reasonably necessary to protect the legitimate interests of the
corporation
(d) both (a) and (c)
7. The Australian Consumer Law prohibits unfair terms in:
(a) all contracts
(b) standard form contracts
(c) all written contracts
8. Section 29 of the Australian Consumer Law prohibits false representations regarding:
(a) gifts and prizes
(b) statements that may mislead the public
(c) the existence or effect of a condition
(d) bait advertising
9. Consumer guarantees implied in consumer contracts by the Australian Consumer Law
apply to:
(a) goods supplied in trade or commerce
(b) private sales by individuals to other individuals or businesses
(c) goods sold at traditional auctions
(d) goods sold online (eg, eBay)
10. ‘Acceptable quality’ in the guarantee provided in s54 of the Australian Consumer
Law means:
(a) Not free from defects
(b) Fragile
(c) Fit for all purposes for which goods of that kind are ordinarily supplied
(d) Not acceptable in appearance and finish
11. A defence available to a manufacturer under s142 of the Australian Consumer Law is
that:
(a) the defect in the goods did not exist at the time they left the manufacturer, but
occurred elsewhere in the distribution chain
(b) the goods had the defect only because they complied with a mandatory standard
(c) the defect could not have been discovered at the time of supply because the state of
scientific or technical knowledge was such that it was not capable of detecting that type
of breach
(d) all of the above
12. Under the Australian Consumer Law a company convicted of an offence could be
liable for:
(a) a fine of up to $1.2 million
(b) having a criminal conviction recorded against it
(c) a fine of up to $1.1 million
13. The body responsible for administering the Australian Consumer Law is:
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J Fitzpatrick 12 July 2011
(a) AUSTRAC
(b) the Australian Competition and Consumer Commission
(c) the Trade Practices Commission
(d) the Trade Practices Tribunal
(Barron Chpt 15)
14. Section 45 of the Competition and Consumer Act 2010 (Cth) prohibits:
(a) secondary boycotts
(b) price fixing
(c) primary boycotts
(d) contracts, arrangements and understandings that have the effect of substantially
lessening competition in a market
15. Cartel provisions in the Competition and Consumer Act 2010 (Cth) relate to:
(a) price fixing
(b) restricting inputs in the production and supply chain
(c) re-allocating customers, suppliers or territories
(d) bid or tender processes
16. Which of the following is not a factor to be taken into account in determining market
power:
(a) whether the conduct was materially facilitated by the corporation’s substantial degree
of market power
(b) whether the company did engage in conduct in reliance on its substantial degree of
power in the market
(c) whether it is likely that the corporation would engage in the conduct if it did not have
a substantial degree of power in the market
(d) the conduct otherwise did not relate to the corporation’s substantial degree of power
in the market
17. Section 47 of the Competition and Consumer Act 2010 (Cth) prohibits:
(a) resale price maintenance
(b) price fixing
(c) price discrimination
(d) exclusive dealing
18. The practice whereby a supplier stipulates a minimum price at which goods supplied
by them are to be resold is called:
(a) resale price maintenance
(b) exclusive dealing
(c) price discrimination
(d) secondary boycotting
19. If an applicant can show that an agreement will confer a benefit on the public that
would outweigh any anti-competitive effect, then the ACCC may grant:
(a) an authorisation
(b) a notification
(c) damages
(d) an injunction
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19. An appropriate remedy to restrain a person from engaging in conduct that is in
contravention of the Competition and Consumer Act 2010 (Cth) is:
(a) damages
(b) a divestiture order
(c) an injunction
(d) variation from the terms of a contract
20. The maximum penalty for an individual who breaches the restrictive trade practices
provisions of the Competition and Consumer Act 2010 (Cth) is:
(a) $50 000
(b) $100 000
(c) $500 000
(d) $750 000
Problem Questions
The Australian Consumer Law has reformed national consumer protection provisions in
Australia. Briefly summarise the major changes caused by that reformation.
(Variation on 2006 Examination Question 3)
BEATRICE and GERTRUDE are the directors and shareholders in FANTASTIC
CHOCOLATE COMPANY PTY LTD that is now in need for a new factory and
warehouse as it expands into the export market. Beatrice and Gertrude found a factory
and warehouse site on Port Road in Royal Park. When Beatrice and Gertrude were
moving in, two of their competitors, DELICIOUS CHOCOLATES and HEAVENLY
SWEETS, met in a hotel room in Glenelg. The contents of that meeting is not known, but
after the meeting the two competitors have began to set the same price for their products
and they cancelled plans to open stores near existing stores of each other. Heavenly
Sweets then released a "Signature Edition" gift box of chocolates, available only to
customers who subscribe to the "Chocolate Club" membership from Delicious
Chocolates.
Advise Gertrude and Beatrice on whether they could take any action against the
Delicious Chocolates and Heavenly Sweets?
Briefly explain the cartel conduct provisions in the Competition and Consumer Act
2010 (Cth).
(2008 Examination Part B Question 3)
Q 3. A wholesaler of books, Wise Pty Ltd, supplies books to Owl Books, a retailer.
Wise Pty Ltd refuses to supply Owl Books with copies of the book Fundamentals
of Business Law, unless Owl Books agrees not sell them below a specified price.
Is Wise Pty Ltd in breach of the Competition and Consumer Act 2010 (Cth) and, if
so, which particular section(s)? Please give case examples wherever possible to
support your advice.
47
J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 9 Torts
Week beginning Tuesday, 17 October 2011
Multiple Choice Questions
(Barron Chpt 3)
1. The following element must be present to prove the tort of negligence:
(a) a duty of care is owed by the defendant to the plaintiff
(b) a breach of a duty of care has occurred
(c) damage has been suffered by the plaintiff
(d) all of the above
2. A partial defence to an action for negligence is:
(a) contributory negligence
(b) volenti non fit injuria
(c) self-defence
(d) provocation
Short Answer Questions
(Barron Chpt 3)
1. What is a duty of care and how do you prove it exists?
2. What are the factors to be taken into account when determining whether there has
been a breach of duty? Briefly explain each factor.
