The Judicial Proceedings in the Supreme Court of New South Wales - Coursework Example

Supreme Court of New South Wales (Student Name) (Student ID) (Course Code) October 24, 2011 Table of Contents Table of Contents 2 Introduction 2 Understanding the Supreme Court of New South Wales 3 Application of the proceedings 9 By whom proceedings may be commenced and carried on 9 Affidavit as to authority to begin and carry on proceedings in the Supreme Court of West and South Wales 10 Representative proceedings in the Supreme Court 11 General 11 Case management of representative proceedings 11 Commencement of representative proceedings 12 Notices 13 New South Wales expert witness, Australia 14 Supreme Court Rules 1970 14 Introduction It is undisputed that in New South Wale state, the Supreme Court of New South Wales is the highest state court not considering the Court of Appeal as well as Court of Criminal Appeal. This court has unrestricted jurisdiction within the state especially in civil matters. It usually adjudicates the most serious criminal cases. It is worth mentioning that whereas in Australian court ladder the Supreme Court of New South Wales court is the highest, a special leave appeal can be made to the High Court of Australia1. This paper critically evaluates the manner in which proceedings are carried out in the Supreme Court of New South Wales. Understanding the Supreme Court of New South Wales The Supreme Court of New South Wales is mandated to carry out jurisdictions of general nature. It is worth mentioning that the court resulted from the Third Justice Charter which was issued in 1823. The charter gave the New South Wales colony this Supreme Court which has unrestricted jurisdiction lying within the dominion of the colony. It was modeled to look like Westminster’s superior courts2.It is worth noting that a superior court of general jurisdiction for instance New South Wales’ supreme Court of cannot be underprivileged of counteractive or even geographic jurisdiction in its State, however, this can be done by express statutory words as well as through implication. It can also be deprived of its jurisdiction in case it is shown that the pertinent jurisdictions are available in some other court. It should be recognized that Supreme Court of New South Wales’ jurisdiction can may be absolute outside the State’s defensive limits by statute as long as the statute can be construed to be peace order as well as for the good governing of the State. It can also be extended outside its territorial limits if the jurisdiction exercise is ultimately in order to enforce the statute inside the State3.In cases where jurisdiction is extended outside the state, Supreme Court’s decisions in an agreement with the statute’s terms cannot be in excess of jurisdiction even in circumstances were engaging consideration of matters that are not within the State. There need to be a link between the State and the situations construed to be within the statute. Nevertheless, should only be a distant and general link. Accordingly, one may doubt whether the New South Wales legislature has the competence to formulate laws which that can function extraterritorially not forgetting the laws that find it offensive to commit a forbidden act outside the State bearing in mind that there is an component in thee prohibited act sufficiently linked to the State4. The general supposition exists regarding the legislation as well as New South Wales’ laws as being unintended to have extraterritorial effect. Therefore, the supposition is that the court jurisdiction is limited. Therefore, not unless a number of statutes purposely grants extraterritorial jurisdiction unswerving with requirement for a State’s connection, the State’s courts do not have jurisdiction to handle issues that arises beyond the territorial limits. It is worth mentioning that this is subject to supplementary qualification to the supposition that do not concur with extraterritorial jurisdiction, and that such assumption would be rebutted in case it renders operation of the appropriate statute ineffective5. In location terms the autonomy as well as limits of the legislative territorial of each Australian State goes beyond the borders of the country to the area which is between the low water mark and the twelve maritime mile territorial waters boundary. However, it is worth recognizing that this States’ right is often subject to several limitations. For instance, in the Commonwealth, there are reservations of the right to utilize sea bed for the purposes of communications, defense as well as other key reasons. The legislative of the state as well as sovereign power also go beyond the territorial waters in case of some other restricted purposes which include, ports and harbors. Therefore, Supreme Court of New South Wales’s territorial jurisdiction extends to such offshore restrictions6. Proceedings at supreme court of new South Wales It should be recognized that jurisdictional as well as other connected issues in Supreme Court of New South Wales litigation can occur at numerous stages in the proceedings. Analytically, issues can be categorized around initiating process issue, service as well