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test 1 Flashcards

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1
Q

what is the slippery slope

A

when its hard to know where to draw the line if you allow it once

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2
Q

what is precedent in non-legal terms

A

something that has come before

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3
Q

what is legal precedent

A

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

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4
Q

Judge Coleridge, in the Dudley v Stephens case, explains law and morality are?

A

closely connected

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5
Q

why does law exist

A

with conflicts between people we have to limit our autonomy so everyone can live together

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6
Q

what two ways can law be classified

A

by subject matter or by source

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7
Q

what subject areas can law be classified into

A

Public Law: Constitutional law, administrative law, criminal law, industrial law, revenue law

Private Law: contract, torts, property, family, commercial law, (equity, evidence, procedure)

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8
Q

why is classifications of law by subject matter important

A

because laws can overlap. equity for example touches on nearly every area of law. these classifications help people to find relevant legal sources

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9
Q

what is the digest

A

an important tool used by lawyers which includes case law organised by subject matter

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10
Q

what is public law

A

interactions between the state and the individual or two different parts of the state

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11
Q

what is private law

A

person to person

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12
Q

what are companies classified as for legal purposes

A

a person

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13
Q

is constitutional law public or private

A

public

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14
Q

is administrative law public or private

A

public

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15
Q

is criminal law public or private

A

public

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16
Q

is contract law public or private

A

private

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17
Q

is tort law public or private

A

private

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18
Q

is property law public or private

A

private

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19
Q

is family law public or private

A

private

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20
Q

is commercial law public or private

A

private

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21
Q

what is constitutional law

A

power distribution in government/order of the government

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22
Q

what is administrative law

A

relationship between individuals and government

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23
Q

what is judicial review

A

review of government actions by the court to see if it was legal or illegal

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24
Q

what is ultra vires

A

when the government is found by judicial review to have acted illegally beyond its powers

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25
Q

what is the ombudsmen

A

people that investigate complaints against the government

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26
Q

what is criminal law

A

antisocial behaviour etc

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27
Q

what do contracts do

A

regulate agreements

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28
Q

what are torts

A

obligations owed in society to one another for a civil wrong commited

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29
Q

what punishments are appropriate for a tort matter

A

damages, compensation

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30
Q

what three types of property are there

A

real and personal and intellectual

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31
Q

what is real property

A

land (real estate)

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32
Q

what is personal property

A

private property that isnt land like laptops

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33
Q

what is intellectual property

A

products of human creativity such as art, literature and inventions

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34
Q

what is intellectual property often synonymous with

A

copyright, trademarks and patents

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35
Q

what is family law

A

includes marriages, divorces, adoptions etc

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36
Q

what is commercial law

A

includes banking, insurance, insolvency, companies and competition

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37
Q

how do we classify law by source

A

either international law or domestic/municipal law and then domestic is broken up into case laws and statutory laws

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38
Q

under which act did englands laws become ours and on what date

A

English Laws Act, 14 Jan 1840

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39
Q

what legal system family does NZ operate in

A

common law

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40
Q

how did NZ take the common law

A

it is british law, and we are a british colony

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41
Q

what are the three main features of the common law system

A

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

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42
Q

how does Sir William Blackstone define case law

A

“the ancient unwritten laws of the kingdom”

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43
Q

how does blacks law dictionary define case law

A

“the body of law derived from judicial decisions, rather than from statutes of constitutions”

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44
Q

what is a statute

A

a written law, passed by a legislative body

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45
Q

in nz, who has the sovereign power to make laws

A

only parliament

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46
Q

when a statute and case law conflict, which rules due to its supremacy

A

statute

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47
Q

when the authority to make law is delegated, what is the legislation called

A

delegated or subordinate legislation

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48
Q

what are the 3 main differences between case and statute law

A
  1. case law is unwritten, statute is written
  2. 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
  3. case law is specific due to its case by case nature, whereas statute is much more general
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49
Q

how do judges make judgments through case and statute law

A

case law - turn to precedent

statute law - turn to statutory interpretation

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50
Q

what is stare decisis

A

“to stand by decision and not disturb settled matters” - principled basis for precedents and provides certainty and predictability

