Business and the Law p1 - 272 (6th ed.). Terry, A., Giugni, D. (2016). Thomson Reuters.pdf - Copyright \u00a9 2016 Thomson Reuters(Professional Australia

Business and the Law p1 - 272 (6th ed.). Terry, A., Giugni, D. (2016). Thomson Reuters.pdf

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Unformatted text preview: Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. BUSINESS AND THE LAW Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS ASIA PACIFIC Thomson Reuters Sydney Australia LATIN AMERICA Thomson Reuters São Paulo Brazil EUROPE Thomson Reuters London United Kingdom Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. NORTH AMERICA Thomson Reuters Eagan United States of America Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. BUSINESS AND THE LAW ANDREW TERRY DES GIUGNI Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. SIXTH EDITION Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. LAWBOOK CO. 2016 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition (Harcourt Brace) Second edition (Harcourt Brace) Third edition (Thomson Learning) Fourth edition (Thomson Learning) Fifth edition (Cengage Learning) 1994 1997 2003 2005 2009 Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. National Library of Australia Cataloguing-in-Publication entry Terry, Andrew - author. Business and the law / Andrew Terry and Des Giugni. 6th edition 9780455236582 (paperback) Includes index. Commercial law--Australia. Law--Australia. Giugni, Des - author. 346.9407 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Editor: Zoe Haynes Product Developers: Natasha Naude and Vickie Ma Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. FOREWORD Michael T Schaper, BA, MComm, PhD Deputy Chairman, Australian Competition & Consumer Commission, Canberra The myriad business laws and regulations that we have in Australia provide the basis upon which most commercial activity is undertaken. Simply put, it spells out what we can – and can’t – do in a business context: the legal structures that can be used, the ways in which firms compete or otherwise deal with each other, the behaviours that are acceptable when selling to customers, how we can resolve disagreements, and the way in which risk is managed, to name just a few. In short, it is the framework around which all commercial trading and activities takes place. Learning the basics of business law is often seen as a tedious necessity by many students, especially those without any prior exposure to the law and its peculiarities. But it’s a crucial ingredient for anyone seeking to build a truly successful career in business or commerce. Knowing the rules of the game is an important first step in being able to successfully operate as a manager, business owner, entrepreneur, employee, director or investor. Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Understanding the law is essential in many different ways. Firstly, it is an important operational factor for many businesses. Our web of laws and regulations jointly provide the framework that underpins almost all the other activities of business. They spell out such basic issues, for example, as how we employ people, the manner in which we collect and report our accounting information, and what claims can be made in an advertisement, as well as penalties for non-compliance. Secondly, the competitive nature of business makes it almost inevitable that, sooner or later, most firms will come into conflict or contention with someone else. How such disputes are managed, adjudged and resolved is an important feature of the contemporary legal environment. Our legal system may seem to focus on the responsibilities of businesses, but it also contains important rights and protections for firms. Knowing what these are, how they can be exercised, and the benefits of such measures can be a great help to the savvy business operator. Finally, our laws can be a great source of competitive advantage for those who bother to learn how they work, and why. The law matters to everyone, not just lawyers. Not everyone understands the law equally, and those who take the time to understand what the rules are, and what is permitted, can often plan strategically in a way that others don’t. Conversely, history is littered with many examples of enterprises that have come unstuck by ignoring or downplaying one or other of their legal responsibilities. As the many cases and examples provided in this book show, the law is an evolving, challenging aspect of the business environment. It is full of fascinating and sometimes confusing issues, and there are many grey areas open to multiple analyses, challenges and debate. Its interpretation and application is not always clear, but it is always important. This sixth edition of Business and the Law will provide you with a comprehensive overview of most of the key legal aspects you’re likely to encounter in the Australian business environment. Each of the sections in this book is valuable, and will help you to develop a better understanding of how laws are made, what they seek to do, and – perhaps most importantly – how they actually operate in practice. I commend it to you. Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. PREFACE Over 20 years ago the Preface to the first edition of Business, Society and the Law, as this book was then titled, noted that: The law is not simply peripheral to commerce. The transactions and relationships that constitute commerce are embedded in the law. The entire fabric of commerce is woven from a complex legal regime, statutory and judge made, which regulates all commercial activity and in relation to which the legality and enforceability of all commercial activity must ultimately be assessed. Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. This proposition is even more valid today in the light of a legal and regulatory regime which is increasingly pervasive and increasingly complex and increasingly significant. It is the hope of the authors that this text will lead to a more productive relationship between business students and this regulatory regime. We believe that the study of law need not intimidate students but rather that it should attract them. Its subject matter, reflecting as it does on all aspects of life, traverses the range from the gravely serious to the highly entertaining. While the law is not an easy pursuit it should interest and enthuse. This is our hope for this book. It perhaps reflects the increasing complexity of contemporary business that this sixth edition of Business and the Law has its sixth publisher. Restructures, mergers, acquisitions and copyright assignments have seen a new publisher for each edition. I am delighted that this edition is published by Thomson Reuters, Australia’s premier legal publisher. I am grateful to Nick Riley for suggesting a new edition with Thomson Reuters and to Robert Wilson for his enthusiastic support. Particular thanks to Natasha Naude who started the project and to Vickie Ma who has had the task of managing the project to completion. Their grace and style in the face of obfuscations and excuses for deadlines not being met, and their wise counsel at all stages of the project, is acknowledged and appreciated. It reflects the virtual world we live in that I have not met my New Zealand based editor, Sarah Hullah, but my thanks to her also for converting the manuscript into the house style and to Zoe Haynes, who has edited and refined the product. My thanks also to Dr Michael Schaper, Deputy Chair of the Australian Competition and Consumer Commission for contributing the Foreword. The ACCC not surprisingly features prominently in an Australian business law text and all contributors are delighted that he has graced this edition with his Foreword. This edition also features a new team of contributors – colleagues in the Discipline of Business Law in The University of Sydney Business School who have enthusiastically embraced the challenge of breathing new life into an established text. I am grateful for their commitment and support and contribution. And to Vinty Lim for his research and secretarial assistance. I also acknowledge the contributions of contributors to earlier editions who have all added value to the original text written by Des Giugni and me. Des has stepped back from the current edition but his influence continues to resonate and his style continues to enliven so many of the pages. My personal debt to him is inestimable. Andrew Terry March 2016 Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. s3 [2.20] - [2.200], [2.280] - [2.460], [3.10] - [3.40], [3.80] - [3.250], [3.280] - [3.460], [5.80] - [5.120] S21.10] - [1.150], [1.250] - [1.510], [1.670] - [1.700], [1.840] - [1.880], [1.920]. TABLE OF CONTENTS s48.10]- [8.720 --s5 [8.730] - [8.1100] Table of Cases Table of Statutes ix xxxiii Part 1 THE AUSTRALIAN LEGAL SYSTEM 1 Chapter 1: The Law, the Legal System and the Constitution 3 Chapter 2: The Courts and Common Law 75 Chapter 3: The Parliament and Statute Law 103 Chapter 4: The Executive and Law-making by Administrative Agencies 135 Chapter 5: Commercial Dispute Resolution 159 183 Part 2 GENERAL PRINCIPLES OF BUSINESS LAW s6[12.1], s8 6.10] - [6.1180], Chapter 6: Contracts: Concepts of agreement Chapter 7: Contracts in Business Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Chapter 8: Torts: Concepts of Liability [12.60] [12.340], and 13 Chapter 9: Property and securities: Concepts of ownership --s10[12.350] Chapter 10: Crime: Concepts of control [12.540 [7.10] - [7.140], [7.360] [7.410], [7.560] - [7.620], [7.670] - [7.840] ---s9 [6.1290] - [6.2560], [6.2590] - [6.3130] 185 325 423 508 563 591 Part 3 BUSINESS ORGANISATION AND OPERATION Chapter 11: Alternative Business Structures 593 Chapter 12: Relationships in Business: Distributors, Agents, Employees, Independent Contractors 617 Chapter 13: Franchising 649 Chapter 14: Privacy 681 Chapter 15: International Business 703 Chapter 16: Business Failure 737 Part 4 BUSINESS, CONSUMERS AND FAIR TRADING Chapter 17: The Australian Consumer Law 757 759 Chapter 18: Misleading or Deceptive Conduct Chapter 19: Unconscionable Conduct and Unfair Contract Terms Chapter 20: Advertising and Sales Promotion Chapter 21: Supply of Goods and Services Part 5 BUSINESS AND COMPETITIVE TRADING Chapter 22: Competition Law Chapter 23: Intellectual Property s7 [23.150] s11 Chapters 18, [19.380] [19.470], [20.50] - [20.100], [20.160], [20.310] [20.570]. s12 [21.70] - [21.580] TG [21.650] - [21.820] - [23.660] Part 6 BUSINESS AND THE LAW Chapter 24: Business Regulation, Risk and Compliance Business and the Law Index Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. 807 881 923 965 1015 1017 1157 1253 1255 1267 CONTRIBUTORS Susan Carter is an adjunct lecturer in Business Law in The University of Sydney Business School teaching business law, competition and consumer law, and IP law. She has wide experience in legal practice having worked in both large commercial firms and as in-house counsel. Cary Di Lernia is a lecturer in Business Law in The University of Sydney Business School teaching corporations law and business regulation law. He has recently been awarded his PhD for his thesis on corporate reporting and disclosure and is widely published in the areas of corporate regulation and franchising. Ross Hodgson is a solicitor in private practice and an adjunct lecturer in Business Law in The University of Sydney Business School teaching business law and corporations law. Joseph Huan is a solicitor and sessional tutor in Business Law in The University of Sydney Business School with publications in the areas of distribution and nano technology. Patty Kamvounias is a senior lecturer in Business Law in The University of Sydney Business School teaching business law and competition and consumer law. Her most recent book, Higher Education and the Law, co-edited with two colleagues, was published in 2015. Simone Lockhart is a corporate lawyer, specialising in international business, with extensive experience in legal practice having worked in a leading commercial firm and as in-house counsel. She is a sessional lecturer in Business Law in The University of Sydney Business School teaching business law. Juliette Overland is a senior lecturer in Business Law in The University of Sydney Business School teaching corporations law, regulation of capital raising and corporate crime courses. She has recently completed her PhD on the topic of corporate liability for insider trading. Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Trang Quang is a sessional lecturer in Business Law in The University of Sydney Business School teaching business and corporations law courses. Graham Raffell is a sessional lecturer in Business Law in The University of Sydney Business School teaching business law. He has had a long career in private practice in commercial litigation, both as a solicitor and a barrister, specialising in insolvency matters. Andrew Terry is a Professor of Business Regulation in the Discipline of Business Law in the University of Sydney Business School teaching business law, business regulation and franchising courses. He is Emeritus Professor of UNSW and Honorary Dean of Beijing Normal University’s Franchise Management School and has been inducted into the Australian Franchising Hall of Fame. Anna Ward is a lawyer with Special Broadcasting Service (SBS) specialising in media and copyright law, and a sessional lecturer in Business Law in The University of Sydney Business School. Contributors to the 5th edition: Michael Adams; Janet Austin; Jenny Buchan; Anne Durie; Bruce Gordon; Wayne Gumley; Jason Harris; John McLaren; David Melz; Anne O’Rourke; Xanthe Paltridge; Greg Pearson; Dale Pinto and Tracey Sweeney. Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-08-29 05:07:38. TABLE OF CASES Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. A A Firm of Solicitors, Re [1995] TLR 263 ..................................................................................................................... 7.1100 A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308 ..................................................................... 19.10 ACCC v AGL Sales Pty Ltd [2013] FCA 1030 ........................................................................................................... 17.650 ACCC v Abel Rent-a-Car Pty Ltd [1999] FCA 314 ....................................................................................................... 7.640 ACCC v AirAsia Berhad Company [2012] FCA 1413 ................................................................................................. 20.500 ACCC v Allergy Pathway [2011] FCA 74 .................................................................................................................... 18.870 ACCC v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ........................................................................................... 19.210 ACCC v Alstom Australia Limited (unreported, MR 78/01, 6 April 2001) .................................................................. 22.750 ACCC v Apple Pty Ltd [2012] FCA 646 ...................................................................................................................... 17.650 ACCC v Australian Safeway Stores Pty Ltd [1997] FCA 450 ...................................................................................... 24.80 ACCC v Baxter Healthcare Pty Ltd [2007] HCA 38 ................................................................................................... 22.150 ACCC v Black & White Cabs Pty Ltd [2010] FCA 1399 .......................................................................................... 22.1480 ACCC v Boral [2001] ATPR 41-803 .......................................................................................................................... 22.1910 ACCC v Boral Ltd [1999] FCA 1318 ........................................................................................................................... 22.300 ACCC v Boral Ltd [2001] FCA 30 ............................................................................................................................... 22.300 ACCC v Bytecard Pty Limited [2008] VCAT 482 ........................................................................................................ 19.440 ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 .................................................................. 19.120, 19.340, 19.380 ACCC v Capalabo Pty Ltd [2004] ATPR 41-976 ........................................................................................................ 19.280 ACCC v Chen [2003] FCA 897 ........................................................................................................................ 7.850, 23.230 ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 ...................................... 18.390, 18.560, 18.570, 18.670 ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 ............................................................................. 19.320 ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 ............................................................................... 20.100 ACCC v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 ................................................................. 17.650, 20.100 ACCC v Cotton On Kids Pty Ltd [2012] FCA 1428 .................................................................................................... 17.650 ACCC v Craftmatic Pty Ltd [2009] FCA 972 .............................................................................................................. 19.250 ACCC v Dukemaster Pty Ltd [2009] FCA 682 ................................
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