How do I read an Australian case citation and find the text of the judgement? I want to know more about a particular case. I've seen it referred to a couple of different ways: Tame v New South Wales [2002] HCA 35 Tame v New South Wales (2002) 211 CLR 317 How can I access information about these cases?
The quickest way to get the text of Australian judgements is through AustLII. Reading the citation Parties: Tame v New South Wales In this case, the parties are (Clare Janet) Tame and (the State of) New South Wales. Year: [2002] or (2002) There is a subtle distinction between the above years: in brackets [] is generally (but not always) the year that the judgement was made, which may or may not be the year that the case was reported, which appears in parentheses (). This case was both decided in, and reported in this law report, in 2002. Court HCA Where the citation includes brackets - [] - the abbreviation that follows is the unique court identifier of the court where the judgement occurred. This case was decided in the High Court of Australia. For a list of courts and abbreviations, see AustLII's table of Australian case law. This is called a medium-neutral citation. Some reports are organised by year - unfortunately, there is no pattern to this - and they will have the year in brackets also. If more than one volume of a report of this kind is produced in this year, the volume number will appear between the year and the abbreviation as below. Report number and series 211 CLR Where the year appears in parentheses - () - and a number, then an abbreviation follows, these are the volume and abbreviation of the law report. In this case, it is the 221st volume of the Commonwealth Law Reports. Pinpoint reference Tame v New South Wales [2002] HCA 35 Tame v New South Wales (2002) 211 CLR 317 The final number is the pinpoint reference. In a medium-neutral citation, this is the judgement number - the nth judgement that year. In all other cases, it is the page on which the judgement commences in the law report. Authorised and authoritative law reports All law reports are authoritative and can be employed in court, however the authorised law reports of a court are the official law reports - there is only one for each court. Judgements that highlight a novelty or a particular point of law are generally reported in the authorised law report. How to use a citation The practical upshot of this is that AustLII provides LawCite, which is a free case citator - you can search for cases. All you need is either: The year, court abbreviation, and judgement number, or The volume, report abbreviation, and page number In the above examples, these would be 2002 HCA 35, and 211 CLR 317 ... respectively. This is referred to in the citator as the citation (which is confusing because the entire thing is a citation). LawCite provides, for your convenience, a table of: Cases that cite the case your case, Law reform reports referring to your case, Law journals referring to your case Legislation cited in the case your case, and Cases and articles cited in your case. These are extremely useful in finding related cases during your research.
This is not a quote, per se, rather, it is a meme. It is attributed to Gilbert Gray, and according to The Independent Saturday 7 March 1998 was originally: "I take it, Mr Gray, that your client is familiar with the maxim: Quis custodiet ipsos custodes?" "Indeed my lord, responded the QC drily. "In Barnsley they speak of little else." However, according to the Fortune Newsletter two years later, it was attributed to a different barrister, Charles Gray, who is reported to have recounted a story about a barrister in Reading who was asked by the judge whether his client was aware of the principle of Res ipsa loquitur (the thing speaks for itself), to which the barrister replied: "In the Irish village from which my client comes, M'Lud, they speak of little else". It is also attributed in 2005 to some unnamed judge referring to sic utere tuo ut alienum non laedas. As Tim Lymington notes, the Irish res ipsa loquitur version is attributed to Marshal Hall apparently was on the air in the BBC production The Trials of Marshall Hall originally from 1996, and is cited in a recent book review. The book review and Wiki versions of that statement differ slightly in the wording of the text, to wit Wiki: "Is your client not familiar with the maxim res ipsa loquitur?” replied, "My lord, on the remote hillside in County Donegal where my client hails from they talk of little else." vs. book review Judge: “Mr Marshall Hall, is your client familiar with the doctrine res ipsa loquitur? Marshall: “My Lord, in the remote hills of County Donegal from where my client hails they speak of little else.” Without a copy of the book, I can't say whether the reviewer mis-copied the quote, but at least we can believe that the linked quote represents the review author's wording. There is a much earlier work on the life of Marshall Hall, Marjoribanks, Edward For the Defence. The Life of Sir Edward Marshall Hall K.C. (The MacMillan Company, New York, 1929), which might contain the quote in question. At this point, I am inclined to take the Hall res ipsa loquitur quote as being original and the others as being derivative works.
