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QLD Do American Cases Apply in Australian Law Courts?

Discussion in 'Other/General Law Forum' started by Bellpepper, 10 December 2015.

  1. Bellpepper

    Bellpepper Active Member

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  2. Mary W

    Mary W Well-Known Member

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    Hi Bellpepper
    What this particular part means that if 2(a)(i) applies or if 2(a)(ii) applies then 2(b) applies i.e. whether the vehicle is owned by an corporation or an individual (it can't be owned by both) then the subsection 2(b) about inquiring as to who was actually in charge of the vehicle will apply.

    As to your second question, the general reasons why you would cite previous cases in court is that they are either binding on the Court that is hearing your case, or that they provide guidance on how previous cases similar to yours have been decided. US decisions are not binding on Australian courts, and the US Constitution, laws and legal system are different, so citing US cases is unlikely to help you very much. You would be much better off looking for Australian cases.

    Are you willing to tell us what the issue is with your case?
     
  3. Tim W

    Tim W Lawyer

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    It depends on the language of the document.
    If it says "if X and Y and Z" then all three.
    If it says "If X or Y or Z" then any of them.
    Almost never.
     
    Bellpepper likes this.
  4. Bellpepper

    Bellpepper Active Member

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    Thank you very much for your help. I am trying to understand as much as I can how the law works. This involves a speeding fine which I have been accused of, but I was not driving.

    1. Is there any requirement by law for me to inform on another person who may have been driving my car at the time of the offence? I was not an eye-witness so if I were to say that I saw him or her driving over the speed limit, I would be lying. Therefore, I do not wish to make a declaration about who was driving. For all I know it could have been Barack O'Bama.

    2. So in the legal system am I as a driver with a licence classed as an individual or a corporation? The notice I have received was addressed to my name in ALL CAPS which I understand is a corporate person, not an individual, not a natural person is that correct? Is an individual = a natural person in law? Or does it depend on the legislation?

    3. As my car is registered with the STATE OF QUEENSLAND, who is the actual owner? I understand that because the car is registered with the state I do not "own" the car but have an interest in the car, is this correct? Is it classed as joint ownership?

    4. Is a photograph enough evidence to prove guilt? Is a photograph of a car speeding presumptive evidence? If not what type of evidence is it?
     
  5. Bellpepper

    Bellpepper Active Member

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    In a proceeding for the offence against the owner, a court must not find the owner guilty of the offence if it is satisfied, whether on the statements contained in the declaration or otherwise
    that—
    1. if the owner is an individual—the owner was not in charge of the vehicle at the relevant time and that the inquiries made to find out the name and address of the person who was in charge of the vehicle at the relevant time

    Thanks. So in the above legislation, if the owner is an individual and was not in charge of the individual does it continue to the next section (b)? So after the semicolon on 2(a)(i) we read the "and"(after the semicolon from 2 (a) (ii)) and then on to section 2 (b) is that correct? Or does it stop at 2 (a)(i)?
     
  6. Bellpepper

    Bellpepper Active Member

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    When citing cases, what makes it binding and what makes it just guidance? Does it depend on what court made the decision?
     
  7. Ponala

    Ponala Well-Known Member

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    Same jurisdiction & higher court - binding. (Vic supreme court binding on lower courts)
    Same jurisdiction equal or lower court - guidance. (Vic supreme court guidance in supreme court)
    Different jurisdiction - guidance. (NSW supreme court guidance in Vic supreme court)
    Australian High Court - binding on states. (OZ high court binding on supreme courts)

    1. Legislation
    2 & 3 - these arguments have been run and lost before
    4 Yes due to legislation
     
  8. Bellpepper

    Bellpepper Active Member

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    Thanks for your input. So on question 1, the law requires that I tell a lie? I was not an eye witness. I cannot say for sure that I know who was driving.
     
  9. Ponala

    Ponala Well-Known Member

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    The legislation asks to nominate who was in charge of the vehicle at the time, not who the driver was.

    You can do an unknown user declaration.
     
  10. Tim W

    Tim W Lawyer

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    Let's all get a grip.
    This seems to be a traffic matter where the registered owner is not the driver.
    Nobody needs to be quoting reams of legislation and caselaw - let alone from overseas.

    Can I suggest to the OP that they head for a Community Legal Centre for advice in the first instance?
     

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