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51
Q

what is the doctrine of precedent

A

the doctrine by which those cases are recognised as law - judges must respect previous decisions as per stare decisis

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52
Q

what is the doctrine of binding precedent

A

when a higher court makes a decision it is binding on the lower courts due to the heirachy of courts in NZ

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53
Q

what is the heirachy of courts in NZ from top to bottom

A

supreme court
court of appeal
high court
district court

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54
Q

why do we have the doctrine of precedent and binding precedent

A

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

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55
Q

with what act was the supreme court of new zealand created

A

Supreme Court Act 2004

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56
Q

before the time of the supreme court act, what was the highest court you could appeal to?

A

if you wanted to go higher than the court of appeal, the matter had to be taken to the english Privy Council

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57
Q

what does the Privy Council and Supreme Court Act 2004 mean for the bindingness of Privy Council Decisions in NZ

A

Privy Council decisions made before 2004 bind all but the Supreme Court, and Privy Council decisions made after 2004 are not binding

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58
Q

what is the difference between binding and persuasive precedent

A

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

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59
Q

what is a coordinate court

A

the same court/level in hierarchy

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60
Q

why is an effective system of law reporting needed

A

judges need to be aware of precedents that exist, especially when they are binding

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61
Q

what is te ao maori

A

the maori world, the general understanding of how maori see the world, and the underpinning philosophy which informs tikanga maori

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62
Q

what is tikanga maori (define)

A

the right maori way of doing things

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63
Q

how is tikanga maori, the right way of doing things, passed down through the generations

A

oral traditions

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64
Q

what is tapu

A

sacredness, the most important of all actions - is present in all things

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65
Q

what is there to balance out tapu

A

noa - there to allow or provide neutrality

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66
Q

what is whakawhanaunatanga

A

connectedness, coming together and connecting, eating together etc

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67
Q

what is mana

A

authority, prescense and prestige, spiritually powerful, a person doing the right thing

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68
Q

what is kaitiakitanga

A

guardianship, there as a person to look after things

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69
Q

what is utu

A

reciprocity - maintenance of bringing things back into balance. often known as bed but its used when a wrong needs to be put right

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70
Q

what are the 5 +1 main tikanga maori values

A

tapu (and noa), whakawhanaungatanga, mana, kaitiakitanga and utu

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71
Q

is tikanga maori law

A

yes. it is recognised in case law and statues

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72
Q

what are some examples of tikanga maori used in law

A

ngai tahu settlement act, whanganui river claims settlement, mv rena oil spill, takamore vs clarke (read about these in your notes)

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73
Q

what was created under the Waitangi Treaty Act to deal with matters to do with land matters

A

the Waitangi tribunal

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74
Q

what legislation was te ao maori recognised under so that maori could do what they could before the crown came

A

the deed of settlement

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75
Q

what were the 4 key features of the deed of settlement

A
  1. offering a formal apology from the crown to ngai tahu
  2. transfers the title of Aoraki mt cook back to ngai tahu
  3. economic redress - $170m in compensation that allowed maori to buy land back
  4. 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
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76
Q

what innovations came from the whanganui river claims settlement

A

the grant of legal personality to the river, indicates idea of cultural cultural redress with treaty settlements

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77
Q

throughout the court cases to do with the whanganui river, what was whanganui iwis primary concern

A

environmental degradation of the river

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78
Q

in what year did we get the whanganui river settlement act

A

2017

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79
Q

what is a legal person

A

an entity on which a legal system confers rights and imposes duties

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80
Q

by granting the whanganui river legal personality, this meant?