Judicial review As always, Inigo Montoya, is correct - declaring a law unconstitutional is not judicial review in Australia, although it may be a consequence of a judicial review. Judicial review is the power of the courts (the judiciary) to review decisions of executive government e.g. a decision of a council in a development application or the decision of the Minister in an immigration case. Of course, in American English, which is not the kind the High Court of Australia uses, judicial review does mean what you think it means - so you’re only wrong in most of the World rather than all of it. Unconstitutionality The High Court of Australia, like all common law courts, cannot veto legislation nor does it give advisory opinions. It exists only to decide controversies between litigants or in criminal cases, either as part of its original jurisdiction or as the final appellate court (since 1975) for all Federal, State and Territory law. In deciding a case it can decide that Parliament has exceeded its Constitutional power and deem legislation ultra vires. This Parliament House web page gives the following representative list: Petroleum and Minerals Authority case—The High Court ruled that the passage of the Petroleum and Minerals Authority Bill through Parliament had not satisfied the provisions of section 57 of the Constitution and was consequently not a bill upon which the joint sitting of 1974 could properly deliberate and vote, and thus that it was not a valid law of the Commonwealth. McKinlay’s case—The High Court held that (1) sections 19, 24 and 25 of the Commonwealth Electoral Act 1918, as amended, did not contravene section 24 of the Constitution and (2) whilst sections 3, 4 and 12(a) of the Representation Act 1905, as amended, remained in their present form, the Representation Act was not a valid law by which the Parliament otherwise provides within the meaning of the second paragraph of section 24 of the Constitution. McKellar’s case—The High Court held that a purported amendment to section 10 of the Representation Act 1905, contained in the Representation Act 1964, was invalid because it offended the precepts of proportionality and the nexus with the size of the Senate as required by section 24 of the Constitution. Postal allowance case—The High Court held that the operation of section 4 of the Parliamentary Allowances Act 1952 and provisions of the Remuneration Tribunals Act 1973 denied the existence of an executive power to increase the level of a postal allowance—a ministerial decision to increase the allowance was thus held to be invalid. Roach’s case—The High Court found in 2007 that amendments to section 93 of the Commonwealth Electoral Act 1918, to remove the entitlement to vote from all persons serving a sentence of imprisonment, were invalid, being inconsistent with the system of representative democracy established by the Constitution. Rowe’s case—During the 2010 general election campaign, the High Court declared invalid amendments to the Commonwealth Electoral Act 1918 which had reduced the time available for updating the electoral rolls after the issue of writs. Cases involving Commonwealth expenditure—in Combet (2005) the High Court rejected arguments that the broad terms of statements in an Appropriation Act were such that the Parliament could not be said to have authorised certain expenditure. The effect was that it was recognised as a matter for the Parliament, and not the courts, to determine the level of detail in such provisions. In Pape (2009) the Court held that a parliamentary appropriation was a prerequisite for the lawful availability of money for expenditure, but not in itself authority for expenditure; and that authority for Commonwealth expenditure must be found in the executive power or in legislation under a head of power in the Constitution. In this case the Court upheld the validity of the Tax Bonus for Working Australians Act (No. 2) 2009, but in Williams (2012) and Williams (No. 2) (2014) the Court held that the Commonwealth did not have the power to make payments under funding agreements (in this instance in relation to school chaplaincy) without the legislative authority to do so.
The appellate court gets the trial transcript which includes all the testimony (and exhibits or descriptions/photos of them) and the trial court's rulings. Also, each side presents an appeal brief, which will generally include a statement of facts, pointing out ones it thinks favorable to its views. In civil cases a jury may be asked/instructed to give yes/no answers to a series of questions, but this is not normal in criminal cases. An appellate court can (and sometimes does) rule that there was not sufficient evidence to permit any reasonable jury to convict; to that extent it can rule on questions of fact. But, as the comment by ohwilleke mentions, an appellate court does not hear new evidence. It can overturn the conviction and send the case back for a new trial, and in such a new trial additional evidence may be introduce at the trial court level.
Yes The Browne-Fitzpatrick Privilege Case in 1955 resulted in the two being gaoled for 90 days for breaching the privilege of the Australian Parliament. They were, respectively, the owner and editor of the Bankstown Observer and the breach was an article in that paper that alleged that a then sitting MP, Charles Morgan, had been involved in immigration malfeasance as a lawyer prior to being elected. The men were grilled by the Privileges Committee of Parliament during which they were denied legal representation. The Committee determined that they had infringed privilege and the House, on the motion of the Prime Minister Robert Menzies, voted to gaol them. The High Court of Australia refused to hear an appeal as did the UK Privy Council (which was the highest court with Australian jurisdiction at the time). So, for things printed 300km from Parliament, Parliament decided that these men had broken Parliamentary rules and should be imprisoned. There is doubt, both then and now, that this was a political hatchet job. There is also no doubt that what was done was legal then, however, given that the High Court has since discovered an implied right to political communication in the Constitution, it may not be possible today.
