Property Law Question and Answer

Property Law Question and Answer

Question 2

The court or courts having the jurisdiction to decide on the following disputes in Melbourne, Victoria.

• A dispute over the non-payment of $60,000

• Magistrates’ Court (Victoria Legal Aid, 2017)

• Criminal charges for shoplifting

• Magistrates’ Court hears the charges for shoplifting for the values of goods not more than $100,000 (Victoria Legal Aid, 2017)

• On-the-spot fines are also applicable for shoplifting for which the value of stolen goods is less than $ 600 (Victoria Legal Aid, 2017)

• A dispute over who owns the rights to a trade mark

• Victorian Civil and Administrative Tribunal (VCAT) under the administrative division (Victoria Legal Aid, 2017)

• A civil appeal from single judge of Supreme court

• Court of Appeal hears civil appeals from Supreme court (Supreme Court of Victoria, 2017)

• A constitutional dispute between a State and the Commonwealth

• High Court of Australia (Victoria Legal Aid, 2017)

• Federal Court of Australia (Victoria Legal Aid, 2017)

• Federal Circuit Court of Australia (Victoria Legal Aid, 2017)

Question 4

The three areas of law under the following jurisdictions include

Federal Magistrates Court:

• Family Law

• Consumer protection

• Safety breaches and migration disputes among others

Federal Court:

• Federal taxation

• Bankruptcy

• Intellectual property among others

High Court:

• Enforce and interpret Australian Constitution

• Exercise its original jurisdiction under the Australian Constitution

• Act as the final court of appeal within the county’s judicial system.

Question 6

Doctrine of precedent is one of the principles that underpins the common law and requires the judges and magistrates to follow or apply rulings of judges in higher courts only if the facts presented in the previous decisions were similar to the case being heard currently and if the previous decision was made by the superior court in same hierarchy. Decisions that the courts are required to follow are known as binding precedents. The main idea behind doctrine of precedents is that the judges while 

deciding cases should pay proper respect to the previous judicial decisions on the similar cases. Precedents exists only in British Common Law and is not used in other major legal systems across other nations and they are less restricted to give their decisions by considering the previous decisions. The key features of doctrine of precedent is of making judgement based on the previous decisions made in similar cases. There are binding precedents in some cases and others are non-binding and persuasive precedents. Non-binding are the ones where there is no binding with previous cases when the cases were made by court, which is outside court hierarchy, on same level or of the lower in same hierarchy. There are persuasive precedents, which are non-binding decisions which a court can choose to follow. In persuasive precedents, a higher court of one state can follow the court of Appeal decision as the facts of both cases are similar and the decision is based on strong legal reasoning. The other key feature of doctrine of precedent is that it applies only to the key legal reason for the decision. The other important feature of the doctrine of precedent is that if a court fails to follow a binding precedent, then the decision can be appealed and 

 

reversed by a higher court. The decision can be overruled even if there is no appeal by higher court or court at same level. There are also identified reasons for distinguishing the precedents. The reason is if there is increased difference in the facts of case before the court and if there is an alternative viewpoint in another precedent having a stronger legal reasoning made by a senior court the judgement might not be fully appropriate.

 

Question 7

Judicial reasoning for decisions on cases are broken into two categories. Ratio dividend is one of the categories and is applied when courts follow a precedent, which means that the court considers the decisions made in previous courts only based on the key reasons for the decision. The term is also referred as the ratio. The cases can have many ratios and hence the case can be cited as precedent in different legal zones. The two ratios, which the cases consider under ratio dividend are specific ratio and broad ratio. The judges can offer a specific ratio that is linked closely to the facts within a case and broad ratio is considered while establishing a general principle. Ratio decidendi affects the subsequent cases significantly as the decisions are made based on the previous decisions taken by judges in other courts and hence the current case decision is highly influenced by the previous judgements, which requires the current judge to ensure that he has identified the key reasons for the decision in previous cases effectively or else it can lead to a wrong judgement in the present case. Obiter dicta on the other hand are comments made by judge on legal issues and are not part of the ratio decedendi and can be used as another form of persuasive authority. Obiter dicta is not made by any strong reasoning but made based on the understanding of the judges and is not with respect to the case at hand and can be relevant to other cases in future. This does not play an important role in making decisions by judge and hence might not have strong effect on the subsequent cases but can be used if relevant in some cases.

