law 107 week 2 reading notes chapter 4

MAJOR LEGAL CLASSIFICATIONS

COMMON LAW DISTINGUISHED FROM CIVIL LAW

The term 'common law' is used as an adjective to distinguish between common law legal systems and civil law legal systems. This is a distinction used worldwide that separates countries with legal systems that rely predominantly on the common law tradition (supplemented by statutes that frequently contain modified common law principles) from countries that have chosen to have a legal system that relies to varying degrees on codifying the law (that is, placing it all in statutes or codes). This latter type of legal system is known as a civil law system.

Common law legal systems predominate in the United Kingdom and Commonwealth countries colonised by Britain (such as Australia, New Zealand/ Aotearoa and India). Civil law legal systems predominate in Europe (in countries such as France, Germany, Italy and Switzerland), some Asian countries (such as Japan and South Korea), Latin America, and some African countries. Civil law systems are based on Roman law, particularly the Corpus Juris Civilis (Body of Civil Law), which was consolidation of Roman law ordered by Emperor Justinian and carried out between CE 529 and 534.

BRANCHES OF SUBSTANTIVE LAW

Each area of substantive law is classified under a particular branch or doctrine of law; for example, contract, constitutional, property or criminal law. Within each branch there are substantive elements of the law. For example, the elements of a contract include someone making an offer, another person accepting it, and an exchange of something of value between them. This is part of the substantive law of contracts.

The substantive branches oflaw outlined below form the core subjects of your law degree.

They are divided into public law and private law. Public law governs the legal relationships between governments, and between a government and individuals or organisations (which includes corporations). Private law regulates relationships between individuals or organisations. It can also cover governments when they act like a private organisation- for example, when a government enters into a contract with a goods or service provider, such as Pfizer, to purchase COVID-19 vaccines.

PUBLIC LAW

The three main areas of public law in a domestic context are constitutional law. Administrative law and criminal law.

Constitutional law

You will recall from Chapter 3 that Australia is a federal system of government with seven constitutions-one for the Commonwealth Government, and one for each of the six states.

Australian territories come under the power of the Federal Government," although some of them (the Australian Capital Territory: the Northern Territory and Norfolk Island) have been given self-government powers by federal legislation, which is in practice very similar to a constitution.?

Principles of law have developed to interpret the constitutions, and their relationship with one another. The constitutions, together with she cases that interpret them, are referred to as 'constitutional law. Constitutional law controls the most fundamental rules about how Australia is governed. We saw in Chapter 3 that the power of the Commonwealth Government is set out ins 51 of the Commonwealth Constitution. Important powers found in that section include trade and commerce, tasation and external affairs. Key issues in constitutional law are: the scope of s 51 provisions; which jurisdiction has the power to enact legislation in relation to particular matters; and how the rights in the constitution are interpreted.

Constitutional interpretation is primarily conducted by the High Court of Australia, which is able to decide whether the Commonwealth Govemment or relevant state government had the power to make the relevant piece of legislation that has come before the court.

Administrative law

Just as constitutional law limits the powers of parliament, the powers of the executive in administering and applying law are limited by administrative law. This branch of law governs the way people can challenge decisions of government departments and bodies. It is a key accountability mechanism over the powers of governors, ministers, local councils, boards, government business enterprises and public servants. It is particularly important given the extensive nature of government decision making.

If you wish to challenge a government decision that affects you, such as refusal of an application for permanent residency, here are some options for action, using the Commonwealth system as an example:

Freedom of information (FOl)-you can apply for access to government documents under the Freedom of Information Act 1982 (Cth) and the equivalent state and territory

FOI Acts." The FOl Acts provide that access should be granted to documents in the possession of gavernment, including ministers, departments and public authorities, which contain personal information relating to a member of the public. Some types of government documents are excluded, such as Cabinet papers and documents that affect the private or business affairs of individuals, national security, law enforcement, privacy or trade secrets.?

Ombudsmir--you can complain to an ombudsman. An ombudsman is a neutral, respected person appointed to investigate complaints by individuals, corporations or parliament, or to act on their own initiative. The ombudsman will look for breaches of law, unreasonableness, injustice, oppressiveness, impropriety and discrimination in government decision making. If maladministration is detected, the ombudsman can make recommendations for corrective action, but cannot actually overrule or modify the decision. Ombudsman's offices exist in all Australian jurisdictions, although in Western Australia the office is called the Parliamentary Commissioner for Administrative Investigations. ' These offices are publicly funded and provide free services."

Merits review--you can seck a review of a government decision on the merits. A tribunal will then place itself in the shoes of the decision maker, review all the facts, law and information available to that decision maker, and then review the fact finding and sometimes policy choices involved in the previous decision, as distinct from its lawfulness. The tribunal will then decide whether the decision in question was the correct or preferable one. If not, the tribunal has the power to substitute its own correct and preferable decision. The peak Commonwealth merits review agency is the Administrative Appeals Tribunal (AAT).

.

