LIAONING UNIVERSITY  BSB50101 DIPLOMA OF BUSINESS

Business Law Assignment 1 : 20%

Semester 1 2010

ASSIGNMENT TITLE
Background to the legal system

OUTCOMES ASSESSED
LEARNING OUTCOME 1-
Distinguish between the various sources of
Australian Law, the relationship between
them and their applications.
 

DUE DATE

Instructions:

This assignment may be completed in pairs.
This assignment has 4 questions worth 20% of the final mark for the
subject.
Each question is marked out of 10 and the total marks will be converted to a mark out of 20. All questions must be answered.
As a guide, each question should be a minimum of about 300-500 words.
All work must be submitted on time or penalties may apply.
The marking schedule (page 3) and an assignment cover sheet must be attached to your completed work.
Plagiarism will incur severe disciplinary action.
If you receive less than half marks, some or all of your work will need to be resubmitted. If this is the case, then the maximum for the assignment will be half marks.

Please note, this assignment may be completed in pairs. That is, two students may work together and submit one assignment between the two.
Both students’ names must be included on the cover sheet and both will receive the same mark.

Question 1 (case study) (10 marks)

Read the following case study and answer the questions. Remember to use and define legal terms.

Angela runs a take away food shop in Footscray, Melbourne. Justin buys and eats a beef burger from Angela’s shop for lunch. He discovers he has swallowed a cockroach which was in the burger. He gets sick; he cannot go to work and must pay for his medical treatment. He wants Angela to pay for his medical treatment and compensate him for loss of wages. Angela refuses to give Justin any money and she says that she is not responsible for his illness. Hoping to resolve their dispute through discussion and negotiation, Justin goes to see Angela. Angela becomes very angry and stabs Justin in the arm with a knife. He is not seriously hurt but requires medial treatment.

Which branches of law which are involved in this case? Consider public/private/civil/criminal. (1 mark)

The case involves two branches of law, public and private law, civil and criminal law. Concretely speaking, public law, private law and criminal law are involved in this case.

List all the possible wrongs that Angela may have committed. For each wrong:
identify the branch of law involved;
outline how each matter could be resolved ; and
discuss what type of penalty Angela may face (4 marks)

Negligence. It is belongs to private law. For resolving the dispute, Justin can choose to plaint Angela in UCAT, and the penalty of her is closing her shop, compensating medical fees and making an apology to Justin.#p#分页标题#e#

Angela provided bad food and this made customer Justin sick, so she involves the public law. This action violates the foodstuff safe law and her attitude is unsatisfied and refuses to make a solution. Justin can plaint Angela for resolving the quarrel. As a punishment, Angela should be taken into the prison or make community serve for a suitable period of time, and compensating medical fees to Justin is necessary.

Angela hurts Tustin in his arms, and Tustin needs medical treatment. This case is involves criminal law, she causes the personal injury to Justin in both psychology and physics, therefore Justin has a reasonable excuse to plaint Angela to magistrate’s court. As penalty, Angela should be taken into prison and compensating medical fees because of violating criminal law.
Use the case study as an example to describe the main differences between the two branches of the law. (include a discussion of burden of proof and standard of proof) (5 marks)

Civil law is concerned with relations and dealing between individuals, organization and government. It aims to protect and force the rights of such parties.

Criminal law is concerned with laws that aim to protect individuals and the community. It is applied and forced by the state. It aims to control and protect the society, punish wrongdoers and hopefully deter from committing criminal acts.

Differences Civil law Criminal law
Party name Respondent State versus defendant
R v Brown
Which party start the actions Plaintiff State or Crown
Crown is the Queen
Burden of proof The plaintiff has responsibility of proving the case The state prove the defendants guilty beyond reasonable doubt
Standard proof On the balance of probability, more likely than not ( 52% make sure) Beyond reasonable doubt almost no doubt (99% make sure)
Outcome remedy Monetary, compensation, damages Jail, fine, community service, driving,
offences-lose your licence
Verdict-decision Liable or not liable
Jury is optional 5 jurors majority decision Guilty or not guilty
Compulsory for all serious crimes state pays

Question 2 (essay - minimum 500 words) (10 marks)

‘The Common Law is no longer important in Australia’. Discuss this statement. Is this statement true?

Your answer should include the following information:
define common law
the role of case law and precedent
the role of the judges in making and interpreting laws
the role of the parliament in making laws
the relationship between the courts/common law and parliament/legislation

You must include a bibliography and also reference in the text of your essay. Whenever you use information or an idea which is not your own you must indicate where it comes from. You may use either the Oxford or Harvard method of referencing. Information on how to use these referencing systems is available on the VU library website http://library.vu.edu.au. Search under Referencing & Styles.#p#分页标题#e#
Work submitted without in-text referencing will not pass and will have to be resubmitted

Now, there is a statement, “common law is no longer important in Australia”. In my opinion, it is not true. Common law is still playing a necessary role in Australia society, and because it is made for all the public, therefore the common law can be used widely. On the other hand, the legal law in Australia is derived from two organisations, the courts and parliament. And the law made by the courts is common law, from this, it is clearer to be seen the importance of common law in Australia.

