What Is the Court Hierarchy and Structure in England - Essay Example

Law Exercise Q. 1 (i) What is the court hierarchy and structure in England? The Magistrates’ Courts are the first courts in the hierarchy of courts, in England and Wales. The highest court the House of Lords was supplanted by the newly formed Supreme Court, in November 2009. Above the Magistrates’ Courts, in the hierarchy of the courts are the Crown Courts, High Court, the Court of Appeal, and the House of Lords or the Supreme Court. Thus, the court system in England and Wales can be divided into five levels: namely the Supreme Court, which replaced the House of Lords; the Judicial Committee of the Privy Council; the Court of Appeal; the High Court; the Crown Court and County Courts; and the Magistrates’ Courts or Tribunals Service (What is the hierarchy of courts in the United Kingdom?). (ii)How do you find an English case? In England and Wales, the Law Reports, constitute the authorized legal source. These are published by the Incorporated Council for Law Reporting in England and Wales (ICLR). As the approved law reporting service, Law Reports are superior to other law report series. Law Reports are the publications of judicial decisions and the arguments of counsel. Another legal resource is the Weekly Law Reports. The ICLR publishes this series, which include the cases heard in the Superior and Appellate Courts. The Weekly Law Reports are referred to as WLR, which is published in four volumes. All these volumes contain cases heard in the courts and the counsels’ arguments (United Kingdom legal System, 2009). LexisNexis is another source for modern English case law in England and Wales. It provides easy access to case law. Other sources of English case law are the England and Wales Reported and Unreported Cases and All English Law Reports. As such, there are nearly thirty law reporting services in England. LexisNexis does not publish Weekly Law Reports. The Westlaw publishes the full-text of Law Reports; and BAILII is an online service provider that provides the English case law material, free of cost (United Kingdom legal System, 2009). (iii)What is the authority of English court decisions in Australian courts? The legal system of Australia is based on the common law system, which was developed in England. Thus, the Australian legal system has a number of procedures and principles that are similar to the English legal system. The decisions of the House of Lords and the Court of Appeal of England are not binding on Australian courts. They merely have a persuasive authority. However, of late, Australian courts have referred to the case law of the US and Canada. Australia follows a federal court system and a hierarchy of courts in its states and territories. The highest court in Australia is the High Court of Australia, and its decisions are binding on the other courts in Australia (Clark, Cunningham, & McEvoy, 2008). (iv) How do you research English legislation? The Halsbury’s Laws of England is a legal encyclopedia that provides comprehensive information about the laws of England and Wales. It is published in fifty-six volumes, with monthly and annual supplements. This encyclopedia is also available for online access. Similarly, the Stair Memorial Encyclopedia serves as the legal source for Scotland. It is updated periodically, via supplements. However, Northern Ireland does not have a comprehensive legal source for its laws, and the government provides web-based databases for its statutes (Topulos, 2009). The Office of Public Sector Information or the OPSI has its own website for this purpose, in which it provides un – amended texts of primary and secondary legislation that had been enacted from 1988. The Statute Law Database (SLD) is the official online source regarding the latest information regarding UK legislation. It also provides the texts of amendments to legislation. It contains the text of all the acts that were effective as on February 1, 1991, and the other statutes that had been subsequently, enacted. In addition to these, A Guide to the UK Legal System lends a helping hand in locating English legislation. The standard text on English statutes and statutory interpretation is the Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation of Legislation (Topulos, 2009). (v) From reported High court of Australia decisions, how many English decisions have been followed by the High Court of Australia over the last 5 years? Is there any evidence of a greater use or reliance on these decisions by the High Court? In the beginning of the twentieth century, Australian courts used to rely on foreign case law, whilst arriving at decisions. They chiefly depended on the English case law, in this context. However, over time, this tendency decreased. At present, the Australian courts are not bound by the decisions of foreign courts. It cannot be stated that the Australian courts completely avoid any reference to foreign case law, while taking decisions. In practice, the Australian courts frequently cite the decisions of other countries. Moreover, Australian courts follow the concept of legal precedent, as adopted by the English courts. However, there has been a significant shift towards decisions based on common law jurisdictions, Australian legal decisions (Comparative law). Q2 (i) What is the court hierarchy and structure in New Zealand? The court hierarchy of New Zealand is like a pyramid. The Supreme Court is the highest court and beneath it are the Court of Appeal, the High Court and the district courts. These courts are courts of general jurisdiction, and enact the main role in the justice system of New Zealand. The jurisdiction of the Supreme Court, Court of Appeal, and district courts is on the basis of statute. The High Court enjoys common law as well as statutory jurisdiction. In addition to these, there are specialist courts and