as challenge to jurisdiction. Legal proceedings are commenced in the court by issuing an initiating process, for instance, issuing a statement of claim or a statement of summons7. Looking at the process critically, one would question the applicability of some steps especially when initiating the process. For instance, the process takes place strictly when the court has jurisdiction to deliver judgment the issues that have been raised during the initiating process, however, there are no specific issues that have been mentioned within which the court has its jurisdictions over8. Often, jurisdiction of the Supreme Court of New South Wales to deliver judgment those issues depends on various elements. They include finding out whether the initiating process has established cause of action that it can take as well as whether it has jurisdiction to determine them. Some of those issues revolve around breach of contract, negligence and breaching section fifty two the Trade Practices Act of19749.The court also evaluates whether it has jurisdiction over the defendant which appears to be limiting in some ways. It does not make sense for the court to put restrictions on the defendants who may bring their case to it for adjudication. This is a detriment to human rights10. During the initiating process, the court has to establish whether it has jurisdiction to pass the remedy required. This puts raises the question as to whether there are remedies that cannot be offered by this court bearing in mind that it is one of the highest courts in ranking11. It is after filling the initiating process with the court that it has to be served on the other party to the proceedings. Service that is outside New South Wales geographic jurisdiction is permitted in certain distinct situations. There should be no conditions as to which state and the party being served comes from. This court in its capacity should not be restricted in offering its jurisdictions especially when the culprit is from another state. In some cases, jurisdictional issues are at times raised during initiating process12. In most of such cases, the plaintiff seeks Supreme Court’s leave of to serve the jurisdiction outside or they at times seek an order that informal service is effective. At that stage, the court has to be contented that it has jurisdiction to deliver judgment over the claim raised during the initiating process. This usually takes time to establish and it hinders effective delivery of the adjudication13. Supreme Court of New South Wales proceedings when the defendant who is not a citizen in Australia first gains awareness concerning the court’s proceedings raises questions. In such circumstances, the court gives him/ her various options some of which do not make sense. For instance, the defendant is allowed not to go to Australia to defend the proceedings. This is a point of weakness since individuals would escape justice14. The second option is that the defendant is allowed to make an unconfirmed appearance in the Supreme Court and in addition to that, he/she submits to the court only when challenging its jurisdiction. In such a case, the court does not seem fair to the plaintiff. It is also worth to note that the defendant could also appear in the Supreme Court for defense on both jurisdictional as well as substantive grounds. The defendant is also allowed to instigate a counter proceedings could initiate counter proceedings in the foreign jurisdiction but this is much better than allowing them an option of not attending the proceedings which would mean that they may escape justice15. It is surprising to note that when the defendant chooses not to go for defense of the proceedings in the Supreme Court, his/ her properties which are in Australia are not at risk and they are allowed to visit the country as well as conduct business in future16.This fails to make sense because they ought to be denied privileges in order to enforce law abidance. It is notable that, if the defendant decide not to appear during the proceedings, it does not mean that the path to a remedy is has no impediments to a plaintiff. Therefore, plaintiff needs to take action in the jurisdiction of the defendant which can be done either by beginning completely new proceedings or looking for acknowledgment of Australian judgments. The problem withy this is that even if the judgment in Australia is recognized, the foreign court may at times not grant similar type of relief. This is a detriment to justice in the country bearing in mind that Supreme Court should be in a position to offer justice to the people17. In cases where defendant decides to dispute the jurisdiction of the Supreme court, it can argue that the court does not have power over the matter and that the court in its discretion should not hear the matter based on the fact that Australian forum is not appropriate inappropriate , that is, forum non conveniens. However, there are no stipulated matters that have not been established over which Supreme Court of New South Wales does not have the power to pass jurisdictions. Another approach that can be sought by the defendant beginning proceedings in its own authority in search of a remedy