Judicial review--you can also seek a review in court of an administrative decision (that is, a decision by a member of the executive, such as a Centrelink bureaucrat). The courts will not review the matter on the merits', because the judicature has no power to make such decisions; that is the role of the executive. Instead, the role of the courts is to interpret law. Judicial review, cherefore, focuses on the avy a decision has been made: whether lawful processes have been followed, and whether the decision is within the powers given to the decision maker.

The statutory basis for judicial review at the Commonwealth level is the Administrative Decisions (Judicial Review) Act 1977 (Cth). The states have rules under common law. You will learn all about these when you study administrative law as a full subject. Our purpose is to give some explanation and examples to help students understand what administrative law encompasses.

1 Step One: Before judicial review can take place, a court must address the following threshold issues to determine whether judicial review is possible and appropriate:
Which government made the decision: a state, a territory, or the Commonwealth?

• Is the subject matter of the decision "justiciable" (one that can be reviewed)?
  Some examples of decisions that are not justiciable are decisions of Cabinet, decisions of the Governor-General, and decisions made under Acts related to security and law enforcement (for example, the Australian Security Intelligence Organisation Act 1979 (Cth)).

• Has a legal decision been made? If it is only advice that has been given, or information that has been provided, rather than an actual decision, then this will not be suitable for review.

• Does the applicant have standing to raise a complaint, by virtue of a legal interest that is affected by the decision?

2 Step Two: Once these threshold issues have been satisfied, the court will exercise judicial review on certain grounds. The court will ask whether the decision maker:

• exercised a power it did not have

• exercised a power in an unreasonable manner failed to apply the proper law failed to follow the proper procedures

• made a decision with little or no information

• took into account an irrelevant consideration

.

failed to take into account a relevant consideration

•acted in a biased or fraudulent manner

• exercised a power for a purpose for which it was not conferred, or for an ulterior purpose

• applied policy in an incorrect manner."

3 Step Three: If 'ves' to any of the above questions, the court can make orders to:

• set aside or quash the decision (so the decision no longer has any legal effect), and refer the matter back to the decision maker for reconsideration

• declare the rights of the parties
  direct the parties to refrain from doing certain acts

• prohibit the decision maker from taking action under a particular decision or prevent them from making an unlawful decision.

  Criminal law is considered public law for historical reasons. In feudal England the King was responsible for maintaining the peace. Criminal behaviour by individuals--such as theft-

  -disturbed the peace, and the order of the ruling class. It was therefore an offence against the King's peace--against the State. For this reason, criminal cases are brought by the State against the offender,' rather than being brought by the victim against the offender. This is why reports of criminal cases are written 'R » Smith' The 'R' stands for Regina or Rex, depending on whether we have a reigning Queen or King. Practically, the prosecution represents the State.

  Criminal law is largely regulated by the states and territories. Some states rely on a combination of statute and common law--these are New South Wales, South Australia and Victoria." Other states have 'codified' crimes (brought them together in one place, a code) and they rely less on the common law. These states are Queensland,Tasmania, Western Australia, che Australian Capital Territory and the Northern Territory.

  The Commonwealth has enacted the Criminal Code Act 1995 (Cth), which codifies some criminal principles but is not comprehensive.* Therefore, several Commonwealth crimes are regulated by other legislation (for example, the Crimes Act 1914 (Cth) and the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth)) and the common law.

  A crime is behaviour that is prohibited at law and punishable by a court. If an act is not covered by statute or common law, no matter how unsavoury, offensive, immoral or unethical, it will not be a crime. This is especially the case for wrongful acts committed by the state, churches or corporations, such as racist conduct, moral condemnation of victims, or destruction of sacred sites. By contrast, trivial acts such as public drunkenness constitute crimes in some states. Typical crimes that you are likely to study include assault, sexua assault, manslaughter, murder, larceny (theft), fraud and drug offences.

  All crimes have set elements that must be proved. In common law criminal systems, the elements aften fall into two categories:

  I the act itself--referred to as actus reus, this is the voluntary physical act or omission (failure to act), and

  2 the wrongful mental state-referred to as mens rea. This mental fault element may be an intention to do the act or cause the outcome, recklessness as to whether one's actions caused harm to others, or negligence in failing to foresee and safeguard against the harm (alchough the latter only applies in extreme cases).

  There is also the requirement of cdusation: the act must have caused the outcome. The Act does not need to be the only cause, but there must be at least a 'causal connection between the act and the outcome. Let's take murder in New South Wales as an example.

  There must be an act or omission (actus rews) that causes (atusition) death, done with either an intention to kill, an intention to inflict grievous bodily harm, or a reckless indifference to human life (mens red). Different terminology is used in states with criminal codes. You learn about these differences when you study criminal law as a full subject.

  Not all crimes have a wens red-or fault requirement. Some only require that the act, or omission to act, caused the outcome. These are known as strict liability offences. An example would be: 'It is an offence to drive at a speed exceeding 40 km per hour.' It doesn't matter if you didn't realise you were speeding or weren't intending to speed. But a defendant may in some jurisdictions still raise a defence of honest and reasomable mistake of fact to a strict liability offence; for example, that a faulty speedometer on a motorbike incorrectly displayed the speed such that the rider honestly and reasonably believed the motorbike was within 40 km per hour. However, some offences do not even allow the defence of reasonable mistake of fact, and these are called absolute liability offences. An example of an absolute liability offence is the sale of contaminated food. It would not matter if you didn't know the supplier's food was contaminated, or that you made an honest mistake in serving it-if you sell it, you are absolutely liable.

