LAWS4001 Lecture Notes - Lecture 1: Joinder, United States Court Of Appeals For The Federal Circuit, Environment Court Of New Zealand
Week 1 – Introduction into Civil Litigation
The Law
Definition: facilitate a civil society, the rules that the sovereign enforces to maintain
justice, fairness and proportional punishment for the offence
oPublic: representative bodies put in place rules (parliament and courts
through precedent)
oPrivate: rules between two parties they create themselves i.e. contract
Civil Procedure
The right to bring a claim to state ordained institutions and processes in which we resolve
disputes – protects access to justice and procedural fairness
Dame Hazel Genn: ...fair procedures make losing more acceptable and contribute to
the legitimacy of the decision-making body
...procedural justice is not only theoretically important as the route to substantively
correct decision making but is an important influence on user perceptions of the
fairness of legal process
Procedural law is the mode or method of proceeding to enforce a right, it is not
concerned with the law that establishes or defines the particular right = adjectival law
1. Substantive justice: law that defines legal rights, duties, powers and liabilities
oRemedies like specific performance, the decision at the end of the matter, CL
= the law, facts more likely than not balance of probabilities based on evidence, to get
to that point there is a process
2. Procedural justice: regulated the way in which substantive rights are enforced
without impacting on the definition of those particular substantive rights
os 138 Evidence Act: unfairly or unlawfully obtained evidence is inadmissible
to ensure the trial is fair
o‘Poison fruit of the poison tree:’ Need consistent process to get substantive
justice
oNecessary pre condition for justice – if the process is flawed then the chances
of substantive justice are reduced
oThe applicable laws of procedure and evidence will be the laws of the forum
i.e. the laws of the court that is hearing the claim (e.g. NSW)
oCommon law and applicable statute of the location in which the claim
occurred (e.g. VIC) can be applied
Our ethical obligations
First duty to the court as ‘officers of the court’ – we are not mouthpieces for hire
Rule 3: Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 –
our paramount duty is to the Court and to the administration of justice
Rule 4: a solicitor must also:
oAct in the best interests of a client in any matter in which the solicitor
represents the client
oBe honest and courteous in all dealings in the course of legal practice
oDeliver legal services competently, diligently and as promptly as reasonably
possible
oAvoid any compromise to their integrity and professional independence, and
oComply with these Rules and the law.
Medcalf v Mardell [2002] UKHL 27 at [51]:
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The duty of the advocate is with proper competence to represent his lay client and
promote and protect fearlessly and by all proper and lawful means his lay client’s
best interests. This is a duty which the advocate owes to his client but it is also in the
public interest that the duty should be performed.
The judicial system exists to administer justice and it is integral to such a system that
it provide within a society a means by which rights, obligations and liabilities can be
recognised and given effect to in accordance with the law and disputes be justly (and
efficiently) resolved.
The principle of a fair trial
Mastronardi v New South Wales
This was a hearing where part of the evidence was misapprehended and part was not
relied upon, thereby constituting something other than “a hearing where the evidence
is to be given proper, genuine and realistic consideration in the decision subsequently
to be made” (NAIS v Minister for Immigration and Multicultural and Indigenous
Affairs [2005])
Appellant did not have a trial untainted by material factual errors, he can properly
complain that he has not had this case considered according to law
Orders: appellant entitled to a retrial
Jurisdiction of courts
The jurisdiction of court or tribunals is the scope of their power or reach:
