Lpab legal institutions exam notes PDF

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The Legal Profession 2 Key Parts 1. Legal Practitioners 2. Judiciary22319

Legal Profession – consists of Barristers, Solicitors and Members of the Judiciary

History/Development of Legal Profession * 13th Century – Pleaders and Attorneys * 17th Century – clear distinction between Pleaders and Attorneys - Pleaders = members of Inns of Court - Attorneys = Solicitors (grew in influence) + Barristers (alone had the right of appearance) Legal Profession in Australia * Formal division between Barristers and Solicitors removed (share Common Admission) - BUT --> still a Functional separation * Each state will have a separate Bar * For NSW – governed by Legal Profession Act 2004 (NSW) - Maintain Common Admission - Functional Separation now (of earlier act – Legal Profession Reform Act 1993 (NSW)) - Barrister – s81(1) --> practice as barrister under barristers rules - Solicitor – s82(1) --> practice as solicitor under solicitors rules - ‘Cab Rank’ Rule – s85 (a-d) * Barrister must accept brief from Solicitor if: a) brief within B’s capacity, skill and experience b) barrister work as a barrister under its rules (ie, represent client’s interest, not committed to other engagements) c) fee offered in brief is acceptable to the barrister d) not obliged or permitted to refuse the brief - ‘Law Society Rules’ – Statement of Principal for Rules 1-16 *Serve competently and diligently *Aware of r’ship with clients + deal with them fairly and free from any conflicts of interests *Maintain confidentiality of client’s affairs, but give client all info available *Should not engage in conduct that is in breach of the law - ‘Duties to the Court’ – Statement of Principal for Rules 17-24 *Should act with competence, honesty and candour (straightforwardness of speech or behaviour) *Frank and diligent *Duties include – obtain/present evidence ; prepare & file docs ; instruct/appeal as advocate - ‘Relations with other Practitioners’ - Statement of Principal for Rules 25-31AA *Act honestly, fairness and courtesy *Transact lawfully and competently with clients *Consistent with public interest DUTIES – owed to various parties (ie, the Law, the Courts, the Clients, the Profession, and Each Other) **Summary of Quote from De Jersey CJ – nature of a true professional has unique ethical responsibilities and will be disciplined if in breach, not entered for financial gains, those fit in this role has fairness and decency. - ‘Elements of Admission to practice’ – s24 & s25 **s24 (Eligibility) --> academic qualifications & completion of practical legal training **s25 (Suitability) --> whether person is ‘fit & proper’ and of good character

Do’s and Don’ts in the Legal Profession *Don’t (Clyne v The NSW Bar Assoc.) – lie to a judge who rely on him for information - misrepresent the law to inferior court - don’t ask a witness whether he/she’s been guilty of evil conduct unless its related to the case *Don’t (NSW Bar Assoc. v Hamman) - defraud client (worse than doing it for personal gain) - fraud is bad (when disclosing income)

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*Don’t Plagiarise/ Cheat - Eg cases – Re Liveri [2006] QCA 152 ; Re Humzy-Hancock [2007] QSC 34

Judiciary Characteristics of judicial system: * Adversarial system * Judge as neutral umpire * Parties control issues through pleadings * Judge does not decide the truth – but the rights as between the parties

Historical Development - Act of Settlement 1701  provided: a) security of tenure b) security of income c) security of reputation – public confidence maintained - Subsequently – s72 of Constitution explains the above - Theory of Separation of Powers: * Legislative, Executive and Judicial arms of government function independently * Judicial arm not dependent on other arms - s72 of Constitution * Talks about the appointment of tenures where only misbehaviour in eyes of Parliament is only way of removal * Issues – involvement of political parties in removal process - meaning of ‘misbehaviour’ and ‘incapacity’ (different views) - Appointment of Justices – Attorney General require consultation with Attorney General from the States (refer to High Court of Australia Act 1979 – s6) - Judicial Commission of NSW * Assists the courts to achieve consistency in sentencing * Organises and supervises an appropriate scheme of continuing education and training for judicial officers * examines complaints against judicial officers * gives advice to the Attorney General on matters concerning judicial officers

Judicial independence include: 1) Security of Tenure - Judges cannot be removed unless guilty of misbehaviour or misconduct satisfied by Parliament - be a judge until 70 years old - Issue – difficult to remove a judge (however, need to review how judges are removed to protect public) 2) Financial Security 3) Institutional Independence **Must ensure – there is a guarantee that there’s judicial independence - but that guarantee should not be caused by misuse of executive power

