Standing & access to courts; litigation; jurisdiction & procedure



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STANDING & ACCESS TO COURTS; LITIGATION; JURISDICTION & PROCEDURE




Final Constitution 3

Interim Constitution 4

AUSTRALIA 4

DEVELOPMENTS IN AUSTRALIA SINCE 1985 4

STANDING - GENERAL PRINCIPLES 5

LEADING CASES 5

(1) Australia Conservation Foundation v. Commonwealth (1980) 146 CLR 493 6

(2) Onus v. Alcoa of Australia, Ltd. (1981) 149 CLR 27 6

LOCUS STANDI OF PUBLIC INTEREST GROUPS 7

LAW REFORM 8

BIBLIOGRAPHY 8

ZIMBABWE 9

STANDING 9

Retrofit (PVT) LTD v Posts and Telecommunications Corporation 1996 (1) SA 847: applicant requested the defendant to issue it with a licence for the purpose of establishing a mobile cellular telephone service – state monopoly -- declarator -- right to freedom of expression -- locus standi in judicio -- matters not that the applicant’s predominant motivation in challenging the constitutionality of the Act is sourced in prospective financial gain. 9

9

Ouster of Court’s jurisdiction 9


Reid-Daly v Hickman & Others 1980 ZLR 201: Whether Court’s jurisdiction was ousted by statutory provisions as a necessary implication of the internal redress procedure of the Army 10

Patriotic Front-Zimbabwe African Peoples Union v Minister of Justice, Legal & Parliamentary Affairs 1985 (1) ZLR 305 (SC): Executive perogative; act of State; The term act of State should only be applied to those acts in respect of which the court’s jurisdiction is ousted 10

S v Marutsi 1990 (2) ZLR 370 (SC): undesirable for an accused person to be represented at a criminal trial by a law officer from the Attorney-General=s office --constitutional issue must be raised in the trial court for reference to the Supreme Court 10

Martin v Attorney General & Anor 1993 (1) ZLR 153 (S): test of whether a referral is frivolous or vexatious or not had to be determined by applying conscientious and objective thought to the question 11

Granger v Minister of State 1984 (1) ZLR 194 S Crt: frivolous or vexatious questions. 11

NAMIBIA 11

Onus of proof 11

Kausea v Minister of Home Affairs & Others 1995 (1) SA 51 11

CANADA 11

Minister of Justice of Canada v Borowski [1981] 2 SCR 575 12

Operation Dismantle Inc v The Queen (1985) 1 SCR 441: Review of perogative powers -- decision made by the Government of Canada to allow the United States to test cruise missiles; threat to the lives and security of Canadians by increasing the risk of nuclear conflict and thereby violates the right to life; Declaratory relief, an injunction and damages were sought -- the facts disclosed no reasonable cause of action 12

Re Presidential Tenancies Act (1981) 1 SCR 714 734-36 13

United States of America v. Dynar [1997] 2 S.C.R. 462: Extradition -- Offences -- Money laundering -- Attempt -- Conspiracy -- Fugitive charged in U.S. with attempting to launder money and conspiracy to launder money -- Whether fugitive's conduct would have amounted to offence under Canadian law if it had occurred in Canada -- Whether conduct would have amounted to criminal attempt or criminal conspiracy under Canadian law -- Right to a fair hearing -- Disclosure 14

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) [1995] 2 S.C.R. 97: Right to fair trial -- Provincial commission of inquiry into mining disaster -- Commissioner empowered to compel testimony -- Mine managers charged with criminal offences relating to disaster -- Whether mine managers charged with criminal offences compellable witnesses at the provincial Inquiry -- Whether proceeding with the Inquiry's hearings would breach principles of fundamental justice or right to fair trial of the Charter -- If so, whether a temporary stay of the public hearings is a just and appropriate remedy 16

Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General) [1993] 3 S.C.R. 675: Standing -- Act defining holiday and restricting shopping on those defined holidays -- Corporate Charter challenge alleging infringement of freedom of religion following convictions for breach of Act -- Declaration sought that Act unconstitutional -- Application stayed pending decision in similar case but brought on following finding of constitutionality -- Constitutional questions querying whether freedom of religion infringed and, if so, whether infringement justified -- Whether corporations had standing to seek declaration of unconstitutionality 22

Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236: Standing -- Public interest group -- Immigration Act amendments making provisions with respect to determination of refugee status more stringent -- Public interest group active in work amongst refugees and immigrants -- Action commenced to challenge constitutionality of Act under the Charter -- Whether standing should be granted to challenge provisions -- 25

R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154: -- Corporations -- Standing -- Corporation charged with misleading advertising under Competition Act -- Whether corporation has standing to challenge validly of federal legislation-- Presumption of innocence -- Reverse onus -- Regulatory provisions -- Strict liability 26

R. v. L. (D.O.) [1993] 4 S.C.R. 419: -- Fair trial -- Videotaped statement of young complainant in sexual assault case admitted into evidence pursuant to s. 715.1 of Criminal Code -- Whether s. 715.1 infringes s. 7 of Canadian Charter of Rights and Freedoms -- Whether s. 715.1 offends evidentiary rules against admission of hearsay evidence and prior consistent statements -- Whether accused's right to cross-examine complainant violated -- Fair trial -- Public hearing -- Presumption of innocence 34

R. v. Morin [1992] 1 S.C.R. 771: Trial within a reasonable time -- Delay of 14[frac12] months between accused's arrest and trial -- Delay caused solely by limits on institutional resources -- Whether right to be tried within reasonable time infringed 37

