Australia—Victoria

2015 ◽  
Author(s):  
Alex Ruck Keene ◽  
Mary Sealy
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
State Level ◽  
The State ◽  
Appellate Court ◽  
High Court ◽  
High Court Of Australia ◽  
Adult Protection ◽  
Administrative Tribunal

Australia is a common law country. Australia is a federation of five states and two territories. Laws affecting adults in need of protection are generally made at state level. In Victoria, adult protection matters are decided by the Victorian Civil and Administrative Tribunal (‘VCAT’) in its Guardianship List. VCAT is the lowest court body—with Magistrates, County, and Supreme Court the hierarchy within the state. The High Court of Australia is the highest appellate court.

scholarly journals ACCESSORY LIABILITY: PERSISTING IN ERROR

2017 ◽  
Vol 76 (01) ◽  
pp. 7-11
Author(s):  
Beatrice Krebs
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
South Australia ◽  
Privy Council ◽  
Criminal Enterprise ◽  
High Court ◽  
Joint Criminal Enterprise ◽  
Bodily Injury ◽  
Uk Supreme Court ◽  
High Court Of Australia

IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.

Comparing the institutional constructive trust with the remedial constructive trust

2019 ◽  
Vol 25 (9) ◽  
pp. 919-938
Author(s):  
David K L Raphael
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
The State ◽  
High Court ◽  
The Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
High Court Of Australia

Abstract The concept of the Institutional Constructive Trust was first recognised in Australia in 1907 by the most senior court, i.e. the High Court of Australia, in Black v S Friedman & Co. This arose in a decision involving stolen funds. Its importance was addressed in the State of Victoria in Nolan v Nolan where what was in issue involved the Limitations Act of the State of Victoria. It must be appreciated that in the Commonwealth of Australia, State Acts can, and sometimes do, differ. In 1985, in Muschinski v Dodds, Deane J of the Australian High Court placed different emphasis on the court’s ability to recognise and construe such a trust and gave it the imprimatur of “Remedial Constructive Trust”. The latter, whilst adopted in New Zealand and Canada, has had what might fairly be described as its critics in the UK and, indeed the UK Supreme Court in FHR European Venture LLP v Cedar Capital Partners LLC has stated at [47] that the remedial constructive trust is not part of the law of the UK.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

2019 ◽  
Vol 35 (3) ◽  
pp. 375-386
Author(s):  
Vicky Priskich
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
International Arbitration ◽  
Appellate Courts ◽  
High Court ◽  
Appeal Court ◽  
The Status ◽  
Court Proceedings ◽  
The Uk ◽  
High Court Of Australia

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

scholarly journals THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES - A CENTENARY REFLECTION

2012 ◽  
Vol 16 (1) ◽  
pp. 45-78
Author(s):  
Michael J Kirby CMG
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia ◽  
Federal Supreme

In October 2003 in Melbourne, the High Court of Australia celebrated the centenary of its first sitting.  According to the Australian Constitution, it is the “Federal Supreme Court” of the Australian Commonwealth.1  Although the Constitution envisaged the establishment of the High Court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first Justices.  They took their seats in a ceremony held in the Banco Court in the Supreme Court of Victoria on 6 October 1903.  Exactly a century later, the present Justices assembled in the same courtroom for a sitting to mark the first century of the Court.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

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