3. How do you show that damage has been suffered as a result of a breach of a duty of
care?
4. Explain the concept of remoteness of damage.
5. Explain the defence of contributory negligence to an action in negligence.
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J Fitzpatrick 12 July 2011
Problem Questions
(Variation on BUSN1019 2008 Examination Question 1)
Trinni is a very well known television fashion show presenter. Trinni owns an overseas
manufactured dishwasher which frequently breaks down. Trinni phones her regular
repair person, Ginger, who is an employee of Dish Repair Pty Ltd. As it is a Sunday,
Ginger agrees to come out on the basis of an “all inclusive” charge of $350. Before
Ginger touches the dishwasher, she gets Trinni to sign a contract which contains the
following clause:
All repair work has been completed satisfactorily. If any defect arises, or breakdown occurs, from this repair work within the next three months, it will be
rectified free of charge.
After Ginger has repaired the dishwasher, Trinni pays her $350 and Ginger asks Trinni to
sign a receipt. Trinni trusts Ginger and signs immediately. On the back of this receipt is
the following statement:
Neither Dish Repair Ltd nor its employee, Ginger, accept any liability for loss or
damage, howsoever caused, that may arise from this repair work, regardless of
when such loss or damage may arise.
The next day, Trinni uses the dishwasher and it floods, causing $5000 worth of damage
to her wooden kitchen floor and nearby carpet. When Trinni opens the dishwasher door
to see where it is leaking, she receives a burn to her face from escaping hot water and
steam.
Trinni is treated at the Hospital Emergency Unit by Dr Blonde, a trainee doctor who has
been left in charge because all his medical supervisors have been rushed to a multiple car
pile-up on a nearby freeway. Dr Blonde treats Trinni’s face with a cream that causes the
skin to become tightly drawn and blemished. A more experienced doctor in Dr Blonde’s
position would have referred Trinni to a plastic surgeon. The outcome is that Trinni
suffers a loss of self-confidence, becomes withdrawn and gives up her lucrative
television career.
Advise Trinni whether she may take any action in tort or under the Trade Practices
Act against:
1. the dishwasher manufacturer
2. Ginger and Dish Repair Ltd
3. Dr Blonde
4. Hospital
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J Fitzpatrick 12 July 2011
(2009 Examination Question 3 Part A)
Part A:
Elphin Pty Ltd was a property developer. In 2004, relying upon a development plan
released by the state government for the swamp area of Port Adelaide, Elphin bought up
land. Elphin built a multi-storey apartment block, as the first stage in its planned eight
year development of this land. Saul purchased a top floor apartment for $1.6million.
Twelve months later, cracks appeared in Saul’s apartment walls due to an inappropriate
foundation. Saul obtained an independent valuation which estimated his apartment to be
now worth only $650,000. In 2006, the state government abandoned its Port Adelaide
swamp development plan because it was too costly for the government to implement.
This abandonment meant that Elphin faced the likelihood of losing its opportunity to
develop the land it had purchased, on the basis of the government’s development plan,
for future construction and sale of residential apartments. In 2007, to proceed with
further development of its Port Adelaide land, Elphin borrowed $20 million from Affable
Bank, who agreed to the loan on the basis of Elphin’s accounts audited by PFK Auditors.
In 2009, Elphin eventually collapsed. Affable Bank lost nearly all its $20 million.
Q. 3A.1. Could Saul sue Elphin for the reduction in value of his apartment?
Q. 3A.2. Could Elphin sue the state government over its abandonment of the
development plan?
Q. 3A.3. Could Affable Bank sue PFK Auditors?
(2009 Examination Part B Question 3B.1)
Q3B.1. In contract law, damages for breach of contract will be awarded only for losses
that are reasonably foreseeable by the parties to a contract. This same principle applies to
the recovery of damages for the commission of a tort. Explain the concept of
reasonable foreseeability in contract and tort, using case examples.
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J Fitzpatrick 12 July 2011
THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
SCHOOL OF LAW
BUSN1019 Law for Business
Jeff Fitzpatrick
TUTORIAL NO. 10 Contract/ Tort
Week beginning Monday, 24 October 2011
Problem Questions
(2009 Examination Question 1)
Nina’s daughter Minnie would soon be three years old. Nina wanted to surprise Minnie
with a memorable birthday party and invited fifteen of Minnie’s three, four and five-year
old friends. Nina visited Pirates-r-Us, a commercial business specialising in pirate-theme
birthday parties for very young children owned by Hook. Hook told Nina that Pirates-rUs would organise the venue, catering, games, and live musical entertainment and pirate
costumes for all the children who attend the party. Nina was deeply impressed by Hook’s
concern that young children should be entertained in a caring, safe and well-supervised
manner. Nina, in a hurry to collect Minnie from child care, quickly signed the contract
for a pirate party without reading it, handed Hook a guest address list, and paid the
$1,600 fee. Hook gave Nina a receipt. A few days later Nina found the Pirates-r-Us
contract in her bag and casually read it. One clause stated:
Pirates-r-Us will take all care in ensuring the safety of birthday party guests but
will not be held responsible for any injury howsoever caused.
Nina took little notice of this: her attention was caught by the glossy guest invitations,
the extensive food list describing a “pirate banquet”, the promise of entertainers
organising pirate-themed games and providing live musical entertainment, and authentic
costumes that Pirates-r-Us would provide to each guest. Pirates-r-Us’ receipt remained
crumpled inside Nina’s bag. Printed on the back of this receipt were several conditions,
including one that stated: In the event of customer dissatisfaction about any aspect of
their pirate party, Pirates-r-Us will not be liable in any way whatsoever.
