test 1 Flashcards
what is the slippery slope
when its hard to know where to draw the line if you allow it once
what is precedent in non-legal terms
something that has come before
what is legal precedent
when a legal case establishes a rule or principle, and then this principle is used by a court to decide a later issue with similar issues and facts
Judge Coleridge, in the Dudley v Stephens case, explains law and morality are?
closely connected
why does law exist
with conflicts between people we have to limit our autonomy so everyone can live together
what two ways can law be classified
by subject matter or by source
what subject areas can law be classified into
Public Law: Constitutional law, administrative law, criminal law, industrial law, revenue law
Private Law: contract, torts, property, family, commercial law, (equity, evidence, procedure)
why is classifications of law by subject matter important
because laws can overlap. equity for example touches on nearly every area of law. these classifications help people to find relevant legal sources
what is the digest
an important tool used by lawyers which includes case law organised by subject matter
what is public law
interactions between the state and the individual or two different parts of the state
what is private law
person to person
what are companies classified as for legal purposes
a person
is constitutional law public or private
public
is administrative law public or private
public
is criminal law public or private
public
is contract law public or private
private
is tort law public or private
private
is property law public or private
private
is family law public or private
private
is commercial law public or private
private
what is constitutional law
power distribution in government/order of the government
what is administrative law
relationship between individuals and government
what is judicial review
review of government actions by the court to see if it was legal or illegal
what is ultra vires
when the government is found by judicial review to have acted illegally beyond its powers
what is the ombudsmen
people that investigate complaints against the government
what is criminal law
antisocial behaviour etc
what do contracts do
regulate agreements
what are torts
obligations owed in society to one another for a civil wrong commited
what punishments are appropriate for a tort matter
damages, compensation
what three types of property are there
real and personal and intellectual
what is real property
land (real estate)
what is personal property
private property that isnt land like laptops
what is intellectual property
products of human creativity such as art, literature and inventions
what is intellectual property often synonymous with
copyright, trademarks and patents
what is family law
includes marriages, divorces, adoptions etc
what is commercial law
includes banking, insurance, insolvency, companies and competition
how do we classify law by source
either international law or domestic/municipal law and then domestic is broken up into case laws and statutory laws
under which act did englands laws become ours and on what date
English Laws Act, 14 Jan 1840
what legal system family does NZ operate in
common law
how did NZ take the common law
it is british law, and we are a british colony
what are the three main features of the common law system
adversarial in nature meaning there are two conflicting opposing parties and the judge as a neutral decision maker, traditionally uses an unwritten constitution, case based system where law develops through cases
how does Sir William Blackstone define case law
“the ancient unwritten laws of the kingdom”
how does blacks law dictionary define case law
“the body of law derived from judicial decisions, rather than from statutes of constitutions”
what is a statute
a written law, passed by a legislative body
in nz, who has the sovereign power to make laws
only parliament
when a statute and case law conflict, which rules due to its supremacy
statute
when the authority to make law is delegated, what is the legislation called
delegated or subordinate legislation
what are the 3 main differences between case and statute law
- case law is unwritten, statute is written
- case law develops from case to case so courts have to wait for a decision to come to court to change or make law. making statutes is much faster as parliament can just make them
- case law is specific due to its case by case nature, whereas statute is much more general
how do judges make judgments through case and statute law
case law - turn to precedent
statute law - turn to statutory interpretation
what is stare decisis
“to stand by decision and not disturb settled matters” - principled basis for precedents and provides certainty and predictability
what is the doctrine of precedent
the doctrine by which those cases are recognised as law - judges must respect previous decisions as per stare decisis
what is the doctrine of binding precedent
when a higher court makes a decision it is binding on the lower courts due to the heirachy of courts in NZ
what is the heirachy of courts in NZ from top to bottom
supreme court
court of appeal
high court
district court
why do we have the doctrine of precedent and binding precedent
because the legal system loves certainty! certainty allows us to base our actions on the law because we know it will be consistent, and we can predict outcomes
with what act was the supreme court of new zealand created
Supreme Court Act 2004
before the time of the supreme court act, what was the highest court you could appeal to?
if you wanted to go higher than the court of appeal, the matter had to be taken to the english Privy Council
what does the Privy Council and Supreme Court Act 2004 mean for the bindingness of Privy Council Decisions in NZ
Privy Council decisions made before 2004 bind all but the Supreme Court, and Privy Council decisions made after 2004 are not binding
what is the difference between binding and persuasive precedent
precedent is binding when it is made by higher courts in the same jurisdiction. precedent is persuasive when it is made by lower or coordinate courts, or an international jurisdiction
what is a coordinate court
the same court/level in hierarchy
why is an effective system of law reporting needed
judges need to be aware of precedents that exist, especially when they are binding
what is te ao maori
the maori world, the general understanding of how maori see the world, and the underpinning philosophy which informs tikanga maori
what is tikanga maori (define)
the right maori way of doing things
how is tikanga maori, the right way of doing things, passed down through the generations
oral traditions
what is tapu
sacredness, the most important of all actions - is present in all things
what is there to balance out tapu
noa - there to allow or provide neutrality
what is whakawhanaunatanga
connectedness, coming together and connecting, eating together etc
what is mana
authority, prescense and prestige, spiritually powerful, a person doing the right thing
what is kaitiakitanga
guardianship, there as a person to look after things
what is utu
reciprocity - maintenance of bringing things back into balance. often known as bed but its used when a wrong needs to be put right
what are the 5 +1 main tikanga maori values
tapu (and noa), whakawhanaungatanga, mana, kaitiakitanga and utu
is tikanga maori law
yes. it is recognised in case law and statues
what are some examples of tikanga maori used in law
ngai tahu settlement act, whanganui river claims settlement, mv rena oil spill, takamore vs clarke (read about these in your notes)
what was created under the Waitangi Treaty Act to deal with matters to do with land matters
the Waitangi tribunal
what legislation was te ao maori recognised under so that maori could do what they could before the crown came
the deed of settlement
what were the 4 key features of the deed of settlement
- offering a formal apology from the crown to ngai tahu
- transfers the title of Aoraki mt cook back to ngai tahu
- economic redress - $170m in compensation that allowed maori to buy land back
- offered a package of cultural redress - recognising kaitiakitanga and Ngai Tahu’s role in environmental management through:
a) statutory acknowledgement
b) deeds of recognition; and
c) topuni overlays
what innovations came from the whanganui river claims settlement
the grant of legal personality to the river, indicates idea of cultural cultural redress with treaty settlements
throughout the court cases to do with the whanganui river, what was whanganui iwis primary concern
environmental degradation of the river
in what year did we get the whanganui river settlement act
2017
what is a legal person
an entity on which a legal system confers rights and imposes duties
by granting the whanganui river legal personality, this meant?