A

it could protect itself from others and take action to defend itself from harm

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81
Q

what island did the mv rena oil spill effect

A

motiti island and astrolab reef

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82
Q

what was the problem with the governments approach to dealing with the mv rena owner

A

the maoris weren’t part of the negotiations and they believe they should have been because they have an interest here`

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83
Q

what is the main issue in takamore vs clarke

A

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

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84
Q

what was the final result of the takamore vs clarke case

A

ms clarke is right because she is the executrix of the will

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85
Q

whats the difference between a profession and a regular job

A

a profession is a vocation, a specified career or occupation

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86
Q

what were the three learned professions in medieval times (1100’s)

A

medicine, the church and law

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87
Q

what are some common traits of professions according to millerson in lamb and littrich

A
  • 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
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88
Q

what are dal pont’s common attributes for a profession

A
  • special skill and learning
  • public service the principle goal
  • autonomy and self regulation
  • and - special jargon/language and collegiality
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89
Q

what is a lawyer (definition)

A

a member of the legal profession, one common trait is to have a code of ethics

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90
Q

what are nathanson’s 4 popular perception images

A

a distorter of truth, a sorcerer, a hero, a paper generator

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91
Q

lawyers and their talk of profession is all about ___ and ____, a closed ___ with ___ and ____

A

power and control, elite with superiority and exclusiveness

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92
Q

what is the difference between a barrister and a solicitor

A

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

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93
Q

what is a barrister sole

A

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

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94
Q

to become a judge a lawyer must have held a practising certificate for how long first

A

7 years

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95
Q

who appoints judges and on the recommendation of who

A

appointed by the governor general on recommendation of the attorney general

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96
Q

what are coroners

A

qualified lawyers appointed judicial officers to look into unexpected, violent or suspicious deaths. they must have held a certificate for 5 years

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97
Q

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”

A

section 6

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98
Q

what lays out the rules a lawyer must abide by

A

Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

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99
Q

under the LCA (Conduct and Client Care) Rules 2008, a lawyer must

A
  • 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
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100
Q

under which section of the LCA 2006 and the the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008

A

part 3

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101
Q

what qualifying requirements must a person have to practise law in nz

A

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

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102
Q

it is an offence to act a barrister and solicitor without a current practising certificate under which sections of the LCA

A

21 & 46

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103
Q

which section of the LCA sets out the requirements for fit and proper

A

55

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104
Q

what are the requirements taken into account for “fit and proper”

A
  • 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
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105
Q

where does the Criminal Records (Clean Slate) Act 2004 apply in the admission process

A

has to have been 7 years since the last offence and no imprisonment for the offence

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106
Q

what section of the LCA 2006 outlines the purpose of the act and what is the purpose

A

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

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107
Q

how did the 2006 act reform the 1982 law in what 3 ways

A

changed professional regulation, establishes the new conveyancing profession, a focus on consumer/client protection

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108
Q

what did changing professional regulation mean for the reshaping the 2006 act

A

significantly reducing the lawyers monopoly, reduction of law society dominance, seperates the law society regulatory and representative functions

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109
Q

what did a focus on consumer and client protection mean for the reforming of the 1982 law

A

poor service becomes a ground for complaint, ministerial approval of rules, independent complaints review officer

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110
Q

how does the LCA 2006 still preserve part of the lawyers monopoly

A

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

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111
Q

why was some work reserved for lawyers in the LCA 2006

A

some of the services are complicated, incompetence or negligence could cause significant loss, particularly in the court context, incompetence could prevent justice

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112
Q

what is section 4 of the LCA 2006

A

fundamental obligations

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113
Q

what fundamental obligations are laid out in s4 LCA 2006

A
  • 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
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114
Q

what changed about the NZ Law Society with the LCA 2006

A

it was given a new structure and all lawyers were now regulated by NZLS but not necessarily represented by it

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115
Q

under s 64 of the LCA 2006, the NZLS is?

A

voluntary, you don’t have to be a member

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116
Q

s 66 of the LCA 2006 tells us the representative functions of the NZLS, including under s 68?

A
  • 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

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117
Q

in what sections of the LCA 2006 would you find the regulatory functions of the NZLS

A

65, 73 and to do with the client care rules: 94, 101, 107, 103 and 104

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118
Q

what regulatory function of the NZLS are included under s 65 of the LCA 2006

A
  • 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
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119
Q

what regulatory function of the NZLS is set out in s 73 of the LCA 2006

A

an annual practising certificate fee to be paid by all lawyers, and this income to be used for funding regulatory functions

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120
Q

what does s 94 of the LCA 2006 require the law society to do

A

make rules - LCA (Lawyers: Conduct and Client Care Rules) 2008

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121
Q

what section of the LCA 2006 requires the Minister to set the client care rules

A

101

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122
Q

under s 103 and 104 of the LCA 2006, who can amend the client care rules

A

NZLS and the minister

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123
Q

s107 of the LCA 2006 sets out the effect of the client care rules, what is the effect?