tribunals, like the Employment Court, the Environment Court, the Maori Land Court, the Waitangi Tribunal, the Coroners Courts, and the Courts-Martial Appeal Authority, which deal with special type of appeals. The High Court supervises these bodies and is responsible for the judicial review processes (The Structure of the Court System ). (ii) How do you find a New Zealand Case? The Law library provides several tools, in respect of up to date case law. Some of these are the Butterworths Current Law (BCL), a monthly digest of cases in New Zealand. It can also be accessed online through the Lexis and LexisNexis NZ portals. Another provider of case law is The Capital Letter (TCL). It is a weekly digest that provides summaries of decisions, in a particular week; and information regarding new and proposed legislation (University of Waikato). The New Zealand Law Reports (NZLR) provides information regarding the legally important cases dealt with by the New Zealand courts. The first five volumes of the NZLR pertaining to the period from 1883 to 1887, were prepared with two paginations for the Supreme Court and the Court of Appeal. Prior to 1980, the present High Court acted as the Supreme Court (University of Waikato). The District Court Reports (DCR) contain the important cases heard in the District Court system. The abbreviation MCD denotes the Magistrates Court Decisions. The New Zealand Administrative Reports (NZAR) provides information regarding cases from Administrative Tribunals, Appellate Authorities, and other tribunals (University of Waikato). (iii) What is the authority of New Zealand court decisions in Australian courts? The lower courts have to must follow the decisions of their higher courts. This is the doctrine of ratio decidendi. However, the lower courts are not bound to follow the obiter dicta or ratio decidendi of higher courts, outside their hierarchy. For instance, the Victorian Supreme Court has to follow the decisions of the High Court. However, it is not required to follow the decisions of the Supreme Court of New South Wales, as it falls outside its hierarchy. Similarly, the High Court is not bound to follow the decisions of the House of Lords, or the Supreme Court of New Zealand or Canada (Australian Legal System). (iv) How do you research New Zealand legislation? The New Zealand Legislation website provides information about the legislation of New Zealand. It provides free universal access to unofficial versions of the Acts of Parliament, Public Acts, Local Acts, private Acts, Imperial Acts, Provincial Acts and Provincial Ordinances that are in force in New Zealand. It also provides access to other instruments, like the Regulations that are published in the Statutory Regulations series and imperial subordinate legislation. It provides access to Government Bills, Members’ Bills, Local Bills, and Private Bills. This website has information to Supplementary Order Papers. Moreover, it provides access to Amendment Acts and Amendment Regulations from 1999 (New Zealand Legislation, 2010). Q3 (i) What is the court hierarchy and structure in Canada? Canada has a federal system of courts, which is divided into three levels; namely, the Federal Court at the trial level, the Federal Court of Appeal, and the Supreme Court of Canada. Each province has three levels of courts; like the provincial or territorial court, a superior court and a provincial court of appeal. The Supreme Court of Canada is the highest court in Canada. The provincial and territorial courts have jurisdiction over all matters that have not been excluded by statute. The Federal Court can only deal with issues that have been explicitly stipulated under the federal statute (Harvard Law School Library). Specifically, the Supreme Court of Canada, the highest court in Canada, is located in Ottawa. It consists of nine judges, who represent the different regions in the country. Although it can review the decisions of the other courts, it only takes up around a 100 cases annually. There are two superior courts for each province and territory, and one of these takes up appeals, whereas the other hears trials. They hear divorces, criminal and civil cases, and conduct reviews of the decisions of some of the lower courts and the administrative tribunals. The decisions of the trial level courts can be appealed in the Appeal Division or Court of Appeal. Issues that arise in connection with federal laws and appeals from federal tribunal decisions are take up by the Federal Court of Appeal and the Federal Court. In addition, the Tax Court takes up disputes between the federal government and the taxpayers. In addition, there is the Court Martial Appeal Court of Canada, which takes up appeals against the decisions of the military courts (Outline of Canada's Court System 2006). (ii) How do you find a Canadian case? The Supreme Court Reports and the Dominion Law Reports publish the decisions of the Supreme Court of Canada. The decisions of the Supreme Court and the Federal Courts can be accessed through the Internet. The case law of the provincial or territorial courts is provided by the respective provincial or territorial reporter. In addition, publications, like the Western Weekly Reports provide case law from several provincial courts. Researchers can obtain information about previous case law through the Western Law Reporter. Each provincial and territorial court has a website, wherein selected decisions are provided. The administrative tribunals provide their decisions in print and web formats. The Administrative Law Reports pertain to the decisions of the administrative tribunals; and the Westlaw website contains a large database of administrative tribunal decisions (Case Law). (iii) What is the authority of Canadian court decisions in Australian courts? The Court of Appeal was seen to be partial to its earlier decisions, and this was in accordance, with