it could protect itself from others and take action to defend itself from harm
what island did the mv rena oil spill effect
motiti island and astrolab reef
what was the problem with the governments approach to dealing with the mv rena owner
the maoris weren’t part of the negotiations and they believe they should have been because they have an interest here`
what is the main issue in takamore vs clarke
takamore’s maori family up north stole his body to bury it when his will and his new family in chch wanted him buried here
what was the final result of the takamore vs clarke case
ms clarke is right because she is the executrix of the will
whats the difference between a profession and a regular job
a profession is a vocation, a specified career or occupation
what were the three learned professions in medieval times (1100’s)
medicine, the church and law
what are some common traits of professions according to millerson in lamb and littrich
- skill based on body of theoretical knowledge
- provision of training and education
- testing competence prior to entrance
- organisation
- code of ethics
- ethos of altruistic service
what are dal pont’s common attributes for a profession
- special skill and learning
- public service the principle goal
- autonomy and self regulation
- and - special jargon/language and collegiality
what is a lawyer (definition)
a member of the legal profession, one common trait is to have a code of ethics
what are nathanson’s 4 popular perception images
a distorter of truth, a sorcerer, a hero, a paper generator
lawyers and their talk of profession is all about ___ and ____, a closed ___ with ___ and ____
power and control, elite with superiority and exclusiveness
what is the difference between a barrister and a solicitor
barrister - works mainly in the courts and tribunals
solicitor - advisory work, drafting legal documents, property transactions, administering estates, forming companies, raising or securing loans, preparatory work for barristers
what is a barrister sole
specialist in court and tribunal work only, an independent group as a seperate bar, cannot take direction from the public which has to be through a solicitor, fee is paid by instructing solicitor
to become a judge a lawyer must have held a practising certificate for how long first
7 years
who appoints judges and on the recommendation of who
appointed by the governor general on recommendation of the attorney general
what are coroners
qualified lawyers appointed judicial officers to look into unexpected, violent or suspicious deaths. they must have held a certificate for 5 years
which section of the lawyers and conveyancers act 2006 defines a lawyer as “a person who holds a current practising certificate as a barrister or as a barrister and solicitor”
section 6
what lays out the rules a lawyer must abide by
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
under the LCA (Conduct and Client Care) Rules 2008, a lawyer must
- act competently, in a timely way and in accordance with instructions given
- protect and promote your interests
- give you clear information and advice
- protect your privacy and confidentiality
- treat you fairly, respectfully and without discrimination
- let you know how to make a complaint and deal with any complaint promptly and fairly
under which section of the LCA 2006 and the the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008
part 3
what qualifying requirements must a person have to practise law in nz
complete a law degree at one of the 6 universities, complete professional legal studies course, be admitted by the high court of NZ, hold a current practising certificate issued annually by NZLS
it is an offence to act a barrister and solicitor without a current practising certificate under which sections of the LCA
21 & 46
which section of the LCA sets out the requirements for fit and proper
55
what are the requirements taken into account for “fit and proper”
- person’s good character
- any history of being declared bankrupt or a director of a company that has been put into receivership or liquidation
- any convictions
- has the person engaged in legal practise in NZ when not admitted
- any pending complaints in respect to other professions or occupations
- any contraventions of the rules of overseas professions or breaches of trust in handling money
- mental or physical infirmities
where does the Criminal Records (Clean Slate) Act 2004 apply in the admission process
has to have been 7 years since the last offence and no imprisonment for the offence
what section of the LCA 2006 outlines the purpose of the act and what is the purpose
s3 -
maintain public confidence in the provision of legal and conveyancing services
protect the consumers of legal services and conveyancing services
to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner
how did the 2006 act reform the 1982 law in what 3 ways
changed professional regulation, establishes the new conveyancing profession, a focus on consumer/client protection
what did changing professional regulation mean for the reshaping the 2006 act
significantly reducing the lawyers monopoly, reduction of law society dominance, seperates the law society regulatory and representative functions
what did a focus on consumer and client protection mean for the reforming of the 1982 law
poor service becomes a ground for complaint, ministerial approval of rules, independent complaints review officer
how does the LCA 2006 still preserve part of the lawyers monopoly
you can only describe yourself with titles such as lawyer if you have a practising certificate to protect the public so you are qualified, representing people in courts is still largely reserved for lawyers, giving advice under Relationship Property Legislation is reserved for lawyers
why was some work reserved for lawyers in the LCA 2006
some of the services are complicated, incompetence or negligence could cause significant loss, particularly in the court context, incompetence could prevent justice
what is section 4 of the LCA 2006
fundamental obligations
what fundamental obligations are laid out in s4 LCA 2006
- uphold the rule of law and facilitate administration of justice in NZ
- be independent in providing regulated services to his or her clients
- the obligation to act in accordance with fiduciary duties (high trust and reliance because the client wouldn’t necessarily know a lawyer is giving bad advice) and duties of care
- to protect the interests of his or her client, subject to their duties as an officer of the High Court and any enactment
what changed about the NZ Law Society with the LCA 2006
it was given a new structure and all lawyers were now regulated by NZLS but not necessarily represented by it
under s 64 of the LCA 2006, the NZLS is?