  Because of the serious consequences that a finding of guilt can have on a person, crimes must be proven 'beyond reasonable doubt. The term 'beyond reasonable doubt is notexplained to juries by the judge, as it is generally well understood, and so requires no further definition. What is considered 'reasonable must be determined by the tribunal of fact in each particular circumstance. This is referred to as the standand of proof- it identifies how mwch proof is required. The prosecution is required to prove the case, and the defence has to prove any defence it raises. 'The prosecutor's obligation to prove the case is called the burden of proof- it defines who has the onus of proof.

  Virtually every crime has available defences, which act to negate or excuse otherwise criminal conduct. Consent will often rule out criminality. For example, it is generally offence to cut somebody with a knife. However, where a person gives consent for a person to perform surgery on them, no offence has been committed. Typical criminal defences include self-defence-'I had to save myself from her imminent violence; provocation--He said something highly offensive and I just saw red' (although this has been repealed in a number of Australian states); mistake-'I thought she was about to jump under the train and insanity--I suffered a serious defect of mind"

  A defence can be a 'full defence' chat results in an acquittal (such as self-defence) or a

  'partial defence. Partial defences apply to homicide alone and reduce a conviction from murder to manslaughter (such as extreme provocation), where a person says they were provoked by the deceased to the point where they lost self-control, and an ordinary person in that situation would have done the same.

  PRIVATE LAW

  Private law regulates legal relationships between individuals or organisations. At times, government can be a party to a private law dispute, but that dispute is usually unrelated to the functioning of government. For example, if a government employee crashes a government car, the dispute is private, as it is not one at the heart of the core functioning of government. In such cases the government is treated in the same way as an individual or company would be.

  In private law disputes, the person or organisation suffering a loss or damage brings the action against the person or organisation they believe to be responsible. The person bringing the action is called the plaintiff (or applicant), and the party defending the action is the defendant. The plaintiff has to prove the elements of the law on the balance of probabilities-the court has to be satisfied that it is more likely than not that the facts they are asserting are true (compare this to the higher standard that applies under criminal law, where the prosecution has to prove the facts beyond reasonable doubt). Typically, private court cases have to be commenced within chree or six years of the loss being suffered. This is described as the 'limitation period' It is prescribed in law by statute." If the action is not brought within the limitation period it is 'statute barred'-unable to be brought before the court.

  The categories of law that traditionally fall under the umbrella of private law include contract law; tort law, equity; and property law. 'These are considered below. The procedures by which civil actions are brought before the courts are discussed under heading 3: 'Aspects of procedural law'.

  Contract law

  Contract law governs legally binding agreements made by individuals, organisations or corporations. Contract law has evolved over many hundreds of years and is largely derived from English common law. This means that many principles of contract law are found in cases rather than statutes.

  A legally binding contract is formed where the following elements are satisfied:

  •Offer-typically one party (the 'offeror) affers to bay or sell something or do or refrain from doing something (the offer must be clear, definite and clearly addressed to a person or group of people).

  Acceptance-the other party (che 'offeree') communicates that they agree to the offer (the acceptance must be unqualifed-if the terms of the acceptance are different from

  the terms of the offer, then it is actually a counter-offer).

  •Consideration- something of value is exchanged between the parties pursuant to the

  offer, such as money, a physical thing or a service.

  Capacity-both parties are legally capable to enter into a contract (people who lack legal capacity include children, people averwhelmed by drugs or alcohol, and people who are not of sound mind or otherwise lacking the capacity to understand what they are doing).

  •Legality-the contract is not contrary to law or public policy (such as a contract for

  dealing drugs or to kill someone).

  •Validity-the contract is not ocherwise made invalid. Examples include where a party agreed to the contract under pressure (duress' or 'undue influence'), or because of a lie (misrepresentation') or a mistake as to something fundamental in the contract.

  There is nothing to stop a person withdrawing an offer at any time unless the offer was specified as being available for a certain time period or until a certain date. Even then, withdrawal of the offer will usually be valid if it is properly communicated, unless some consideration was paid (such as a deposit) in order to keep the offer open.

  Contracts do not typically have to be in writing to be legally valid (an exception is a contract for sale of land). If the contract is in writing, though, it is usually easier to prove that a contract existed, and the scope of its terms.

  Where there are problems that commonly arise in a particular kind of contract, it is useful to agree in advance on the way they will be resolved. For example, if someone arranges an open-air event that depends upon fine weather, it is useful to spell out in the contract what will happen if it rains on the intended date-will the event be rescheduled, or cancelled and, if so, will any cancellation fee apply?

  Terms that have been clearly shought about and included (expressed) in a contract are called 'express terms'. On occasion a court may also imply terms into a contract. Take for example a situation where there is a contract to lease a two-bedroom apartment- but when the tenant moves in they find the landlord living there. In such case, the court would follow statute law on residential tenancies, or general property law principles, and imply a term into the contract that the property would be vacant and ready for the tenant to use. Another example is where a court implies into a consumer transaction the consumer protection laws that are there to protect the public and cannot be excluded.

