The law of domestic tribunals

Forbes, John R. S. (1980). The law of domestic tribunals PhD Thesis, T.C. Beirne School of Law, The University of Queensland. doi:10.14264/uql.2014.411

Attached Files (Some files may be inaccessible until you login with your UQ eSpace credentials)
Name Description MIMEType Size Downloads
THE2197.pdf Thesis full text application/pdf 11.84MB 0

Author Forbes, John R. S.
Thesis Title The law of domestic tribunals
School, Centre or Institute T.C. Beirne School of Law
Institution The University of Queensland
DOI 10.14264/uql.2014.411
Publication date 1980
Thesis type PhD Thesis
Supervisor Unknown
Total pages 419
Collection year 2014
Language eng
Subjects 1801 Law
Formatted abstract
The object of this work is to present an initial text upon the rules of common law and equity which govern consensual, domestic tribunals.

The ambit of the subject and the characteristics which distinguish it from administrative law are described in Chapter 1.

Part Two (comprising Chapters 2 and 8 inclusive) seeks to demonstrate the absence of any general jurisdiction to entertain complaints of "domestic“ injustice or irregularity. Instead, a "patchy" jurisdiction has been somewhat arbitrarily constructed upon the law of trusts, contract and (quite recently) restraint of trade. It is submitted that the latter has a considerable and still largely untested potential to enlarge this subject by widening the gateway to the courts. Other tentative and so far unsuccessful attempts to abolish jurisdictional problems are considered in Chapter 7 (page 93). Analogous statutory jurisdiction is noted in Chapter 6(i i) at page 90. The position of non-member licensees and applicants for membership is considered, with special reference to restraint of trade, in Chapter 8, at page 105.

Parts Three, Four and Five proceed upon the assumption that by one means or another the aggrieved member or licensee has satisfied a court that it has jurisdiction to go into the substance of his complaint against a domestic tribunal.

Even then the examinable "substance" is strictly limited. In essence the plaintiff must present his complaint as one of a breach of the disciplinary rules, or as a denial of natural justice. Ultra vires, with particular reference to domestic tribunals, is considered in Part Three, comprising Chapters 9 (page 121) and 10(page 133).

Parts Four and Four(B) take the two axioms of natural justice - audi alteram partem and the rule against bias - and attempt to "flesh out" those rules with guidelines and illustrations of relevance to consensual tribunals. This attempt is made in Chapters 11 to 22, commencing at page 169. In several places comparisons are made with the American position. The headings under which (it is suggested) authorities on aspects of natural justice in domestic tribunals can usefully be placed appear in the titles of those Chapters.

Of particular interest are signs of emerging "rights to counsel" (Chapter 16, page 226), "rights of cross-examination (page 273 ff.), a special test for bias in consensual tribunals (page 355 ff.) and a new disposition of the courts to allow domestic appeals to "cure" actionable errors committed by domestic "trial courts" (page 309 ff.). While the first three signal a stronger "interventionist" policy, the fourth suggests a revival of the laissez faire which has been so influential in this legal area.

The acid test of the traditional "privacy" of associations is whether the common law will allow associations to "contract out" of natural justice (Chapter 23, page 367). It is suggested that the ubiquitous "livelihood" principle could save the courts from answering that fundamental question directly and unequivocally.

There is an Appendix of extracts from rules governing a university tribunal, with brief notes thereon and cross-references to the text.

Document type: Thesis
Collection: UQ Theses (RHD) - UQ staff and students only
Citation counts: Google Scholar Search Google Scholar
Created: Mon, 24 Nov 2014, 12:12:50 EST by Elizabeth Alvey on behalf of Scholarly Communication and Digitisation Service