LEGAL PRACTITIONERS ADMISSION BOARD

LEGAL PRACTITIONERS ADMISSION BOARD

SEPTEMBER 1997

LEGAL INSTITUTIONS

TIME: Three Hours. Candidates are required to attempt FOUR questions.

Candidates must answer at least TWO questions from Part A

All questions are of equal value.

If a candidate answers more than the specified number of questions, only the first 4 questions attempted will be marked.

All questions may be answered in one examination booklet.

Each page of each answer must be numbered with the appropriate question number.

Candidates must indicate which questions they have answered on the front cover of the first examination booklet.

Candidates must write their answers clearly. Lack of legibility may lead to a delay in the candidate's result being given.

Permitted Material: No materials, other than those listed below, are permitted in the examination room.

Australian Government Publishing Service copy of The Commonwealth of Australia Constitution Act 1900 (Imp), the Statute of Westminster 1931 (UK), the Statute of Westminster Adoption Act 1942 (Cth), and the Australia Act 1986 (Cth); New South Wales Government Information Service copy of the Constitution Act 1902 (NSW).

Permitted materials may be underlined or highlighted but must not be otherwise marked or annotated in any way, nor may stickers or fliers be attached to the materials.

As some instances of cheating and of bringing unauthorised material into the examination room have come to the attention of the Admission Board, candidates are warned that such conduct will result in instant expulsion from the examination and may result in exclusion from all further examinations.

PART A

Candidates must answer at least TWO questions from this part

Question 1.

"In Australia today, the court structure is a complex mosaic, in which courts may be characterised by whether they are State courts or federal courts, whether they are general or specialist courts, and whether they have a general, or limited jurisdiction." (Parkinson, Tradition and Change in Australian Law).

Discuss the quotation from Parkinson in relation to federal and New South Wales courts.

Question 2.

Explain any FOUR of the following. Refer to authorities or give illustrations, where appropriate.

(a) Cross-vesting scheme.

(b) Manner and form provisions.

(d) Equity.

(e) Paramount force legislation.

Question 3.

A statute requires a person to hold a licence in order to carry on a particular business activity. In accordance with the provisions of the statute, Matthew applies to a government officer for the grant of such a licence so that he may carry on that particular business activity. The government officer refuses to grant the licence to Matthew.

Assuming the relevant statute is a federal statute, advise Matthew of the measures which may be available to him to have the federal government officer's decision reviewed. If instead the relevant statute is a New South Wales statute, what would you advise Matthew to do ?

(Part B follows)

PART B

Question 4.

One of the fundamentals of a free society is government by the rules of law, administered without fear or favour by an independent judiciary.

Do judges in Australia enjoy full independence? Discuss.

Question 5.

It is often said that the legal system should be more accessible to private individuals, for the costs of justice are so high that they represent a major barrier to the legal system for a large proportion of the population. One response to the problems of access to justice has been the vast increase in services offering alternative dispute resolution (ADR).

What forms does ADR take? Discuss the ways in which ADR is encouraged by the court system. What are the advantages of ADR mechanisms? What are the limitations of ADR mechanisms?

Question 6.

Candidates must answer BOTH parts (a) AND (b) of this question. Both parts are of equal value.

(a) Traditionally, the courts have applied a number of rules or principles for the interpretation of statutes. These rules or principles have undergone some modification in recent years as a result of which one approach has gained dominance and been reinforced by statute.

Discuss, referring to authorities, where appropriate.

One of the major debates concerning statutory interpretation has been about the admissibility of extrinsic materials as aids to interpretation.

Discuss the traditional view at common law and the changes brought about by statutory reform.

AND

(Question 6 continues)

(Question 6 continued)

(b) Section 4 of a New South Wales statute provides that:

"Every person who in any highway or other public place, whether a building or not, is guilty while drunk of riotous or disorderly conduct, or who is drunk while in charge on any highway or other public place of any carriage, horse, cattle or steam engine, or is drunk when in possession of any loaded firearm, weapon or explosive substance may be apprehended, and shall be liable to a penalty."

Michael, who was found pushing his bicycle along the road while in a drunken state, was charged with an offence under section 4. On the same day, Jane, who was found at a friend's house with her breath smelling strongly of liquor and with a speargun next to her, was also charged with an offence under section 4.

Using the relevant rules of statutory interpretation, advise Michael and Jane on all the legal issues involved and the likelihood of their being convicted.

Question 7.

The Statute of Westminster was an important step in Australia's transition from a British colony to an independent nation. However, it was only a first step and in time further legislation was passed to complete Australia's transition from British colony to independent nation.

What were the major effects of the Statute of Westminster? Why was it only a first step in Australia's transition from a British colony to an independent nation? What further legislation was passed to complete Australia's transition from British colony to independent nation and what were the major effects of that further legislation?

End of paper.