Question 9

The adversary system for trial has evolved from the Norman custom of trial by battle wherein parties who are in dispute fought to determine, which party would win. The trials in Australia are based on adversary system. In this system, the parties who are represented by their respective lawyers oppose each other and present their counter views about the claim being made and is monitored and assessed by the judge or magistrate. Each party is allowed to present the evidences and legal arguments, which support their claim. This system is applied in courts which follow British Common Law. Based on the evidences and arguments presented by the respective lawyers the judge attempts to determine truth and pass a judgement. In some other parts of the world, European Inquisitorial System is followed wherein judges and magistrate participate actively in the trial process, which is not done in adversarial system. In inquisitorial system, the judge does not play the role of only listening to evidence and argument presented by the respective lawyers instead the judge supervises the collection of the evidence required to solve the case. The inquisitorial system is used in civil law countries and adversarial system in used in common law countries. The judges are given increased powers to determine and assess the true facts of the case and also have the power to examine a witness directly in case of inquisitorial system for trial. Followers of Adversary systems claim that the system provides increased protection for civil liberties and supports of inquisitorial system highlight that the rules and procedures of adversary are complex that can often prevent from judging the case fairly. Adversary systems provides an opportunity for neutral decision-maker to make judgement about the case after hearing the claims presented by both parties. In European inquisitorial system, the judge might be biased as he/she participates in the investigation of facts of the case being judged.

Question 11

Alternative dispute resolution process wherein a third person helps people in resolving their dispute. It does not include judicial determinants and hence the decisions are not made by court or tribunal. The process uses other avenues, which include arbitration, mediation, government ombudsman or industry complaint resolution schemes. Arbitration I us used when parties or individuals in dispute appoint a third party who tries to help the parties or individuals reach an agreement. Arbitrator makes a legally binding determination if the parties or individuals do not agree. The rules, which are followed in such cases are established by Commercial Arbitration Act in each State. This approach helps the individuals to save money and settle dispute outside the court. For example, the clause in a contract signed by two small company owners who have not clearly added certain clause and their understanding of the clause mentioned is different to some extent. In such situation arbitration is useful. Mediation is the main alternative to litigation and is approves wherein the independent third party attempts to resolve the dispute even though it is not legally qualities. In this process, the independent party aims at reaching a mutually acceptable agreement. In this process, the parties voluntarily participate and can also be ordered to participate by Supreme or Federal court and some tribunals. Mediation is widely used by mining, tourism and construction industry. For example, any issue regarding the payment between two companies or parties, which has not been settled as discussed verbally can opt for mediation wherein an independent party can talk through the party who is to pay and arrive at mutually acceptable agreement. Ombudsman refers to an independent officer who investigates the dispute and reports on conduct of government bodies. This is used in cases where applicants have previously complained to a government body and were not provided any fair or reasonable solution to their case. Government ombudsman in such situations can recommend corrective action or in some cases report to the parliament with an intention that the bad publicity of the government body can help in bringing changes or provide justice to the respective individual or party. An example of such process is of an employee being mistreated in the organisation and in spite of complaining to a government body no necessary action has been taken then the employee can approach an ombudsman to address the issue. Industry dispute resolution is one wherein several industry groups have set up independent bodies, which hear and resolve complaints from people within their industry. The group plays an important role of avoiding statutory intervention by government. The example for this process is of lack of implementation of certain safety practices due to which the employees are facing various issues such employees can meet the industry groups to discuss the action that can be taken on the employee organization.

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