Unit convenor and teaching staff |
Unit convenor and teaching staff
Lecturer
Brooke Pendlebury
Contact via + 61 403 818 912
Block Class: January 27-28, February 9-11 2018
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Credit points |
Credit points
4
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Prerequisites |
Prerequisites
Admission to MBA or MMgt or MMgmt or PGCertMBAExt or GradCertMgtPostMBA or GradDipMgt
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Corequisites |
Corequisites
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Co-badged status |
Co-badged status
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Unit description |
Unit description
This unit examines operational aspects of the Australian legal system of practical concern to managers. Particular attention is paid to business agreements, types of business organisations, various participants, and their roles and responsibilities in business and regulation with respect to commercial trade. The focus is on understanding the legal environment of business as a means to more effective management.
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Information about important academic dates including deadlines for withdrawing from units are available at https://www.mq.edu.au/study/calendar-of-dates
On successful completion of this unit, you will be able to:
Name | Weighting | Hurdle | Due |
---|---|---|---|
In-Class Quiz | 10% | No | 10th February 2018 |
Individual Assignment | 40% | No | 12th March 2018 |
Final Examination | 50% | No | Exam Week: 19 - 24 March 2018 |
Due: 10th February 2018
Weighting: 10%
Length:
20 minutes
Format
Quiz (in-class, open book)
Due:
10th February 2018
Worth:
10%
Students will be completing an In-Class Open Book Quiz.
Due: 12th March 2018
Weighting: 40%
Length:
8 pages max (including annexures but excluding cover sheet and references)
Format:
Essay
Due:
On or before 11:59pm, 12th March 2018
Worth:
40%
The assignment question involves analysing a dispute in your workplace in light of the legal concepts and practices that you will learn and discover in class.
You will be provided with a choice of three questions, covering contract law, tort law and Australian consumer law.
The question involves:
This is an individual piece of work.
Submission of assignment:
The due date for submission of the assignment is to be confirmed. A penalty of 5% per day will be imposed where assignments are submitted late without an extension. Extensions will be granted only where illness or misadventure has prevented timely completion of the work. Requests for extensions should be made to the course presenter, in writing, before the due date.
Criteria for assessment:
Criteria for assessment for the assignment are:
The Assignment is to be no more than eight (8) pages, including any annexures, but excluding cover sheet and references.
The page size is A4, font size is 12 point, and spacing is double.
A hardcopy of this assignment is to be submitted and a Softcopy submitted at iLearn (Turnitin Plagarism Submission)
Due: Exam Week: 19 - 24 March 2018
Weighting: 50%
Length:
3 hours + 10 minutes reading time, 5 questions from choice of 8
Format:
Open book exam
Date:
Exam Week: 19 - 24 March 2018
Weighting:
50%
You must pass the final examination to pass the course.
A three hour, open book examination will be held on a date to be advised. The examination will require answers to five of eight questions (each question being of equal value). The questions will comprise some short answer questions, and some hypothetical problems. Class workshops throughout the course will provide practice in answering hypothetical questions.
Required Text
Gibson, A. (2017) Business Law, 10th edition, Pearson, ISBN: 9781488611803
This text will be supplemented by the current Law & Management materials.
For information on textbook prices and online ordering, please refer to the Co-Op Bookshop webpage at http://www.coop.com.au
Additional references
Listed in the Session Topics and Readings have been provided for students who wish to extend their research on particular seminar topics.
MGSM iLearn
The web page for this unit can be found at: https://ilearn.mq.edu.au/login/MGSM
SESSION TOPICS AND READINGS
SESSION 1: THE AUSTRALIAN LEGAL SYSTEM
The first class will outline the course and assessment requirements, and provide a general overview of the Australian legal system –
Legal institutions and sources of law:
• Courts and the common law
• Parliaments and statutes
• Regulatory authorities and tribunals; rule-making and administrative discretion
Aspects of the legal system:
• Civil vs. Criminal law
• Private vs. Public regulation
The Australian Constitution:
• The division of legislative power between the Commonwealth and the States
• The Federal court system
Workshop topic: Legislation
There will be a consideration of pieces of legislation and discussion as to their meaning.
Discussion questions:
• In this “Age of Statutes”, what role do judges of the courts of common law and equity play in our legal system?
• The Australian Constitution limits the Commonwealth government’s law making powers. Have these limits created inconvenience or inefficiency in the Australian legal system? And if so, how?