Pirates-r-Us organised Minnie’s party at the local playground. On arriving, Nina was
disappointed that Hook was not dressed up as a pirate. Each child’s “pirate costume”
only consisted of a head scarf and a sharp-edged plastic sword. The “pirate banquet” was
potato chips and peanuts. The party “games” consisted of Hook encouraging children to
sword fight with each other. The “live” pirate music was a scratched compact disc of
dreary sea shanty tunes. Hook was the only Pirates-r-Us person present and he kept
chatting on his mobile phone and sneaking off for coffee and cigarettes. There were no
other promised “entertainers”. Nina felt distressed that this was not the pirate party she
had paid for, compared to what Hook had promised.
The pirate party grew worse when Minnie was hit in the eye by a little boy wildly
waving his plastic sword about. At the hospital, the resident eye specialist was out to
lunch. Minnie’s condition was made worse by Dr Knew, a trainee doctor, who treated the
injured eye with drops which permanently damaged Minnie’s vision. Minnie was
hospitalised, costing $5,000. A later Hospital enquiry revealed that an experienced doctor
would not have used the drops chosen by Dr Knew. Nina later heard that after she had
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J Fitzpatrick 12 July 2011
left the party to rush Minnie to hospital, Trixie, a five year old guest, had drank soft drink
manufactured by Woody’s Pty Ltd out of a can which contained a live spider. Hook had
handed Trixie the can and Trixie had flipped it open. The spider had bitten Trixie’s
tongue, resulting in $2,000 worth of medical treatment. Trixie’s tongue is now paralysed,
her ability to taste food and drink destroyed for life, and she has a permanent speech
impediment.
Q. 1.1. Could Nina claim contractual damages against Hook and, if so, what would
those damages be for?
Q. 1. 2. Has Minnie any rights for her eye injury and if so, against whom could
Minnie claim and what compensation could she seek?
Q. 1.3. Has Trixie any rights for her impairment and if so, against whom could
Trixie claim and what compensation could she seek?
(2009 Examination Question 2)
QUESTION 2.
In November 2008, Mary contacted the Adelaide City Council’s Information Centre,
whose advertising slogan was: Ask us! We’re the Adelaide Information experts. Mary
spoke to a Council employee about special weekend package deals for the annual TourDown-Under cycling race, to be held in January 2009. The employee indicated that the
Wyatt Hotel was offering a great package deal, and said that the best view of the official
ceremony and celebrations marking the start of the cycling race would be obtained from
an upstairs balcony on the first floor of the Wyatt Hotel. Relying on this advice, Mary
booked an upstairs room with balcony access on the first floor of the Wyatt Hotel for 2324 January 2009, paying $2,500 for the package deal. This amount was five times the
normal price of a weekend stay at the Wyatt. Before finalising the booking Mary
inspected the room and was overjoyed that the balcony afforded an uninterrupted view
onto the street below where the Tour-Down-Under festivities and cycle racing would
take place. However, on 23 January 2009, Mary’s view of the cycling event from her
first floor balcony was blocked by a 10 metre high temporary grandstand with seating
stepping down, one row at a time, to street level. This seating had been erected in front of
the Wyatt Hotel by Adelaide Council workers in the early hours of that morning. This
temporary grandstand was in accordance with a decision passed by the Adelaide Council
in October 2008, to capitalise on the public footpath space outside of the Wyatt Hotel, by
maximising the amount of seats available for sale to the viewing public. When Mary and
her family stood on their hotel balcony, all they could see were the back of the heads of
people who were sitting in the top row of the Council’s temporary grandstand seating.
Mary complained but the Wyatt Hotel refused to refund any part of Mary’s $2,500.
Q. 2. 1. Does Mary have any rights against the Council and the Wyatt Hotel?
In July 2009, Mary made a booking for an upstairs room with a balcony at another
Adelaide hotel, the Hotel Milton, for 13 November, 2009. This room and balcony
overlooked the route of the annual Adelaide Christmas Pageant parade to be held on 13
November, 2009. The particular Adelaide streets along which the Pageant would travel
had been widely publicised in the media many months in advance. The star of the
Pageant was to be Lance Armstrong, six times winner of the annual Tour-Down-Under
cycling event. The Hotel Milton understood at the time of Mary’s booking that her
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J Fitzpatrick 12 July 2011
reason for wanting that room on 13 November was to view the Pageant and, particularly,
see its star, Lance Armstrong. Mary paid $450 for her room booking. On 13 November,
Mary and her family waited excitedly for Lance and the Pageant to pass below their
balcony. Just before the Pageant reached the Hotel Milton, Lance Armstrong, the
undisputed star of the Pageant, suffered a heart attack and was immediately rushed to
hospital. When the Pageant passed below Mary’s balcony, there was no music playing
out of respect to Lance Armstrong, the crowd was silent and Lance’s open top car was
empty.
Q. 2. 2. Could Mary recover her $450?
As the Pageant passed below Mary’s hotel balcony, her family excitedly jumped up and
down; the balcony collapsed because of poor maintenance by the Hotel Milton, and Mary
and her family fell to the street below, all suffering severe physical injury as a result. A
sign behind the door in Mary’s room stated: The Hotel Milton is not liable for any
personal injury howsoever caused.