against the petitioner by seeking an order from the supreme court in its own jurisdiction18. Application of the proceedings There is a new Pt 10 of the Civil Procedural Act relating to representative proceedings in the Supreme Court of the New South Wales which commenced operation on fourth March 2011. Rules 7.4 as well as 7.5 which are both Uniform Civil Procedure Rules (UCPR) were accordingly repealed. By whom proceedings may be commenced and carried on An ordinary person is allowed to commence as well as carry on proceedings in this court. An individual can either do so by having a solicitor doing it for him or her or in person. In cases where proceedings are started by an ordinary individual on someone else’s behalf in pursuit to a power of attorney, the supreme court has the position to make an order that the proceedings be commenced on behalf of that individual by a solicitor who must be holding an unrestricted practicing certificate. Looking at this situation critically, one would agree that the court can at times become a detriment to justice. A court may order that the solicitors’ services be sought; however, the person commencing the case may not afford to pay his services. This is not the only detriment. It is however essential for a person to have a solicitor to avoid risks that occurring to unrepresented litigant as well as risks of having ray advisors19.For a company, it may commence the proceedings as stipulated in the Corporations Act of 2001. This can be done by a solicitor or a company’s director. The only exception to this is when the court orders otherwise. In Supreme Court of West and South Wales, commencement of the proceedings by a director can only be allowed in case the director is also the plaintiff. The problem with these stipulations is that they fail to give ground over which the decision was made. A corporation which is not a company in this case but which bears the meaning stipulated in the Corporations Act of 2001 may begin as well as carry on proceedings in any the Supreme Court by a solicitor. Affidavit as to authority to begin and carry on proceedings in the Supreme Court of West and South Wales An individual who begins as well as carries on proceedings in the Supreme Court of Southern Wales as the company’s director within the denotation of the Corporations Act of 2001 is required to file, notice of appearance or rather notice of defense, an affidavit stipulating his or her power to act in such capacity, jointly with a copy of the document evidencing that authority with the originating process. One would agree that even if such decisions were made, there needed to have other exceptions especially in case some one is the acting director and he or she has not been officially recognized in full capacity of the position. However, to some extent, requirement of the affidavit is important because the director acknowledges liability to pay some or in some cases, all of the proceedings cost20. Representative proceedings in the Supreme Court General Amendments to the CPA that were made on fourth March 2011 made momentous adjustments in the implementation of an all-inclusive regime relating to representative Supreme Court proceedings. On twenty second February 2011, a novel Practice Note, No SC Gen 17 of the Supreme Court of New South Wales regarding representative proceedings was issued and it started on fourth March 201121.It is worth noting that insertion of Part 58 of the UCPR aimed at making provision for opt out notice requirements was a noble idea. In the past, provision for opt out were not clearly outlined and people did not know the notice requirement and this brought about confusion during the proceedings. Case management of representative proceedings In the Supreme Court of New South Wales, the representative proceedings case is usually managed by a Judge or an Associate Justice who must be from the division in which the proceedings are. The management of representative proceedings is very important and it can avoid discrepancies which often arise in court due to lack of proper advisories22. It was established that it is only through giving suitable directions that the court would ensure that the parties involved continue well with the litigation. It also avoids becoming bogged down due to unwarranted academic or rather unfruitful arguments concerning pleadings, specifics, practices as well as protocols. Basically, Respondents who are in class actions do not know the necessary thing they need to do in order to avoid a trial. If the proceedings are not managed, individuals may end up incurring prohibitive costs. Therefore, the court needs to be incisive to ensure that some of those tactics do not occur at all23. Commencement of representative proceedings It is recognized that the proceedings in the Supreme Court can be started by seven or even people who are more than that even if they have claims against the same individual or individuals. However, the claims must occur out of the related or similar situations. This is often not possible to attain. There should be provision for this since some situations might appear similar but there are other factors that lead to them. It is also recognized that the claims need to give rise to a considerable common question of fact or of law. A representative party who begins the proceedings must have position to commence representative proceedings another person’s behalf24. The court stipulates that an individual may begin proceedings against more than one defendant. This is actually a great step in ensuring that no loopholes are left in the law. This usually happens whether or not the group has a claim against each defendant.  