Reading:
Gibson & Fraser Chapters 1, 2, 3 & 4
Additional reference:
Parkinson, P. (2001) Tradition and Change in Australian Law 2nd Edition, LBC Information Services, Sydney
SESSION 2: CONTRACT LAW - DO WE HAVE A DEAL?
This class examines the “classical” principles of contract law that distinguish a legally enforceable bargain from a non-binding promise. We will cover –
• Consent as the basis for the enforcement of obligations
• The Offer and Acceptance Model of contracting
• The requirement of consideration (and the estoppel exception)
• Distinguishing legal from non-legal (and unenforceable) relationships
• Writing requirements
Workshop topic: Commercial negotiations: At what point do we have a done deal?
Preparation: Read Austotel. Come prepared to identify:
• The legal principles at issue
• The source of those legal principles
• The facts of the case
• The reasons of the court in reaching its decision (including any dissenting opinion)
• Your own view on how the problem (and this litigation) could have been avoided
Hypothetical:
(The following facts are entirely fictional)
Vera owns a shop in Talavera Road near the MGSM. The MGSM’s facilities manager, Carl, has been negotiating with Vera to lease the shop for the purpose of establishing a new MGSM cafeteria. Vera sent Carl a document headed “Draft agreement”, which set out the terms on which she would lease the shop to MGSM. It stipulated a proposed term of five years, with an option to renew for five years. It also stipulated rent at $5,000 per calendar month, with rent to be reviewed annually. The document did not set out any formula or method for reviewing the rent.
Carl decided that he would accept these terms so he rang Vera and said “I think we can proceed on this basis. Could you please send lease documentation to MGSM’s solicitors?” Then he walked to the existing cafeteria and dismissed all the staff with six months’ pay in lieu of notice. He also rang Bob the Builder and signed a contract to pay Bob $50,000 for a refit of the old cafeteria, to create a new internet café for students.
No lease documentation arrived from Vera. When Carl rang Vera, she said she had changed her mind about leasing the shop to MGSM. She said she was going to set up a fast food outlet of her own and she was pleased to hear she might get some business from MGSM students.
Carl wants to know whether he can force Vera to lease the shop to MGSM. Can he?
Reading:
Gibson & Fraser Chapters 12, 13, 14 & 15
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 [BRING A HARD COPY OF THIS CASE TO CLASS Session 2]
Graw, S. (2000) “Puff, Pepsi and ‘That Plane’ – The John Leonard Saga” Journal of Contract Law [BRING A HARD COPY OF THIS CASE TO CLASS Session 2]
Additional references:
Carter, J. (1994) Outline of Contract Law in Australia, 2nd Edition, Butterworths, Sydney
Carter & Harland (2002) Contract Law in Australia, 4th Edition, Butterworths, Sydney
Seddon & Ellinghaus (1997) Cheshire and Fifoot’s Law of Contract, 7th Edition, Butterworths
SESSIONS 3 & 4: CONTRACT LAW: WHAT ARE THE TERMS OF OUR DEAL?
WHAT ARE THE CONSEQUENCES OF BREAKING THE DEAL?
This session examines the principles for determining what the deal means:
• What statements form part of the contract?
• Express terms, and terms implied in fact, by law or by custom
• Exclusion clauses
We also consider:
• the doctrine of privity (who is bound by the deal?)
• ending contracts
• remedies for breach of contract
Workshop topic: The traps of sloppy drafting: CFMEU v Amcor
Preparation: Read the Amcor decisions
Consider:
• Why did a restructuring of Amcor’s corporate group change the employment contracts of the employees?
• How would you have drafted the terms of the employees’ new contract to avoid the result in this case?
Hypothetical:
Rural TV offered Yvonne a job as a media sales consultant.
Rural TV’s media sales manager said to Yvonne: “We have a vacancy selling in the Illawarra district. Our highest commission earner, Samantha, is leaving to go to New Zealand. You can have her territory. She earns on average $10,000 a month commission in addition to her retainer of $2,000 per month.”
Yvonne agreed to join TWT and left her job at City TV, where she was earning a fixed salary of $80,000 per year.
Rural asked Yvonne to sign a letter of appointment. The letter stated:
Dear Yvonne,
We are so pleased that you have decided to join our sales team. The terms of your employment will be that you will be paid a fixed salary of $24,000 per year, and you will be entitled to a commission of 10% of any sales you make, payable at the end of each month. (Commission will be paid only after payment has been received from customers.)