• Tort law

  A tort is a civil wrong. The aims of tort law are to deter certain behaviour; to compensate for loss caused by athers' wrongful behaviour; to return the injured party to the position before the lass; to appease the victim; and to provide justice between the parties."

  Key torts include trespass (such as entering someone's property without permission) and false imprisonment (detaining a person without lawful authority), defamation (spreading false information about someone that harms their reputation), nuisance (an unlawful interference with a person's use or enjoyment of land, or of some other right over it) and negligence.

  Negligence is the most far-reaching tort and is a relatively recent branch of the law. The modern law of negligence is frequently traced to the landmark case of Donoghue o Stevenson (1932) AC 562. Mrs Donoghue drank a bottle of ginger beer that contained the decomposing remains of a snail. She sued the company that produced the ginger beer, seeking damages for the shock and gastroenteritis she suffered as a result. The problem was that there was no contract between Mrs Donoghue and the manufacturer- she had bought the drink in a shop. In order to prevent the manufacturer from escaping liability, the court held that manufacturers owed a duty of care to all potential consumers of their product, because there was a relationship of 'proximity. In failing to properly wash and inspect the bottles before filling shem, the manufacturer had breached its duty of care, and the manufacturer was held liable for the damage that flowed from that failure.

  Negligence has been refined, expanded and developed since that case. Generally speaking, the elements of negligence that must be established are:

  Duty of care-the court must be satisfied that the defendant owed the plaintiff a duty to take care. This can be established by the relationship between the parties, such as a doctor owing a duty to a patient, employer to an emplayee, producer to a purchaser, council to a local resident. The court will look at how foreseeable it is that people inthe position of the plaintiff could suffer harm from the actions of the defendant, and whether there are good policy reasons for imposing a duty of care on the defendant.

  While most cases are brought by individuals, duties extend to a class of people.

  Collective harm can give rise to class actions.

  •Breach--the defendant's conduct must fall below the appropriate standard of care, which is determined by assessing what a reasonable person in the shoes of the defendant would have foreseen in terms of potential injury, and what response to that perception of risk would be appropriate, taking account of the probability of the event occurring, how serious the potential risk could be, and the cost of rectifying any damage.

  Las--the plaintiff must have suffered some harm, injury, loss or damage. The kind of harm suffered by the plaintiff must be one recognised by law. For example, a person may suffer inconvenience or embarrassment, but the law does not typically recognise inconvenience or embarrassment to be a kind of harm. Typical heads of damage include physical injuries (such as broken bones, cuts), mental or psychiatric injuries (such as post-traumatic stress disorder), and economic loss (such as loss of income).

  Crusation--the breach of the duty of care must have cdused the plaintiff's loss. The court has particular legal tests to establish whether the breach caused the plaintiff's injury, loss or damage, which you will learn about when you study torts as a subject.

  If a plaintiff can prove these elements, then there is a prima face case of negligence.

  (Prima facie means 'on the face of it.) The burden then shifts to the defendant to raise a valid defence. These include:

  Voluntary tsuumption of risk--the defendant may argue that the plaintiff assumed the risk of the injury they suffered. For example, a person who decides to go in the car with a drunk racing car driver can be seen to have voluntarily assumed the risk of injury:

  Contributory negligence-the defendant may argue that the actions of the plaintiff to some degree caused the loss, and therefore the plaintiff is to some extent responsible for their own injury.For example, if the passenger in the ear with the drunk racing car driver chooses not to wear a seatbelt, they could be considered to be contributorily negligent, as their behaviour contributed to the harm suffered.

• Contributory negligence may operate as a full or partial defence. If a full defence, then the defendant is held not to be liable at all for the loss. If a partial defence, then the court will calculate a percentage of the plaintiff's contribution to their loss, and reduce the damages awarded by that percentage. This is known as 'apportionment'.

  Tort law is primarily common law, meaning that the principles are found in cases. Bat there has been growth in tort legislation, some of which attempts to stop some torts, such as negligence, from expanding and causing insurance companies to pay more claims. " These laws were introduced by each state and territory as a result of Justice Ipp's 2002 report on tort law reform.' The changes included caps (ceilings) of the amount of damages that can be claimed for certain types of damage, and new threshold requirements that must be met before a person can be classified as injured. Evidence so far indicates that the legislative amendments to tart law have had a beneficial impact on the profits of the insurance companies and a detrimental impact on financial assistance to injured parties."

• Equity

  As discussed earlier in this chapter, equity is a branch of law designed to soften, or ameliorate, the effect of the common law. Equity law is found at common law, which means the principles are in cases rather than in statutes. While there are many equitable principles, or maxims, the key ones include:

  One who seeks eqwity mast do equity-in order to receive some equitable relief, the applicant must be willing to complete all of their own obligations as well. The Hellas also courted antiate decaliande ihe pores of char cour as the defindant.One wwo comes to comity wew.

  est indue cleau Idads--a person who secks equity must

  have 'clean hards', meaning that nothing in their own behaviour contributed to the situation, and they are not guilty of some improper conduct.