Q. 2. 3. Advise Mary.
John was a permanent employee at Lowes Adelaide department store, whose job before
Christmas was to play the role of Santa, interviewing very young children regarding their
Christmas wishes. John played the role of Santa perfectly and a long line of children
waited to speak to him. On 19 November, 2009, Lowe’s was taken over by a new buyer,
Scrooge, and John, along with other permanent staff, was immediately sacked and paid
out in full. On 19 November, 2009, Scrooge offered to employ John on a casual basis as
Santa at Lowes until 25 December, 2009 but no payment was discussed. From 20
November onwards, John worked at Lowes as Santa, for twelve hours each day, seven
days per week. Scrooge brushed aside John’s occasional enquiries about pay, saying,
“Yeah. No worries. We’ll discuss it later”. Suddenly, on 20 December, 2009, John was
instantly dismissed, a victim of Scrooge’s decision to abolish the celebration of
Christmas at Lowes. Scrooge refused to pay John for his work from 20 November to 20
December, 2009.
Q. 2. 4. Advise John.
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PAST EXAMINATION PAPER
The following Law for Business examination paper was used in 2009.
Semester 2 Examination 2010
Topic No/s: BUSN1010
Topic Name/s: Introduction To Business Law
Reading Time: 30 mins
Examination Duration: 2 . 0 hours
Pages (including cover): 6
Questions: 3
Instructions to Candidates
STUDENTS ARE REQUIRED TO ANSWER ANY TWO (2) OF THE THREE (3)
QUESTIONS.
STUDENTS MUST ANSWER EACH QUESTION IN A SEPARATE EXAM
BOOKLET.
MATERIAL NOT PERMITTED
NO CALCULATORS, MOBILE PHONES, PROGRAMMABLE
COMPUTERS, ELECTRONIC DICTIONARIES/TRANSLATORS/
PERSONAL ORGANISERS/ DIARIES, IPODS OR MP3 PLAYERS OR ANY
OTHER ELECTRONIC DEVICE OF ANY DESCRIPTION.
MATERIAL PERMITTED
STUDENTS ARE PERMITTED TO BRING INTO THE EXAMINATION
ROOM ANY MATERIAL ASSOCIATED WITH THIS TOPIC EXCEPT
AS NOT PERMITTED ABOVE.
STUDENTS MUST HAND IN THIS EXAM PAPER AT THE END OF THE
EXAMINATION
DO NOT TURN OVER PAPER UNTIL PERMITTED
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J Fitzpatrick 12 July 2011
QUESTION 1.
Pang, a self-employed musician, had a discount voucher for Mc Phat’s Scottish-Chinese
restaurant which stated:
10% DISCOUNT OFF YOUR TOTAL BILL
McPHAT’S SCOTTISH-CHINESE RESTUARANT
Shop 6666, Main South Road, Bedford Park
Phone 8888-8888
MAXIMUM OF ONE VOUCHER PER TABLE
CONDITIONS APPLY
On Saturday, Pang and his partner Chuai had an evening meal at McPhat’s. They ate a
sweet-n-sour haggis banquet, costing $100. Pang paid using his credit card and the
discount voucher. After the transaction was completed Pang read the receipt and realised
that he had just paid $120. Pang complained that the bill should have only been $90 with
the discount. McPhat’s staff pointed to a sign hanging on the wall nearby which stated
under the heading of ‘Voucher Conditions’:
 that McPhat’s had a 15% service charge for Saturday evenings;
 that McPhat’s discount vouchers could not be used on Saturday evenings;
 that McPhat’s discount vouchers did not apply to credit card payments; and
 that credit card payments attracted a 5% handling surcharge based on the amount paid.
When Pang had paid, this ‘Voucher Conditions’ sign had been partially hidden by other
customers standing in front of it. McPhat’s staff explained that this was why Pang was charged
the full cost of the meal ($100) plus 15% service charge ($15) and 5% credit card handling
surcharge ($5). Realising that Pang was unhappy, McPhat’s staff gave him a free bottle of
Tsingtao brand beer to take home. Tsingtao beer is brewed and bottled in China and imported
into Australia. Pang took the bottle and pocketed the receipt he had been given when he paid
for the meal. Printed on the back of that receipt was McPhat’s Code of Customer Service,
including the following clause:
All meals are hygienically prepared by McPhat’s to ensure that you have the ultimate
dining experience: therefore McPhat’s will not be liable for any ill-effects from dining at
McPhat’s, howsoever they may be caused.
The next morning, Pang was violently ill from food poisoning. Pang had stomach pains
and vomiting. Pang was too sick to play at a wedding booking for later that day. Chuai
took him to the Emergency section of the local Hospital. Unfortunately, all the Hospital’s
trained Emergency medical staff had been rushed to the site of a shopping centre
building that had collapsed, injuring many people. Pang was treated by Dr Bumble, a
specialist in early childhood diseases. Dr Bumble prescribed some medicine and sent
Pang home. Later that day Pang collapsed in pain and was rushed back to the Hospital.
Dr Smart immediately diagnosed that Pang was suffering an inflamed appendix and
operated immediately. Dr Smart later told Pang that while his inflamed appendix could
be directly linked to his stomach pains and vomiting, it could have been treated with
medicines. Dr Smart was in no doubt that Dr Bumble’s misdiagnosis of Pang’s condition
had led to Pang needing his appendix operation. This whole experience resulted in Pang
developing a lifelong habit of avoiding eating in restaurants and having a deep distrust of
doctors.
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J Fitzpatrick 12 July 2011
Returning home after visiting Pang at the Hospital, Chuai opened the Tsingtao beer from
McPhat’s and drank it straight out of the opaque bottle. As Chuai took her final swig
from the bottle, she choked and spat out a badly decomposed slimy silk worm. Chuai
became very sick.
1. Advise Pang of his contractual position and contractual rights regarding McPhat’s voucher
and his $120 payment.
2. Has Pang any rights in tort for his appendix operation and if so, against whom could Pang
claim and what compensation could he seek?
