What is Law?An authoritative system of religious or secular norms, written or unwritten, which govern a society, can empower or discipline its members and can be enforced by sanctions.

Where does law come from?Natural Law• Speaks of a “law of nature” - not created by

person/culture.• It exists independent of collective or

individual will. It simply is. It is universal and immutable. It is a higher law. It is discoverable by reason (this gives it

the quality of natural-ness).Positivism Two major tenets:

There is no necessary connection between law and morality;

Legal validity is determined by reference to basic social facts ie- It is law because the

King/Queen/Government said so.

Legal History and Reception of Law into Australia

Inception: 1066 – conquest of England by William,

Duke of Normandy Feudal system of land tenure based on

formal social hierarchy

Legal History – England Curia Regis, (King's permanent court)

exercised judicial powers by virtue of the king's prerogative

From the mid 1600's, the Curia Regis became known as the Privy Council It lost much of its judicial powers

except it still retained jurisdiction to hear appeals from courts established in Britain's overseas colonies (including Australia)

The Writ System: Curia Regis was divided into three common

law courts Court of Common Pleas (subject –

subject disputes) Court of Exchequer (revenue disputes) King’s Bench (royal interests)

Court procedures became more formal – the Writ

Equity: 15th century – writ system became rigid

Access to justice denied Focus on form rather than substance

King delegated power to his Chancellor (in early days usually a bishop) to hear disputes where rigidity of form led to unfairness

Development of the Court of Chancery (Equity Court) Body of law created by this court is

called ‘Equity’.

Development of Equity:New Remedies/Forms

of ReliefNew Rules

Specific performance TrustsInjunction Promissory EstoppelRescission Unconscionable

ConductRedemption Breach of confidence

Unjust enrichment

The First Parliaments: 1215 – King John forced to sign Magna Carta 1265 - first parliament summoned by Simon

de Montfort

1295 – Model Parliament summoned by King Edward I Its role primarily advisory

1414 – King Henry V formally acknowledged that no new statutes should be made without the consent of the Commons

Separation of Power:

The First Fleet: 26 January 1788

Blackstone’s Principle:

"..If an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every

subject, are immediately then in force. But this must be understood with very many and with very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony.."

The First Colony: The law which the colony of NSW "received"

in 1788 included:

King

Tenant in Chief

Subtenant

Freeman

Freeman

Subtenant

Freeman

Freeman

Tenant in Chief

Subtenant

Freeman

Freeman

Subtenant

Freeman

Freeman

English statutes in existence at the time of settlement as appropriate to the circumstances of the colony

AND English case-law (both common law

and equity) in existence at time of settlement as appropriate to the circumstances of the colony

1823 New South Wales Act 1823

Enacted by the Imperial Parliament Authorised the creation of:

Legislative Council (parliament); and

Supreme Court of New South Wales

1828 Australia Courts Act 1828

Enacted by the Imperial Parliament The laws and statutes of England then

in force applied to Australia as far as practicable Note: not the laws as they were in

1788, but in 18281850 Australian Constitutions Act 1850

Enacted by the Imperial Parliament Created the separate colony of Victoria Enabled colonies (NSW, Victoria, SA,

WA and Tasmania) to pass their own constitutions and form separate legal systems

1865 Colonial Laws Validity Act 1865

Enacted by Imperial Parliament Clarified that colonial legislatures were

only bound by statutes of the English Parliament which extended to them (paramount force)

No colonial law to be invalidated on the basis of inconsistency with English law

Colonial legislatures had the power to amend their own constitutions, if consistent with manner and form

Federation: Constitutional conventions were held in the

1890's to draft a constitution. Drafts were reviewed by the parliament of

each colony and accepted in referenda. The draft was then submitted to the

Imperial Parliament Commonwealth of Australia Constitution

Act 1900 (Imp)

Division of Power: Commonwealth- Commonwealth of Australia Constitution

Act

Division of Power: The States

State Powers:NSW: s 5: The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever.Qld: s 2: Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever.

