Lecture 20 LR / Judicial and Executive Decision Makers

Adversarial vs. Inquisitorial Systems

• Adversarial System:
  • Dispute resolution where competing claims are presented by parties (usually with legal representatives).
  • An impartial third party (judge) makes an authoritative determination.
  • Common law system meaning it is case-based; law can come from cases (common law or case law).
  • Focus on the party bringing the case proving the elements to the relevant standard.
  • The role of the judge is to act as an umpire.
  • Examples: Australia, England, US, Canada.
  • Key rationale: Self-interest.
• Inquisitorial System:
  • Dispute resolution where the judge has a more active role in determining how claims are presented.
  • Civil law system meaning it is code-based (legislation dictates the law).
  • Focus on determining facts or the truth of the matter.
  • The role of the judge is to ask questions and conduct the proceedings; lawyers assist the judge.
  • Examples: Many European countries, Germany, China.
• Inquisitorial Bodies in Australia's Adversarial System:
  • Coroner's court.
  • Administrative tribunals.
  • Anti-corruption commissions (e.g., CCC in WA).
  • ACCC.
  • Commissions, ombudsman.
  • Royal commissions.
  • ADR bodies (some operate inquisitorially).

Scenarios and Observations

• Scenario 1: Debbie buys Peter's car but doesn't pay.
  • Civil case.
  • Parties: Plaintiff (Peter), Defendant (Debbie).
  • Peter wants monetary compensation (damages).
• Scenario 2: Darren steals Veronica's car and is caught by police.
  • Criminal case.
  • Parties: Prosecution, Accused (Darren).
  • Remedies: Jail, fine (criminal penalty).
  • Veronica (victim) could theoretically sue Darren (trespass to goods).
• Scenario 3: Aaron applies for a driver's license, but the CEO refuses.
  • Technically civil, but involves the executive.
  • Parties: Applicant (Aaron), Government/Executive (CEO).
  • Aaron wants the license.
  • Similarity between scenarios 2 & 3: Involves the executive arm of the government.

Court System in Australia

• Courts are in the judicial arm of Australia's legal system.
• Separation of Powers: Understanding this principle answers questions about what decision makers can and can't do.

Jurisdiction

• Types of Jurisdiction:
  • Territorial/Geographic.
  • Subject Matter.
  • Original and Appellate.
• Geographic/Territorial Jurisdiction:
  • Applying the WA criminal code if the car theft occurred in WA.
• Subject Matter Jurisdiction:
  • Types of matters a court can deal with (can be limited or unlimited).
  • Prescribed and limited by legislation (generally).
• Original Jurisdiction:
  • Ability to hear matters at first instance via a hearing or trial.
• Appellate Jurisdiction:
  • Ability to hear matters on appeal.
  • Determined by legislation (generally).

Court Hierarchy (WA)

• Magistrates Court of WA:
  • Limited jurisdiction (Magistrates Court Act).
  • Original jurisdiction for less serious criminal and minor civil matters.
• District Court of WA:
  • Limited jurisdiction (District Court of WA Act).
  • Original jurisdiction for serious criminal offenses (except those relating to death).
  • Civil matters up to $750,000$.
  • Appellate jurisdiction limited to civil matters from the Magistrates Court and some SAT matters.
• Supreme Court of WA:
  • Unlimited inherent jurisdiction (practically hears very serious criminal matters and civil matters exceeding the District Court's jurisdiction).
  • Can conduct judicial review.
  • Appellate jurisdiction: criminal matters from the Magistrates Court, matters from a single judge of the Supreme Court, and matters on appeal from the District Court.
  • Full court (3 judges) vs. single judge appeal decisions.
• High Court:
  • Limited appellate jurisdiction.
  • No original jurisdiction to deal with WA matters, but does have original jurisdiction to deal with Commonwealth matters.
  • Requires special leave to appeal.

Court Classifications

• Magistrates: Inferior court.
• District Court: Intermediate court.
• Supreme and High Court: Superior courts.

Commonwealth Jurisdiction

• Federal Circuit and Family Court of Australia:
  • Established 02/2021, amalgamating the Federal Magistrates Court/Federal Circuit Court and the Family Court of Australia.
  • Division 2: Original jurisdiction only in family law federal matters.
  • Division 1: Original jurisdiction for serious family law matters.
  • Appellate jurisdiction: Hears everything from Division 2.
• Federal Court of Australia:
  • Limited and concurrent jurisdiction.
  • Jurisdiction comes from over 160 acts.
  • Original jurisdiction: Administrative and constitutional law, human rights, intellectual property, native title and taxation, commercial incorporation matters.
  • Appellate jurisdiction: Full court can hear appeals from a single judge decision of the federal court, matters from tribunals (e.g., the AAT with a judicial member), and a single judge from non-family Circuit and Family Court of Australia.
• High Court of Australia:
  • Limited jurisdiction (Constitution).
  • Section 73: Hears appeals from the Supreme Court.
  • Judiciary Act: Special leave requirement.
  • Original jurisdiction: Established by sections 75, 76 of the Constitution and 39A of the Judiciary Act; if it involves the Commonwealth; if you want certain remedies such as an injunction.

Parties in Court

• Private Law Dispute: Plaintiff and defendant.
• Criminal Dispute (Public Law): Prosecution and defendant/accused.
• Public Law Dispute (Executive): Applicant and respondent.
• The party alleging must prove the cause of action or defense to the required standard.
• Civil standard of proof vs. criminal standard of proof.
• On appeal: Appellant and respondent.

