LW113 COURTS 8; DISPUTE RESOLUTION II SEMESTER TWO 2018 FINAL EXAMINATION YOU MUST ANSWER ALL FOUR (4) QUESTIONS ON THIS PAPER. YOU MUST ANSWER ALL PARTS OF ALL FOUR (4) QUESTIONS ON THIS PAPER. [10 marks] The Beku family and their descendants have lived on the northern side of Tamtam Island for many generations. They have always believed they are the custom owners of the land on the northern side of the island. They also believe this includes the Mintam Mountains that run across the centre of the island. In 2016 a foreign investment company, NoMoreTrees Inc. signs a 50 year lease with Chief Beku giving the company logging rights on the northern side of the island including the Mintam Mountains. In 2017 Chief Zanu, custom owner of the southern side of Tamtarn Island, les a claim in the Tamtam Magistrates' Court. He is seeking an order from the court that Mintam Mountains are part of the southern side of the island. The parties to the claim are Chief Zanu as the Claimant and Chief Beku and NoMoreTrees Inc. as Defendants. The Tamtarn Magistrates' Court finds that, according to land surveys, the Mintam Mountains are g9; included in the land on the southern side of the island belonging to the Zanu clan. The Court dismisses Chief Zanu's claim. Chief Zanu is not happy! The logging lease is worth a lot of money and his people want their fair share. However, he decides not to appeal the decision. In 2018 after consulting his ancestors, Chief Zanu les another claim with the Tamtam Magistrates' Court. He alleges that the Zanu clan are the rightful custom owners of the whole of Tamtam Island, not just the southern side as they had previously claimed. The Zanu clan are also seeking compensation for the loss of timber from their land. The parties to this claim are Chief Zanu as the Claimant and Chief Beku and NoMoreTrees Inc. as Defendants. When the matter comes before the Magistrates' Court, the Defendants submit that this Court is prevented from hearing this case, as the matter is res judicata. The Defendants argue that the same parties have already been before the Court which decided the matter and it would be unfair to reopen the same case. The Claimant argues that, even though the case involves the same parties, it is a different claim. Imagine you are the Magistrate hearing the new claim. [ You may assume for the purposes of this question that the court is a competent court and has jurisdiction to hear this matter. I A. As the parties have no legal representation, it is your role as Magistrate to outline briey, in your own words. the law on res judicata and how the law in relation to this principle might affect each of the parties. [5 Marks] B. You should then advise the parties of your decision in relation to whether the defence of res judicata applies in this case. You should also explain the reasons for your decision and how it affects each of the parties. You should include at least one (1) decided case as authority for your decision. [5 Marks] p n [10 marks] You have just been appointed as a judge sitting on the Supreme Court in the Republic of Oceania. It is October 2017 and Denny Dumbo's case comes before you on appeal from a decision of a single judge in the High Court of Oceania in May 2017. Denny Dumbo has been sentenced under the Crimes Act of Oceania to ve (5) years imprisonment for assaulting a policeman with a kava root. He is appealing against the severity of his sentence. The Crimes Act 2010 (Oceania) states the maximum penalty for assault is 5 years imprisonment but there is a judicial discretion to award lesser terms. The High Court followed an earlier decision of the Oceania Court of Appeal. The Court of Appeal is now the highest appellate court in Oceania. It handed down a decision in 2011 stating that the maximum penalty should apply whenever the assault involved a police person regardless of the type of weapon. However, the Supreme Court of Oceania in 2014, in a 2:1 majority decision, refused to follow the Court of Appeal decision and reduced a sentence of 5 years to 3 years in similar circumstances to the present case. The Supreme Court stated that only offences involving a police person gn_d the use of firearms should attract the maximum penalty. A strongly worded dissenting judgment by the Chief Justice of the Supreme Court stated the Supreme Court was bound to follow the Court of Appeal decision in 2011. A Privy Council decision in England in 2015 supported the Supreme Court approach in 2014 in holding that both factors (a police person and the use of rearms) should be present to attract the maximum penalty. The Republic of Oceania legislated to discontinue appeals from the Oceania Court of Appeal to the Privy Council in England in 2000. A. Did the High Courtjudge follow the correct decision? Why! why not? [3 marks] B. Sitting as the Supreme Court in 201?, are you required to follow the previous Supreme Court decision in 2014? Why] why not? [2 marks] C. What is the legal significance of the Chief Justice's dissenting judgment? Explain your answer. [1 mark] D. What weight will you give to the English Privy Council decision in 2015? {1 mark] E. Explain which decision as a judge in the Supreme Court you will follow and why. [2 marks] F. What will your recommendation be in relation to Denny Dumbo's sentence? [1 mark] ' UESTION THRE [10 marks] You have just been appointed as a Magistrate to the Magistrates Court in the Republic of Coral Atoll. Jina J umpstreet appears before you charged with careless and reckless driving. The prosecution's evidence is that J ina is a taxi driver. At about 3pm on 24 August 2016, after taking some tourists to the airport, she collected her two children from school. The children were arguing in the back seat. Jina turned around to see what the fuss was about. At the same time she hit an elderly man Mike who stepped out into the middle of the road. There was no pedestrian crossing on the road. The weather conditions were good but Jina was exceeding the local speed limit. Mike was severely injured and taken to hoSp ital by ambulance. The only relevant case you can find is a 2014 Supreme Court of Coral Atoll decision in R v Mad Max. The case involved a male driver who hit and injured a young female pedestrian who had stepped onto a marked pedestrian crossing without looking. Mad Max was illegally using his mobile phone at the time and was speeding when approaching the crossing. The weather conditions were good. Based on the facts of the case, the Judge Judy found Mad Max guilty of careless and reckless driving. At the end of her judgment, she commented that 'if the circumstances were different and. for example, the accident occurred at night or in poor weather conditions, the outcome might be different.' A. What do you think was the ratio of the Supreme Court judgment in Mad Max's case? [2 marks] B. What decision will you hand down? You should take into account the relevant facts of each case, the effect of the existing Supreme Court decision (including the judge's comments) and under what circumstances you might come to a different decision. [6 marks] C. How do you think the ratio of your decision might differ from that in Mad Max's case, even if only slightly? Has your decision broadened the scope of the existing law or restricted it? Explain your answer. [2 marks] [10 marks] You must answer ALL parts of this question. A. If one of the parties before the court fails to argue an important point or present evidence on a relevant issue, the court is able to intervene to ensure the matter is properly dealt with. [2 marks] True I False Explain your answer. B. There is a general legal rule that a_11 evidence given in court must be corroborated. [2 marks] True I False Explain your answer. C. When a court 'distinguishes' precedent, the court is not questioning the correctness of the previous decision. [2 marks] True I False Explain your answer. D. 'Judges don '1' make law - they simply interpret the existing law. It is the mic ofpariiament to change bad iaws. ' Do you agree with this statement? Discuss your reasons with reference to at least one (1) case you have studied in this course. [4 marks]