voluntary, you don’t have to be a member
s 66 of the LCA 2006 tells us the representative functions of the NZLS, including under s 68?
- to provide lawyers educational and training services and seminars
- to publish periodicals, pamphlets and other materials
- practitioner support
- provides libraries for lawyers to use in court
these represent its members and serve their best interests, promoting collegiality between members of the profession
in what sections of the LCA 2006 would you find the regulatory functions of the NZLS
65, 73 and to do with the client care rules: 94, 101, 107, 103 and 104
what regulatory function of the NZLS are included under s 65 of the LCA 2006
- to control and regulate the profession of law
- to uphold the fundamental obligations imposed on lawyers in NZ
- to monitor and enforce the act
- to assist and promote upholding the rule of law, administering justice and reforming the law in NZ
what regulatory function of the NZLS is set out in s 73 of the LCA 2006
an annual practising certificate fee to be paid by all lawyers, and this income to be used for funding regulatory functions
what does s 94 of the LCA 2006 require the law society to do
make rules - LCA (Lawyers: Conduct and Client Care Rules) 2008
what section of the LCA 2006 requires the Minister to set the client care rules
101
under s 103 and 104 of the LCA 2006, who can amend the client care rules
NZLS and the minister
s107 of the LCA 2006 sets out the effect of the client care rules, what is the effect?
binds all practitioners and cannot contract out of them or contract to breach them
when were the LCA (Lawyers: Conduct and Client Care) rules come into being
2008
what are some rules under the LCA (Lawyers: Conduct and Client Care) 2008
- obliged to uphold rule of law and facilitate administration of justice
3.9 must undertake the continuing education and professional development needed for competence
5.1 the relationship between lawyer and client is one of confidence and trust and that must never be abused
5.4 must not continue to act if there is a conflict or risk of conflict of interests
7 disclosure of information
8 confidentiality of client info
why are formal remedies seldom sought for harrasment
- power imbalance between victim and perpetrator
- complaints process and proof often difficult
- even if proved, the victim suffers again by being marked as a complainer, moved ‘away’ from the perpetrator (and potentially where they want to work) within the firm
what are some relevant rules for misconduct in the LCA(Lawyers: CACC) Rules 2008
10 - a lawyer must promote and maintain proper standards of professionalism in the lawyers dealings
10.1 a lawyer must treat other lawyers with respect and courtesy
12 a lawyer must, when acting in a professional capacity, conduct dealings with others, including self regulated persons, with integrity, respect and courtesy
2 - being obliged to uphold the rule of law and facilitate justice includes the Human Rights Act 1993 cant discriminate
what are some rules relevant to lawyers misconduct from other acts
Health and Safety at Work Act 2015 - s36 Primary duty of care - employers must ensure health and safety of workers while at work
Summary Offences Act 1981 - s9 common assault - every person is liable for up to 6 months imprisonment or a fine no larger than $4,000 for assault
Crimes Act 1961 - s194 assault by a male on a female and s196 common assault including sexual violation, indecent assault
what do rules 2.8 and 2.9 of the LCA Lawyers CCAC Rules 2008 say about whistleblowing
- 8 subject to protecting privileged conversations, a lawyer must make a confidential report to the law society if they have reasonable grounds to suspect another lawyer has committed misconduct
- 9 as above, except may make a confidential report of unsatisfactory conduct
what is the test under s 7 LCA 2006 for “misconduct” when a lawyer is providing legal services and outside of the workplace
while acting as a lawyer - s7(1)(a) - whether the conduct would be regarded as disgraceful or dishonourable by lawyers of good standing
outside of work - s7(1)(b) - whether the conduct means the person is not fit and proper to practise
what would be the first step in trying to solve a lawyer vs client complaint
to try sort it between themselves
what is tier 1 of the complaints process and explain it
Standards Committee - consists of two lawyers and a lay person, with a purpose to resolve complaints and discipline the profession. orders can include reduction of fees, fines up to $15k, apology, censure, or dismissal of complaint. if the client is happy with the outcome, this is where it ends. however if the standards comittee lays ‘charges’/ thinks its very serious it will go up to level 3, and if the client isnt happy, it will co up to level 2
what is tier 2 of the complaints process and explain it
This is the legal complaints review officier. the matter comes here if the client isnt satisfied with the outcome of tier 1. This is a single person, usually with qualifications but not a lawyer. They can order change/no change to the SC outcome, and while being independent of the Law Society, can give recommendation to it or the Minister for the discipline of lawyers. This is because by being involved in the process, they see trends etc.
