LW113 Courts and Dispute

Resolution 2 - 2016
Lecture 2: The Courts
Introduction & House-keeping
 Pamela Kenilorea – Laucala Campus lecturer
 Office: L2, SOL Building, Statham Campus
 Email address: kenilorea_p@usp.ac.fj
 Consultation Hours: Mondays 9a.m. – 11 a.m.,
Thursdays 10 a.m. – 12 p.m.
 Posting of lecture slides to supplement others
 Uploading of lecture recordings:
 Tutorial Sign-Up now.
 Other Tutors.
 Course Guide: Subject at glance, Assessment
information, 60% attendance & due dates.
 SLS, PASS Leader – Ashna Harikishan &
Counselling Centre LW111 - 2016 06/05/2021 2
Overview of Lecture
 Background
 Court Structure
 Jurisdiction
 Administrative Tribunals & Quasi-Judicial

Bodies
 Alternative Dispute Resolution

Note: This lecture is a summary of 5 Topics in

the LW111 Course. For those who did LW111
last semester, it is a revision of your notes.

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Background
 In LW111, students learnt about:
(a) Laws, norms & legal traditions
 What is a norm/custom? What is done & what is

ought to be done.
 What is a legal tradition?

A legal tradition is the enduring ideas, rules and

institutions which make up the legal system
 Not all customs/norms are laws, but many can

become law e.g.

◦ Religious customs, cultural practices, etc
 Laws are therefore a collection of ‘norms’
 In Europe these agreed ‘norms’ and ‘laws’ evolved
into legal systems which apply first to ‘tribes’
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(b) Pacific custom and Anglo-British Legal
 PICs had own customs and norms

e.g. of custom – communal ownership of land or chiefly

system
e.g. of norm – men & women had different roles to play
(women preparing & serving food, men protected
community)
 English tradition – 1066 – Norman conquest
 King sent judges around to deal with disputes
 Judges returned to London, wrote decisions
 A lot of disputes common, so other judges followed the

written decisions. Developed into “common law”.

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Common law countries

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English Court System
 The King could hear appeals (supreme)
◦ Delegated to Chancellors (trusted advisors)
 The court of Chancery (equity) emerged
◦ Courts of equity could ignore common law and look
to ‘fairness’ or ‘justice’ to mitigate the sometimes
harsh common law
◦ 1615 ruling by the King that where common law
and equity are in conflict, equity should prevail

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Colonialism & Post-Independence
 Colonial expeditions in the Pacific had many aims,
◦ some noble perhaps (discovery)
◦ many ignoble (resources, ‘blackbirding’, etc)
 Colonialism was also part of the wider competition
against rival Western powers
 On their arrival in the Pacific, Westerners found a
wide variety of pre-existing peoples and practices,
though little that looked liked a state
 By the early twentieth century, Europeans and
Americans had considerable influence in the region
 Trade of places in the Pacific for political, strategic
and economic reasons

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 Colonial powers imposing their own laws and
norms
 De-colonialism – PIC gaining independence.
 Post Independence - ‘own’ laws, enacted by

legislative body but still adopted existing

laws or borrowed additional laws from former
Colonial powers

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COURT STRUCTURE
 Courts of hierarchical structure
◦ Higher courts have more ‘authority’ than others
 They can overrule the decisions of lower courts
 Their interpretation of a question of law must be
followed by ‘lower’ courts
 Typical hierarchy
 Appellate Courts
 Superior Courts
 Subordinate/Inferior Courts
 Special Courts

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Fiji Court Structure
Supreme Court

Court of Appeal

High Court

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Solomon Islands Court Structure
Court of Appeal

High Court

Customary
Land
Appeals
Court
Magistrates Court
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Local Court

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Tuvalu
Privy Council (UK)

Court of Appeal

High Court

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Western Samoa

Court of Appeal

Supreme Court

District Court

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Kiribati
Privy Council (UK)

Court of Appeal

High Court

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JURISDICTION – Subordinate Ct
 Ranking: lowest of court
 Purpose:
◦ typically hear less serious civil and/or criminal
matters
◦ In many PIC will also hear serious matters and make
judgement, then refer matter for sentencing in
superior court
◦ Procedures are simpler and less technical
 Name: typically referred to as magistrate’s
courts, or district courts, municipal court
 Appeals to: superior courts

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Jurisdiction – Superior Court
 Ranking: Middle level Court
 Purpose:

◦ hear serious civil/criminal cases in the first

instance; and
◦ sometimes hear appeals from subordinate courts
 Appeals to Appellate Court
 ‘superior’ misleading because it is not the

highest Court in the hierarchy.

