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
King Tenan t in Chief Subte nant Free man Free man Free man Subte nant Free man Free man Subte nant Free man Free man Tenan t in Chief Subte nant Free man

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) Kings 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 New Rules of Relief Specific performance Trusts Injunction Promissory Estoppel Rescission Unconscionable Conduct Redemption 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 Blackstones 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:

Legal History England Curia Regis, (King's permanent court) exercised judicial powers by virtue of the king's prerogative

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 1828 1850 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)

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 dominions request The Act would not come into operation until passed by the dominions 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:

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

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

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

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 Kings pleasure thereon shall come into operation on the day on which His Majestys 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

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,

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 reopening 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 Hierarchy 3 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

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 generis Used 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 established R v Neal, Regos & Morgan (1947) 74 CLR 613

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:

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.

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))

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)

Section 32B gender references include other genders. Section 32C singular includes plural; plural includes singular Section 32D reference to person includes corporation

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 context Definitions 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 Act A 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.

DISTANCE Section 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 rerouting 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. TIME Section 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

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 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. 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 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. 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

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 power Disadvantages of Litigation: breaks relationships limited remedies must allocate blame tends to be all or nothing costly - time and $ loss of privacy 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 innocence 2. The burden of proof 3. The standard of proof 4. The right to silence 5. 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) 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

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

Environmental disputes

Options: Negotiation Mediation Arbitration Negotiation: 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

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

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 soft Approaches: - Positional vs Interest based Stages: 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 clients instructions Negotiation session Achievement of formal agreement Stages of Mediation: Preliminary conference Main session Mediators opening statement Parties statements and expression of interests Identification of areas of agreement

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

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

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 AttorneyGeneral 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 clients 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 courts 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 practitioners 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