Lack of Judicial Independence shown where: a) Criticism of judges as individuals b) Criticism of judges as authority of court c) Abolition of courts (eg, NSW Magistrates Court, VIC Compensation Tribunal) d) Appointment of judicial officers e) Acting judges / part time judges f) Finances - Overdependence upon admin and financial resources from government departments g) Transferral of powers to tribunals

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h) Tension between Executive and Judicial Arms - On authority of Judges to decide on social or community importance (eg, human rights) - Judges are elected by Executive and basically cannot be removed. (affect decisions of future Governments) i) Judicial arm must rely on other arms to work effectively. (eg, depend on Executive to provide remuneration, courts, equipment and staff.) – Australian courts experiences j) Subject to administrative regulations k) Lack of training to be judges (Aust – appointed by Executive who are members of political party - bias) - ideally – should be appointed by politically neutral bodies

Examples of misuse of executive power (affect Judicial Independence) 1. Malaysia – decisions made by HC re: PM and his party overruled by the King as he is the Head. 2. QLD Supreme Court of QLD Act 1991 - strips Chief Justice of all power to administer the Court based on the new Act passed by new Govt - new govt empowered themselves to appoint new judges with powers (President of Court of Appeal) - no consultation with Chief Justice when Act was passed - lack of knowledge, thus no public outcry or concern 3. NSW Abolition of Courts - Govt abolished the Magistrates Court with Local Court (6 magistrates not appointed to this court) - Issue – wasn’t about protecting their tenure (the court was abolished, they were not removed) 4. VIC – The Accident Compensation Tribunal - 12 judges dismissed when Govt abolished the Tribunal (Govt claimed they were specialists in compensation therefore not qualified for appointment elsewhere) - Most judges (former barristers) have made successful transitions to Supreme/District Courts (esp. in NSW) and able to function successfully in other areas of law - Issue – security of tenure irrelevant when Govt justifies the reasoning behind their removal - whether Tribunals should give Judges their title and authority

Judicial Activism (Justice Kirby) – Hamlyn Lecture 2003 1. Old Testament (History) - Tudor Times --> fundamental doctrine = judge applied the law (not make the law) --> Authority of the Church (excessive power, indulgences and luxuries – not follow the bible, eg, women bishops, gay marriages etc…) - Judges reluctant to change past words (noble lie) * Eg, 1978 case with Darcy Dugan – convicted felon couldn’t sue because of ancient English Law of attainder and corruption of blood * Continue in 80s – most judges follow signals from Privy Council in London - Sir Owen Dixon – influenced many legal professionals with his philosophy of: a) strict and complete legalism (or judicial passivity) – some thought to be excessively legalistic - Today – this ‘strict and complete legalism’ is neither possible nor desirable - judges are not in that mechanical frame of mind (more creativity) 2. Reformation - 3 institutional features of common law (reinforce elements of judicial creativity) a) Personal characteristics of senior judiciary – share common socio-economic background (all were once barristers) b) Judicial obligation to give reasons – duty to deliver and publish reasoning based on past and present & uniqueness

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c) Right of judges to make dissent judgements (express a different opinion) - Public policy limits strict logic – thus judicial creativity is enforced Eg, case relating to parents of child born due to failed sterilisation procedure (sue to recover economic loss) * involved discussions of legal and public policies - none of the judges made their decision based solely on logic and past legal authority (no strict logic) - Developments in psychology of decision making & analysis of obscurities of language = better understanding for judges to resolve legal disputes - Issue – cannot lean towards one policy and remove another - interpretation of language in statute (judges may see it another way) (thus, creation of purposive approach – find purpose of the legislation – scope for judicial interpretation of legislation that would avoid discrimination, human rights issues and solves language issues) *** Must always begin with legal authority and reasoning and apply legal history. Only when there are ambiguity where these sources do not always apply. *** - Key Reformation --> ability for judges to make choices and note them down (esp for interpreting statute) 3. Counter-Reformation (known as Judicial Activism) - Movement to attack judges by political leaders & media group (lack of defence from Federal Attorney General - Attacks have been more sustained, more personal Eg, Home Secretary (Michael Howard) on Justice Dyson in HC in London - Problems legal activism creates: a) threatens public confidence in the independence of the judiciary b) weakens faith in the decisions of judges c) create doubts about judicial capacity to improve and renew the law d) may bully judges back to the strict logic of Dixon’s days - Benefits from legal activism: (i) Transparency in judicial reasoning (ii) Separation of powers (judiciary does not have the powers of law making that belong to Parliament and Executive) (iii) Governments take responsibility upon themselves to make decisions about matters concerning the people (iv) Vocal in legally enforceable rights cases (ie, Human Rights cases) – but not as keen are the judges to combine these with old law. 4. Concordat - Judicial Activism (legal counter reformation) – require judges to adapt and adjust the law to changes in cyberspace, human rights, etc…. - Judges have limited role: * cannot do anything without a case * must operate within certain words, mostly made by others (precedent) * focus on rule or principal of law (either by binding or obscure in which reasoning and interpretation is required) * Key – there is never an absence of law - The need to inform the people and lawyers the judicial role via: * education to the public * explanation through the public media through the governments