Vic: s 16: The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.

Federal Powers:Section 51 and 52

In cases of conflict: S 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (Commonwealth wins out)

1931 Statute of Westminster 1931 Enacted by Imperial Parliament

British Parliament would not pass legislation applying to any of the dominions/colonies unless at the dominion’s request

The Act would not come into operation until passed by the dominion’s domestic parliament

Australia passed it in 1942 Made retrospective to 1939

1986 Australia (Request and Consent) Act 1985

Enacted by Commonwealth Parliament Requested UK to give up whatever

power it had over Australia (paramount force)

Australia Acts 1986 Enacted by both British and

Commonwealth Parliaments“No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory”

Legislature and Legislations:

The Process:

Types of Statutes: Public Acts: statutes that apply to the public

at large Private Acts: statutes passed for a particular

individual or group Codes: a statute which draws together both

statute and case law on a topic Uniform laws: a template statute is enacted

in one jurisdiction and then copied (wholly or substantially) by other jurisdictions

Consolidations: brings together the original statute law on a topic and the subsequent amendments

Reprint: amended Acts are reprinted as an alternative to the enactment of consolidating Acts

Declaratory Acts: statutes enacted by Parliament to clarify the meaning, scope or validity of a particular law

Omnibus Acts: a statute which incorporates amendments to a number of different Acts

Cognate Acts: a statute which is subsidiary to a principal Act, and deals with consequential or transitional matters

The Process: Queensland- Abolished the Senate

o Legislative Assembly

Beginnings: What is ‘commencement’? Acts Interpretation Act 1901 (Cth)

s 3(1):  In every Act, commencement , in relation to an Act or a provision of an Act, means the time at which the Act or provision comes into operation.

Acts Interpretation Act 1901 (Cth) s 5(1A): 28 days after assent unless

another date is specified in the Act s 5(1B): Acts am7ending the

Commonwealth Constitution – on date of assent

s 5(2): Every Act reserved for the signification of the King’s pleasure thereon shall come into operation on the day on which His Majesty’s assent is proclaimed in the Gazette by the Governor General, unless the contrary intention appears in such Act.

s 6: date appearing on copy of Act printed by Government Printer purporting to be date of assent is evidence of date of assent.

Acts Interpretation Act 1954 (Qld) s 15A: An Act commences on the date

of assent except so far as the Act otherwise expressly provides.

s 15B: If an Act or a provision of an Act commences on a day, it commences at the beginning of the day.

s 15D: (1) If an Act or provisions of an Act is or are expressed to commence on a day to be fixed by proclamation or other instrument— (a) a single day or time may be

fixed; or (b) different days or times may be

fixed for different provisions. (2) If the day or time fixed by a

proclamation for the commencement of an Act or a provision of an Act happens before the day on which the proclamation is notified in the gazette (the notification day)—

(a) the proclamation is valid; but

(b) the Act or provision commences on the notification day.

Changing (Acts): Amendments

Amending legislation Omnibus amending legislation

Repeal Express repeal Implied repeal

Statutory Interpretation: Rebuttable Presumptions In the absence of an express intention or a

necessary implication to the contrary, it is presumed that statutes: containing penal provisions are strictly

construed (i.e. interpreted against the author – the State, and in favour of the individual)

do not take away property rights without compensation

do not operate retrospectively do not bind the Crown do not have extraterritorial effect do not abrogate fundamental common

law rights do not deprive people of access to

courts

Statutes do not operate retrospectively It is clear that parliaments have power

to enact legislation with retrospective effect: R v Kidman (1915) (HC)

Where legislation is not express on retrospective application, the issue to be considered is whether the presumption in this section applies.

Rodway v R (1990) (HC) The rule at common law is that a

statute ought not be given a retrospective operation where to

do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction.

Parliament does not interfere with fundamental rights Al-Kateb v Godwin (2004) (HC)

Indefinite immigration detention Courts do not impute to the

legislature an intention to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment (per Gleeson CJ)

Coco v R (1994) (HC) Trespass to install listening devices Curial insistence on a clear

expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights

Statutory interference with rights may occur by implication.