I cannot find any relevant judgements from June 2007 that were published by the Irish High Court using the judgement finder. However, over 50 similar cases were issued at the High Court regarding this matter, and all but 10 were settled prior to a bundle of four cases being issued before the High Court which ultimately referred the matter to the European Court of Justice (ECJ). This bundle of four cases was Metock &amp; Ors. v Minister for Justice, Equality and Law Reform [2008] IEHC 77 which ultimately became Case C-127/08 at the ECJ. It's unclear why the 15 June 2007 judgement hasn't been uploaded, or why it took until 14 March 2008 for the High Court to refer the matter to the ECJ. In conclusion, Ireland was ruled to have wrongly interpreted the relevant Directive and the Court held that non-EU family members of an EU citizen can move to an EU Member State without needing to have resided in another EU Member State prior to that. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive. Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.
Typically in defamation law, claims made persuiant to litigation are not defamatory, since they are going to be tested for validity if the case goes to trial. I'm not familiar with any differences in what is generally done in settlements between the U.K. and the U.S., but since both are Common Law countries, and Settlements are very common in civil proceedings in the U.S., it's a good start. Generally a settlemant can occur anytime before the verdict of the case is rendered, although usually it will happen after preliminary hearings during the Discovery phase. In the U.S., Discovery is very broad and one need not prove that the requested items contain evidence but might contain evidence. This means that, for example, you could request a substantial amount of e-mail records from the opposing party because somewhere on the company e-mail server, there might be something to help your case. And even if after you sift through the emails and find no smoking guns related to your case, you could find some dirty laundry that's unrelated but still damning... if not more so than the initial case. Many people, especially big compainies, would rather just give the ex-employee some what he/she wants, if it means they don't get to see the proverbial man behind the curtain. Additionally the practice might fall into a legally gray area of the law that, if it reaches trial, could hurt the company or even the industry if a judge rules against the company, effectively saying that this gray area is now definately illegal. Better to eat the loss of capital with the settling out of court than to take the much larger hit of the buisness practice being illegalized all together. Typically in settlements, both parties agree to terms and sign a contract. While the whole of the terms are never discussed, almost all include that the plaintiff will drop the case and never bring the matter to court again and that both parties will sign a non-disclosure agreement (NDA) meaning that they won't discuss the rest of the settlement terms with anyone not party to them. If the plaintiff does break the NDA, the defendant can sue for breech of contract and recover at the least the monitary compensation they awarded in the settlement. Conversely, if the respondent breaks the NDA, the plaintiff can refile their initial suit with the addition of breech of contract (and this time it will get to court... and all the dirty laundry sees the harsh light of day.). While the respondent in a settled case can possibly sue for defamation if the plaintiff said the respondent did what the initial suit claimed they did (legally, it was never proven or disproven), or they were guilty (again, since no verdict was reached at trial, no guilt was established), the breech of contract is a much more airtight case and doesn't open up discovery to the respondent's cupability in the settled case (since the breech is about discussing the settled case at all, not the validity of the accusations of the settled case). Typically they would not go this route because then it opens the can of worms the settlement was trying to keep a lid on.
This judgment (R. v. H.E., 2017 ONSC 4277) was overturned on appeal (2018 ONCA 879): [2] After accepting the complainant’s testimony that both she and Mr. E. believed that, as his wife, she did not have the right to refuse to have sex with him, the trial judge explained the acquittal by expressing a reasonable doubt about whether Mr. E. had the required mens rea for the offence. ... [3] Mr. E. concedes that the trial judge committed reversible errors in this reasoning. He acknowledges that to the extent the trial judge based his acquittal on Mr. E.’s and the complainant’s shared belief that the complainant could not refuse to have sex with him, that belief would be a mistake of law that cannot form the foundation for an honest but mistaken belief in consent defence. He is correct. To avoid conviction based on an honest but mistaken belief in consent, the accused must believe in a state of facts that amount to consent according to law... ... [6] The parties therefore agree that the appeal must be allowed and the verdict of acquittal set aside.... [7] We would therefore allow the appeal, set aside the acquittal, and order a new trial.