A

binds all practitioners and cannot contract out of them or contract to breach them

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124
Q

when were the LCA (Lawyers: Conduct and Client Care) rules come into being

A

2008

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125
Q

what are some rules under the LCA (Lawyers: Conduct and Client Care) 2008

A
  1. 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
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126
Q

why are formal remedies seldom sought for harrasment

A
  • 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
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127
Q

what are some relevant rules for misconduct in the LCA(Lawyers: CACC) Rules 2008

A

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

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128
Q

what are some rules relevant to lawyers misconduct from other acts

A

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

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129
Q

what do rules 2.8 and 2.9 of the LCA Lawyers CCAC Rules 2008 say about whistleblowing

A
  1. 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
  2. 9 as above, except may make a confidential report of unsatisfactory conduct
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130
Q

what is the test under s 7 LCA 2006 for “misconduct” when a lawyer is providing legal services and outside of the workplace

A

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

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131
Q

what would be the first step in trying to solve a lawyer vs client complaint

A

to try sort it between themselves

132
Q

what is tier 1 of the complaints process and explain it

A

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

133
Q

what is tier 2 of the complaints process and explain it

A

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.

134
Q

what is tier 3 of the complaints process and explain it

A

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.

135
Q

what is the difference between misconduct and unsatisfactory conduct

A

misconduct is more serious while unsatisfactory is of a lower level

136
Q

what section of the LCA 2006 covers misconduct

A

s7

137
Q

what are some examples of misconduct

A
  • “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
138
Q

what tiers of the complaints process usually deal with unsatisfactory conduct matters

A

1 and 2 - standards committee and LCRO

139
Q

under the NZ Bill of Rights Act 1990 section 24, what are the rights of a person charged

A

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
140
Q

what are some causes/factors in the inability to access justice

A
  • 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
141
Q

what does rule 9 say about lawyers bills

A

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

142
Q

what does rule 9.1 say about lawyers bills

A

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
143
Q

does a lawyers fee need to be affordable/cheap

A

no, only fair and reasonable

144
Q

what 3 responses are there to some people being unable to pay a lawyers bill

A

taxpayer - legal services act 2011
lawyer - conditional/contingency fees
lawyer - pro bono work

145
Q

when did the latest taxpayer funded services under the legal services act come into effect

A

1 July 2011, replacing the legal services act 2000

146
Q

what were some problems in the legal system pre Legal Services Act 2011

A

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

147
Q

what is the purpose of the Legal Services Act 2011 (LSA11) under s3

A

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

148
Q

under s4 of the LSA11, “legal services” includes

A

legal aid plus legal advice and representation and providing law-related education and info

149
Q

what schemes are included in the LSA11

A

legal aid, community law centres, public defence services, duty lawyers scheme, police detention legal assistance scheme and family and youth law services

150
Q

what is legal aid

A

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

151
Q

what is the criteria for granting legal aid for criminal offences under s6 and s8 of the LSA11

A
  • 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
152
Q

what is the criteria for granting civil legal aid under sections 10 and 11 of the LSA11

A
  • 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
153
Q

is it expected that legal aid will be paid back

A

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

154
Q

what matters are included in civil legal aid considerations

A

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
155
Q

what civil actions are not included in civil legal aid

A
  • disputes tribunal matters
  • lawyers work not involving court eg: drafting a will
  • disputes involving schools, universities and other educational institutions
  • election petitions
156
Q

how much is the application fee for civil legal aid and when is it waived

A

$50, waived for matters relating to the care of children, mental health, protection orders against domestic violence and refugees

157
Q

how much is interest on legal aid debt charged at and how long is the interest free window

A

6% after a 6 month window

158
Q

where can overdue legal aid payments be deducted from and what could they be secured against

