LAW201A Business Law

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LAW201A Business Law

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LAW201A Business Law

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Course Code: LAW201A
University: Laureate International Universities

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Country: United States

Question:
Discuss about the Displacement and Struggle Eviction.
 
 
Answer:
Introduction:

Court and non-judicial tribunals are two bodies, which have been given different status under the law, even when they perform the judiciary functions which have been put in forward of these bodies and also, both these bodies can work in similar or the very same areas. The Civil and Administrative Tribunal of New South Wales is deemed as the main body which works on resolution of disputes which relate to the residential tenancy in between the landlords and their tenants (NCAT, 2017a). The New South Wales District Court is deemed as an intermediate court which is present under the judiciary hierarchy of that area (District Court, 2017). NCAT, i.e., the NSW Civil and Administrative Tribunal is the example of a non-judicial tribunal, whereas the NSW District Court is the example of a court, and both of these work in NSW as a common jurisdiction.
Civil and Administrative Tribunal Act, 2013, through its section 32 allows the individuals the right to make an appeal against the decision given by NCAT and the same is made to its internal appeal panel (NCAT, 2017b). Though, for NCAT, the doctrine of precedent does not apply. Both District Court of NSW and NCAT have right of appeal. In the former, the appeals are made from the NSW Lower Court, and for the verdict of District Court, the appeal has to be made to the NSW Supreme Court (Law Gov Pool, 2014a). Reliance on the precedent rule is made by NSW District Court where the judges of this court apply the ruling given by the judges of higher court, particularly when the issues and the facts of the matter are identical (Law Gov Pool, 2014b). Further, for this court, based on its position of hierarchy, the NSW Supreme Court rulings have to be adopted.
There is a stark difference between the two bodies running in the NSW jurisdiction. The NSW District Court makes it critical for the appellant or the plaintiff, to be represented through a solicitor or a lawyer. Though. NCAT does not have this stipulation and the person raising the claim can represent themselves. NCAT is also a less formal body for solving a dispute and also has lesser costs in comparison to the NSW District Court. The reason for this stems from the preference of the tribunals over the courts, as a result of savings in terms of money and time, for solving a dispute through a tribunal, where the other option is to initiate court litigation (Olivia, 2011). The NSW District Court also has the authority of making the decisions on a number of issues. However, NCAT only deals with the issues relating to tenancy only (NCAT, 2017a).
 
Apart from the differentiations, there is a lot of similarity between the two. The rules of evidence are deemed as a sacred thing under both the bodies, where the tribunal however has a relaxed approach. Also, both these bodies are deemed as autonomous for the executive bodies and the legislative bodies of authority. Both of these are deemed as open and the public can access them for getting the matter solved. Also, there is a need for giving reasons to the decision in order for upholding the transparency of that decision. At last, the decision of both these bodies can be appealed against (Olivia, 2011).
Mabo v Queensland (No 2) (1992) 175 CLR617 is a landmark case as it deals with the native title rights and were recognized for the first time by the HCA, i.e., High Court of Australia (The University of Melbourne, 2011). Mabo saw the court stating the terra nullius doctrine was not to apply on such cases in which the inhabitant was present already, irrespective of the fact that such inhabitant had been uncivilized at such period of time (Evers & Kooy, 2011, p.162). HCA by giving this decision overturned the decision given in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 of the Northern Territory of Supreme Court (Austlii, 2017).
A key restriction had been placed through doctrine of precedent on the decision of the court which is made in Australia. Based on precedent, the lower courts of the nation are required to follow the decision which had been given by a court which is higher in hierarchy, in such cases where there is a similarity in the facts and issues of the two cases. So, through precedent, the higher courts have got the overruling power of a judgment given by lower court, along with the same for its previous verdicts. The precedents can overturn the decisions which lie in the same jurisdiction (Harding, 2013). HCA has a higher rank in comparison to the Supreme Court of Northern Territory based on hierarchy of courts of the nation (Northern Territory Government, 2016). As a result of this, the court could overrule the decision of Milirrpum in Mabo. Hence, it shows that precedent helps in revising the previous decision of the courts.
The UK has a history of being a colonial country and they have attacked number of other nations and have imposed their laws on others. As a result of this, the English laws apply on the land laws of Australia. As per the common law, the land in the nation is under the ownership of Crown (Secher, 2006, p. 141). Mabo highlighted that in the nation, the terra nullius had been wrongly applied. The reason for this is that Australia had not been vacant, which could have allowed another to occupy it, i.e., it was not open to be occupied by another. The English legal history shows that Mabo decision, based on common law of UK, provides the full ownership of land to the Crown and so, the land is not held by the people in perpetuity. By the subsequent alienation of land through the statute from the Crown, the native title rights had been affected greatly. For such reasons, there is a need to get the requisite knowledge of the English land laws, particularly to trace back the origin of the freehold since 20th century till the present day.
 
References
Austlii. Australasian Legal Information Institute. (2017). Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992). Retrieved from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1992/23.html?stem=0&synonyms=0&query=Mabo%20v%20Queensland
District Court. (2017). ??????Welcome to the website of the New South Wales District Court. Retrieved from: https://www.districtcourt.justice.nsw.gov.au/
Evers, S., & Kooy, M. (2011). Eviction from the Chagos Islands: Displacement and Struggle for Identity against Two World Powers. The Netherlands: BRILL.
Harding, M. (2013). The High Court and the Doctrine of Precedent. Retrieved from: https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/
Law Gov Pool. (2017a). Court Hierarchies. Retrieved from: https://lawgovpol.com/court-hierarchies/
Law Gov Pool. (2017b). The Doctrine of Precedent. Retrieved from: https://lawgovpol.com/doctrine-of-precedent/
NCAT. (2017a). Tenancy. Retrieved from: https://www.ncat.nsw.gov.au/Pages/cc/Divisions/Tenancy/tenancy.aspx
NCAT. (2017b). Appeals. Retrieved from: https://www.ncat.nsw.gov.au/Pages/ncat_decisions/appeals.aspx
Northern Territory Government. (2016). Types of courts and their roles. Retrieved from: https://nt.gov.au/law/courts-and-tribunals/types-of-courts-and-their-roles/supreme-court
Olivia. (2011). Difference Between Court and Tribunal. Retrieved from: Retrieved from: https://www.differencebetween.com/difference-between-court-and-vs-tribunal/
Secher, U. (2006). The doctrine of tenure in Australia post-Mabo: Replacing the ‘feudal fiction’ with the ‘mere radical title fiction’ — Part 2. Australian Property Law Journal, 13, 140-177.
The University of Melbourne. (2011). Mabo v Queensland [No 2] (1992) 175 CLR 1. Retrieved from: https://www.atns.net.au/agreement.asp?EntityID=741a

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