what is tier 3 of the complaints process and explain it
tier 3 is the Lawyers and Conveyancers disciplinary tribunal (DT), who deal with the very serious matters. It consists of 15 lawyers and 12 lay members, with a minimum of 5 to sit in a hearing. It is chaired by Judge Dale Clarkson. They mainly focus on disciplinary matters. Orders that can be made are being striked from the roll, suspended from practise (not exceeding 36 months), terminate or restrict employment, restore name to roll or register, censure or reprimand, undergo practical training or education, practice to be made available for inspection, apology to complainant or fines up to $30k.
what is the difference between misconduct and unsatisfactory conduct
misconduct is more serious while unsatisfactory is of a lower level
what section of the LCA 2006 covers misconduct
s7
what are some examples of misconduct
- “disgraceful” or “dishonourable” conduct
- wilful or reckless breach of rules
- charging grossly excessive fees
- dishonest fraud
- lying or misleading another lawyer or tribunal
- continuing to act in the face of a conflict
- poor financial management
- breaching duties of confidentiality
- sexual advances towards clients
- failure or inadequate supervision of staff
what tiers of the complaints process usually deal with unsatisfactory conduct matters
1 and 2 - standards committee and LCRO
under the NZ Bill of Rights Act 1990 section 24, what are the rights of a person charged
everyone who is formally charged with an offence (criminal):
- shall be promptly informed and in detail of the nature and cause of the charge
- shall have the right to consult and instruct a lawyer
- shall have the right to adequate time and facilities to prepare a defence
- shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance
what are some causes/factors in the inability to access justice
- cultural inflexibility - courts perceived as a mysterious and scary place
- geographic - only 3 permanent high court sitting places in auck, well and chch. they go to 19 other places on a circuit so you either have to take it to a main centre or wait your turn
- language - language of lawyers and jargon makes it difficult and confusing
- legal ignorance - don’t know your rights, hard to find the law etc - often not knowing your rights also indicates a lack of education and therefore money which can make things even harder
- physical barriers for those with disabilities - not every court room has the best acoustics for hearing aids, not all have ramps especially older
- cost of legal services
what does rule 9 say about lawyers bills
a lawyer must not charge a client more than a fee that is fair and reasonable having regards to the interests of both client and lawyer and to the factors set out in rule 9.1
what does rule 9.1 say about lawyers bills
that factors of the bill include:
- time spent and results achieved
- importance of matter to client
- value of property involved
- going rate in the market
- urgency and time limits imposed
does a lawyers fee need to be affordable/cheap
no, only fair and reasonable
what 3 responses are there to some people being unable to pay a lawyers bill
taxpayer - legal services act 2011
lawyer - conditional/contingency fees
lawyer - pro bono work
when did the latest taxpayer funded services under the legal services act come into effect
1 July 2011, replacing the legal services act 2000
what were some problems in the legal system pre Legal Services Act 2011
lawyers said rates were too low for legal aid and they had budget pressures, there was a shortage of lawyers and judges said it was a “national disgrace”, the attorney general said there was “remorseless mercantalisaetion” with costs and delays, the minister of justice said it was a badly incentivised system and the cases weren’t proceeding in a timely way
what is the purpose of the Legal Services Act 2011 (LSA11) under s3
to promote access to justice by establishing a system that:
a - provides legal services to people of insufficient means
b - delivers those services in the most efficient and effective manner
under s4 of the LSA11, “legal services” includes
legal aid plus legal advice and representation and providing law-related education and info
what schemes are included in the LSA11
legal aid, community law centres, public defence services, duty lawyers scheme, police detention legal assistance scheme and family and youth law services
what is legal aid
tax payer funded programme which pays a lawyers fees if a client can’t afford to do so. if granted, payment is made directly to a legal aid lawyer
what is the criteria for granting legal aid for criminal offences under s6 and s8 of the LSA11
- be a natural person ie not companies
- have insufficient means to obtain legal assistance (based on income and disposable capital)
and either: - is charged or convicted of a criminal offence punishable by imprisonment of 6 months or more
- or it is in the interests of justice to grant legal aid
what is the criteria for granting civil legal aid under sections 10 and 11 of the LSA11
- be a natural person (need not be a NZ resident)
- income and disposable capital don’t exceed the thresholds prescribed in the legal services regulations 2011 regs 5 and 6
- has reasonable ground for taking or defending the proceedings
is it expected that legal aid will be paid back
yes it is giving on the philosophy that it is a loan not a grant, the commissioner can require the person granted to pay some or all of it back
what matters are included in civil legal aid considerations
family and domestic disputes - but not divorce
taking or defending a case in the HC or DC eg: suing on a breach of contract or defending bankruptcy proceedings
some disputes before tribunals and specialist courts
- employment relations authority
- Maori land court
- tribunals such as tenancy tribunal, waitangi tribunal and social security appeal authority
- refugee matters before immigration and protection tribunal
what civil actions are not included in civil legal aid
- disputes tribunal matters
- lawyers work not involving court eg: drafting a will
- disputes involving schools, universities and other educational institutions
- election petitions
how much is the application fee for civil legal aid and when is it waived
$50, waived for matters relating to the care of children, mental health, protection orders against domestic violence and refugees
how much is interest on legal aid debt charged at and how long is the interest free window
6% after a 6 month window
where can overdue legal aid payments be deducted from and what could they be secured against
can be deducted from wages, benefits or bank accounts and can be secured against house, car and other property
how is a community law centre defined under s93 of the LSA11
a body whose function includes the provision of community legal services