Definition of common law. The law that is declared by court is called common law (Elizabeth Crosby, 2006, business law) it is known as precedent, case-law and judge-made law. And equity law is usually involved in the common law. The law has been developed over time by judges. This law is applied to later cases having similar facts and circumstances in accordance with the doctrine of precedent. The principal remedy under common law is damages, originally administered in English by common law courts.

Case law and precedent law. One of the most important resources in Australia is the court. The law which is made by court is called common law, and the common law is consist of principles that is referred to as precedent, case-law or judge-made law. A precedent is a decision of a court of a court that establishes one or more legal principles. Precedents may be used by later cases in making decisions. The formal rules about how and when precedents can and will be applied in later cases, and form the case law. The case law can coach the cases which have similar facts and can be solved in a similar way in the court. This can keep fairness and consistency in making decisions by common law. Therefore the case law and precedent law play important role in Australia legislation.

The judges in making and interpreting laws. The judges have large power to make and interpret the laws. This can be seen in three points. Firstly, there is no relevant statute they can refer to. Secondly, they must play an important role about dealing with a gap in the law. Lastly, when the statute is not clear or its application will have an unfair result, the judges have to perform its power to solve disputes.

The parliament in making laws. Under the Australia Constitution the legislative power is required to be carried out by the Commonwealth Parliament (Gibson A & Fraser D, 2005, Business Law). Australia has a federal system of government. For dividing power, Australia sets out that commonwealth have parts of power to make laws. The government can make laws in such areas, taxation, immigration, external affairs and so on. Law-making power can be classified in three parts, concurrent, exclusive and residual. Of these, the parliament has the only power to make laws on exclusive and can hold concurrent. An act of parliament made by the Commonwealth Parliament can potentially affect the whole of Australia. Therefore the parliament is an essential part in making laws in Australia.#p#分页标题#e#

The relationship between common law and legislation. The law made in court is called common law, and made by parliament is legislation. The court has four hierarchies, high court, Supreme Court, country court and magistrates’ court, children’s court. Different court is responsible different type of affairs. Magistrates’ court and children’s court deal with inferior matters. Country court is set for intermediate matters. High court and Supreme Court are both superior court, but Supreme Court is the highest court in every state, the High court is the final appear court in Australia, and once a decision in made by High court, it is never changed without doubt. Parliament has three hierarchies, Crown, Senate and House of Representatives. The last two is responsible for make and review laws, provide information, scrutinise government, control spending and represent interests of the states, and the first is for making lager and important decisions, but this organization only exists in monarchy country.

In conclusion, the statement, common law is no longer important in Australia, is certainly true. From many sides to consider, common law is one of the most important part in Australia laws. And common law can contain many aspects, such as case and precedent. Judges and parliament also play essential role in the whole law system. The relationship between common law and legislation is much linked closely. Therefore the common law is still important in Australia.

Question 3 (research report – minimum 500 words) (10 marks)

Write a short report on a current legal issue in your own country (or country of your choice). Yourreport should be presented in a formal report format and should include the following:

a title page
an introduction
sections with headings
conclusions
recommendations

Work submitted without in-text referencing will not pass and will have to be resubmitted

Intellectual property

Janice

Question 4 (case study and research activity) (10 marks)

Research the Victorian Civil and Administrative Tribunal (VCAT) website http://www.vcat.vic.gov.au and answer the following questions:

Outline the role of VCAT and its organisational structure. (2 marks)
How does VCAT differ from a traditional court of law. (2 marks)

Research the VCAT case of Kehmann & Anor v Cafra (Domestic Building) (20 July 2009) and answer the following questions about the case:

What are the names of the plaintiffs, defendants and judge? (1 mark )#p#分页标题#e#
In you own words summarise the key facts of the case and
identify any related area/s of law. (3 marks)
What is the tribunal’s final decision? (2 marks)

To locate the case go to Australian Legal Information Institute (Austlii) website http://www.austlii.edu.au.

Click on Victoria jurisdiction located on the left hand side of the home page.
Under case law, click on Victorian Civil and Administrative Tribunal 1998.
Click on ‘K’ for ‘Kehmann’.
Scroll down until you locate the name of the case and then click on the name to view the text.

Attach this sheet to your work

STUDENT NAME
CLASS or GROUP
VU STUDENT ID

Business Law

Assignment 1 : 20%

MARKING SCHEDULE
(Teacher use)

PERFORMANCE/ASSESSMENT CRITERIA

Total marks are out of 40 based on the solutions and the criteria below for each question.
This is converted to a mark out of 20 which is the final grade for this assessment task.

Question
Possible mark
Given mark

9-10
A thorough understanding, all parts of the question answered. Detailed explanations are given and examples provided if necessary. Good understanding of legal concepts and the connections between them. Evidence of detailed research.

7-8
A good understanding, all parts of the assignment answered. Explanations given but lacking some detail. Some basic understanding of legal concepts and brief definitions provided. Evidence of research.

5-6
A basic knowledge and understanding given but lacking in detailed explanation. An attempt to answer the points but lacking in clarity. Not all points addressed or some lacking depth. Some basic understanding of legal concepts and brief definitions provided. Evidence of basic research.

Below 5
A poor attempt. Some parts of the question not answered fully. Some points not addressed. Poor explanations. Little or no attempt to address the points and a failure to define, understand and apply legal concepts. Poor research skills.

1
10

2
10


3

10

4
10

Pass/Resubmit
Teacher Comment
Final mark
20