  Equity aids the vigilant-once a party has suffered damage or has been legally wronged, that party should not delay in bringing this claim to the court. "This principle attempts to prevent situations in which, chrough the passage of time, witnesses and evidence become lost.

  Eqwity follows the ltw-equity will not allow a remedy that is contrary to the existing common law. This is because equity does not replace or violate the common law, but rather supplements it.

  Equity subjects include the topics of trust and fiduciary obligations. Both arise where a party has a responsibility over another party. A trust is where property is owned by one party for the benefit of another party: A fiduciary obligation is where a party has a duty to act in the best interests of another party. For instance, a fiduciary relationship exists between public officials and the public. Accordingly, public officials have a fiduciary duty to declare a conflict of interest. In certain circumstances, claims can be brought for both a breach of trust and a breach of a fiduciary duty. For example, First Nations people whose wages were stolen have brought claims against the Australian Government for breach of trust (not paying out Aboriginal workers' money held in government trust funds) and breach of fiduciary duties (not acting in the best interests of Aboriginal workers who were wards of the state at the relevant time).Over time, courts of equity developed the following equitable remedies:

  • Specific performince-the court orders a party to do something they failed to do under a contract. This may be useful where monetary damages may not be suitable, for example where a person has contracted to buy a famous painting.
    Injunction-

  • the court orders that the party must do something, or refrain from doing something. For example, an injunction may stop the person with the famous painting from selling it to someone else.

  Declaration--the court may declare a contract void, for example where it was entered into as a result of undue influence or fraud.

  Estoppel--the court may declare that a person who has made certain representations.

  go ahead and lease a shop, and asks the landlord to make certain changes to the shop, such as new shelving and fooring, it would be inequitable for the person to simply change their mind after the landlord had spent a lot of money fitting the shop out how they want it.33

  In certain situations, simultaneous legal claims can be brought across various branches of law. They may be seeking the same remedy (for example, a sum of damages) and relying on various claims or secking different remedies (tor example, an injunction in equity and damages in tort law).

Property law

Property law (or real property law, or land law) is that body of law that regulates the ownership, creation, acquisition, assignment and disposal of interests in land. Property includes 'real property' (land and immovable assets or fixed structures on it, including houses, buildings, machinery and pathways or waterways) and "personal property' (movable assets, such as goods and chattels, and some rights, such as copyright). Chattels include most things, from cars and televisions to clothes and jewellery: Just think of chattels as any physical thing of value besides land and its fixtures.

There is no one single national system of property law, except for native title law (see Chapter 9). Each state and territory has its own property legislation, although much of this has its origins in the English common law of property, which applied in all British colonies in Australia prior to federation. Its legacy is abundantly apparent today: Although it is common for Property Law classes to commence from chose English roots, it is important to recognise that they were transplanted to the continent as an overlay on a system of propertyIn Australia, the Crown technically owns all land. This is a result of feudalism in English legal history, under which the King owned all the land and granted use of it to individuals in return for the provision of knights to fight in war. A system of title called old system title' developed from this. Under this system, land was granted by deed. A person may have a deed from the Crown, and may execute a deed of sale with a third person, who may in turn exercise a deed with a foursh person. To establish title, the deed a person holds must be tracked back to each of the people who have had a deed of title in the land since the original grant by the Crown. This system was extremely complicated because several people may have claims to title over the same piece of land.

Since 1858 a system of land registration called "Torrens title has applied to the majority of land parcels in Australia. The system provides that only one person can be listed on the public register as having title to each parcel of land, and they can prove that title using a certificate of title issued by the government office that oversees the operation of the register.

Whenever someone buys that land, they must register the passing of title from the vendor (seller) to the purchases. Provided there was no fraud involved in becoming listed on the register as the owner, the person (or people) registered as having title in the land has the exclusive ('indefeasible') right to lease it, sell it, give it away, or occupy it--a right they have against all other people besides the Crown. The Crown, the modern embodiment of the King from feudal times, retains the right to take back the land, provided reasonable compensation is paid. This is how governments are able to pur highways through land that has houses on it--they 'compulsorily acquire the land from those who currently have title to it (paying reasonable compensation to the owner).

Apart from the large areas of Crown land that are leased or held under licence for specific purposes such as grazing, or land held as native title (see Chapter 9), the typical commercial or residential land ownership in Australia is 'frechold title'-the closest thing to full private ownership." Where freehold land is owned by more than one person, the relationship between those people can be one of two kinds--joint tenancy, or tenancy in common. The main difference is that under a joint tendncy the owners own the land jointly and severally, which means that if three people own the land and one dies, the remaining two then own half each, but under a tenducy in common the owners each portion of the land. This means that if three people own the land in equal shares and one dies, that person's one-third share goes into their estate to be left as provided in their last will and testament (or according to the rules on intestacy). Note that 'tenancy' here just means

'type of holding? it should not be confused with being a tenant for rent.