Parliament does not abrogate the privilege against self-incrimination or legal professional privilege Such fundamental rights will not be

considered to have been removed by legislation unless by clear words or necessary implication.

Crafter v Kelly [1941] K was charged for refusing to

answer a question under a

particular provision in an Act which stated that failure to answer a lawful question by a person shall lead to that person being guilty of an offence.

Held: K has not committed an offence under this section; the common law right not to incriminate oneself was held to have survived the enactment of the section K was charged under.

Rule: A question whose answer might tend to incriminate the person being questioned was not a lawful question under the section.

Parliament does not deprive people access to the courts A provision in legislation that purports

to deprive access to the courts is called a ‘privative clause’.

Plaintiff S157/2002 v Commonwealth (2003) (HC) It is presumed that the parliament

does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies

Privative clauses are very strictly construed

See recently comments of the HC in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1

Courts and Cases:

Case Law: Courts originally derived their authority

directly from the monarch (King or Queen). Remember Curia Regis? Now courts derive their authority from

Acts of Parliament - laws passed by the

duly elected Parliament (or other authority)

Example:Magistrates Courts Act 1921 (Qld ) 4 Jurisdiction of Magistrates Courts Subject to this Act— (a) every personal action in which the amount

claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set off or otherwise; and

(b) every action brought to recover a sum of not more than the prescribed limit, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will; and

(c) every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit; may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions.

Declaratory Theory Ignorance of the law is no excuse Case law operates retrospectively

Stare Decisis: Doctrine of stare decisis: ‘let the decision

stand’, once properly decided, a legal issue should not be decided again. Courts must follow their prior decisions (precedents) when determining the outcome of like cases.

Doctrine of Precedent:

Doctrine of Precedent: a court is bound to follow decisions of courts higher than itself in the same hierarchy of courts.

Doctrine of Precedent –Rule 1:A court is bound to follow the decisions of courts superior to it in the same appellate hierarchy. Corollary: Lower decisions, and those from

other hierarchies are not binding, but are more or less persuasive depending on a number of factors - level of court in its own hierarchy; quality of reasoning; age of decision etc.

Doctrine of Precedent –Rule 2: A court faced with two apparently

conflicting binding authorities must follow the later authority.

Doctrine of Precedent –Rule 3:Courts at the same level: (a) may or may not follow their own previous decisions; and(b) they must determine their own practice in this regard.

Precedent: Ratio, obiter, facts Ratio decidendi is binding Obiter dicta may be persuasive

Obiter dictum = ‘things otherwise said’, a statement of law not strictly necessary for the decision made by the court.

For example, statements made in conjecture About what the law should be but

is not; or About how they would decide if the

facts were different Findings of fact do not bind a

subsequent court The parties to a case are estopped from

re-opening findings of fact between themselves

Res Judicata

Ratio Decidendi:Ratio decidendi= reasons for decision

= legal principles= rules

Note: Only if it can be expressed as a legal principle or rule

Equally Divided Courts:If the Court is equally divided in opinion –(a) in the case where a decision of a Justice of

the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of a Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed.

(b) in any other case, the opinion of the Chief Justice, or if he is absent the opinion of the Senior Justice present, shall prevail.

Court Hierarchy3 reasons for knowing court hierarchies: where should an action be commenced? where can appeal be taken? what previous decisions must a judge /

court follow?

Court Jurisdiction:

Court Hierarchy: State

Who To Follow? The earlier decision is of a higher Court, but

the later decision is of a still Higher Court. The lowest court must follow the later decision. EG. A District Court judge is faced with

decisions of: 1963 Appeal Court Qld 1976 Full Bench of the High Court

The later decision overrules the earlier decision, so the current court must follow the later decision. In fact, because the first decision was overruled it is no longer a binding precedent, so there is not really a conflict between binding decisions.