1. To deal with types of dispute;
2. To award types of remedies; and
3. To cover a certain geographical area.
Implied jurisdiction
Occurs when a court has jurisdiction under statute but no provision is made in the
statute for the making of an order which is necessary to carry out the courts powers
“There is an implied power to do that which is required for the effective exercise of
its jurisdiction” (TKWJ v The Queen (2002)
To do what is “really necessary to secure the proper administration of justice in the
proceedings before it” (John Fairfac & Sons Ltd v Police Tribunal (NSW))
“Subject to the touchstone of reasonableness” (Pelechowski v Registrar Court of
Appeal (NSW) (1999)
o“The effect was to give Mr. Rahme something in the nature of an additional
security for payment of the judgment debt, by denying to Mr. Pelechowski of
their property rights which otherwise had not been diminished by the
recovery of a judgment itself”
An overview of the court system
Jurisdiction of Courts (Cross Vesting) Act 1987
Re Wakim; Ex parte McNally (1999) established that the States could not invest their
jurisdiction in Federal courts because those courts were creations of the Chapter III of
the Constitution and ultimately derive their powers from that
The Commonwealth, on the other hand, can invest Federal jurisdiction in State
Courts. The practical effect of this is that you can bring a Federal matter in a State or
Territory court provided it is the most appropriate court to deal with the matter
Cross vesting of State jurisdiction among State courts (s4)
Transfer of proceedings between courts participating in the scheme (s5) provided
both courts have jurisdiction
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There is territorial limit of the Courts. Subject to the cross-vesting legislation
considered above, the Supreme Court of our state, for example, cannot determine the
rights of a dispute which has no connection with New South Wales
BHP Billiton Ltd v Schultz (2004) HCA
The first respondent sought from the tribunal an order preserving his right to make a
future and additional claim for damages and opposed removal of proceedings from
Tribunal to the Supreme Court
Bankinvest: “there must be a judicial determination by the court in which
proceedings are commenced either to transfer or not to transfer the proceedings to one
of the other nine based, broadly speaking upon consideration of the interests of
justice”
If it appears to the court that it is in the interests of justice that the proceedings be
determined by another designated court, then the first court “shall transfer” the
proceedings to that court
The interests of justice are not the same as the interests of one party, there maybe
interests wider than those either party to be considered
Justice would ordinarily dictate that the interests of the plaintiff in having a hearing
would prevail over the interests of the defendant in such benefit as it might obtain
from the plaintiffs early death
In most cases, the jurisdiction of an Australian court, in the sense of authority to
decide, depends upon the location (residence or principal place) of the defendant,
rather than that of the plaintiff so that the defendant can be served with the
originating process
Convincing factors include: convenience of expense, such as availability of witness,
the places where the parties respectively reside or carry on business, and the law
governing the relevant transaction
Also, the experience of a judge in that jurisdiction, the trial lawyers, and the
experts, gained in dealing with earlier complex litigation arising out of the same
events
The insurers of both parties to the litigation’s country residence maybe a practical
reason why high proportions of commercial litigation in London involves foreign
parties
Trial judge erred in first; the plaintiff’s choice of forum was “not lightly to be
overridden”; second, the “unusual advantages” conferred on a plaintiff by s 11A were
to be kept open – appeal granted & transferred to Supreme Court
Factors include:
The place or places where the parties and/or witnesses reside or carry on business;
The location of he subject mater of the dispute;
The importance of local knowledge to the resolution of the issues;
The law governing the relevant transaction;
The procedures available in the different courts;
The likely hearing dates in the different courts; and
Whether it is sought to transfer the proceedings to a specialized court, for example,
the Family Court (Lambert v Dean (1989))
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Document Summary
The right to bring a claim to state ordained institutions and processes in which we resolve disputes protects access to justice and procedural fairness. Dame hazel genn: fair procedures make losing more acceptable and contribute to the legitimacy of the decision-making body. Procedural justice is not only theoretically important as the route to substantively correct decision making but is an important influence on user perceptions of the fairness of legal process. Procedural law is the mode or method of proceeding to enforce a right, it is not concerned with the law that establishes or defines the particular right = adjectival law. Substantive justice: law that defines legal rights, duties, powers and liabilities o. Remedies like specific performance, the decision at the end of the matter, cl. = the law, facts more likely than not balance of probabilities based on evidence, to get to that point there is a process. Procedural justice: regulated the way in which substantive rights are enforced.