how are community law centres mainly funded, in combination with a top up from tax payers, under s 298 of the LCA 2006
from interest on lawyers and conveyancers trust accounts less bank charges
what kind of services do community law centres provide
tailored to the needs of the community but includes:
- free legal info/advice
- representation to people with insufficient means to pay
- law related education and information
- law reform submissions
what is the public defence service (pds)
a government funded agency of salaried defence lawyers, who defend people on criminal charges who are eligible for legal aid
what is the duty lawyers scheme
someone to assist you when you first front up to the DC who you don’t have to pay. They can help you start the legal aid process, help with a plea or bail and give advice. This is taxpayer funded and ensures smooth operation of the courts. It does not operate for civil proceedings, and really only works for smaller criminal matters. If it is too complex, the best they can do is apply for bail and arrange for the matter to be adjourned to a latter date to arrange legal aid
what is the police detention legal assistance scheme
available to people being questioned by the police, whether arrested or not. this ensures there are a sufficient number of lawyers to provide advice, assistance or both to any person. The police will give you a duty lawyer to telephone if you don’t have your own or its late at night etc
what are conditional/contingency fees
an agreement where the payment of a lawyers fees is contingent on a specified event
what types of contingency fees are there
- speculative - normal fee but only if successful
- bare percentage - fixed % of winnings
- sliding percentage - % gets higher as case progresses through stages - pre trial settlement, trial, appeal etc
- fee premium - normal fee plus a premium
were contingency fees legal pre LCA 2006
no
what two types of contingency fees are acceptable under the LCA
speculative - normal fee only if successful, allowed under the LCA s334(a)(i)
fee premium - normal fee plus a premium, allowed under the LCA s334(a)(ii), so long as the premium is not a percentage
in what cases are contingency fees not allowed
family court cases, immigration cases and criminal cases - dont want them in emotional cases, around children etc cos it can get rough
Rules 9.8-9.15 outline the rules for contingency fees, what are these?
- must advise client about legal aid possibilites
- 5 working day ‘cooling off’ period for client
- total fee must be fair and reasonable as per rule 9
- must be in writing, define ‘success’ and detail how expenses will be charged
- at the end of the work, the lawyer must give the client a bill which discloses the normal fee and the premium
what are some arguments against contingency fees
divergence of interest (want a win over whats best or want to finish quickly), compromises ethical conduct because the lawyer will have a financial stake in the proceedings, loss of objectivity (chances of success), fee chasing/stirring up litigation - lawyers will chase prospective clients although less likely here due to ACC, increase in cost of litigation services over time as lawyers only take what they can win, legal aid a more appropriate funding method
what are some advantages of contingency fees
access to justice, lawyers work more effectively and efficiently, particularly effective for class action, allowing freedom of contract
what is pro bono work
a lawyer doing work with no expectation of a fee
what are lawyers motivations for pro bono work
a duty - as a profession with a monopoly over the provision of certain services, obligation to uphold the rule of law, administer justice in NZ, preserve integrity of the profession, collegiality, obligation (sometimes required), makes you feel good, altruism (wanting to do charity work), clients expect it (be a good corporate citizen), future employee prospects (if firms want the best and brightest they need to meet expectations of being a good firm), spin offs - raises your profile for paid work in the future, compulsion
what is compulsion for pro bono work
it being required/compulsory. this happens alot overseas ie need 50 hours to be admitted to NY bar, 40 hours to graduate Columbia law school, expectations of many states inc. NSW and American Bar Association
what are some arguments for compulsion of pro bono work
duty arguments:
- cost of monopoly
- commitment to justice system
- specially situated/suited to assist
egoistic arguments
arguments against compulsion of pro bono
- why should lawyers have to do it, no one else does eg: plumbers
- no duty to be charitable - lawyers are like any other person and should be able to choose how they spend their life
- illegitimate tax
- government avoids responsibility
- stirs up litigation
- second rate service - despite rules applying
what courts are senior courts
hc, ca, sc
define jurisdiction
the authority granted to a legal body to administer justice within a defined field of responsibility
when a court is acting within its jurisdiction it is said to be acting?
intra vires
when a court is acting outside its jurisdiction it is said to be acting?
ultra vires
where does jurisdiction come from
statutory sources
where does DC jurisdiction come from
District Courts Act 2016
where does HC, CA and SC jurisdiction come from
Senior Courts Act 2016
how is the HC’s jurisdiction different to the other courts?
they have inherent (unlimited) jurisdiction, and deal with issues where it doesn’t have a statutory award of jurisdiction to a specific court
define original and appellate jurisdiction
original is when they have the jurisdiction to hear a certain matter for the first time, and appellate jurisdiction is when they can hear appeals
what is equity
remedies common law harshness by being more flexible and deciding based on justice and fairness
what courts have jurisdiction for common law and equity
all four key courts
do most nz courts use an adversarial or inquisitorial system
adversarial
what is an adversarial system
two opposing parties argue each side and the judge decides which has the better argument
where are inquisitorial systems used
europe and some nz tribunals
what is an inquisitorial system
where the judge has a more active role as fact-finding and doing their own research
who appoints judges and on the recommendation of whom in nz
governor-general on behalf of HMQ on the recommendation of the attorney-general or the recommendation of the prime minister for the chief justice
can judges pays be reduced
no
true or false judges have absolute civil immunity
true
under what section of the crimes act 1961 is bribing a judge or accepting one a serious offence
100 and 101
what is the retirement age judges can work up until without dismissal
70
can the government fire a judge for a decision they don’t like
no
the doctrine of precedent is essential to?