3. Has Chuai any rights in tort arising from drinking the contaminated Tsingtao beer and if
so, against whom can Chuai claim and what compensation could she seek?
(50 Marks)
QUESTION 2.
In July 2007, Diddams operated the ‘Go’ sports store at the Marion Shopping Complex.
Diddams had a five year lease, of which two years had expired. ‘Go’s’ monthly profits
were steadily declining due to rising interest rates reducing personal spending on
consumables, such as sporting goods and sportswear accessories. Diddams indicated to
the Marion Shopping Complex owners that he may have to close ‘Go’. Realising that in
the current economic downturn they may have difficulty re-leasing the ‘Go’ store site
immediately, the Marion Shopping Complex owners offered to reduce Diddam’s
monthly rent by half for two years, until 31 June 2010. Diddams decided to remain in
business and pay half the rent for two years.
A sportswear accessory called the E-Bracelet wrist band was released in Australia in
2009. The E-Bracelet manufacturers claimed that this wrist band was able to improve the
wearer’s balance and coordination. Each E-Bracelet was embedded with a hologram
designed to respond to the natural energy flow of the body of the wearer. All sporting
goods retailers, including ‘Go’, soon found that consumer demand for the E-Bracelet was
unprecedented. The recommended retail price across South Australia for the E-Bracelet
was $100 per wrist band but the high consumer demand led to fierce price cutting
between various sporting goods retailers. By June 2010, ‘Go’s’ profits had increased
dramatically on the strength of its E-Bracelet sales, so Diddams decided to obtain a loan
from Friendly Bank to further extend ‘Go’s’ sportswear stock.
Relying upon ‘Go’s’ audited accounts and estimated profits for the 2010-2011 financial
year, Friendly Bank lent Diddams $100,000, repayable by instalments with interest.
However, Diddams suddenly found that ‘Go’s’ orders for more E-Bracelet stock were
being rejected by the supplier. At the same time, Diddams noted that each of ‘Go’s’
competitor sports stores round Adelaide were all selling their E-Bracelets for the same
price of $100 per wrist band. Depressed at the prospect of ‘Go’s’ profits falling and
being unable to repay Friendly Bank, Diddams went to the Marion Shopping Complex
Tavern for a consoling drink. As Diddams recounted his economic woes to Sheila, the
Tavern’s manager, she said a number of larger Adelaide sports stores owners had
recently met with the E-Bracelet supplier for lunch at the Tavern. While Sheila did not
know the content of what was discussed at that lunch, she did overhear a lot of
discussion about the recommended retail price of the E-Bracelet.
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J Fitzpatrick 12 July 2011
In July 2010, the Marion Shopping Complex owners advised Diddams that ‘Go’s’
monthly rent would now revert back to its July 2007 amount, but they also claimed the
full rent for the period from July 2007 to June 2010 inclusive. By August 2010,
Diddams had failed to repay any instalments on the $100,000 loan from Friendly Bank.
1. What actions may Diddams take against the larger Adelaide sports stores
owners and the E-Bracelet supplier regarding the $100 price of each E-Bracelet
and the rejection of ‘Go’s’ orders for more E-Bracelet stock, and any possible
remedies?
2. Are the Marion Shopping Complex owners entitled to claim ‘Go’s’ full rent for
the period from July 2007 to June 2010 inclusive?
3. Can Friendly Bank sue ‘Go’s’ auditors for Friendly Bank’s reliance on ‘Go’s’
audited accounts and estimated profits for the 2010-2011 financial year?
(50 Marks)
QUESTION 3. Please Answer BOTH PARTS of this question.
Part A: Problem
Bert was having a second storey added to his single storey house. Bert’s builder obtained
written approval from the local council for Bert’s second storey addition and commenced
doing the job. Bert’s annual holidays from his work were due to be taken, so Bert
decided to escape all the building mess by booking a New Zealand skiing package
holiday with Elite Travel. The package brochure promised excellent skiing, ‘right outside
your hotel door’ and plenty of food, drink and partying at night. However, in New
Zealand, Bert had to travel for one hour by coach to and from his hotel to get to the ski
slopes where the snow barely covered the ground. At night he was served a pre-packaged
meal, which had been warmed up in a microwave oven, accompanied by one small glass
of beer. There was no ‘partying’ as Bert was the only guest staying in the hotel. Bert had
a thoroughly unpleasant time and returned home very emotionally distressed about his
whole ‘holiday’. Once home, Bert discovered that the local council had wrongly
approved the second storey extension to his house because all the houses in his street
were zoned as only being allowed to be single storey in height.
QA.1 What damages could Bert claim against Elite Travel in contract law, and
why?
QA.2 What action in tort could Bert take against the local council, and why?
(35 Marks)
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PART B: Short Answer questions - Students must answer ONE (1) of the following
three (3) questions in Part B:
Q3.B.1 Explain how the concept of indefeasibility of title to land is implemented in the
Torrens Title system and in what way could that concept be used to strengthen ownership
of intellectual property in Copyright law in Australia and why?
Q3.B.2 Explain, using case examples, the meaning and significance of the terms
‘substantially lessening competition’ and ‘misleading and deceptive conduct’ in the
Trade Practices Act 1974 (Cth)?
Q3.B.3 Explain the doctrine of frustration and give three examples of how it may occur
(including case law examples). What are both the common law effect of frustration and
the statutory outcome in South Australia?
(15 Marks)
END OF EXAMINATION
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J Fitzpatrick 12 July 2011
STYLE GUIDE
BUSINESS LAW
STYLE GUIDE
13
13
Updated by J Fitzpatrick on 30/06/11
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J Fitzpatrick 12 July 2011
This Style Guide is based upon the one used in the Law School at Flinders University
and, in turn, that School follows the Australian Guide to Legal Citation (also called ‘The
Blue Book’). A copy of this book is available from the Law Library Reserve Desk or
online at http://mulr.law.unimelb.edu.au/go/AGLC3.