R. v. Brydges [1990] 1 S.C.R. 190: Right to counsel -- Affordability of counsel -- Legal Aid and duty counsel -- Accused informed of his right to counsel -- Accused requesting information about Legal Aid and expressing concerns about being unable to afford a lawyer -- Accused not informed at that time of the availability of Legal Aid and duty counsel -- Whether accused's right to counsel infringed -- Whether police had the duty to inform the accused of the availability of Legal Aid and duty counsel -- Whether accused waived his right to counsel-- Admissibility of evidence -- Bringing administration of justice into disrepute 40

R. v. Askov [1990] 2 S.C.R. 1199: -- Trial within a reasonable time -- Delay of almost two years in bringing case to trial following committal -- Delay resulting chiefly from institutional problems -- Whether right to be tried within reasonable time infringed 42

R v Scott [1990] 3 S.C.R. 979: Stay and recommencement of proceedings -- Stay sought by Crown to avoid unfavourable ruling -- Proceedings subsequently reinstituted -- Whether Crown's action violates s. 7 of the Canadian Charter -- Stay sought by Crown to avoid disclosing identity of police informer -- Whether accused denied right to make full answer and defence 44

Guimond v. Quebec (Attorney General) [1996] 3 S.C.R. 347: Class action -- Authorization -- Colour of right -- Respondent sentenced to imprisonment after failing to pay fines -- Respondent seeking authorization to proceed by class action to claim damages from government for breach of his constitutional rights and those of others in similar situation -- Respondent alleging that statutory sentencing provisions infringing both Canadian and Quebec charters of rights 46

Mackay v. Manitoba [1989] 2 S.C.R. 357: Charter litigation -- Factual basis -- Declaration sought without factual basis on which to decide issue -- Whether or not Charter issues should be decided in absence of factual basis. -- Act providing for payment of portion of election expenses if candidates and parties received fixed proportion of votes -- Whether or not Act infringing freedom of expression 47

Danson v. Ontario (Attorney General) [1990] 2 S.C.R. 1086: Charter litigation -- Factual basis -- Proceedings brought by way of application to enforce Charter rights -- Application not supported by facts -- Whether or not Charter action can be brought absent a factual basis --Jurisdiction -- Mootness -- Courts below considering issue in absence of factual situation -- Fresh evidence adduced in Supreme Court of Canada -- Whether the legal issue considered by the courts below rendered moot by the appellant's introduction of fresh evidence 48

INDIA 50


Maharaj Singh v Uttar Pradesh AIR 1976 SC 2602 at 2609 50

Mumbai Kangar Subha v Abdulbhai AIR 1976 SC 1455 50

Gupta v Union of India (1982) 2 SCR 365 at 520, AIR 1982 SC 149 at 189 and 191. 50

Bandhua Mukti Morcha v Union of India AIR 1984 SC 802 at 813 50

Wadhwa v State of Bihar AIR 1987 SC 579 at 582 50

EUROPEAN COMMUNITY 50

Independence and impartiality of tribunals: 51

Albert and Le-Compte v Belguim 5 EHRR 533 (1983) 51

H v Belguim 10 EHRR 339 (1987) 51

Lanborger v Sweden 12 EHRR 416 (1989) 51

Fair public hearing 51

Feldbrugge v The Netherlands 8 EHRR 425 (1986) 51

Summaries of above cases required. 51

Civil proceedings 51

AHMET SADIK v. GREECE (46/1995/552/638) 15 November 1996: conviction of politician belonging to Muslim community of Western Thrace for disturbing peace during election campaign by distributing leaflets referring to that community as "Turkish" -- Applicant deceased - widow and children have legitimate moral interest in obtaining ruling 51

Ruiz-Mateos v Spain EHRR 1993: Right to a fair civil hearing in a reasonable time: Claim to challenge the expropriation of property . Proceedings in lower court and court of appeal lasted 7 years and 9 months. 51

Oerlemans v The Netherlands 15 EHRR 561 1991: Access to Court: Government designated as a protected natural site an area of land, including land belonging to applicant -- Compliance: whether the applicant was given the opportunity to challenge the lawfulness of the order 52

Philis v Greece 13 EHRR 741 1991: Right of access to a court was not absolute, but might be subject to limitations, since the right by its very nature called for regulation by the State. However, limitations ought not to restrict or reduce the access left to the individual in such a way as to impair the very essence of the right 52

Olson v Sweden (2) 17 EHRR 134 1992: Civil proceedings: reasonable time: complexity of the case, the conduct of the applicants and that of the relevant authorities; What is at stake for the applicants 52

ANKERL v. SWITZERLAND (61/1995/567/653) 23 October 1996: spouse of party to civil trial unable to be heard on oath as a witness -- Requirement of "equality of arms" applies also to litigation in which private interests are opposed and implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage 52

J.J. v. THE NETHERLANDS (9/1997/793/994) 27 March 1998: plaintiff in taxation proceedings in Supreme Court unable to reply to advisory opinion of the Advocate-General --- Applicant’s appeal against fiscal penalty declared inadmissible on sole ground that court registration fee --- appeal on points of law-- right to adversarial proceedings 56

TWALIB v. GREECE (42/1997/826/1032) 9 June 1998: lack of adequate time and facilities for preparation of defence during criminal trial and absence of legal aid in cassation proceedings 56






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