The earlier decision is of a higher court and the later decision is of an intermediate court. The court must follow the later decision

EG. A Magistrate is faced with decisions of:

1981 Appeal Court 1989 District Court

Although the Magistrate considers that the second decision is in conflict with the earlier decision, he or she must assume that the District Court judge, being of a Court superior to him or her, would have complied with the doctrine of precedent and followed the earlier decision unless there was good reason not to; ie assume the District Court judge has acted properly. As the District Court decision is a binding decision, it must be followed. Miliangos v. George Frank (Textiles) Ltd

[1976] AC 443 at 478

If Not Binding: What makes a decision persuasive?

Quality of reasoning Consistent line of cases Age

Old, established case Recent, up-to-date decision

Level of court in own hierarchy

Privy Council: 1968 : Appeals on federal matters to Privy

Council abolished. 1975: High Court abolished the right to

appeal any High Court decisions to Privy Council.

1986: State Supreme Courts right of appeal to Privy Council abolished. British precedent not binding on Australia, just persuasive.

Principle of Statutory Interpretation

Relationships Courts and Parliaments: How do they fit

together? Parliament is supreme.

Except,

Courts can declare Acts of Parliament invalid if:- 1. the law is beyond the

power of the parliament - unconstitutional / ultra vires.

2. proper procedures (“manner and form”) to make the law have not been complied with.

Statutory Interpretation:- “Whatever the difficulties of construction

may be, the Court is bound to give some meaning to the section, and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used.“

Scott v Moses (1958) 75 WN (NSW) 101

Help: In the process of interpreting a piece of

legislation a Court can gain assistance from many areas - dictionary, surrounding words and sections, parts of the Act such as title and headings, reading speeches in Parliament, earlier versions of the Act, cases.

Ejusdem generisUsed to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation. Where words that have an otherwise wide

meaning are limited by their context When a series of particular words

constituting a genus is followed by general words, the general words will be read down

and confined to the same genus as the particular words

A genus MUST be establishedR v Neal, Regos & Morgan (1947) 74 CLR 613“the specific things enumerated must “possess some common and dominant feature”Stewart v Lizars [1965]VR 210‘litter’ was defined as meaning “bottles, tins, cartons, packages, paper, glass, food or other refuse or rubbish”’- What about ‘car sump oil’?

Noscitur a sociis“Help interpret legislation, under which the questionable meaning of a doubtful word can be derived from its association with other words.” An Act must be read as a whole. The

meaning of a word or phrase is to be derived from the context in which it appears.

The rule will not be applied if the literal language of the word or phrase is sufficiently clear to operate independently of the context.

Example:Richardson v Austin (1911) 12 CLR 463 ‘streets, lane entries or other public

passages or places’ Court held that ‘public’ applied to ‘places’ as

well as ‘passages’

Expressio unius est exclusio alterius If one member of a class or group, not

necessarily a genus, is expressly mentioned, the implication is that other members of the same class or group are excluded. Must be applied with caution.

Items not on the list are impliedly assumed not to be covered

Leges posteriores priores contrarias abrogant In the case of inconsistency between an

earlier and a later Act or sections of the one

Act, the latter shall be preferred as the latter is presumed to have repealed the earlier.

Common Law Rules: Literal Rule

Requires the Court to give the words used their ordinary and natural meaning according to the usual rules of grammatical construction (rules of syntax or sentence construction).

The rule does not require words to be read in isolation. They are to be read in the context of the legislation as a whole. The difficulty is that words seldom have one generally accepted meaning.

The Golden Rule The grammatical and ordinary sense of

the words is to be adhered to (apply the literal approach), unless this would lead to some absurdity or inconsistency (which presumably parliament did not intend).

In which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.

The Mischief Rule Allows the Court to interpret the

legislation so as to overcome the mischief that the legislation was passed to overcome.

The rule requires judges to examine the law before the particular Act was passed and to identify the defect that the statute was supposed to remedy – the purpose for which it was passed.