the common law system
to be obedient, we need to?
know what the law is
what are the advantages of a system of precedent
predictability and certainty of like cases being treated alike
what are the disadvantages of a doctrine of precedent
uncertainty, rigidity, illogicality, uncertainty where there may be many previous cases that apply with different decisions made
what was the hierarchy of courts pre 1980
privy council (london)
court of appeal
supreme court
magistrates court
what was the hierarchy of courts between 1980 and 2004
privy council (london)
court of appeal
high court
district court
what is the difference when square and round brackets are used
[ ] are used when the journal only includes cases from that particular year, ( ) are used when the journal may include cases from other years
what are neutral citations
where the citations are not by report, but by the court they were decided in
who is listed first, appellant or respondent
appellant first, respondent second
what do the appellate and respondent want in a case
appellate is hoping for the decision to be quashed, repondent is hoping for the original decision to be upheld/affirmed
what is the relationship between the firms and lawyers listed
firm could be the firm the lawyer works for, or could be the solicitors firm that instructs the barrister-sole type law
what do you call a judge from the DC and how is it written
Judge ___ in words and written
what do you call the judge in HC, and how is it written
Justice ____, written as ___ J
what do you call the judges in the CA
President ___, and Justices ___ and ___. ___ P, _____ and _____ JJ
what do you call the judges in SC
Chief Justice ____, and Justices ___, ____, ____ and ____. _____ CJ, ____, ____, _____, _____ JJ
when do you use JJ for justice instead of just J
when there are multiple justices instead of just one, eg: SC and CA. One justice in HC so just J
where does the judgment start in the case
at the judges name, the top is the headnote which is just written by a law reporter from the case so could be inaccurate and doesn’t have authority
the UN recognises that everyone is entitled to go to an independent and impartial tribunal to determine disputes is?
a universal human right
what delivers on the “universal human right” of the united nations to an independent and impartial tribunal in nz
the nz court system
define jurisdiction
“the authority granted to a legal body to administer justice within a defined field of responsibility” (Spiller) - areas over which the particular court in question has power
when a court is acting within its powers it is acting ___ vires, when its acting outside of its powers, its acting ____ vires
intra, ultra
jurisdiction is generally t____
territorial
where does jurisdiction come from
mainly statutory sources
what acts confer the courts their powers
District Courts Act 2016 for the DC, Senior Courts Act 2016 for HC, CA and SC
why is the High Court’s jurisdiction different?
it has statutory as well as inherent jurisdiction. This means that if you have a matter that isn’t covered by a statutory award of jurisdiction to a particular court then it goes to the High Court
if you had a $360k claim which court would you have to go to
HC
what are the two different types of jurisdiction any court may have called
original or appellate
what is original jurisdiction
“the jurisdiction of a court to hear and determine proceedings brought before it in the first instance rather than on appeal from a lower court” Spiller
what is appellate jurisdiction
“the power of a court to hear and determine an appeal from a decision of a court or other decision maker lower in the judicial hierarchy” Spiller
what do you have to apply for to appeal
leave
define a crime
a wrong punishable by the state. a crime is an act which is forbidden, or the omission to perform an act which is commanded, by statute or regulation, the remedy for which is the offender’s punishment at the instance of the state - Spiller
what is a civil matter
“a civil remedy is one available to a private person by action, as opposed to a criminal prosecution” - spiller eg breach of contract, defamation or relationship property disputes
what courts have jurisdiction over equity
all four key courts
what is the purpose of equity
it remedies common law harshness by being more flexible and deciding based on justice and fairness. courts can decide whether damages (monetary compensation) or specific performance (get what you were trying to get in the first place) is appropriate
what is the difference between an adversarial and inquisitorial system
adversarial - where parties are placed in opposition with one arguing one way followed by the other arguing the other way. the judge looks at each argument and the evidence presented by each side to decide which argument is better
inquisitorial - the judge has more of an active fact-finding role, doing their own research. this is used in the european system and in some NZ tribunals
what is the minimum practise years requirement for a lawyer to become a judge
7 years, but in reality would be much longer than this
the governor general appoints judges on behalf of her majesty the queen, on the recommendation of ___ for judges and ___ for the chief justice
the attorney general for regular judges and the prime minister for the chief justice
by being a judge of the SC or CA, you are also automatically a judge of?
the HC
can judges pay be reduced
no
true or false: judges have civil immunity
yes, so they dont have to be scared they could be sued for something they say and are definitely independent
what are the only two things HC judges (inc CA and SC) can be removed for
misbehaviour or incapacity under s23 of the Constitution Act 1986
what is needed to remove a HC (senior courts) judge
majority vote in house of representatives, which becomes a recommendation to the governor general who can then remove the judge
how can a DC judge be removed
under s29 of the District Court Act 2016, the governor general can remove a DC judge on the advice of the attorney general
has a judge of any of the four key courts ever been removed
no, it is a complicated process that has never been fulfilled
if a judge becomes too incapable to judge, instead of having to be removed, what will usually happen
their fellow judges will tell them and they’ll retire
can complaints be made against judges
yes, and there is a process
complaints cannot be made on the decision a judge made. what process would you use?