the extant practices of the High Court of Australia and the Supreme Court of Canada. The Australian state courts and Canadian provincial courts cite the decisions of their superior courts, to a slightly greater extent than their own previous decisions. In the past, the High Court of Australia and the Supreme Court of Canada had been vested with supervisory jurisdiction over the other courts in their respective nations. As such, the courts in both these nations have to be bound by the decisions of their superior and supervisory courts. (Canadian legal system, 2009). (iv) How do you research Canadian legislation? The Supreme Court Reports and the Federal Court Reports constitute the official legal sources at the federal level, in Canada. The Dominion Law Reports, despite being unofficial sources, are used extensively. Moreover, the Lexum website provides decisions of the Supreme Court of Canada, from 1985; and the Ontario decisions of the Supreme Court, from 1876. In addition, the LexisNexis website provides decisions of the Supreme Court. The website of the Federal Court provides full text versions of the Federal Court and the Federal Court of Appeal, since 1997. The websites of LexisNexis and Westlaw provide the text of federal case law, and this is also available in print form, through various regional publication series (Canadian legal system). At the provincial and territorial level, the Dominion Law Reports provide information about the important decisions of the provincial and territorial courts. Moreover, each province and territory has its own official law report series. They publish the decisions made by the Superior Court and Appellate Court. In addition, Prince Edward Island and Newfoundland have their own combined law report series. Furthermore, websites of CanLII, LexisNexis and Westlaw provide extensive case law for each Province and Territory (Canadian legal system). (v) Diversity citations derive their importance from the reputation of the court that has made the citation. The New South Wales Supreme Court, has provided most of the diversity citations to the Australian courts; and in the Canadian context, this has been achieved by the Ontario Court of Appeal, whose decisions have been cited in the provincial courts to the maximum extent (Canadian legal system 2009). The common law of Australia has been significantly influenced by the legal systems of the UK, Canada and New Zealand. These nations have enacted legislation that comprehensively deals with issues relating to human rights and freedoms. Consequently, there has been considerable influence, due to these developments, on the Australian legal system (Gleeson 2002). The Australian courts are not bound by the decisions taken in foreign courts. Nevertheless, some foreign decisions have been cited in Australian decisions. Some of the reasons for such citation are; first, in order to help in the formulation of decisions in cases that involve difficulty or unusualness. Second, in order to make Australian law, up to date, in respect of the global principles of common law. Third, to bring about the harmonisation of Australian law with private international law; and finally, to serve a rhetorical function in support of preferred rulings (Comparative law). However, the same status is not accorded to all the common law jurisdictions. As such, an overseas decision achieves the status of persuasive precedent, only when it emanates from a superior court. Moreover, such decisions have significance, only if they pertain to the common law systems of the UK, US, Eire, Canada and New Zealand (Comparative law). In Hancock v Nominal Defendant the Queensland Court of Appeal, referred to a number of decisions pertaining to common law countries, including Canada (Hancock v Nominal Defendant , 2002). References Australian Legal System. (n.d.). Retrieved February 16, 2010, from http://tls.vu.edu.au/SLS/BUSLAW/Aus%20Legal%20System%20(Small).DOC Canadian legal system. (n.d.). Retrieved February 16, 2010, from http://www.alpn.edu.au/node/81 Canadian legal system. (2009). Retrieved February 16, 2010, from Australian Law Postgraduate Network: http://www.alpn.edu.au/node/81 Case Law. (n.d.). Retrieved February 16, 2010, from http://www.law.harvard.edu/library/research/guides/int_foreign/canada/index.html#CaseLawl Clark, S. S., Cunningham, D., & McEvoy, R. (2008, July). Enforcing U.S. and other foreign judgments in Australia - what are the rules? Retrieved February 16, 2010, from http://www.accessmylibrary.com/article-1G1-183858237/enforcing-u-s-and.html Comparative law. (n.d.). Retrieved February 16, 2010, from http://www.alpn.edu.au/node/66 Gleeson, M. (2002, July 2). Global Influences on the Australian Judiciary. Retrieved February 21, 2010, from High Court of Australia: http://www.hcourt.gov.au/speeches/cj/cj_global.htm Hancock v Nominal Defendant , 1 Qd R 578 (2002). New Zealand Legislation. (2010, January 21). Retrieved February 16, 2010, from http://www.legislation.govt.nz/about.aspx#whatisprovided Outline of Canada's Court System. (2006). Retrieved February 21, 2010, from Canadian Superior Courts Judges Association: http://www.cscja-acjcs.ca/structure_of_courts-en.asp?l=4 The Structure of the Court System . (n.d.). Retrieved February 16, 2010, from http://www.courtsofnz.govt.nz/about/system/structure/overview.html Topulos, K. (2009, October). English Law . Retrieved February 16, 2010, from http://www.law.duke.edu/lib/researchguides/english United Kingdom legal System. (2009). Retrieved February 16, 2010, from http://alpn.edu.au/node/76 University of Waikato. (n.d.). New Zealand Cases In Print . Retrieved February 16, 2010, from http://law.waikato.ac.nz:8080/lrs/index.php/NewZealandCasesInPrint What is the hierarchy of courts in the United Kingdom? (n.d.). Retrieved February 16, 2010, from http://www.justcite.com/support/faq-uk-court-hierarchy.aspx Read More