Preferred Approach Historically the Literal Rule was preferred More recently the Mischief Rule is preferred The Common Law Rules have largely been

superseded by legislation

Legislation: Acts Interpretation Act 1901 (Cth) Acts Interpretation Act 1954 (Qld) Acts Interpretation Act 1915 (SA) Acts Interpretation Act 1931 (Tas) Interpretation Act 1987 (NSW) Interpretation Act 1984 (WA) Interpretation of Legislation Act 1984 (Vic)

Acts Interpretation Act 1901 (Cth)

Section 15AA Regard to be had to purpose or object of Act (1)  In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

Section 15AB Use of extrinsic material in the interpretation of an Act              (1) Subject to subsection (3), in the

interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: a. (a)  to confirm that the meaning of the

provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

b. (b)  to determine the meaning of the provision when:

i. (i)  the provision is ambiguous or obscure; or

ii. (ii)  the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose

or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

Statutory Interpretation:Acts Interpretation Act 1954 (Qld) (‘AIA (Qld)’) Section 32B gender references include other

genders. Section 32C singular includes plural; plural

includes singular Section 32D reference to person includes

corporation

DISTANCESection 37 AIA(Qld) provides for measurement of distances “along the shortest road ordinarily used for travelling”. This could vary from time to time with the re-routing of roads. Alternatively, if the context requires, distance may be measured “in a straight line on a horizontal plane” (as the crow flies) or in another way. This permits measurement artificially on a map.

TIMESection 38(1) AIA(Qld) provides several methods of reckoning time.(b) for times "from a given day, act or event“ - that day is not counted, but the day on which the purpose is to be fulfilled must be counted.Example: "A defence shall be filed within 20 days of service of writ." A writ is served on 1 June. The act or event here is the service. The purpose to be fulfilled is the filing of the defence. Count 20 days starting on, and including, 2 June, which takes you to 21 June. The last day is counted, so the defence must be filed by the end of the 21st.

Section 38(1) AIA(Qld) provides several methods of reckoning time.

(a) where the time prescribed is in "clear days" the day on which the purpose is to be fulfilled is not counted.Example: if rule above provided "A defendant shall have 2 clear days from service before the hearing" the 1st would again be excluded from the count, and 2 days counted from and including the 2nd and 3rd, but the hearing could not be until the next day.

Section 38(2) AIA(Qld) where the last day for doing anything is not a business day in the place where it is to be done, the thing may be done on the next business day in the place.

Section 38(4) where no time is prescribed for doing something which is required to be done then it must be done as soon as possible and as often as the relevant occasion happens.

Section 32CA AIA (Qld) Meaning of “may” and “must” etc.(1) In an Act, the word “may”, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.(2) In an Act, the word “must”, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised. (3) To remove any doubt, it is declared that this section applies to an Act passed after 1 January 1992 despite any presumption or rule of interpretation.

Section 32A AIA (Qld) Definitions to be read in contextDefinitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.Section 32AA AIA (Qld) Definitions generally apply to entire ActA definition in or applying to an Act applies to the entire Act.

Derivatives of definitions Section 32 AIA (Qld) provides that: "If

an Act defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings"

eg. drive, drove, driver. Definition or "Interpretation" section in Act

itself "unless a contrary intention appears" -

even if such a phrase is not included it may be implied.

"means" and "includes" "means" is exhaustive of class "includes" is not exhaustive of

class unless the intention is that it is equivalent to "means and includes"

The Doctrine of Precedent

The Doctrine of Precedent – Rule 1A court is bound to follow the decisions of courts superior to it in the same appellate hierarchy. Corollary: Lower decisions, and those from

other hierarchies are not binding, but are more or less persuasive depending on a number of factors - level of court in its own hierarchy; quality of reasoning; age of decision etc.

The Doctrine of Precedent – Rule 2 A court faced with two apparently

conflicting binding authorities must follow the later authority.