Your employment with Rural may be terminated, by you or by us, on giving three months’ notice.
Yours sincerely,
[Signed CEO]
When Yvonne started at Rural, Samantha was still there. She had changed her plans and Rural agreed to allow her to keep her job and her territory. Yvonne was given a different territory instead. While Samantha continued to average $10,000 per month in commissions, Yvonne averaged only $1,000 per month.
Does Yvonne have any claim against Rural for breach of contract? If so, assess damages.
Reading:
Gibson & Fraser Chapters 19, 20 & 21
CFMEU v Amcor Ltd [2002] FCA 610 (13 May 2002), [2003] [BRING A HARD COPY OF THIS CASE TO Sessions 3 and 4]
Additional references:
Carter, J. (1994) Outline of Contract Law in Australia, 2nd Edition, Butterworths, Sydney
Carter & Harland (2002) Contract Law in Australia, 4th Edition, Butterworths, Sydney
Seddon & Ellinghaus (1997) Cheshire and Fifoot’s Law of Contract, 7th Edition, Butterworths
SESSION 5: UNFAIR DEALING
We examine a range of legal controls on unfair business practices.
• Common law doctrines (against duress)
• Equitable doctrines (against undue influence and unconscionable dealing)
• Statutory controls (Australian Consumer Law, Australian Competition and Consumer Act 2010)
Workshop topic: The Amadio doctrine
Real life case study:
Michael Canizales had been employed with the Microsoft Corporation in the United States since 1989. In 1997 he was offered a 24 month assignment to work with a joint venture between Microsoft and Publishing and Broadcasting Ltd in Sydney. He took this on the basis that at the end of the term he would either transfer completely to employment with ninemsn, the new company formed by the joint venture, or he would find a new position in Microsoft. He was concerned about redundancy at the end of the contract, but was assured that “Microsoft would do the right thing by its senior executives in event of a redundancy”. In particular, Mr Canizales relied on assurances that he would be entitled to remain an employee, in some capacity or other, until his entitlement to a valuable tranche of share options vested in July 1999. During his employment, Mr Canizales bid at auction on an expensive house in Double Bay. Before committing himself to this purchase, he specifically asked for assurances that he would be able to exercise the share options. Otherwise, he said, he was uncomfortable with taking on such a high level of debt. A Microsoft executive assured his that there were “no issues which would prevent [him] from getting the options . . . go ahead and bid on the house”.
Unfortunately Mr Canizales’ experience in Sydney was not a happy one and he was retrenched, two months short of the vesting period for the share options. The person who chose his termination date took care to ensure that it was before July 1999, so that he could not exercise the options. He was offered a severance package, but only on the condition that he sign a deed of release relinquishing any further claim against the company. Mr Canizales refused to sign this and left empty-handed.
Despite the original negotiations for a two year fixed term, the written contract of employment which Mr Canizales signed included a one month notice period. In any case, he was ultimately given no notice, and he was denied the usual Microsoft practice of allowing an assisted job search for another position within the Microsoft organisation before dismissal. His dismissal had been left in the hands of a person known to be antipathetic towards him. Most significantly, the share option scheme made no provision for what should happen in the event that a person was made redundant prior to vesting.
Mr Canizales claimed that he had been unfairly denied the opportunity to exercise share options worth $14 million.
What was Mr Canizales’ solution?
Reading:
Gibson & Fraser Chapters 17 & 24
ACCC vs. Simply No-Knead (Franchising) [BRING A HARD COPY OF THIS CASE TO Session 5]
Contracts Review Act 1980 (NSW) (Extracts in Materials)
Parkinson, P. (ed) (1996) The Principles of Equity LBC Information Services, Sydney, Chapter 10 “Fiduciary obligations”
Additional references:
Parkinson, P. (ed) (1996) The Principles of Equity LBC Information Services, Sydney
Dal Pont & Chalmers (2000) Equity and Trusts in Australia and New Zealand, 2nd Edition, LBC Information Services, Sydney
Evans, M. (1993) Outline of Equity and Trusts, 2nd Edition, Butterworths, Sydney
SESSION 6: INTRODUCTION TO AUSTRALIAN CONSUMER LAW
This topic deals with the manner and extent to which trade practices are governed and restricted under the Australian Consumer Law. In particular, this review contemplates the nature and operation of Section 18 of the Australian Competition and Consumer Act 2010 (previously section 52 of the Trade Practices Act (Cth) 1974) – which prohibits misleading or deceptive conduct by corporations.