 Name: typically referred to as “high court,”

“supreme court,” or “national court”

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Jurisdiction – Appellate Court
 Ranking: Highest courts; courts of “last
resort”
 Purpose: primarily hear appeals from

superior courts
 How many: usually just one, but sometimes

more or multiple divisions (e.g. ‘criminal

COA’, ‘civil COA’)
 Name: typically referred to as court of appeal,

high court, or supreme court

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Jurisdiction – Special Court
 Ranking: Not strictly ‘ranked’ (they are
special)
 Purpose:

◦ hear matters requiring adjudicator to have

specialised knowledge e.g.
 Small Claim Tribunal, Tax Court, Employment Court
 In PIC usually customary land courts
 Appeals to:
◦ sometimes appellate courts
◦ sometimes subordinate courts

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TRIBUNALS & QUASI-JUDICIAL BODIES
 Other bodies created to complement or
supplement the dispute-settlement role of the
ordinary courts.
◦ laws provide for their composition, functions or
jurisdiction, powers and their relationships with the
courts.
◦ they’re similar to courts in some ways but differ from
courts in other ways.
 Quasi means ‘as if’ or ‘nearly’. Judicial refers to the
courts.
 Quasi-judicial bodies can be constituted by an official
who occupies a particular office or by a group of
officials, tasked to carry out carry out specific
dispute-settlement tasks. 06/05/2021Q
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 These bodies – commonly called Commissions, Tribunals and
Boards of Inquiry – complement or supplement the functions
of the courts.
 They resemble judicial bodies in settling disputes by
ascertaining facts and relevant laws. But they also differ:
◦ their resolution rests ultimately on the exercise of executive discretion
rather than the application of strict rules of substantive law
◦ they are not always bound by technical and formal rules of procedure and
evidence that the courts follow
 Specialised Quasi-judicial bodies have jurisdiction limited to
a special subject matter where courts may not have the
expertise or resources to deal with:
◦ examples include such areas as employment or labour issues, taxes,
immigration, Military Tribunal, etc.
◦ in the Pacific Island countries, the obvious examples are issues connected
with customary land or customary law generally. E.g. Itaukei Land
Commission (Fiji), Village Fono (Samoa), Chief Hearing (SI).
 Quasi-judicial Tribunals of general jurisdiction have
jurisdiction over general or multiple subject matters. E.g.
Small Claims Tribunal; Vanuatu Public Service Commission etc
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Comparing the two
 Determine facts presented by  Quasi Judicial Bodies:
parties and objectively draw ◦ Are not bound by precedent
conclusions ◦ Cannot ‘make’ law. Decisions
 Make legally enforceable must be based on statute or
decisions to provide a ‘remedy’ case law
or penalty ◦ Not bound to follow strict legal
 Decisions may affect legal procedures for admitting
rights, duties or privileges evidence
 Bound by principles of ‘natural ◦ No requirement for formal
justice’ hearings (unless mandated
under governing regulations)
 Must have standing  i.e. decisions may be made in a
 Decisions may be challenged or meeting based on your written
appealed to ordinary courts submissions alone

Similarities Differences

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ALTERNATIVE DISPUTE RESOLUTION
 Alternative Dispute Resolution refers to methods for
resolving disputes outside of formal court processes.
 Formal ADR processes are negotiation, mediation,

collaborative law and arbitration.

 There are many reasons why parties may prefer ADR to

litigation, it is confidential, fast, cheap and flexible.

 It is widely used in both the private sector and the public

sector.
 Typically a voluntary process (unlike litigation), but may be

mandatory if:
◦ The dispute involves a contract with a mandatory arbitration clause
◦ A court orders, or the court’s rules require parties to attempt to
resolve a dispute before commencing an action
◦ Legislation requires parties to particular types of disputes to resolve
disputes through any formal ADR process
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 Types of ADR
 Two things all ADR processes share in common is there are two or more
parties involved and the presumed goodwill of the parties to resolve
dispute through ADR process.
 Negotiation - The parties, or their lawyers/representatives meet to
negotiate resolution to issues in dispute.
 A voluntary process involving parties and their legal counsel (i.e. no third
‘neutral’ party)

 Mediation - Mediation is an extension of negotiation which involves an

impartial third party called a "mediator." The mediator facilitates the
resolution process. This means the mediator assists the parties to
develop their own resolutions to the dispute – rather than ‘passing
judgment’

 Arbitration - A process by which an impartial third-party (or several

parties) is appointed by parties under a legally binding contract to
adjudicate a dispute.
 The third party’s role as an arbitrator is to hear arguments and evidence
from each side and decide the outcome of the dispute.
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 THE END.

 Tutorials Next Week – Laucala F2F students

will discuss the Case Brief exercise (already
uploaded on Moodle).
- All students must submit a 1 page written
answer in their Tutor after tutorial class.
- For those students who have never done
LW111, try the best that you can. We will
clarify your confusion in tutorials.

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