The Doctrine of Precedent – Rule 3Courts at the same level (a) may or may not follow their own previous

decisions; and(b) they must determine their own practice in

this regard.

Case law - Terminology distinguish: find material facts which are

different justifying different decision, although applying same rule(s)

follow: lower court follows higher court precedent

apply: court applies rule from earlier case overrule: higher court overrules lower court

rule affirm: appeal court agrees with lower court

decision = appeal dismissed reverse: appeal court reverses lower court

decision = appeal allowed approve: court agrees with lower court

statement of principle/law dissent: a judge disagrees with majority

judges in the same case concur: a judge agrees with other judge(s)

in the same case

Avoiding Precedent:Judges may find: that the statement of law in the earlier case

is too wide and should be confined to its facts – the RATIO should be RESTRICTED

that the statement of law in the earlier case is obiter dictum and is therefore not binding – there is NO RATIO

that the material facts of the earlier case are so different that the conclusion of law arrived at is not applicable – DISTINGUISHED on its facts

that the decision has subsequently been OVERRULED (later conflicting decision)

that social conditions and public policy have changed – ratio is now INAPPLICABLE

that the earlier decision was wrongly decided, that it has been given PER INCURIAM (through want of care, inconsistently with relevant legislation or a binding authority).

Dispute Resolution - Litigation

Trial:Criminal Proceedings

Protecting the Vulnerable:“better that ten guilty persons escape than that one innocent suffer”Sir William Blackstone Fundamental principles of criminal law:

1. The presumption of innocence2. The burden of proof3. The standard of proof4. The right to silence5. The rule against double jeopardy

Legislative protection- Evidence Act 1977 (Qld)- Justices Act 1886 (Qld)

- Police Powers and Responsibilities Act 2000 (Qld)

- Penalties and Sentences Act 1992 (Qld)

Civil Proceedings Voluntary

Negotiated outcomes – direct negotiation

Negotiated outcomes – mediated negotiation

Pre-agreed or post conflict negotiated Compulsory

Conciliation Negotiation Other forms of Arbitration

Advantages of Litigation:• guaranteed to result in a decision• enforcement facilities • open and accountable procedure• public record• clearer precedents• neutral judge balances powerDisadvantages of Litigation:• breaks relationships• limited remedies• must allocate ‘blame’• tends to be all or nothing• costly - time and $• loss of privacy

Dispute Resolution – Facilitation

Disputes: A dispute arises when a person/group

makes a claim, demand or complaint on or against another person/group and the claim is unsatisfied or rejected, and pursued by the first mentioned person/group

Circumstances of Disputes: Family disputes Neighbourhood, community, landlord and

tenant disputes

Workplace disputes Consumer disputes Commercial disputes Environmental disputes

Options: Negotiation Mediation ArbitrationNegotiation: A process by which the parties confer with

each other for the purpose of reaching an agreement that satisfies their respective interests

It can take two forms: Unassisted Assisted

Mediation: A form of assisted negotiation A process by which a neutral third party

assists the two parties to the conflict to reach an agreement that satisfies their respective interests

Arbitration: A process in which an independent third

person is authorised to impose a decision upon the parties to a dispute

Appropriateness – negotiation and mediation Negotiation and mediation are appropriate

process where:

There are multiple parties to the dispute

The dispute has a high emotional content

The parties wish to continue in a long term relationship

There are multiple interactive issues and the parties have differing priorities on which they can trade or compromise

The parties are willing to trade or compromise on some issues

Appropriateness - arbitration Arbitration is an appropriate process

where: The dispute involves technical and

practical issues An immediate resolution of a

specialised problem is required There is a need to shift responsibility

for a decision to a third party Only money is at stake and the amount

involved does not justify expenditure of large amounts in legal costs

Effectiveness – negotiation Likely to be effective where:

Parties are able to identify and agree on the disputed issues

Parties have some incentive to negotiate

Parties are willing to negotiate on at least some issues

Parties area aware that alternatives to the negotiated settlement are not as viable or desirable