Quoting and Attributing the Work of Others
Material taken word-for-word from any source should always be placed in
quotation marks and properly referenced (that is, attributed to that source). The
use of quotation marks indicates that you are guaranteeing that the exact words
used in the source are being reproduced, rather than an approximation or your
own version.
If you need to change any part of the original source, then put the alteration in
square brackets:
Original:
Be short, be simple, be human.
Change:
be human”.
Gowers advised writers to “[b]e short, be simple,
In the above example, the upper case “B” in the original was changed to a lower
case “b” to fit the context of the sentence. That change from the original must be
acknowledged by using the accepted convention of square brackets.
If you wish to omit words then mark them with an ellipsis (three dots):
Original:
In our time it is broadly true that all political
writing is bad writing.
Change:
As Orwell observed in 1946, “[i]n our time . . . all
political writing is bad writing”.
It is acceptable to paraphrase other sources without quoting them directly, but
again you must be sure to attribute such material. Failure to attribute material
constitutes plagiarism, and may result in action being taken under the
University policies.
When you are reading something and begin to make notes of what you have read,
or when you photocopy something, make sure you write down, then and there, all
the details of that source. For example, case name, citation, court, judge, short
title of statute, section number, author, editor, title, date, publisher, place of
publication, journal, volume, the page you took the material from, and the starting
page.
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Citations and References
The objectives when providing citations and references are to identify and
acknowledge your sources properly and to ensure that your citation and reference
can be found easily by your reader.
Case Reports:
When citing a case, italicise the parties’ names.
Then include the case report citation, as follows:
 year;
 volume number (if any);
 abbreviated title of report;
 commencing page number; and
 citation reference points (ie any page number(s) to which specific reference is
being made).
eg
Paris v Stepney Borough Council [1951] AC 367
Statutes
A statute is cited by italicising it and referring to:
 its short title;
 the year in which it was passed;
 the jurisdiction in which it was enacted.( but this is not in italics)
and in this order
Specific reference may be made to a section by using the abbreviation “s” (plural
“ss”, with any subsections and/or subparagraphs in parentheses (round brackets)
and no space in between:
eg
Bills of Exchange Act 1909 (Cth) s 59(1) (b) (ii)
Where used in the text at the beginning of a sentence, they are spelled out in full:
Sentence beginning
Section 23 provides that . . .
Used during a sentence
In s 23 it is provided that . . .
Books
Books may be cited in footnotes by listing at least:
 the family name(s) of the author(s); then comma
 the title (italicised);
 then parentheses with the year of publication;
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J Fitzpatrick 12 July 2011
 the edition number (if more than one) also within parentheses, close
parentheses,
 any page number(s) to which specific reference is being made; then full stop.
eg Latimer, Australian Business Law (2000, 19th ed) 27
Use this in footnotes. In the Bibliography, name the publisher and place of
publication but do not restate any page number(s).
Journal articles are traditionally cited in legal literature by listing:
 the family name(s) of the author(s), with initials or first name; then comma
 the title of the article in single quotation marks;
 the year of publication; in parentheses ( )
 the volume number of the journal; leaving a single space both sides of it
 the journal name (italicised) use full name of journal not abbreviated
 the commencing page number; comma then
 the citation reference points (ie any page number(s) to which specific
reference is being made).
eg
Christopher Symes, ‘The Protection of Wages when
Insolvency Strikes’ (1997) 5 Insolvency Law Journal 196
Electronic Sources
If you have come across something electronically but it is also available in
printed form, then your citation should be to the print source.
When something is only available electronically, the citation should state the
medium (eg, CD-ROM, Online, or Internet), the supplier (eg, Diskrom,
LAWPAK, LEXIS) and the place of availability (eg, the URL, a library name, a
directory, a file). Especially in the case of materials only available online or on
the Internet, it is important to note that their stability cannot be guaranteed.
Websites close down or are cleaned up and old materials removed. Therefore,
you should always state the date on which you accessed that site. You should
also make and retain a hard copy of any material, which you cite solely from
an online or Internet source, as you may well be called upon to produce it. Of
course, you need the details you would traditionally provide; for example, authors
names, title, year, name of journal
eg
Blakeney, Interfacing Trade Marks and Domain Names,
(1999)6(1) ELaw http://www.murdoch.edu.au/elaw/issues
(site accessed on 25/07/2005)
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Mode of Citation and Use of Footnotes
If, for example, you wish to refer to a case in the body of the text you are writing,
its citation might either follow it immediately,
eg
In Bluebird Investment Pty Ltd v Graf Holdings Pty Ltd
(1994) 12 ACLC 724, a decision which . . .
or be inserted into a numbered footnote,
eg
In Bluebird Investment Pty Ltd v Graf Holdings Pty Ltd,7
a decision which . . .
The same choice is available when you are referring to legislation.
The choice also applies in relation to secondary sources, such as books or
journal articles.
Wherever possible, refer to a primary source (eg, case report or legislation) ahead
of a secondary source of information.
Cross-Referencing
Modern legal writing tends to stay away from the use of Latin if at all possible. If
you employ footnotes in your writing, you should refer to a case or a book or
article that has already been cited by using “above” and specifying where the
previous reference can be found.
eg
4. Vivienne Brand, ‘Teaching Ethics to Business Law
Students’(1997) 5 Current Commercial Law 177
…
9. Brand, above, n 4, 180
This means that the full citation for the article (or book or case) is to be found in
footnote 4 and that the current reference is to page 180 in that article (or book or
case).
Structure
Separate your material by employing headings and subheadings. You probably
cannot “overdo” using headings and subheadings: use them as literary road signs.