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Classification of Law and Introduction to Legal Problem Solving 1. Private Law - Private parties (common/case law) – eg, torts, contracts, intellectual property 2. Public Law – governs operation of the State (whereby State is always a party) – eg, criminal, constit, admin, stat law 3. Commercial/Business Law – eg, contracts, litigation, dispute resolution, tax, corporation/partnership law 4. National/International Law – external affairs power, power to legislate domestically increased (eg, Tas Dams Case) - Rise in international treaties Common Law - Definition– the way a country commonly adopt a type of law (eg, England) *Civil Law – mainly adopted by European colonies (based on Napolean) - Courts (Judge is more active, broader inquiry, they direct witnesses) eg, Royal Commission of NSW, Coroner’s Court - Members between themselves *Common Law courts – Judges play a lesser role, act as neutral umpire *Equity Law – reform to Common law - based on complaints of ‘lack of justice’ - focus on justice, fairness, equality - Equity Courts = aka Court of Chancery (CH) – Judge = Lord Chancellor *Criminal Law - State always a party - Impt --> public require confidence in criminal law system to pursue this via individual legal people (ie, confidence to go to the police rather than revenge) - Operate on Standard of Proof – beyond reasonable doubt - Crim Law = higher standard of proof (Civil Law = lower standard of proof) - If lose in Crim Law, can still win Civil Law - Different in punishment – eg, Crim Law (fine, imprisonment) whereas Civil Law (remedy/damages) (Refer to sample details in: State Government Insurance Commission V Trigwell ) Case – Trigwell had car accident with Rooke whereby she hit sheep owned by Kerins on highway, and sued them for negligence. (including 3rd party insurer SGIC) Trigwell won case in Supreme Court and ruled Kerins not under duty of care by Searle V Wallbank case and Insurance company had to pay for injury to Trigwell. SGIC appealed but lost because the law from Searle V Wallbank formed part of law in South Australia. Formation of a Contract - Definition --> agreement enforceable by law - Includes – Promise - made by ‘parties to the contract’ - Create obligation - exists in conversations & negotiations (rather than always a formal doc) OFFER + ACCEPTANCE = CONSIDERATION, CAPACITY)

AGREEMENT (depends on: INTENTION,

INTENTION - Must have intent to create legal relations Eg, Rose & Frank Co V JR Crompton & Bros - US co enter agreement with UK co (continue to deal with each other for 3 years subject to break with 6 months notice), but UK co terminated after 1 month notice. US co sued that there was legal obligation - Court Found --> agreement did not have intention to create binding contract (thus binding in Honour, not law, no breach) ***Honour clause created by both parties excluded them from having legal intention Rebuttable Presumptions - Starting point to see whether there are any intentions - Social & Domestic Agreements (not just husband & wife, but close relations) = no intention Eg, Balfour V Balfour – happily married, made arrangement but wife felt sick Cohen V Cohen – relate to instalments in dress Jones V Padavatton – mother and daughter arrangement

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- However, these presumptions are rebuttable Eg, Merritt V Merritt – separated, met to discuss ownership transfer to Mrs Merritt after she pays mortgage (courts – Intention as they were separated) Wakeling V Ripley – wealthy brother ask sister and her husband to move in with him (living in UK at the time) and he’ll give them everything. Court ruled it was ‘business or commercial agreement’ thus created legal intention Other rebuttable presumptions – if Business or Commercial Agreement, it did create intention Eg, Carlill V Carbolic Smoke Ball Rose & Frank Co V JR Crompton & Bros Emogenous V Greek Orthodox Community of SA Inc – priest not getting work entitlements, courts confirmed there was business/commercial intent (even though law of SA did not state at the time) - Must pass Objective Test (reasonable man test) – what a normal person would do