Parties have some degree of trust in each other

Parties have the ability to influence each other

The interests of the parties are not entirely incompatible

Effectiveness - mediation Likely to be effective where:

Parties have a history of co-operation and successful problem solving on some issues

Parties do not have a long history of conflict

Parties have been able to agree on some issues

Parties’ hostility and anger toward each other is moderate or low

Parties have an ongoing relationship Parties’ desire for settlement is high Parties accept the intervention and

assistance of the third party Parties have some incentive to

negotiate There are adequate resources to affect

a compromise Parties have the ability to influence

each other

Negotiation:Negotiation styles:- competitive vs cooperative- hard vs softApproaches:- Positional vs Interest basedStages: Initial contact Preparation for the negotiation

Conduct research Prepare a working agenda and identify

issues Identify interests of the parties BATNA and WATNA Settle upon tentative opening offer Consider trade-offs and concessions Consider options for settlement Confirm client’s instructions

Negotiation session

Achievement of formal agreement

Stages of Mediation: Preliminary conference Main session Mediator’s opening statement Parties’ statements and expression of

interests Identification of areas of agreement Identification of issues and agenda

formation Exploration of issues Option generation Negotiation Formalisation of agreement and conclusion

Stages of Arbitration: Arbitrator is appointed Claimant (within 21 days) provide each

party to the dispute: Statement of Dispute Evidence and Expert Reports Written Submissions

Other parties (within 21 days) provide the following:

Response to the Claimant Documents

Evidence and Expert Reports Objections to Evidence and Expert

Reports by Claimant Written Submissions

Parties may respond (within 21 days) to any of the documents served

Arbitrator may direct that experts attend an Experts’ Conclave

Arbitrator may make other directions or rulings

Arbitrator may decide the matter on written documents provided

Arbitrator may determine that an oral hearing is required

Arbitrator delivers decision

Duties of Legal Practitioners:

Duties of legal practitioners representing parties in a negotiation or mediation: Duty of representation Duty to inform, advise and act on

instructions Duty to continue to act Duty of competence and diligence Duty of loyalty Duty of confidence

Duties of Mediators: Mediators owe the parties a duty to:

Duty of reasonable care and skill Duty of neutrality and impartiality Duty of loyalty Duty of confidence Duty to assist the parties to reach a fair

agreement

Duties of Arbitrators: Arbitrators owe the parties a duty to:

Duty of independence Duty of fairness and impartiality Duty of expeditious and cost-effective

proceedings Duty of reasonable care and skill

The Legal Profession:

Current High Court Justices:- Chief Justice French- Justice Hayne- Justice Crennan- Justice Kiefel- Justice Bell- Justice Gageler- Justice Keane

Royal Commissions: Purposes

Inquire into matters of political significance Eg, political corruption in

Queensland (1987) Eg, equine influenza (2009)

Subject to general or special legislation in terms of powers and nature of proceedings

Subject to terms of reference defined by government

Law Reform Commission:Australia Government:Established in 1975, the Australian Law Reform Commission is a permanent, independent federal statutory corporation, operating under the Australian Law Reform Commission Act 1996 (Cth).The ALRC conducts inquiries - known as references - into areas of law reform at the request of the Attorney-General of Australia.

Queensland:The Queensland Law Reform Commission is an independent statutory body funded by the Queensland Government. It makes recommendations on areas of law in need of reform, and submits reports to the Attorney- General which are required to be tabled in Parliament.

