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PACC6009 Business Law For Domestic Violence and Commonwealth Masters

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Question 1
(a) State an example of a court and a non-judicial tribunal from the same jurisdiction.
(b) Explain how, if at all, the two bodies you have selected are linked through rights to appeal or the use of precedent.
(c) Discuss both the differences and similarities between the court and the nonjudicial
tribunal you have chosen. For example, your answer may refer to alternative dispute resolution and the role of the legal profession as well as other relevant factors.

Question 2
In Queensland v Commonwealth (1977) 139 CLR 585 Gibbs J observed: [10]. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own.
1. How does the High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR617 develop an understanding of when the High Court may overrule earlier decisions?
2. Why, according to the doctrine of precedent is the High Court able to overrule earlier decisions?
3. Why is an understanding of English legal history important to an understanding of the decision in Mabo? 


1. The Magistrate Courtis the initial level of court in  Most of the civil and the criminal cases are originated from this court. All the decisions in the Magistrate court are made by the magistrates unlike the District and the Supreme Courts where the jury is involved in deciding the cases heard by the courts. A Magistrate court deals with a wide range of offences, which include offences that are less serious in nature; offenses related to the minors and offenses of serious nature like fraud, drugs, burglary (Daly and Sarre 2016).

The court also deals with minor matters related to family law, domestic violence and Commonwealth Maters. The Queensland Civil and Administrative Tribunal (QCAT) is a tribunal that deals with matters with matters in a just, fair, informal, economic way. The tribunal deals with matters like minor consumer and civil dispute; building disputes, occupational regulation issues; disciplinary actions relating to numerous professions, matters related to the young and the children.

If any party to a proceeding is aggrieved by a decision of the magistrate court, he may prefer an appeal against the decision of the court before the District court. However, an appeal against the decision of the magistrate court can be made if any new evidence is adduced or if the party preferring the appeal is of the opinion that the court has made a mistake of law that has influenced the consequence of the trial. While making decisions, the magistrate courts must follow the previous decisions or reasoning made by the District court of Queensland.

The parties may prefer an appeal against the decision of a QCAT but the process of appeal depends on the costs and nature of the decision. An appeal against the decision made by a judicial member of the QCAT must be made to the Court of Appeal and not before the QCAT Appeal Tribunal. An appeal against the decision made by a non-judicial member must be made before the QCAT Appeal Tribunal. An appeal against the decision of a non-judicial and a judicial member must be made on the grounds of question of fact or question of law or both. Moreover, the QCAT must follow the decisions made by the superior courts while deciding cases as these decisions are legally binding on all Australian courts and tribunals.

In Queensland, Australia, almost all the civil disputes and the consumer disputes are dealt with by the magistrate courts, district courts or Supreme Court and the QCAT. The Qcat and Magistrate court both have the jurisdictions to deal with matters related to consumers and civil disputes, minor family law. The parties to the proceedings before the court and the Tribunal may prefer an appeal against the decisions of the authorities. Both the Court and the QCAT have pecuniary jurisdictions to decide disputes up to $25,000 and $1, 50,000 respectively. However, the QCAT differs from the Court on grounds that the tribunal is less formal than the magistrate court (Jackson 2016).In court proceedings, the party that loses must pay the legal costs to the party who won whereas in QCAT, the parties to the proceeding must pay their own legal expenses. In a court, the counsels must represent their respective parties whereas in QCAT, the parties must represent themselves. A non-judicial and a judicial member make the decisions in a tribunal. In magistrate court, the Magistrate makes all the decisions. QCAT uses the dispute resolution method in certain matters to enable the parties to arrive at agreements prior to the QCAT hearing. QCAT may order the parties to attend mediation to identify the disputes, reduce the expense of the parties, to provide alternate solutions to the disputes etc. The judicial courts are also empowered to order the litigants to settle their claims by means of the adequate form of alternate dispute resolution.

2. The superior court in the judicial hierarchy can overrule its own previous decisions. In Mabo v Queensland (1992) 175 CLR 617, the rights and claims of the Meriam people against the Murray lands were extinguished under the Queensland Government. The indigenous people claimed their connection with the land before the High Court, which is the highest court of the country. There existed a myth of ‘terra nullius’ in Australia at the time of colonization, which means ‘the land belongs to no one’ and the myth existed when he British claimed land ownership in Australia. However based on the grounds of continuous inhabitation, permanent well-settled communities of the Meriam people, the High Court recognized the rights and claims of the Meriam people and replaced the myth of ‘terra nullius’.

The doctrine of stare-decisis or precedentrefers to the doctrine that while deciding cases the judges must respect the previous judicial decisions. The judges must follow the previous decisions or reasoning made by the judges in past cases while deciding cases that includes similar facts. The doctrine of precedent, however, acts as a restraint on the decision making power of the judges (Douglas, Atkins and Clift 2015). Further, the decisions made by superior judges are binding on the subordinate courts but the highest court can overrule its own decisions.  The doctrine acts as a constraint for the judges when they are not satisfied with the previous decisions or when the precedent cannot be applied because of change in significant application of the previous ruling. Under these Circumstances, the high court of the country can overrule earlier decisions including its own previous decisions (Saunders and Stone 2015). 

The concept of Aboriginal ownership of landhas been recognized by the Britain, which is apparent from the declaration made between the officials of the House of Commons and private correspondence. The Aboriginal ownership of land was recognized by International law and Britain was a party of the law prior to the colonization of Australia. The Australian colonist did not consider the recognition of the Aboriginal Land ownership by the British as they considered that their law was based on the concept of ‘terra nullius’. The disregard of the Aboriginal Land ownership was challenged in the court in the Mabo case and in the Milirrpum v Nabalco [1971]. The decision of the court did not challenge the legal validity of the Aboriginal land tenure; in fact, it held that in order to recognize a native title, the aboriginals must claim their rights in the court or tribunals and establish their association with the claimed land. 

Reference list

Daly, K. and Sarre, R., 2016. . Criminal justice system: Aims and processes.

Douglas, J., Atkins, E. and Clift, H., 2015. Judicial Rulings with Prospective Effect in Australia. In Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (pp. 349-358). Springer International Publishing.

Jackson, S., 2016. 'Care and conduct'costs component considered. Proctor, The, 36(5), p.38.

Mabo v Queensland (No 2) [1992] 175 CLR 617

Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141

Saunders, C. and Stone, A., 2015. Constitutional Reasoning in the High Court of Australia.

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