The role of the ACCC will be examined.
Reading:
Gibson & Fraser Chapter 24
Pengilley (2005) “When silence in negotiations is misleading”, Law Society Journal, July, page 183 [BRING A HARD COPY OF THIS CASE TO Session 6]
Pengilley (2005) “How Not to be Misleading or Deceptive in pre-contractual Negotiations”, Law Society Journal, September, page 187 [BRING A HARD COPY OF THIS CASE TO Session 6]
Terry & Gamertsfelder (2003) “When a Computerisation Project goes wrong”, Commercial Law Quarterly 3, page 191 [BRING A HARD COPY OF THIS CASE TO Session 6]
SESSIONS 7 & 8: CIVIL LIABILITY – NEGLIGENCE
This seminar examines the tort of negligence and in particular addresses the questions:
• What is a tort?
• What is the legal meaning of the term ‘negligence’?
• What factors will give rise to the conclusion that a negligent act or omission has occurred?
Workshop topics:
1. Reasonable foreseeability
Tarzan in the nightclub (read Downunder Rock Café)
2. Causation – common-sense or not? (Read Chappel v Hart)
Reading:
Gibson & Fraser Chapters 7, 8 & 9
McDonald, B. (2003) “The Common Law of Negligence 17”, Commercial Law Quarterly 12 (Materials)
Downunder Rock Café Pty Ltd vs. Roberts [1998] VICSC 101 (28 May 1998) [BRING A HARD COPY OF THIS CASE TO Sessions 7 and 8]
Chappel vs. Hart [1998] 195 CLR 232 [BRING A HARD COPY OF THIS CASE TO Sessions 7 and 8]
These seminars examine tortious liability:
• Types of damage will be examined
• Is actual physical injury resulting from another’s negligence necessarily a basis for the recovery of damages? and
• Pure Economic Loss
Workshop topics:
1. Economic loss, Caltex Oil case; and
2. You were careless now I can’t sell my potatoes (Perre v Apand)
Reading:
Perre vs. Apand Pty Ltd [1999] 198 CLR 180 [BRING A HARD COPY OF THIS CASE TO Session 8]
SESSION 9: BUSINESS STRUCTURES
We now understand the essential legal concepts to undertake a legal analysis of alternative business structures.
We shall examine:
• Partnership
• Corporations
• Joint ventures
• Franchising
• Trading trusts
We shall consider each of these forms of business organisation in terms of:
• Who owns the assets of the business?
• Who bears the risks?
• How are profits distributed?
• What legal obligations bind the participants?
• What reasons (other than tax planning) influence the choice of business structure?
We shall also consider business relationships:
• Agency
• Employee/Contractor
Workshop questions:
Discussion question:
James Hardie case, and
Corporate Social Responsibility
Reading:
Gibson & Fraser Chapters 27, 28, 29 & 30
Redmond, P. (2000) Companies and Securities Law Commentary and Materials 3rd Edition, Chapter 1, Partnership pp. 1 – 27 (Materials)
Lipton & Herzberg (2001) Understanding Company Law 10th Edition, Chapter 2, pp. 25 – 60 (Materials)
Dal Pont & Chalmers (2000) Equity and Trusts in Australia and New Zealand 2nd Edition, LBC Information Services, Sydney, Chapter 15 “The Nature of A Trust”
RWG Management Ltd v CAC (1984) 9 ACLR 739 (Materials)
Alternative Dispute Resolution
Students will also consider ADR and its importance in business
SESSION 10: CORPORATE GOVERNANCE
This seminar outlines the system of federal regulation of corporate activity, and focuses on the duties and responsibilities imposed on directors of Australian corporations by both common law and legislation. The discussion in this seminar will focus on cases of corporate misconduct.
Workshop question:
You are a director of Cyberspace Ltd, a company which develops and markets business and educational software. Cyberspace is a public company. You hold a 2% shareholding and you are one of five executive directors. Because of your industry expertise you have been invited onto the Board of directors of a newly formed company, Intelligence Pty Ltd, which is planning to develop and market recreational computer games. Intelligence is not related in any way to Cyberspace.