A

can be deducted from wages, benefits or bank accounts and can be secured against house, car and other property

159
Q

how is a community law centre defined under s93 of the LSA11

A

a body whose function includes the provision of community legal services

160
Q

how are community law centres mainly funded, in combination with a top up from tax payers, under s 298 of the LCA 2006

A

from interest on lawyers and conveyancers trust accounts less bank charges

161
Q

what kind of services do community law centres provide

A

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
162
Q

what is the public defence service (pds)

A

a government funded agency of salaried defence lawyers, who defend people on criminal charges who are eligible for legal aid

163
Q

what is the duty lawyers scheme

A

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

164
Q

what is the police detention legal assistance scheme

A

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

165
Q

what are conditional/contingency fees

A

an agreement where the payment of a lawyers fees is contingent on a specified event

166
Q

what types of contingency fees are there

A
  • 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
167
Q

were contingency fees legal pre LCA 2006

A

no

168
Q

what two types of contingency fees are acceptable under the LCA

A

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

169
Q

in what cases are contingency fees not allowed

A

family court cases, immigration cases and criminal cases - dont want them in emotional cases, around children etc cos it can get rough

170
Q

Rules 9.8-9.15 outline the rules for contingency fees, what are these?

A
  • 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
171
Q

what are some arguments against contingency fees

A

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

172
Q

what are some advantages of contingency fees

A

access to justice, lawyers work more effectively and efficiently, particularly effective for class action, allowing freedom of contract

173
Q

what is pro bono work

A

a lawyer doing work with no expectation of a fee

174
Q

what are lawyers motivations for pro bono work

A

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

175
Q

what is compulsion for pro bono work

A

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

176
Q

what are some arguments for compulsion of pro bono work

A

duty arguments:

  • cost of monopoly
  • commitment to justice system
  • specially situated/suited to assist

egoistic arguments

177
Q

arguments against compulsion of pro bono

A
  • 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
178
Q

what courts are senior courts

A

hc, ca, sc

179
Q

define jurisdiction

A

the authority granted to a legal body to administer justice within a defined field of responsibility

180
Q

when a court is acting within its jurisdiction it is said to be acting?

A

intra vires

181
Q

when a court is acting outside its jurisdiction it is said to be acting?

A

ultra vires

182
Q

where does jurisdiction come from

A

statutory sources

183
Q

where does DC jurisdiction come from

A

District Courts Act 2016

184
Q

where does HC, CA and SC jurisdiction come from

A

Senior Courts Act 2016

185
Q

how is the HC’s jurisdiction different to the other courts?

A

they have inherent (unlimited) jurisdiction, and deal with issues where it doesn’t have a statutory award of jurisdiction to a specific court

186
Q

define original and appellate jurisdiction

A

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

187
Q

what is equity

A

remedies common law harshness by being more flexible and deciding based on justice and fairness

188
Q

what courts have jurisdiction for common law and equity

A

all four key courts

189
Q

do most nz courts use an adversarial or inquisitorial system

A

adversarial

190
Q

what is an adversarial system

A

two opposing parties argue each side and the judge decides which has the better argument

191
Q

where are inquisitorial systems used

A

europe and some nz tribunals

192
Q

what is an inquisitorial system

A

where the judge has a more active role as fact-finding and doing their own research

193
Q

who appoints judges and on the recommendation of whom in nz

A

governor-general on behalf of HMQ on the recommendation of the attorney-general or the recommendation of the prime minister for the chief justice

194
Q

can judges pays be reduced

A

no

195
Q

true or false judges have absolute civil immunity

A

true

196
Q

under what section of the crimes act 1961 is bribing a judge or accepting one a serious offence

A

100 and 101

197
Q

what is the retirement age judges can work up until without dismissal

A

70

198
Q

can the government fire a judge for a decision they don’t like

A

no

199
Q

the doctrine of precedent is essential to?

A

the common law system

200
Q

to be obedient, we need to?