the appeal process
who hears complaints about judges
The Office of the Judicial Commissioner
what can the office of the judicial commissioner do with complaints they hear
ascend to the Head of the Bench eg: the head of that court (Chief DCJ, Chief HCJ etc) who will tell the judge in question they need to correct their behaviour. Or in very serious cases the commisioner can recommend that the attorney general appoints a judicial complaint panel.
has the judicial complaints panel ever been used
yes, but not all the way through till their final decision as the judge retired
what are most complaints about judges about
delay (having to wait a long time for the verdict), judge has been rude or incompetent, corruption, bias
what is a court of record
one where the proceedings are recorded and preserved, and has the power to punish for contempt of its authority
what forms of ‘recording’ are there for a court of record
video, audio, law report or a combination
are all 4 core courts courts of record
yes
why would someone want the record from a court of record
to be examined, perhaps by a party looking to see if they should appeal
what could you do in court that makes you liable for contempt of court
unlawfully disobeying a direction during a hearing i.e. distracting lawyers or judge
what can happen if you ‘do’ contempt in court
physically removed from the court room, held in custody for the balance of the sitting day, matter transferred to another judge who could fine you up to $10,000, imprison you for no more than 3 months or sentence you to community work not exceeding 200 hours
what is a key change in the Contempt of Court Act 2019
having a different judge hear the matter, rather than the one you disrupted
what is the max fine for if a jury member researches a case
$5,000
what are the max punishments for publishing information that could prejudice a fair criminal trial (eg: by breaching a suppression order set by the judge)
up to 6 months in prison, $25000 individual fine or a company could be fined up to $100,000
where do the origins for juries come from
trial by battle or ordeal including dunking of witches and trial by fire
juries have to be sure ___
beyond reasonable doubt
what does the judge do for the jury
states what the correct legal test/the legal element of the offence is
in a criminal trial, in which circumstances do you have the right to a trial by jury
for offences with a penalty of imprisonment for 2 years or more
Under the NZ BORA 1990 s24e, judges can order ____
a judge alone trial rather than with a jury on the application of either party, but usually requiring the approval of both parties. this is very rare
what civil proceedings are the only ones in which you could experience a jury trial
defamation, false imprisonment or malicious prosecution, this is rare
what act are jury procedures governed by
Juries Act 1981
how many people make up a jury
12
does 7-5 count as a verdict among jurors for a criminal trial
no, must be 12-0, or in limited circumstances where the jury has deliberated for at least 4 hours (judge will usually push longer) the judge can accept a majority verdict of 11-1
what jury majority is acceptable in a civil trial
3/4
where are jurors selected from
the electoral role
how can you be inelligible to be a juror despite being on the electoral role
if you have previous convictions, an intellectual disability or are the member of certain professions or fulfil certain roles within society such as the governor general, mps, judges, lawyers or police
what grounds can you apply to be excused from jury service on
being very unwell, having a sick family member you need to care for, english is your 2nd or 3rd language etc.
how many challenges of jurors do lawyers have with and without reason
4 without reason, unlimited with cause
what are some advantages of juries
allow you to be tried by your peers who are part of the same society as you, 12 minds are better than 1
what are some disadvantages of juries
human nature can make people unpredictable, which can cause uncertainty in verdicts. 12 randomly selected people may not have the education to understand complex issues. cases can last a day or many weeks. this is a long time off work and hard to keep track of what they heard at the beginning. easily manipulated by lawyers words and arguments
what are the exceptions of an appeal going up one step in the hierarchy
if you’ve had a criminal trial in the district court with a jury the appeal goes straight to the court of appeal or there’s a specific appellate court at the high court from the Maori land court at the district court level, so if you appeal from the maori appellate court, you would go straight to the court of appeal
what act covers the DC
the District Court Act 2016
what divisions are there in the DC
general (civil or criminal), family, youth, disputes tribunal division (a tribunal that deals with small, relatively modest civil claims)
what is the DC general’s original jurisdiction in civil claims
up to a value of $350,000, with some excepts such as recovery of land, interpretation of a will or matters relating to royal, which will go to the HC no matter the value
does the DC general have appellate jurisdiction for civil matters
the DC has limited appellate jurisdiction because you can appeal from the disputes tribunal and some other administrative tribunals such as the Motor Vehicle disputes tribunal
what is the DC general’s criminal original jurisdiction
can deal with less serious crimes, such as those under the Summary Offences Act 1981, which often have imprisonment terms of less than 3 months and fines of less
what is the DC generals limited appellate jurisdiction
some of the lower level claims can be heard by community magistrates (CM) or justices of the peace (JPs), more serious crimes such as those punishable by more than 2 years imprisonment for crimes such as theft and assault. Therefore, if its been heard by a JP or CM it can be appealed to a DCJ
what is the family court division of the DC governed by
the Family Court Act 1980
what matters does the family court division of the DC cover
to do with marriage, adoption, protection orders in domestic violence situations, guardianship and custody
what is different about the family court division of the DC
less formal, no public, no media
what requirements do FCJ have to meet above the requirements of being a DCJ
by reason of training, experience and personality, be a suitable person to deal with matters of family law
what governs the youth court division of the DC
the Oranga Tamariki Act 1998, aka the Children’s and Young People’s Well-being act 1989
what matters can the Youth Court Division of the DC hear
criminal proceedings of children under 14 and those between 14 and 16 inclusive. an exception to this is 16 year olds who have been married as you are then treated as an adult and not treated in the youth court. they don’t hear the most serious of cases such as murder which are tried in the HC
what is different about the youth court division of the DC
less formal, no public, no media
what requirements does a YC judge have to meet above and beyond that of a DCJ and a FJ
understanding the significance and importance of different cultural perspectives
what other settings can a youth court sit as
a rangatahi (marae with a kaumatua/kuia) or pasifika (pasifika church or community centre with pacific elders)
what is the disputes tribunal division of the DC
a small claims court with jurisdiction restricted to $30,000, which can only include certain subject matter such as contract claims, negligence resulting in property damage (eg: car collisions), when a statute confers jurisdiction such as with the consumer guarantees act and certain matters like land titles, wills and intellectual property (IP). It is known as quick and speedy justice so sometimes people reduce their claims to $30k.