Frechold land can also be the subject of a lease to someone else (a tenant, or lessee, for rent). For example, a person may have the frechald title in a shopfront, which means they own the land and the buildings on it, whereas another person (say, a pharmacist) may lease (rent) the property to rum a pharmacy there. The person who owns the pharmacy business will have a leasehold title in the property, which means they are able to occupy the land and run she pharmacy for the term of the lease, as long as they pay rent. The lease can he for a fixed period, a yearly tenancy or a tenancy at will (where the tenancy can be terminated at any time by

tenancies operate according to the common law, but othertenancies are regulated by state legislation. These incluue retail tenancies (for shops of a certain size) and residential tenancies (for fats and houses). Specialist tribunals operate in these areas, and the form of leases and other obligations of both landlords (lessors) and tenants (lessees) may be clearly set out in the legislation.

ASPECTS OF PROCEDURAL LAW

Procedural rules are the rules that determine hou a particular law is applied in specific factual situations. They prescribe the manner, form and order in which matters are conducted and enforced in a judicial forum. For example, if a person wants to sue for breach of contract, or is being charged with murder, what is the process by which the action is brought and the decision made?

Procedural law is divided into civil procedure and criminal procedure. You will study these courses as part of your law degree. These subjects can be taught together with, or separate from, Evidence Law, which covers issues related to criminal and civil trials. Evidence Law is governed by the Uniform Evidence Act 1995 (Cth) and covers the trial process, including the admissibility of evidence, calling witnesses and examination of witnesses.

CIVIL PROCEDURE

Civil procedure covers all cases apart from criminal cases, and includes disputes relating to contract, tort, employment, equity and corporate law. Civil actions are brought by the person or organisation affected (che plaintiff) against the person or organisation they hold responsible (the defendant). Civil procedure in state and federal courts is different, according to the rules and regulations laid down by parliament, and the practice directions issued by the relevant court. Some states have different rules in each of their courts, while others have uniform civil procedure rules for all of their courts, »

Here are some of the typical steps that are involved in civil litigation:

Advice--typically the first step involves a person seeking legal advice. The lawyer advises on applicable laws that may have been breached, and relevant procedures that need to be followed to establish a breach.

Negotiation- at the initial stage of a dispute, the lawyer will send a letter of demand to the other party and attempt to negotiate and resolve the matter through non-court processes (known as alternative dispute resolution (ADR'), discussed in Chapter 3). If negotiations are unsuccessful, court processes will be pursued. An action proceeds in the steps listed below. Nonetheless, throughout court proceedings, parties can typically continue to negotiate, but chis is undertaken on a without prejudice basis, which means that any offers they make privately cannot be mentioned to the judicial officer (that is, magistrate or judge) in court.

Jurisdiction-this involves deciding which court has jurisdiction (power) to hear the case. It may be a federal court (Family Court, Federal Court, Federal Circuit Court) or a state court (typically there are local/magistrates, district/county; and supreme courts). In civil matters this usually depends on the amount of money in dispute (the more money, the higher the court) or the type of dispute (for example, motor vehick accidents are generally handled at the district court level).

Initiation of action--the matter will usually be initiated by a summons or writ drafted by the plaintiff's lawyer and lodged with the appropriate court, a stamped copy ofwhich is then served on the defendant. The summons states the nature of the claim against the defendant and will include a 'statement of claim' setting out the facts that go towards showing each of the elements of the relevant law. "The statement of claim is the first of a set of documents exchanged by the parties known as pleadings.

•Defence-once the statement of claim is delivered to the court and served on the defendant, the defendant must draft a 'statement of defence' (or risk losing the case).
The defence responds to each of the paragraphs in the statement of claim, with either

'admitted, 'denied' or 'does not admit' the allegation. The defendant also includes new paragraphs, raising defences it is relying upon. In addition, the defendant may raise a counterclaim, which is an allegation against the plaintiff. Often the defendant will need more information from the plaintiff before completing the statement of defence.

Reply--the plaintiff replies to the defence with a response to any issues raised by the

defendant.

• Directions hearing the court directs the parties on what they have to do according to a set timetable. Such directions are part of the process of case management by the courts, which attempts to make the process more efficient and less drawn-out. The court will then periodically meet with the parties to find out what stage the litigation is at and set further directions. At each hearing, the last direction always stipulates when the parties should next appear before court, having done what has been ordered by the court in the meantime.
  Seeking information- each party may need to rely on documents or information that is in the possession of the other party. A party may serve on the other party a 'request for further and better particulars' or 'interrogatories', which is a series of questions about the facts of the case. 'There may also be an order from the court for 'discovery', under which each side files a list of documents in their possession that are relevant to the matters at issue between the parties. The court may set dates for this information to be provided at its directions hearing.
  Witness evidence-once all the documentary evidence has been reviewed by all parties, the parties exchange witness statements (sometimes in the official form of a sworn affidavit), which contain the information that relevant witnesses intend to say. should the matter proceed to trial. There are two common types of witness evidence: lay evidence and expert evidence. Lay witnesses are those who were involved in the dispute (for example, they saw the tort result in an injury). Expert witnesses often give evidence in relation to medical, psychological/psychiatric and accounting issues.