A

know what the law is

201
Q

what are the advantages of a system of precedent

A

predictability and certainty of like cases being treated alike

202
Q

what are the disadvantages of a doctrine of precedent

A

uncertainty, rigidity, illogicality, uncertainty where there may be many previous cases that apply with different decisions made

203
Q

what was the hierarchy of courts pre 1980

A

privy council (london)
court of appeal
supreme court
magistrates court

204
Q

what was the hierarchy of courts between 1980 and 2004

A

privy council (london)
court of appeal
high court
district court

205
Q

what is the difference when square and round brackets are used

A

[ ] are used when the journal only includes cases from that particular year, ( ) are used when the journal may include cases from other years

206
Q

what are neutral citations

A

where the citations are not by report, but by the court they were decided in

207
Q

who is listed first, appellant or respondent

A

appellant first, respondent second

208
Q

what do the appellate and respondent want in a case

A

appellate is hoping for the decision to be quashed, repondent is hoping for the original decision to be upheld/affirmed

209
Q

what is the relationship between the firms and lawyers listed

A

firm could be the firm the lawyer works for, or could be the solicitors firm that instructs the barrister-sole type law

210
Q

what do you call a judge from the DC and how is it written

A

Judge ___ in words and written

211
Q

what do you call the judge in HC, and how is it written

A

Justice ____, written as ___ J

212
Q

what do you call the judges in the CA

A

President ___, and Justices ___ and ___. ___ P, _____ and _____ JJ

213
Q

what do you call the judges in SC

A

Chief Justice ____, and Justices ___, ____, ____ and ____. _____ CJ, ____, ____, _____, _____ JJ

214
Q

when do you use JJ for justice instead of just J

A

when there are multiple justices instead of just one, eg: SC and CA. One justice in HC so just J

215
Q

where does the judgment start in the case

A

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

216
Q

the UN recognises that everyone is entitled to go to an independent and impartial tribunal to determine disputes is?

A

a universal human right

217
Q

what delivers on the “universal human right” of the united nations to an independent and impartial tribunal in nz

A

the nz court system

218
Q

define jurisdiction

A

“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

219
Q

when a court is acting within its powers it is acting ___ vires, when its acting outside of its powers, its acting ____ vires

A

intra, ultra

220
Q

jurisdiction is generally t____

A

territorial

221
Q

where does jurisdiction come from

A

mainly statutory sources

222
Q

what acts confer the courts their powers

A

District Courts Act 2016 for the DC, Senior Courts Act 2016 for HC, CA and SC

223
Q

why is the High Court’s jurisdiction different?

A

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

224
Q

if you had a $360k claim which court would you have to go to

A

HC

225
Q

what are the two different types of jurisdiction any court may have called

A

original or appellate

226
Q

what is original jurisdiction

A

“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

227
Q

what is appellate jurisdiction

A

“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

228
Q

what do you have to apply for to appeal

A

leave

229
Q

define a crime

A

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

230
Q

what is a civil matter

A

“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

231
Q

what courts have jurisdiction over equity

A

all four key courts

232
Q

what is the purpose of equity

A

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

233
Q

what is the difference between an adversarial and inquisitorial system

A

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

234
Q

what is the minimum practise years requirement for a lawyer to become a judge

A

7 years, but in reality would be much longer than this

235
Q

the governor general appoints judges on behalf of her majesty the queen, on the recommendation of ___ for judges and ___ for the chief justice

A

the attorney general for regular judges and the prime minister for the chief justice

236
Q

by being a judge of the SC or CA, you are also automatically a judge of?

A

the HC

237
Q

can judges pay be reduced

A

no

238
Q

true or false: judges have civil immunity

A

yes, so they dont have to be scared they could be sued for something they say and are definitely independent

239
Q

what are the only two things HC judges (inc CA and SC) can be removed for

A

misbehaviour or incapacity under s23 of the Constitution Act 1986

240
Q

what is needed to remove a HC (senior courts) judge

A

majority vote in house of representatives, which becomes a recommendation to the governor general who can then remove the judge

241
Q

how can a DC judge be removed

A

under s29 of the District Court Act 2016, the governor general can remove a DC judge on the advice of the attorney general

242
Q

has a judge of any of the four key courts ever been removed

A

no, it is a complicated process that has never been fulfilled

243
Q

if a judge becomes too incapable to judge, instead of having to be removed, what will usually happen

A

their fellow judges will tell them and they’ll retire

244
Q

can complaints be made against judges

A

yes, and there is a process

245
Q

complaints cannot be made on the decision a judge made. what process would you use?

