Chapter 2 - The Australian court system. At the end of this chapter you should understand: the doctrine of the separation of powers; the role played by the courts in making law; the jurisdiction of federal and state courts and tribunals; the doctrine of precedent, including the difference between a binding and a persuasive precedent;...
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Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev ã2-1 THE AUSTRALIAN COURT SYSTEM CHAPTER Copyright â 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-2 Learning objectives At the end of this chapter you should understand: • • • • • • • • • the doctrine of the separation of powers the role played by the courts in making law the jurisdiction of federal and state courts and tribunals the doctrine of precedent, including the difference between a binding and a persuasive precedent the adversary system of justice the trial process the way to read a statue effectively and the purpose of dividing statutes into several parts the rules of statutory interpretation and their application to a set of facts how to effectively read a case reported in a law report Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-3 Introduction • Businesses operate within the Australian legal framework • You need to understand the role played by the various courts in Australia, how they operate and make decisions and how such decisions can effect the regulation and operation of business • You need to understand the effect of legislation upon the regulation and operation of business Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-4 The doctrine of separation of powers • This is the foundation upon which Australia’s system of democracy rests • It puts checks and balances in place to stop one arm of government having absolute power • Essentially provides that government is composed of three arms who should be responsible for separate functions: – the legislature (parliament), which makes the law – the judiciary (courts), which interprets and enforces the law – the executive (ministers/cabinet), which administers the law • It provides that one arm of government should not be controlled by either of the other two arms, nor should it exercise the functions of another Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-5 Laws made by the courts • Called common law, case law, judge-made law • Courts interpret statutes and apply commonlaw principles • In doing this, courts may establish legal principles that can be used in subsequent cases with similar facts Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-6 The doctrine of precedent (stare decisis) • Courts should treat similar cases in similar fashion to encourage consistency and certainty in decision making and fairness for litigants • Precedent: a past judgement of a court cited as authority for the legal principle embodied in a new decision • A judgement is composed of two parts: – Ratio decidendi: the reason for the decision made by the judges – Obiter dictum: observations made by judges in explaining or further clarifying their decisions Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-7 Precedents • Binding precedent Courts must follow the ratio decidendi of judgements made in higher courts in the same court hierarchy • Persuasive precedent Courts may follow the ratio decidendi of all other courts not higher than them in the same court hierarchy, or the obiter dicta of all courts Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-8 Advantages and disadvantages of precedent Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-9 The hierarchy of the Australian courts • A dual system: – Federal legal system – State legal system • Courts are graded in order of importance—‘hierarchy of courts’ • Jurisdiction of courts – Original jurisdiction: Certain matters can be heard for the first time – Appellate jurisdiction: Hearing a matter on appeal from another court Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-10 Specialist federal tribunals (cont.) • Human Rights and Equal Opportunity Commission (HREOC)—addresses the human rights concerns of both individuals and groups • The Migration Review Tribunal and the Refugee Review Tribunal—makes independent and final decisions in relation to visas to travel to, enter or stay in Australia Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-15 Specialist state tribunals • Small claims tribunals—for consumers to complain about activities of traders • Residential tenancies tribunals—for landlords and tenants to resolve disputes relating to matters such as payment or raising of rent, security bonds, maintenance of premises and eviction • Industrial relations commissions—prevent and settle disputes, determine industrial matters, and may approve statutory employment agreements Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-16 Adversary system of justice • Features – Two opposing or adverse sides in a dispute – An independent person hears the dispute and ensures compliance with certain rules – Overall concept that the competitive arena will produce the best arguments and the truth will be ascertained by the decision maker, be it judge or jury • Matters of proof: – Standard of proof: the degree of proof required in order to succeed in a legal action – Burden of proof: which party is required to prove its case (in a legal proceeding) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-17 The trial process • Opening by prosecution/plaintiff • Calling of witnesses by the prosecution/plaintiff: – Examination-in-chief – Cross-examination – Re-examination • Opening by defence/defendant • Calling of witnesses by the defence/defendant (Same process as for prosecution/plaintiff) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-18 The trial process (cont.) • Closing addresses • Summing up to jury by judge (if a jury is used) • Judgment/verdict • Sentencing (for a defendant that has been found guilty in a criminal trial) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-19 The standard of proof Criminal matters Civil matters Standard of proof Beyond a reasonable doubt On the balance of probabilities Burden of proof Prosecution Plaintiff Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-20 Understanding Acts of Parliament • Look at how the statute is structured • Rules of statutory interpretation • Parts of an Act: – Number of an act – Long title and short title – Enacting words – Date – Table of contents – Sections, subsections and paragraphs – Marginal notes – Parts and divisions – Definition sections Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-21 Acts Interpretation Acts • These statues assist in the interpretation of Acts of Parliament • Commonwealth Acts Interpretation Act 1901, s15AA(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.' Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-22 Rules of statutory interpretation The literal rule: The courts are to interpret the words used in an Act of Parliament literally as far as they can, i.e they must give the words used in statutes the same meaning that they have in everyday use The golden rule: The courts may depart from a literal reading of the Act to prevent an absurd result Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-23 Rules of statutory interpretation (cont.) The mischief rule: The courts consider the mischief or problem that existed before the statute was passed and interpret the statute in a way that is consistent with the problem or mischief that is being addressed Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-24 Rules of statutory interpretation (cont.) The purpose approach: • Where a literal interpretation is not possible (e.g the words are ambiguous), the court may interpret the statute according to the original purpose or policy underlying its enactment • Information other than statute can be used in order to understand what was meant to be achieved Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-25 General rules of interpretation • Legislation is not intended to be retrospective • Where there are several matters specifically dealt with by a statute, matters not stated are not intended to be covered • Where there is reference to both general and specific matters, the general matters are limited to matters of a similar nature or class to the specific matters Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-26 General rules of interpretation (cont.) • Technical words used in a statute are to be given their technical meaning • If there is conflict between a general and a specific provision in the statute, the specific provision should receive precedence Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-27 Law reports • Decision of judges are recorded in law reports • Each major court has a set of law reports • Citation is the term used to refer to a case in support of a legal principle • The correct method of citing a case is by quoting the names of the parties and giving a reference to the law report where the case can be found Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-28 How to read a case reported in a law report • • Plaintiff (person bringing action) Defendant (person against whom action brought) Norwich Winterthur Insurance (Aust) Ltd v Harold Smith (Motors), Ltd Dick Bentley Productions, Ltd and Another (1965) AllER 65 Page Year case decided Volume Relevant law report Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-29 ... Fundamentals of Business Law 7Rev ? ? 2- 8 Advantages and disadvantages of precedent Copyright â 20 14 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev ? ? 2- 9... COURT SYSTEM CHAPTER Copyright © 20 14 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev ? ? 2- 2 Learning objectives At the end of this chapter you... LOCAL COURTS Copyright © 20 14 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev ? ? 2- 12 Cross-vesting laws • A disadvantage of a federal system is