• Pre-trial procedures--the matter is listed for trial, and efforts are made to settle the case to save going to trial. Written submissions to the court are prepared and a court book containing all the documents that will be referred to in the trial is collated.

.

Trial--the parties argue their case before the court, with the plaintiff having to prove the allegations made on the balance of probabilities. Witnesses who have been ordered by the court (subpoenaed' or 'summonsed') to appear before the court are examined by the party who called the witness and cross-examined by the opposing party. This is convicted evidence law

Enforcement--should a party fail to comply with an order of the court, the court can make an enforcement order. Typically, this will involve ordering the sheriff to seize and sell the defendant's assets, or garnishee (deduct instalments from) their wages.

In Depth

CASE MANAGEMENT

Courts are increasingly attempting to manage cases in order to speed up the justice process. In New Sauth Wales, for example, the Civil Procedure Act 2005 (NSW) endeavours to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings' (s 56(1)). Section 59 states:

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

A similar objective has been incorporated into civil procedure regulations in a number of jurisdictions across Australia. For example, the Uniforw Civil Procedure Rules 2005 (NSW) stipulate the following.

2.1 Directions and orders

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

2.2 Appointment for hearing

The court may, at any time and from time to time, of its own motion, appoint a date for a hearing at which it may give or make the directions or orders referred to in rule 2.1.

2.3 Case management by the court

Without limiting the generality of rule 2.1, directions and orders may relate to any of the following:

1. the filing of pleadings,

2. the defining of issues, including requiring the parties, or their legal practitioners, to exchange memoranda in order to clarify questions,

3. the provision of any essential particulars

CRIMINAL PROCEDURE

Criminal procedure covers all cases involving criminal law and other instances of offending that do not reach the courts. Proceedings are brought by the State (the prosecution) against the person who has allegedly committed a crime (the defendant or accused). In practice, the prosecution case is brought by lawyers who assist the Director of Public Prosecutions (DPP).

Most criminal procedure is state-based, and each state has its own rules and regulations on how criminal matters are handled, and by which courts. In all cases, there is a presumption of innocence in favour of the defendant, although this can be sorely tested in processes of arrest, police interviews, bail applications and pressure to plead guilty.

Here are the potential steps that are involved in criminal procedure:

•Police powers--the police have powers to stop, search and seize items. These are generally constrained by the requirement of reasonable suspicion.

Arrest-the police can take a suspect into custody for questioning. This should be a measure of last resort and is reserved for very serious risks." For instance, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that arrest should only be enforced to ensure a court appearance, prevent further offending, prevent the destruction of evidence, prevent harassment of witnesses or preserve the safety of the defendant (s 99(3)). Where a person is suspected of committing a minor offence, suchas offensive language, theft and traffic offending, they should be issued with a court attendance notice rather than face arrest.

Appliattion for bail--this may be granted by the officer in charge at the relevant police station, or by the court after a hearing. The notion of bail is that the accused person is at liberty while awaiting trial or sentence. Bail presumes that suspects are innocent until proven guilty and should not be detained on remand in the intervening period.

It also accounts for the fact that most sentence orders are non-custodial (for example, fines and community orders).» Accordingly; the person should not be made to endure a greater punishment through the denial of bail (which entails imprisonment on remand) than the sentence itself. Typically, conditions are imposed on bail, such as residing at a specific address, curfews, non-association with particular people and reporting to police. A defendant who is not granted bail will remain in custody until the trial or sentencing (which can take months or years).»

• Charge--this is the particular offence that the defendant will be tried or sentenced for. The police prosecutors can negotiate with the defendant about the charges, and may get them to agree to a plea bargain, where the accused agrees to plead guilty and or provide information that incriminates others or helps solve a crime in return for a lesser charge.

• Pre-trial processes--these are similar to civil pleadings, including requests for further and better particulars and discovery of evidence.

• Type of trial--the type of trial that takes place will depend on the type of criminal offence that is alleged. "There are two broad categories- summary and indictable offences.

* Suremutry offences are less serious and are heard by a magistrate alone in a local or magistrates' court. These include property offences of little value, offensive behaviour, trespass and assault.

Indictable offences are more serious crimes, including homicide, kidnapping, armed robbery and sexual offences. They are generally tried before a judge and jury (although in some jurisdictions defendants may opt for some matters to be heard summarily instead). Generally, more serious offences are dealt with in a district court, although murder trials are heard in the Supreme Court.Committal hearing this is a preliminary hearing for indictable offences to look at the strength of the prosecution case. It is heard in a local or magistrates' court. If the court considers that the evidence could not sustain the charge, the charge will be dismissed and the accused released. Otherwise, the case will proceed to trial in a higher court.

.

Trial--this often involves a plea being entered by the defendant. If the plea is 'guilty; the matter can go straight to sentencing. If'not guilty" the prosecution must prove beyond reasonable doube chat the defendant did what was alleged. The trial will involve opening addresses, witnesses, and then closing addresses. In a jury trial, the jury reaches the verdict of guilty or not guilty, and the judge determines the penalty, or sentence. If there is no jury, the judge will decide both the verdict and the penalty.