The more specific your headings are, the more helpful they are to your reader.
Use of Inclusive, Non-Discriminatory Language
The University is committed to the use of inclusive, non-discriminatory language
that reflects cultural and social diversity in a positive and accurate way. Your
writing should reflect that commitment. To better understand what is expected of
you in this regard, read the Inclusive Language Guide at
http://www.flinders.edu.au/equalopportunity/tools_resources/publications/inclusive_language.cfm.
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Presentation
When preparing written work it is useful if you have access to a computer. The
Business School has its computer laboratory in Rooms 1.13 and 1.14, which is
available to Business students during normal office hours.
For all written assignments, students are required to use a standard cover sheet.
Assignments must not be submitted inside folders, envelopes or plastic
coverings.
Bibliography
Always include a bibliography at the end of the document listing the sources,
which you have used in researching the assignment, even if some of those sources
have not been, referred to in the assignment itself. In other words, list all the
books, journal articles and reports which you have read in working on your
assignment, not just the ones which find their way into your essay as written.
In the Bibliography, name the publisher and place of publication but do not
restate any page number(s) – these were given in the footnotes.
The Bibliography may be divided into parts, using sub-headings such as:
 Legislation
 Text books
 Electronic sources
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BUSN1019 STATEMENT OF ASSESSMENT METHODS (SAM)
Flinders University
STATEMENT OF ASSESSMENT METHODS - 2011
Students' attention is drawn to the Student Related Policies and Procedures Manual 2011
(http://www.flinders.edu.au/ppmanual/student.html), which outlines the University’s Assessment
Policy.
Topic number: .................................................................................................................................... BUSN1011
Topic title: ....................................................................................................................... LAW FOR BUSINESS
Unit value of topic: .......................................................................................................................................... 4.5
Date on which this statement was provided to students: ....................................................................... 29/7/11
Duration of topic: ................................................................................................................... ONE SEMESTER
Academic Organisational Unit(s) responsible for topic (Department/School): ............................. LAW SCHOOL
Topic Coordinator:………………………………………………………................... …………..JEFF FITZPATRICK
Telephone number of Topic Coordinator: ......................................................................................... 8201 3898
Expected student workload*
……………….. hours per week
30 hours of student time commitment per unit x 4.5
OR…135……………… hours in
total
* Indicative only of the estimated minimum time commitment necessary to achieve an average grade in the
topic. Expected student workload should be based on the standard student workload of approximately 30
hours of student time commitment per unit. (See
http://www.flinders.edu.au/ppmanual/student/SecC_expected.htm.)
Details of assessable work in the topic.
Format of
each form of
assessable
work
(including %
proportion of
topic covered
in exam, if
applicable)
Assignment
Type of
written
assessment
*
(1, 2 or 3)
Proportion Proportion of
of
total marks
assessment
workload
(%)
Maximum Deadline for
word limit, submission**
exam
length etc
Date
work is
expected
to be
returned
to
students
2
40%
40
1800
5/10/11
Examination
(whole topic)
N/A
60%
60
5/09/11
(before 4 pm)
2 hrs + As stipulated
30 mins by the
reading
University’s
Examinations
Officer
After
Exam
Board
meeting
*
1 = work requiring little or no research or preparation apart from usual class work and set readings eg a
reflective report on a skills exercise.
2 = work requiring minimal additional research or preparation, eg a problem question.
3 = work requiring a substantial amount of preparation or independent research eg a research essay.
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** Extensions may be granted by a topic coordinator where the following criteria apply:
• the student has made a written request for an extension prior to the due date for the assessment item;
• the student has justified the request on the basis of unforeseen individual circumstances that are
reasonably likely to prevent completion of the assessment by the specified due date.
 No initial or cumulative extension of more than one week will be granted, at which point whether the
student remains eligible to complete that assessment will be at the discretion of the Topic Coordinator.
Penalties to be
applied if deadline is
not met:
In the absence of an extension, 10% of the total mark possible for a
piece of work will be deducted for every day or part thereof by which the
assignment is late.
Penalties to be
applied if written
work exceeds the
word limit:
5% of the total mark possible for a piece of work will be deducted for
every 10% of the total word limit or part thereof by which the assignment
exceeds that limit. This means the penalty is imposed as soon as the
number of words passes the limit.
The criteria for
successful
completion of the
topic*:
Satisfactory achievement of the expected learning outcomes as
evidenced by a final mark of at least 50% in the assessment scheme
described above. At least a Pass (P) in the exam is necessary in order
to pass the topic, as well as an overall grade of at least 50% (i.e. a
grade of over 50% but with a fail for the exam will result in a ‘Fail’ for the
topic).
*including, where appropriate, the achievement of a certain minimum level of competence in both
the theoretical and practical components of the topic and details of special requirements (such as
minimum levels of achievement) concerning particular elements or aspects of the topic such as
attendance/participation requirements, group activity.
Participation marks
Is class participation to be
assessed in groups of more
than 30 students?
No
Exam conditions
What materials, if any, are
students allowed to take into
the exam (if applicable)?
Open book
Students may take into the exam room any written or printed
material (books, reports, notes etc) except material borrowed
from a library.
In no case may students take completed exam scripts from
previous attempts into exams. This applies to their own
attempts or those of other students.