A

the appeal process

246
Q

who hears complaints about judges

A

The Office of the Judicial Commissioner

247
Q

what can the office of the judicial commissioner do with complaints they hear

A

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.

248
Q

has the judicial complaints panel ever been used

A

yes, but not all the way through till their final decision as the judge retired

249
Q

what are most complaints about judges about

A

delay (having to wait a long time for the verdict), judge has been rude or incompetent, corruption, bias

250
Q

what is a court of record

A

one where the proceedings are recorded and preserved, and has the power to punish for contempt of its authority

251
Q

what forms of ‘recording’ are there for a court of record

A

video, audio, law report or a combination

252
Q

are all 4 core courts courts of record

A

yes

253
Q

why would someone want the record from a court of record

A

to be examined, perhaps by a party looking to see if they should appeal

254
Q

what could you do in court that makes you liable for contempt of court

A

unlawfully disobeying a direction during a hearing i.e. distracting lawyers or judge

255
Q

what can happen if you ‘do’ contempt in court

A

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

256
Q

what is a key change in the Contempt of Court Act 2019

A

having a different judge hear the matter, rather than the one you disrupted

257
Q

what is the max fine for if a jury member researches a case

A

$5,000

258
Q

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)

A

up to 6 months in prison, $25000 individual fine or a company could be fined up to $100,000

259
Q

where do the origins for juries come from

A

trial by battle or ordeal including dunking of witches and trial by fire

260
Q

juries have to be sure ___

A

beyond reasonable doubt

261
Q

what does the judge do for the jury

A

states what the correct legal test/the legal element of the offence is

262
Q

in a criminal trial, in which circumstances do you have the right to a trial by jury

A

for offences with a penalty of imprisonment for 2 years or more

263
Q

Under the NZ BORA 1990 s24e, judges can order ____

A

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

264
Q

what civil proceedings are the only ones in which you could experience a jury trial

A

defamation, false imprisonment or malicious prosecution, this is rare

265
Q

what act are jury procedures governed by

A

Juries Act 1981

266
Q

how many people make up a jury

A

12

267
Q

does 7-5 count as a verdict among jurors for a criminal trial

A

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

268
Q

what jury majority is acceptable in a civil trial

A

3/4

269
Q

where are jurors selected from

A

the electoral role

270
Q

how can you be inelligible to be a juror despite being on the electoral role

A

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

271
Q

what grounds can you apply to be excused from jury service on

A

being very unwell, having a sick family member you need to care for, english is your 2nd or 3rd language etc.

272
Q

how many challenges of jurors do lawyers have with and without reason

A

4 without reason, unlimited with cause

273
Q

what are some advantages of juries

A

allow you to be tried by your peers who are part of the same society as you, 12 minds are better than 1

274
Q

what are some disadvantages of juries

A

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

275
Q

what are the exceptions of an appeal going up one step in the hierarchy

A

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

276
Q

what act covers the DC

A

the District Court Act 2016

277
Q

what divisions are there in the DC

A

general (civil or criminal), family, youth, disputes tribunal division (a tribunal that deals with small, relatively modest civil claims)

278
Q

what is the DC general’s original jurisdiction in civil claims

A

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

279
Q

does the DC general have appellate jurisdiction for civil matters

A

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

280
Q

what is the DC general’s criminal original jurisdiction

A

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

281
Q

what is the DC generals limited appellate jurisdiction

A

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

282
Q

what is the family court division of the DC governed by

A

the Family Court Act 1980

283
Q

what matters does the family court division of the DC cover

A

to do with marriage, adoption, protection orders in domestic violence situations, guardianship and custody

284
Q

what is different about the family court division of the DC

A

less formal, no public, no media

285
Q

what requirements do FCJ have to meet above the requirements of being a DCJ

A

by reason of training, experience and personality, be a suitable person to deal with matters of family law