Evidence Law covers the types of evidence that are admissible and the witnesses who can be called, as well as the nature of the examination of the witness.

•Sentencing-this occurs after trial or following the accused entering a guilty plea.

Sentences include incarceration in a custodial facility, home detention, community corrections orders, a good behaviour bond in the community, confiscation of property or a fine.

THE ROLE OF THE JURY IN CRIMINAL AND CIVIL TRIALS

The law on juries is largely statute-based, except in relation to Commonwealth offences. which are also governed by s 80 of the Constitution." A small fraction of criminal and civil cases are decided by a judicial officer without a jury. This is because most trials are in the local courts where juries are not empanelled." In the higher courts, juries in civil cases

remain rare but are mare common in criminal trials. South Australia has abolished the we of juries in all civil cases, and other states have placed severe restrictions upon their use. For example, in New South Wales civil juries are largely limited to defamation cases.Where a jury is used, the jury will be responsible for hearing all the evidence, including directions from the court, and deciding in secret whether the facts have been proved beyond reasonable doubt. Criminal trials in the Commonwealth and Australian Capital Territory jurisdictions require unanimous verdicts.* This means that all jury members must agree on the outcome. If they cannot agree, the trial must begin again with a new jury. Unanimous verdicts provide an extra layer of protection for the defendant given the seriousness of the conviction and potential sentence. In the remaining jurisdictions, majority verdicts are allowed (usually 10 or 11 out of 12 jurors have to agree on the outcome).

Jury members are adult members of the community selected at random from the electoral roll. Some people are ineligible to serve on a jury; including lawyers, judges, police officers, prison officers and government ministers.* People summoned for jury duty must attend court at the relevant date and time. Some may be 'challenged' by the prosecution and defence, and may as a result be excused from jury duty. Twelve people are needed for a criminal jury, and across states and territories except South Australia (which does not have civil juries) there are varying numbers for civil cases: 12 in New South Wales; four in Queensland, the Northern Territory and she Australian Capital Territory: six in Victoria and Western Australia; and seven in Tasmania.

Juries have a long history. They have decided cases in England since the eleventh century under their historical name of "the assizes' when itinerant justices would travel around England, dispensing justice according to the customs of each village. Juries were initially used to inform the justices of the applicable customs and the facts of the case. The right to trial by jury appears to have originated in Magna Carta in 1215, which states that

'no freeman shall be seized or imprisoned.

... except by the lawful judgement of his equals.The modern right to a trial by jury for any Cammonwealth indictable offence exists in s 80 of the Constitution." Unlike in state trials, an accused may not request to waive their right to a jury in Commonwealth indictable offences (such as drug trafficking).

Although the High Court held that an essential feature of a trial by jury is that juries comprise a 'representative' section of the community,* this does not guarantee a jury with First Nations or ethnic jurors or jurors from diverse socioeconomic classes or levels of education, or with physical impairments.

Overview of Law Types and Legal Procedures

Types of Law

1. Common Law vs. Civil Law:

   • Common Law: Predominantly used in the UK and Commonwealth countries; based on precedent and supplemented by statutes.

   • Civil Law: Found in Europe and certain Asian, Latin American, and African countries; primarily statutory codifications based on the Roman law tradition.

2. Branches of Substantive Law:

   • Public Law: Governs relationships between individuals and the state; includes constitutional, administrative, and criminal law.

   • Private Law: Regulates relationships between individuals or organizations; includes contract law, tort law, property law, and equity.

Legal Procedures

1. Civil Procedure:

   • Advice: Seek legal advice to understand the relevant laws.

   • Negotiation: Attempt to resolve disputes through alternative dispute resolution (ADR).

   • Jurisdiction: Determine which court has the authority to hear the case.

   • Initiation of Action: Begin the case with a summons or writ.

   • Defence and Reply: The defendant submits a statement of defense, and the plaintiff may reply.

   • Directions Hearing: The court sets deadlines and directions for the proceedings.

   • Evidence Gathering: Exchange of documents and witness statements.

   • Trial: Present the case to a judge/jury and obtain a verdict.

   • Enforcement: If necessary, enforce the court's decision.

2. Criminal Procedure:

   • Police Powers: Law enforcement powers to stop and search.

   • Arrest: Suspects can be taken into custody based on reasonable suspicion.

   • Bail Application: Decide whether the accused is granted bail while awaiting trial.

   • Charge: Formal charges against the accused.

   • Pre-Trial Processes: Similar to civil pleadings, including evidence discovery.

   • Trial Types: Summary (less serious) and indictable (more serious) offences are handled differently.

   • Committal Hearing: Preliminary hearing for indictable offences to assess prosecution strength.

   • Trial: The accused may enter a plea, and evidence is presented.

   • Sentencing: If found guilty, sentencing occurs post-trial.

Case Management Overview

• Courts manage cases to expedite the justice process.

• Procedures aim for timely resolutions, minimizing delays.

• Emphasis on 'just, quick, and cheap' outcomes aligns with contemporary civil and criminal procedure reforms.

Overview of Law Types and Legal Requirements