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Alignment of assessment with Learning Outcomes and Graduate Qualities
Description
Expected
Learning
Outcomes
Assessment items relating
to each Outcome/Quality
It is expected that on completion of this
topic students will be able to:
1. understand and be able to describe the
Assignment + Examination
process of law-making and the structure
and hierarchy of courts in the Australian
legal system
2. understand and be able to apply the
Assignment + Examination
principles of the law of torts, contract,
trade practices, agency and property to
various factual scenarios relevant to
business
3. be familiar with a range of legal
Assignment + Examination
business structures and be able to
identify and describe their defining legal
characteristics
4. be able to analyse a factual scenario
Assignment + Examination
and identify relevant legal issues
5. be able to recognise some of the legal
Assignment + Examination
implications relevant to the provision of
financial, accounting or other
professional advice
6. be able to evaluate a factual situation
Assignment + Examination
and determine when and where
professional legal advice is prudent or
desirable
7. have the knowledge and skills to
Assignment + Examination
conduct preliminary research and seek
professional advice in relation to legal
problems
Graduate
Qualities
8. have developed skills in clear written
and oral communication of legal
principles
Assignment + Examination
9. have developed skills in appropriate
referencing and citation practice
Assignment + Examination
This topic makes a significant contribution to
the production of graduates
who are knowledgeable
Assignment + Examination
who can apply their knowledge
Assignment + Examination
who communicate effectively
Assignment + Examination
who can work independently
Assignment + Examination
who are collaborative
Assignment
who can connect across boundaries
Assignment
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J Fitzpatrick 12 July 2011
Detection of Breaches of Academic Integrity
Staff may use a range of methods (including electronic means) to assist in the detection of
breaches of academic integrity. In addition, the University makes available for staff and student
use the electronic text matching software application – SafeAssignment.
Will the electronic text
SafeAssignment be used?
matching
software
application
No
If yes, students will receive a written statement describing how the software will be used and be
advised about the Flinders Learning Online (FLO) Academic Integrity site.
Scaling procedures
The Law School employs scaling procedures in an endeavour to meet HD targets of 3% in
compulsory law topics and 5% in optional law topics. Marks of 80 and above may be scaled up to
HD to meet these targets in LLAW topics at the Topic Co-ordinator’s discretion.
Will any additional scaling
procedures
be
used
in
determining marks for each
piece of work or for determining
the final topic grade?
No
Second attempts at assessment exercises
Law School policy requires that where an assessment exercise is subject to a minimum level of
achievement for successful completion of the topic and a student does not meet that minimum,
the student must be given the opportunity to attempt the exercise a second time.
Are
there
any
other
circumstances
in
which
assessment exercises may be
attempted a second time?
No
Special consideration
Students who believe that their ability to satisfy the assessment requirements for this topic has
been or will be affected by medical, compassionate or other special circumstances and who want
these circumstances to be taken into consideration in determining the mark for an assessment
exercise may apply to the relevant Director of Studies — Grant Niemann (Law) for special
consideration, preferably by email or letter.
Supplementary assessment for this topic may be approved on the following
grounds:
•
•
Medical/Compassionate – a student who is unable to sit or complete the original
examination due to medical or compassionate reasons may apply for supplementary
assessment. If the illness or special circumstance prevents the student from sitting or
completing the scheduled supplementary examination, or from submitting by the agreed
deadline a supplementary assessment exercise, the student will be either: awarded a result in
the topic of Withdraw, Not Fail (WN); or be offered the opportunity to demonstrate
competence through an alternative mechanism. If the illness or special circumstance is
demonstrated to persist up to the commencement of the next academic year, then the student
will be awarded a result in the topic of WN.
Academic – a student will be granted supplementary assessment if he/she:
•
achieves an overall result in the topic of between 45 and 49%, (or between 40 and 49%
where a student obtains a fail grade in the last 12 units required for completion of a
course) or the equivalent where percentage marks are not awarded;
•
has completed all required work for the topic;
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J Fitzpatrick 12 July 2011
•
•
has met all attendance requirements; and
obtains at least a ‘Pass’ level grade in any specific component of assessment (other
than an examination) for the topic where this is explicitly stated to be a formal
requirement for the successful completion of the course or topic.
A student with a disability, impairment, or medical condition who seeks reasonable
adjustments in the teaching or assessment methods of a topic on the basis of his/her disability
14
may make a request to the Topic Coordinator or the Disability Liaison Officer as soon as
practicable after enrolment in the topic. Any such reasonable adjustments must be agreed in
writing between the student and the Topic Coordinator and must be in accordance with related
University policy. A student who is dissatisfied with the response from the Topic Coordinator or
with provisions made for reasonable adjustments to teaching or assessment methods may
appeal in writing to the Faculty Board.
.....................................................
Signature of Topic Coordinator
......................
Date
14
The Health and Counselling Service (Student Learning Centre (SLC) or Mr Alan Leaver, Room
2.12, Law and Commerce Building (initial contact preferably by email or letter).
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J Fitzpatrick 12 July 2011
ASSIGNMENT COVER SHEET
SCHOOL OF LAW
FLINDERS UNIVERSITY – ADELAIDE – AUSTRALIA
Student
Details :
…………………………………………………………………………
Family Name
Given Name
Family Name*
Given Name
*Staple individual cover sheets in Family name alphabetical order if lodging a “Group” assignment
ID No :
Topic
Name :
Topic
Code :
Tutor’s
Name :
ASSIGNMENT DETAILS
Assignment Title .. ………………………………………………………….
. ……………………………………………………………………………..
. ……………………………………………………………………………..
DECLARATION
1. I have read and understood the Academic Integrity and Plagiarism Information in:
a) the Law Handbook; and/or
b) the Criminal Justice Handbook; and/or
c) the Law School’s website; and/or
d) the University’s Student Related Policies and Procedures; and/or
e) the topic outline and/or material relating to this assignment.
2. I have complied with the requirements of citation and referencing in:
a) for LLAW and COMM topics, the latest edition of the Australian Guide to
Legal Citation or
b) for CRIM topics, any other acceptable citation or referencing guide.
3. This assignment is solely the product of my own original work except where acknowledged as
coming from another person or source.
The word count is .............................
Signature..............................
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J Fitzpatrick 12 July 2011