Appeals

• The legislation dictates the rules for an appeal.
• The appeal must point an error of law with the relevant appeal time limit in the legislation.
• Peter wins a breach of contract action against Debbie but wants to appeal: Peter may appeal if he thinks the awarded damages aren't what he wanted originally.
• Limited Right to Appeal: There needs to be an error with law.
• Requirements with Appeals Questions of fact will relate to the elements of negligence where Peter has to prove whether or not Debbie was speeding and the evidence given by any witness.
• Question of Law: Was law related to duty of care applied correctly? Was that the correct conclusion when you consider the requirements in Donoghue and Stevenson are reasonable.
• Special Leave to Appeal: In order to appeal to the High Court you need special leave and the error of law.

Judges and Juries

• Juries: Determine questions of fact.
• Judges: Make findings on questions of law.
• In a jury trial, the judge provides instruction to the jury on the elements of the offense.
• Judges umpire the trial process and rule on admissibility of evidence.

Judicial Remedies

• The remedies the judge can grant at the end depends on the matter involved.
• Debbie (Breach of Contract Action):
  • Peter may wanted the agreed market for the car price at 5,000 dollars
  • Legal fees.
• Monetary Award: She may what to get back costs associated with the cost of repairs at 6,000. Damages come down to 1,000 dollars.
• Damages: Monetary award
• Definition: Damage = injury, harm.
• Common Law Damages: Money the plaintiff is entitled to.
• Compensatory Damages:
  • Aims to put the party in the position they would have been in had the cause of action not occurred.
  • Can compensate for pecuniary (financial) and non-pecuniary harm (pain and suffering).
  • Nominal Damages:
  • Awarded to acknowledge an infringement of the plaintiff's rights where they suffer no loss (e.g., trespass to land).
• Exemplary and Punitive Damages:
  • Punish or deter the defendant (e.g., Victorian police force case).
  • Damages, they should not have put I think was I think it's a case with the Victorian police force.
• Equity and Equitable Remedies:
  • Deals with fairness.
  • Law outside equity is the common law.
  • Specific performance: Compels a party to perform obligations under a contract (e.g., Debbie wants the car from Peter).
  • Injunctions: An equitable remedy that make sit so that the construction site next door to your house has a crane, and the jib of the crane keeps on swinging into your airspace and you don't like it, money's not gonna be very helpful to you if you're worried about the jib of that crane falling onto your roof so you stop this to stop something from occurring.
    • Prohibitory: Requires a party to stop doing something. A Prohibitory is helpful when a particular type of person is your respondent in the action.
    • Mandatory: Requires a party to do something.
  • Declaration: A non-coercive remedy, it just states the party's rights. For example, it is a trespasser to land to allow the jib of the crane to swing into the plaintiff's airspace.
    • They don't force anyone to do something or pay anyone anything.
    • Helpful for the government because the government can actually act on declarations because they want to do a good job.

Real Life Court Examples with Orders:

• The Court should make the following orders in Remit the matter to the district court to be reheard according to law. That is a direction to do something.
• Appeals are Allowed:
  • To set aside the primary judge's and order damages to be reinstated from the court of appeals. That would have been compensatory damages.
• Remedy For Searches:
  • On a date, the commissioner of police has to to do a search to Ms. Smith Hurst the USB drive because it was improperly obtained so that the can be deleted from the USB drive and delete any other copies of that information held by or within the control of the Australian federal police.

Executive Scenerios

• Driver's Licence: Aaron applies to the CEO of the relevant government departments for a driver's license the CEO refuses to grant the license you can't get your drivers license.
• The court cannot award and enforce a executive power a court cannot because there would be a beach of the separation of powers.
• Executive: Applies for the license the CEO takes the evidence, the state requirements looks at everything and says, you can't have it what aaron can deal with and the court can deal with is yeah, follow the law and act on the current interpretation of the law, an error of law occurs if the decision maker interpreted law wrong.
• You can seek certiorari. Certiorari is a judicial review remedy. If you're not a refugee and can't show those Visas etc, and you don't get a protection visa you want that decision.
  Government will generally adhere to court decision. These orders can include injunction's. Government department and other government actions must not, must not consider applicant criminal history because they're irrelevant for some reason.
  Those orders include Certiori, Mandamus, and Prohibition. They are all old remedies.
  Mandamus and prohibition.
  Sertiori: Quashes the decision.
  Supreme Court is the court that undertakes Judicial Review.
  Are there Feuds of Law (that can go for a minister intervention?)
  Yes, that has been addressed. You can, Like wanna when I say appeal I mean the ordinary sense like beg from the minister, that is is always a Avenue you can peruse, especially before or after court.

Tribunals

• The tribunal gives you remedy and grants your license.
• Federal Level: You go to The Administration Appeals Tribunal (AAT) which can hear to specific things, the National Native Title Tribunal.
• State Administration Appeals Tribunal: WA deals with decisions at the executive level.
  Tribunal's are almost never apart of a court like setting, you're can always have an advocate as a part of that setting which make it a lot easier to argue versus the courts.
  Tribunals you can make the appeal you can and in some tribunal settings you can take that decision forward to the supreme court with the right documentation.

What establishes or grants jurisdiction to the tribunal set in place in the court?

• The Tribunal acts on legislation, not any member of the executive as the member should not be on the role (at least the majority of the time).
  • Those decisions or actions that occur within the legislation are also statutory.
    Tribunals are not always about statutory. Most tribunal settings can consider the state decisions because the same thing happens with, and its the primary source of info, its about a source of info its how everything is been correctly interpreted.
    Doctrine PREDENT does not completely apply the law because its not part of the judicatory. But as a matter of precedent it creates for good practice for the tribals to follow, better is when preeminent things is for it to happen in court, as opposed the tribals its better as court.