However, it is worth noting that the court may have missed the point when it construed that it is appropriate for representative proceedings to be commenced on behalf of a limited group especially that which has identified individuals. Looking at it critically, those individuals should commence the proceedings on themselves so as to avoid complexities during the case25. Notices Notices are indicated in Part 10, Div 3. Section one hundred and seventy five provides for notices that need to be given in representative proceedings. Normally, the Supreme Court of New South Wales has extensive power to order that notice of any type to be provided to a group or even to the individual members. The Court should be very categorical concerning who is to be given the notice as well as the way it should be given, otherwise it would bring about various arguments concerning issuing of notices. In addition to this, any conditions as well as compliance periods needs to be plainly precise in the order. In pursuit of section175 (6), it is stipulated that notices need to be given as soon as possible especially after the occurrence of the event related to it. More specifically, notices should be given for commencement of the proceedings as well as the right of group members to opt out, when there is dismissal of the proceedings for desire for a hearing as well as notice for representative party’s withdrawal26.It is surprising to find that the Court may sometimes order a notice to be given in the media, especially through press advertisement, radio and at times television broadcast. In many cases this is offered when the court does not have the confidence that all the members of the groups were not known by name, and therefore could be notified by letter. The question that this poses is how in the first place the court would have accepted the proceedings to commence if all the details of the members are not yet known. New South Wales expert witness, Australia Expert witness rules of the New South Wales Supreme Court offers a structured code which is intended to enhance judicial process in Australia. The Supreme Court of New South Wales is Australia's highest court that hears both civil as well as criminal cases. Its actions are administered by the 1970 Supreme Court Act as well as 2005 Civil Procedures Act. The two acts delineate anticipated duties, reporting as well as rules for experts who testifying in the court27. Supreme Court Rules 1970 Rules of the Supreme Court of New South Wales of the 1970 Sections (Sect.) 75.3J as well as 75.3K are applicable to those people who have been asked to offer their expert opinions. Section 75.3J indicates that the expert witness should acknowledge that he has received, read as well as he is able to adhere to the stipulated code of conduct. On the other hand, Section 75.3K contains the conference requirements which the court of New South Wales has the right to create. The problem that could emanate from this is that there would lack uniformity among the Supreme Court’s rulings especially in circumstances where the defendant hails from another state. Schedule seven of the Uniform Civil Procedure Rules 2005 contains the Expert Witness Code of Conduct28. Conclusion Supreme Court of New South Wales is ranked the highest in the ranking of Australian courts. The court has various steps that are followed during the proceedings which start with the application process. There are territorial laws which are advanced to help the court settle matters that may exist between people who are not from the same territory. There are various aspects that should be acknowledged even as during the proceedings so that it would leave no loopholes where by people would exploit to escape the law as well as to enhance its operations. Some of those issues revolves around commencing proceedings with people who are outside Australian, representatives in the proceedings as well as when giving notices among others. References list Bentham, J. 1997. ‘The Right to Silence — Sparing the Judge from Talking Gibberish’. Paper presented at session 24, 30th Australian Legal Convention, Bowman, S.J. 1997. Review of the Court of Appeal (Civil Division). London: Lord Chancellor’s Department. Clothing’. T.1999. Litigation issues. The University of Western Australian Law Review 32, pp. 181-191. Civil Justice Review. 1988, Report of the Review Body on Civil Justice. London: Lord Chancellor’s Department. Commission on Government, 1996. Commission on Government Report No 4 (Perth,). Council of Australian Governments. 1996. 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Access to Justice — Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO. Read More