Judges:Duties during trial: is to preside over the Court proceedings to hear the arguments of Barristers decide the admissibility of evidence question the Witnesses (on rare occasions) answer the questions of the Jury instruct the Jury on applicable law sentence the Defendant

Barristers: Both sides in a trial are represented by

Barristers In the Courtroom the Barrister:

presents their client’s case to the Judge and Jury

questions the Witnesses Outside the Courtroom the Barrister:

writes ‘opinions’ on how the law applies to legal matters

Solicitors: In the Courtroom:

gives advice to clients drafts documents writes legal letters gathers evidence prepares cases for Court In the Courtroom the Solicitor: assists the Barrister during the trial prepares the Witnesses drafts and files documents In simple matters the Solicitor may

address the Judge on behalf of the client

Court Officer: The role of the Court Officer is to assist the

Judge Duties of the Court Officer include:

call Defendants, Witnesses, Barristers and Solicitors outside the Courtroom

swear the Witnesses in the witness box ensure silence in the Courtroom receive items tendered as evidence assist individuals who have enquiries

Jury: The Jury decides what the facts of the case

are The Jury decides on the facts presented if

the Accused is guilty or not guilty If the Jury returns a verdict of ‘Guilty’ it is

the role of the Judge to sentence the Accused

Not everyone can sit as Juror: the Governor a member of Parliament a local government mayor or other

councillor person who is or has been a judge or

magistrate (in Queensland or elsewhere)

a lawyer engaged in legal work a person who is or has been a police

officer (in Queensland or elsewhere) a person who is 70 years or more a person who is not able to read or

write the English language a person who has a physical or mental

disability that makes the person incapable of effectively performing the functions or a juror

a person who has been convicted of an indictable offence

a person who has been sentenced (in Queensland or elsewhere) to imprisonment

Witnesses: Witnesses may only testify about matters

they have a personal knowledge of (ie: things they saw, heard, felt, tasted, smelled) Any other evidence is hearsay and is

not admissible Evidence may be given: Orally in Court; or Written in an Affidavit

The Rules: Where from? The relationship between a lawyer and his

or her client is governed by: the general law (particularly the law of

contract, torts, and equity); legislation (some dealing specifically

with the legal profession); and professional practice rules.

Contract: The relationship between a solicitor and

client is contractual. The contract of service is referred to as a ‘retainer’. A solicitor is required to exercise

‘reasonable care and skill’ in carrying out his or her obligations under the retainer.

Breach of the retainer can lead to civil action by the client for damages.

Tort: There is also a duty, outside contract, in tort

for negligence. For example, if a solicitor negligently

advises how a will is to be witnessed and causes the gift to fail, he or she will be liable for the loss.

NB Barristers are not liable for negligence in the courtroom The immunity only pertains to in-court

conduct during proceedings before a court or tribunal.

Equity: The special nature of the relationship

between a lawyer and the client is recognised by the law of equity. The relationship is considered to be a ‘fiduciary relationship’.

A fiduciary is obliged to give undivided loyalty to the client, to avoid a conflict of interest, to account for any benefit or gain obtained by the fiduciary, and to protect the confidentiality of information confided by the client.

Legislation: Today : state regulation Future : National Legal Profession Model Bill

(COAG National Legal Reform Taskforce) National legal profession and legal

services market National standards, policies and

practices Freedom of movement within Australia Uniform consumer rights Efficient, effective and robust

Professional Practice Rules: The professional bodies in each state (that

is, the Law Societies and Bar Associations)

have established rules of conduct for their members.

The rules provide guidance to lawyers on a range of ethical issues, but they do not provide an exhaustive code of conduct for practitioners.

The Rules: Duties To the Courts To the Profession To the Client

Duties to the Court: Duties to the court (to uphold the law and

the administration of justice Duty to act with courtesy Duty not to mislead Duty of candour Duty to advise court of all relevant law Duty to avoid unnecessary expense or

waste court’s time

Duties to the Profession: Duties to opponents

Duty to respect privileged communication during settlement negotiations

Duty to uphold personal undertakings Duty not to communicate with another

practitioner’s client

Duties to the Client: Duties to the client

Duty of representation Duty to inform, advise and act on

instructions Duty of competence Duty of loyalty Duty of confidence (legal professional

privilege) Duty to facilitate settlement Duties relating to client funds

Discipline: Queensland Legal Practice Committee, Legal

Practice Tribunal Unsatisfactory conduct Professional misconduct Penalties Reprimand Fine Suspend Strike off Conditions on practice