LA 113 COURTS AND DISPUTE RESOLUTION II

SEMESTER TWO 2007

FINAL EXAMINATION

___________________________________________________________________

YOU MUST ANSWER ALL QUESTIONS ON THIS PAPER.

YOU MUST ONLY ANSWER PART A OR PART B FROM QUESTION THREE.

YOU MUST ANSWER ONLY FOUR (4) TOPICS FROM QUESTION FOUR.

___________________________________________________________________

QUESTION 1

[10 marks]

The Solomoni family and their descendants have lived on the western side of Tombatuni Island for many generations. They have always believed they are the custom owners of the land on the western side of and including the Mundarova Mountains. In 2004 a foreign investment company signs a 50 year lease with Chief Samuel Solomoni giving Trees R Us logging rights on the western side of the island including the Mundarova mountains.

In 2005 Chief Billy Banu, custom owner of the eastern side of Tombatuni Island, files a claim in the Tombatuni Land Court. He is seeking a declaration that Mundarova Mountains are part of the eastern side of the island and that the border actually runs along the base of the mountain range on the western side. The parties to the claim are Billy Banu as plaintiff and Samuel Solomoni and Trees R Us as defendants.

The Tombatuni Land Court determines that, according to land surveys, the boundary in fact runs along the foot of the mountain range on the eastern side of the island. This means that the Mundarova Mountains are not included in the land on the eastern side of the island belonging to the Banu clan. Chief Billy is not happy! The logging lease is reportedly worth a lot of money and he wants a piece of the action! However, he decides not to appeal the decision.

In 2006 after consulting his ancestors, Chief Billy files another claim with the Tombatuni Magistrates’ Court alleging that the Banu clan are the rightful custom owners of the whole of Tombatuni Island, not just the eastern side as they had previously thought. The Banu clan are also seeking compensation for the loss of timber from their land. The parties to this claim are Billy Banu as plaintiff and Samuel Solomoni and Trees R Us as defendants.

When the matter comes before the Magistrates’ Court, the defendants submit that this Court is prevented from hearing this case, as the matter is res judicata. The defendants argue that, as the same parties have already been before another Court which has decided the matter, it would be unfair to reopen the same case.

Imagine you are the Magistrate hearing this new claim. [You may assume for the purposes of this question that the Tombatuni Land Court is a court of competent jurisdiction.]

(a) As the parties have no legal representation, it is your role to outline briefly, in your own words, the law on res judicata and how the law in relation to this principle might affect each of the parties.

[5 marks]

(b) You should then advise the parties of your decision in relation to whether the defence of res judicata applies, then explain the reasons for your decision and how it affects each of them.

You should include at least one decided case as authority for your decision.

[5 marks]

QUESTION 2

[15 marks]

You have just been appointed as one of three Judges sitting on the Court of Appeal in the Republic of Oceania.

It is November 2007 and Mad Max’s case comes before you on appeal from a decision of a single judge of the High Court of Oceania in July 2007. Mad Max has been sentenced under the Penal Code of Oceania to five (5) years imprisonment for assaulting a policeman with a taro root and he is appealing against the severity of his sentence. The High Court followed an earlier decision of the Supreme Court of Oceania.

The Penal Code of Oceania states the maximum penalty for assault is 5 years imprisonment but there is a judicial discretion to award lesser terms.

The Supreme Court is the highest appellate court in Oceania and handed down a decision in 2001 stating that the maximum penalty should apply whenever the assault involved a policeperson regardless of the type of weapon.

However, the Court of Appeal of Oceania in 2004, in a 2:1 majority decision, refused to follow the Supreme Court decision and reduced a sentence of 5 years to 3 years in similar circumstances to the present case. In doing so, the Court of Appeal stated that only offences involving a policeperson and the use of firearms should attract the maximum penalty. A strongly worded dissenting judgment by the Chief Justice of the Court of Appeal considered the Appeal Court was bound to follow the Supreme Court decision in 2001.

A Privy Council decision in England in 2005 supported the Court of Appeal approach in 2004 in holding that both factors should be present to attract the maximum penalty. The Republic of Oceania legislated to discontinue appeals from the Supreme Court of Oceania to the Privy Council in England in 2000.

a) Did the High Court judge follow the correct decision? Why / why not?

b) Sitting as the Court of Appeal in 2007, are you required to follow the previous Court of Appeal decision in 2004? Why / why not?

c) What is the legal significance of the Chief Justice’s dissenting judgment? Explain your answer.

d) What weight will you give to the English Privy Council decision in 2005?

e) Explain which decision your Court will follow and why.

f) Finally, what will your recommendation be in relation to Mad Max’s sentence?

QUESTION 3

[5 marks]

You must answer ONLY Part A OR Part B of this question.

You have been asked to give a seminar presentation to a group of your fellow students on the ‘mysteries of the ratio’. You may choose from one of the following topics.

PART A. [5 marks]

In your own words, explain what the ‘ratio’ of a decision is and why the ratio in a Supreme Court decision might be important to a magistrate hearing a similar case in the Magistrates’ Court. As the magistrate, are there any circumstances in which you could avoid applying the ratio of the Supreme Court decision to your case? Explain your answer to this part of the question by giving an example to the group.

OR

PART B. [5 marks]

Describe some of the factors that often make it difficult to find the ratio in a case. Give one (1) example of when there may not be a ratio in a case. Describe to your fellow students a process that might help them to identify the ratio in a case.

QUESTION 4

[20 marks]

You must select and complete four (4) topics ONLY from this list.

Do not answer any more than four (4) topics.

Each topic is worth five (5) marks.

1. Explain in your own words the meaning of the following words / phrases:

1. Res judicata
2. Stare decisis
3. Autrefois acquit / autrefois convict
4. Per incuriam
5. Obiter dicta

2. What is your understanding of the term ‘evidence’ and what is its legal function? Outline two (2) rules of evidence and explain briefly how each works.

3. List the five (5) different types of reasoning. Select two (2) and describe how each type of reasoning might work in a legal setting.

4. Explain, in your own words, the meaning of the doctrine of precedent and how it operates in the legal system of your country.

5. Select one (1) of the case illustrations discussed in this course where the courts have altered the common law in some way and describe the way in which the court achieved this. Do you agree with the court’s decision in that case? Why / why not?

6. What is a dissenting judgment? What is the legal significance of such a decision in the context of the doctrine of precedent? Can a dissenting view ever constitute the ‘ratio’ of a case?

7. What is the legal meaning of the term corroboration? Is there a general rule that evidence must be corroborated? Describe two (2) situations where, traditionally, the courts require evidence to be corroborated and explain why.

8. If one or other of the parties in proceedings before the court fails to argue an important point or present evidence on a particular issue, is the court able to intervene to ensure the matter is properly dealt with? Explain your answer. Do you think this provides a fair legal outcome? Why / why not?

THIS IS THE END OF THIS PAPER