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LAW201A Business Law Assignment Help
Court or courts that have the jurisdiction to decide the following disputes (Australian state and territory):
a) A dispute over the non-payment of $ 60,000: Federal court of Australia
b) Criminal charges for shoplifting: Lower court in Victoria, Queensland, South Australia and capital territory but Criminal court in other states and territories (Australia) (Morabito and Caruana, 2013)
c) A dispute over who owns the right to a trademark: Federal court of Australia
d) A civil appeal from a single judge of a supreme court: High court of Australia (Good, 2014)
e) A constitutional dispute between the state and the common: High court of Australia
Case: The lower court magistrate identifies similar cases like the ones he/she is hearing.
Issue: the debate about which court (High, Federal, Intermediate, and Supreme Court of another state or another lower court of same state) decision the lower court magistrate will follow.
Recommendation: The Australian legal model has its origin from England’s legal structure and the common law based Australian legal structure is based on hierarchy. The hierarchy means the power of law is distributed in Australia for different court models (Sheehan et al, 2012). Usually common law models have trial and superior courts as per basic legal structure. In Australia there are three basic types of courts and they are:
State courts: The basis is on the state laws which vary significantly for different states
Federal courts: The basis is on commonwealth laws and covers the legal area which is not included in state legal model.
Special courts: The same is famous as tribunal courts. The courts deal with special cases like children, juvenile as well as family issues.
According to the state court structure the hierarchy distributes the legal power in three divisions. The roles of courts differ from state to state of Australia maintaining the same legal pattern. The lowest level of state model is the magistrate court which deals without jury. The magistrate court or local court has one expert legal practitioner known as magistrate for the final verdict. Minor cases get final verdict here but for long and serious case magistrate decides committal hearing. That means moving the cases in higher court of hierarchy (Escobar-Lemmon et al, 2016). The second lowest law structure is district court. The court takes serious civil cases as well as appeals from lower courts. The highest state legal division is Supreme Court. State Supreme Court takes final decision from trial and appeal courts.
The federal court deals with completely other situations and issues. It deals with the commonwealth law cases with the same power of state supreme court. As the dealing cases are different lower court magistrate cannot follow the decision pattern of federal court (Douglas et al, 2015). Therefore the lower court magistrate has two options. One is the decisions made in the district court as all not satisfied cases go there for final decisions. Therefore the decision making pattern may be same. The other option is lower court of another state excluding Tasmania and territories. Lower court magistrate can choose these verdicts as the lower court pattern is same (another state) but not the job roles.
Considering the globalization factors in modern law and reformation the different legal systems worldwide show two major legal systems and they are:
Usually the first type of legal system works on the common law countries while the inquisitional legal system is for civil law countries (Langer, 2016). From this basic definition, Australia is included in the common law system while the European system goes under the civil law model.
The legal models or systems are majorly based on the traditional forms, law ethics and law analysis factors.
In case of common law or Adversarial system the legal system takes arguments, evidences from both the complaining and opposing parties to provide a neutral solution considering the inputs. The fact determination process use opposing presentations from both sides of parties to declare the final decision (Huff and Killias, 2013).
But for civil cases system or the Inquisitional system, the legal structure /court or a part of court actively participates in the total fact determination process or evidence identifying process. The active inclusion of court is a major difference between Adversarial system and Inquisitional system.
From the basic principles of law, Adversarial system uses advocacy promoter from both sides of parties and the opposition terms will lead towards the final decisions or truth. But the Inquisitional system the fact determination process considers a magistrate with high neutrality factor (Anleu and Mack, 2013). Moreover the position and role of Judge varies significantly in these two systems. In the Adversarial system Judge is the interface between the defense and prosecutor while in Inquisitional system Judge is the busiest post for final fact finding process.
The verdict declaration process for Adversarial system is done via Jury in a semi-secret way whereas Inquisitional system uses an open verdict declaration process via Judge. The evidence producers in Adversarial system of Australia are defense and prosecutor while in European Inquisitional system Judge is in the same role (Wood and Loughton, 2015). The major power source in the Inquisitional system is on the Judge whereas the power distribution is open, equal and fair for the Adversarial system.
Moreover there is a philosophical difference in the legal ethics of both the legal systems. As an example, the Simpson murder case solution via Adversarial system shows dizziness in the moral standard while the Inquisitional system has clear definition of moral standard with an aim of overall community gain (Jefferies and Bond, 2013). So it is clear that Adversarial system gives priority to the individual gain.
Situation: A business dispute case with a neighboring business over car parking and blocking access to loading bay. The dispute is costing the first business as $500 per week for 20 weeks (loss).
Issue: The first business requires three possible alternative solutions instead of court action.
Recommendations: As the first business analysis requires alternatives of court room actions therefore the first business should use ADR methods or alternative dispute resolution techniques. The ADR processes are rapidly gaining recognition due to its flexibility factors (Blattman et al, 2014). Usually business dispute can take help of judicial resolution techniques via initiating against the disturbing party. But ADR is included in the extrajudicial dispute resolution techniques for the complaining party. Complaining parties avoid litigation procedure due to high price and time delay in its formalities. Most common and useful alternate dispute resolution techniques are:
Negotiations: There are different types of negotiation procedures. Most useful one may be the settlement conferences. In this case both parties negotiate via their attorneys or legal advisor in front of some legal authority or settlement officer (Christie, 2016.). The attorneys are only present to help both parties for usage of proper legal terms and logic. Moreover the settlement officer evaluates the process and helps both parties to come in a settlement. Therefore both parties take the final decision on their own in front of law without court presence and long formalities.
Arbitration: This is a semi-formal trial between two parties where the listener or the arbitrator hears or checks the arguments and evidence from both sides. Finally the arbitrator decides the output of the business dispute and takes the final decision or provides solution. The relaxed process is of two types; binding and non-binding. In case of binding arbitration process both parties agree with the final decision taken by arbitrator (Agarwal, 2014). But non-binding arbitration process gives the parties right to ask for another trial if any or both parties are not satisfied with the final decision. The process is suitable when parties want quick solution without formalities, cost and time.
Evaluation: The term is also known as neutral evaluation. In this case both parties introduce their opinions and situations individually and separately in the presence of a neutral person or evaluator. After the hearing the evaluator identifies the strength and weakness of both parties (arguments and evidences) and provides his/her opinion aiming to solve the issue. Usually the neutral evaluator has strong subject knowledge or expertise in the matter of disputes (Kubasek et al, 2016). The binding term is not mandatory in this case as binding arbitration process. Technical or rule based cases is suitable for this resolution process.
In this LAW201A Business Law Assignment Help the most suitable resolution process is negotiation or settlement conference. Both the business can come with their legal advisors and jointly take a decision to solve the loss problem.
Agarwal, A.K., 2014. Business Dispute Resolution: Taking Arbitration Clause Seriously (No. WP2014-09-02). Indian Institute of Management Ahmedabad, Research and Publication Department.
Anleu, S.R. and Mack, K., 2013. Social Change in the Australian Judiciary. In Crime, Justice and Social Democracy (pp. 200-214). Palgrave Macmillan UK.
Blattman, C., Hartman, A.C. and Blair, R.A., 2014. How to promote order and property rights under weak rule of law? An experiment in changing dispute resolution behavior through community education. American Political Science Review, 108(01), pp.100-120.
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