are there lawyers in the disputes tribunal
no, rep yourself
what act covers the HC, CA and SC
Senior Courts Act 2016
what was the HC known as up until 1980
the supreme court
what is the HC’s civil jurisdiction
matters over $350k or where jurisdiction is specifically given to the HC by statute such as Companies Act 1993 and Insolvency Act 2006
what is the HC’s criminal jurisdiction
beyond DC limits, more serious offences, judge alone or judge and jury
the HC is the only court to have what kind of jurisdiction
inherent as well as statutory
what is the HC’s supervisory/public law jurisdiction
constitutional functional power to engage in “judicial review”. the high court supervises the exercise of powers by inferior courts or those carrying about official functions such as Government ministers and city councils to ensure they do not exceed their powers
what appellate jurisdiction does the HC have
appeals from a judge alone criminal trial at the DC, general civil appeals from DC, some appeals from family and youth court and from Disciplinary tribunal where the chair of the tribunals if a DCJ or retired DCJ
where do appeals from the high court usually go
court of appeal
what is the court of appeal known as
intermediate appellate court
how many judges sit in CA
3
how many judges can the CA have for a full court in special circumstances
5
judgments in CA are made unanimously true or false
false, by the majority
the CA’s jurisdiction is almostly exclusively?
appellate
what do you require to appeal to the CA
leave, permission
what is the highest court in the nz system under the Senior Courts Act 2016
supreme court
what was nz’s highest court pre 2004
privy council london
how many judges usually hear cases in the SC
5
what is the criteria for leave to appeal to the supreme court
1) must not give leave to appeal unless it is satisfied that it is necessary in the interests of justice for the court to hear and determine the appeal
2) it is necessary as 1 if-
a) the appeal involved a matter of general or public importance
b) a substantial miscarriage of justice may have occured, or may occur unless the appeal is heard or
c) the appeal involves a matter of general commercial significance
3) for purposes of 2a, a significant issue relating to the treaty of waitangi is of general or public importance
do judges develop the law
to a degree, generally gradually, consertatively, incremental, case-by-case change
what are the 4 key features of the csae law system
- people bring cases to court
- hierarchy of courts
- doctrine of precedent
- system of law reporting
(can’t have either 3 or 4 without the other)
if what two factors are present is precedent binding
- it is relevant - if when compared to the current case the precedent case has materially similar, the same, substantially alike, analogus
a) facts
b) the same legal issue - is from a superior court in the same jurisdiction/hierarchy
when is precedent persuasive
- precedent from a co-ordinate or inferior court in the same jurisdiction
- -> because of judicial comity (comity meaning being courteous or mutual respect), a coordinate court is not bound to follow but will usually do so - OR precedent is from a different jurisdiction eg: HC of Australia, Court of Appeal of England and Wales
what factors can come into consideration of the weight of a persuasive precedent
- the degree of factual/legal similarity
- the hierarchical position of the court that created the precedent within their jurisdiction
- whether the decision was reserved (cur adv vult), meaning the judge took time to consider
- how the precedent has been treated by subsequent courts
- how long the precedent has remained unchallenged
- whether the social or legal context has changed eg: victorian england
define res judicata
when a dispute between parties is finalised. A wins, B loses so the argument has been decided, the dispute is finished, so the dispute is res judicata
define ratio(nes) decidendi
the reason for deciding, the principle of law for which the case can be cited as authority in the current case, the precedent bit
define distingused
where the facts are not legally relevant or they are not sufficiently materially alike. the judge is said to be distinguishing the facts from the previous case
which decision would a lower court be expected to follow when faced with two conflicting higher court precedents
the most recent, unless the later case makes no reference to the earlier case, then they can choose
what judges sit in the privy council
from house of lords (HL), supreme court (SC) and senior judges from other parts of the commonwealth
was nz ever bound by decisions made at the privy council from appeals from other commonwealth countries
no, only on nz appeals, as when the privy council made decisions for other countries, it was sitting as the highest court in their jurisdiction
true or false, the privy council is on a higher level than the nzsc
false, they are on the same level
when would the supreme court depart from the privy council decision (coordinate courts)
very rarely, only if the decision was clearly wrong
every nz court is bound by relevant decisions of hierarchically superior courts, unless?
precedent can be distinguised (not relevant), the precedent has been overturned or the precedent was per incuriam (decision reached in ignorance of a relevant statute or precedent)
who can declare a decision per incuriam
only a coordinate court, and only if satisfied the decision would’ve been different
define per incuriam
decision made in ignorance of a relevant statute or precedent
what key information is included in a modern law report
- parties/names of case
- court
- citation info
- dates of hearing and judgement
- counsel appearing and solicitors/firms for the parties
- the judgment itself
- brief outcome statement
- headnote which summarises facts/legal issues/outcome/how relevant cases dealt with