286
Q

what governs the youth court division of the DC

A

the Oranga Tamariki Act 1998, aka the Children’s and Young People’s Well-being act 1989

287
Q

what matters can the Youth Court Division of the DC hear

A

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

288
Q

what is different about the youth court division of the DC

A

less formal, no public, no media

289
Q

what requirements does a YC judge have to meet above and beyond that of a DCJ and a FJ

A

understanding the significance and importance of different cultural perspectives

290
Q

what other settings can a youth court sit as

A

a rangatahi (marae with a kaumatua/kuia) or pasifika (pasifika church or community centre with pacific elders)

291
Q

what is the disputes tribunal division of the DC

A

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.

292
Q

are there lawyers in the disputes tribunal

A

no, rep yourself

293
Q

what act covers the HC, CA and SC

A

Senior Courts Act 2016

294
Q

what was the HC known as up until 1980

A

the supreme court

295
Q

what is the HC’s civil jurisdiction

A

matters over $350k or where jurisdiction is specifically given to the HC by statute such as Companies Act 1993 and Insolvency Act 2006

296
Q

what is the HC’s criminal jurisdiction

A

beyond DC limits, more serious offences, judge alone or judge and jury

297
Q

the HC is the only court to have what kind of jurisdiction

A

inherent as well as statutory

298
Q

what is the HC’s supervisory/public law jurisdiction

A

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

299
Q

what appellate jurisdiction does the HC have

A

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

300
Q

where do appeals from the high court usually go

A

court of appeal

301
Q

what is the court of appeal known as

A

intermediate appellate court

302
Q

how many judges sit in CA

A

3

303
Q

how many judges can the CA have for a full court in special circumstances

A

5

304
Q

judgments in CA are made unanimously true or false

A

false, by the majority

305
Q

the CA’s jurisdiction is almostly exclusively?

A

appellate

306
Q

what do you require to appeal to the CA

A

leave, permission

307
Q

what is the highest court in the nz system under the Senior Courts Act 2016

A

supreme court

308
Q

what was nz’s highest court pre 2004

A

privy council london

309
Q

how many judges usually hear cases in the SC

A

5

310
Q

what is the criteria for leave to appeal to the supreme court

A

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

311
Q

do judges develop the law

A

to a degree, generally gradually, consertatively, incremental, case-by-case change

312
Q

what are the 4 key features of the csae law system

A
  1. people bring cases to court
  2. hierarchy of courts
  3. doctrine of precedent
  4. system of law reporting
    (can’t have either 3 or 4 without the other)
313
Q

if what two factors are present is precedent binding

A
  1. 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
  2. is from a superior court in the same jurisdiction/hierarchy
314
Q

when is precedent persuasive

A
  1. 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
  2. OR precedent is from a different jurisdiction eg: HC of Australia, Court of Appeal of England and Wales
315
Q

what factors can come into consideration of the weight of a persuasive precedent

A
  • 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
316
Q

define res judicata

A

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

317
Q

define ratio(nes) decidendi

A

the reason for deciding, the principle of law for which the case can be cited as authority in the current case, the precedent bit

318
Q

define distingused

A

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

319
Q

which decision would a lower court be expected to follow when faced with two conflicting higher court precedents

A

the most recent, unless the later case makes no reference to the earlier case, then they can choose

320
Q

what judges sit in the privy council

A

from house of lords (HL), supreme court (SC) and senior judges from other parts of the commonwealth

321
Q

was nz ever bound by decisions made at the privy council from appeals from other commonwealth countries

A

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

322
Q

true or false, the privy council is on a higher level than the nzsc

A

false, they are on the same level

323
Q

when would the supreme court depart from the privy council decision (coordinate courts)

A

very rarely, only if the decision was clearly wrong

324
Q

every nz court is bound by relevant decisions of hierarchically superior courts, unless?

A

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)

325
Q

who can declare a decision per incuriam

A

only a coordinate court, and only if satisfied the decision would’ve been different

326
Q

define per incuriam

A

decision made in ignorance of a relevant statute or precedent

327
Q

what key information is included in a modern law report

A
  • 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

laws 101 (6 decks)

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