Can you accept this directorship? If not, why not? If so, what legal risks should you be aware of?
Reading:
Gibson & Fraser Chapters 27, 28, 29 & 30
Tomasic, Bottomley & McQueen (2002) Corporations Law in Australia, 2th Edition, Federation, Chapter 14
Additional references:
Lipton & Herzberg (2001) Understanding Company Law, 10th Editon, Lawbook Co
Block Class: January 27-28, February 9-11 2018
Unit Requirements
Students are required to:
a) Prepare for and participate in seminars
b) Complete one in-class quiz (10% of total unit mark)
c) Complete one assignment through the unit (40% of total unit mark)
d) Complete a three-hour, open-book examination (50% of total unit mark)
e) Complete assigned readings in advance, to maximise your benefit from classes
Classes
Students are required to attend all classes.
The unit will be presented in a Block format as follows:
Session |
Date |
Topic |
1 |
27 January 2018 |
The Australian Legal System |
2 |
27 January 2018 |
Contract Law – Do we have a deal? |
3 |
28 January 2018 |
Contract Law – What are the terms of our deal? |
4 |
28 January 2018 |
What are the consequences of breaking the deal? |
5 |
9 February 2018 |
Unfair dealing |
6 |
9 February 2018 |
Introduction to Australian Consumer Law |
7 |
10 February 2018 |
Civil Liability – Negligence |
8 |
10 February 2018 |
Civil Liability – Negligence |
9 |
11 February 2018 |
Business Structures |
10 |
11 February 2018 |
Corporate Governance |
19 - 24 March 2018 Final Exam |
Each class will also involve one or more workshop exercises, dealing with case studies or hypothetical problems, and some reflective discussion. The workshop exercises and reflective discussion questions are typical of the questions on the final examination.
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Undergraduate students seeking more policy resources can visit the Student Policy Gateway (https://students.mq.edu.au/support/study/student-policy-gateway). It is your one-stop-shop for the key policies you need to know about throughout your undergraduate student journey.
If you would like to see all the policies relevant to Learning and Teaching visit Policy Central (https://staff.mq.edu.au/work/strategy-planning-and-governance/university-policies-and-procedures/policy-central).
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Our postgraduates will demonstrate a high standard of discernment and common sense in their professional and personal judgment. They will have the ability to make informed choices and decisions that reflect both the nature of their professional work and their personal perspectives.
This graduate capability is supported by:
Our postgraduates will be able to demonstrate a significantly enhanced depth and breadth of knowledge, scholarly understanding, and specific subject content knowledge in their chosen fields.
This graduate capability is supported by:
Our postgraduates will be capable of utilising and reflecting on prior knowledge and experience, of applying higher level critical thinking skills, and of integrating and synthesising learning and knowledge from a range of sources and environments. A characteristic of this form of thinking is the generation of new, professionally oriented knowledge through personal or group-based critique of practice and theory.
This graduate capability is supported by:
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This graduate capability is supported by:
This offering will be in Block class format. Previously this unit was only offered in weekly format.
Leadership: The unit develops skills required of leaders with respect to the synthesis of a wide array of legal information in order to make well-informed, legally compliant and strategic decisions.
Global mindset: The unit enhances the ability to assess the implications of legal and managerial decisions from a whole of entity perspective, across a wide spectrum of stakeholders, and recognition of the variation in legal systems globally.
Citizenship: The unit outlines the hidden linkages between issues such as personal ethical choice and legal consequences, economic efficiency and community perception, and the links through the legal system between collective moral perception and the impact of law on business.
Creating sustainable value: The unit encourages the adoption of a forward-looking perspective on the impact of managerial decisions on the financial position, performance and legal obligations of the entity.
The interactive environment of the classroom is central to the MGSM experience. Students are required to attend the full duration of all classes for the units in which they are enrolled. We recognise that exceptional circumstances may occur, such as unavoidable travel on behalf of your organization or the serious illness or injury of you or a close family member. Special consideration may be given for a maximum of 20% non-attendance for such circumstances as long as lecturers are contacted in advance, and supporting documentation provided, to request exemption from attendance. Failure to abide by these conditions may result in automatic withdrawal, with academic and/or financial penalty. The full Student Attendance Policy is published in the MGSM Student Handbook at https://students.mgsm.edu.au/handbook
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