OFFER - Definition – indication by one to another of his willingness to enter a contract with that person on certain terms - Features: *offeror (giver) must intend to be bound by offer (not request info / invitation to treat) *offer must be communicated to the offeree *may be made to one, class or world *must contain enough info (certainly) to allow a binding contract to come into existence Intend to the bound Offer is NOT: Request for the supply of Information (ie, negotiations) – eg, Harvey V Facey Invitation to Treat (ie, “let’s deal” – invite someone to make offer but not yet) Eg, Pharmaceutical Society of Great Britain V Boots Cash Chemist (Southern) Ltd - invitation to treat (goods displayed from shelves), offer is when customer picks goods and pays Gibson V Manchester City Council - Old council sent letter for tenants of public housing to apply for ownership that they “may” get the house. Council changed and although letter sent, they are not selling. Court – council’s letter was invitation to treat) Grainger & Son V Gough - price list of wines are ruled as invitation to treat **Invitation to Treat examples – Advertisements/circulars - Display of goods in shops - Price lists - Calls for bids at auctions - calls for tenders Eg, Bait Advertising (under Bait Advertising Act) – advertise item and sold out (now they put ‘limited stock’ in ads) Carlill V Carbolic Smoke Ball - Carlill followed ad made by Carbolic Smoke Ball that if they eat it, they will not have a list of symptoms for x number of days or else they will reward them $100, but Carlill tried and didn’t work, however, Smoke Ball co didn’t pay reward - Issues of Law --> Although ad (Inv to Treat), ad had extra info (reward and deposit info to known bank) to create legal intention, thus it’s a contract --> Offer was made to the world which still applies --> Consideration (reward) can equal to detriment/ effort to form a contract Crown V Clark – must be able to see the ad to accept offer

Communication - Must communicate to the offeree - “Overheard” offer or unintended communication NOT offer - eg, Banks V Williams - Offeree – person, class or persons or world - All an offer needs is a “YES” to make a contract

Termination of Offers 1. Revocation - Must be communicated - Prior to acceptance – Eg, Byrne V Van Tienhoven (relate to tinplates – offer was accepted before revocation) - Communicated by 3rd party or conduct – Eg, Dickinson V Dodds

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- Not bound by statement to keep offer open for specified time – Eg, Dickinson V Dodds - Unless Option – paid to keep offer open (not deposit) ; side contract - Eg, Goldsborough Mort V Quinn 2. Rejection - Rejection terminates an offer - Counter offer – is a rejection Eg, Hyde V Wrench - Response not always counter offer / rejection (ie, may be clarification or request for more information) Eg, Stevenson Jacques & Co V McLean – there was no counter offer, thus initial contract exists 3. Acceptance - Definition --> FINAL & UNQUALIFIED assent to terms of ofer (the “YES” which ends negotiations) - Must respond to the offer --> to whom offer was made AND whoever have the offer in mind at point of ‘acceptance’ may accept Eg, R V Clarke – He wasn’t responding to the offer or had it in mind (wanted reward for dobbing his friends in for murder but he was one of the suspects being interrogated by police) - What can be accepted: **only what was offered **must end negotiations **must be unqualified **battle of the forms (ie, counter offer) Eg, Butler Machine Tool Pty Ltd V Ex-cell-O Corp(England) Ltd - Must be communicated **Silence not sufficient – Eg, Felthouse V Bindley **Conduct may communicate acceptance (both did not sign contracts but still showed conduct in using them) Eg, Brogden V Metro Railways Empirnall Holdings V Machon Paul

Exceptions to Communication - Postal Acceptance Rule – demonstrate proper postal paid and addressed (difficult to prove facts) - Only apply to ‘posts’ - Not apply if: - contentious matters (ie, Tallerman & Co Pty Ltd V Nathan’s Merchandise (Vic) Pty Ltd) - if actual notice requested (ie, Bressan V Squires)

CONSIDERATION - Definition – price paid for the promise (different to ‘gift’ where you offer without price and other party accept) - both parties must provide their end of the bargain (between the parties to the contract) Eg, Dunlop Pneumatic Tyre Company V Selfridge & Company – consideration only between Dunlop & Supplier, not with Selfridges as contract was between Dunlop & Supplier Australian Woollen Mills V The Commonwealth – subsidies from Cmwlth to wool manufacturer only for certain period and this led to them buying large amounts of wool. But after period, subsidies cut and court ruled the subsidies were not a promise. Key factors of consideration: * Must be bargained for * ’quid pro quo’ –...