7-Judge Made Law Flashcards
From lowest to highest list the federal tribunals
Federal magistrates, federal court-federal family
What is civil law?
All rules and laws in one text
What are simple offences?
Minor criminal offences such as drunk conduct and petty theft
What are the civil and criminal requirements for district court
Under $750 000, unlimited for personal injury and serious offences (under 20 year sentences)
List the expectations of parliament
Participatory Reflective of majority will Equitable (fair) Directly accountable Dynamic and flexible
What are the civil and criminal requirements for supreme court?
Over $750 000, very serious criminal charges, often life sentences
What does obiter dicta mean
Comments made a bout a case by a judge that does not relate exactly to the dispute
From lowest to highest, what is the state court hierarchy
Magistrates, district, supreme
What does stare decisis mean?
To stand by what has been decided
Why do we require the court hiearchy?
Administrative
Ensures greater consistency in judgements
Provides a passages for appeals
What are the kew principles for the use of precedent?
- Precedents set exclusively by higher courts
- All lower courts are bound by decisions by higher courts
- Decisions by courts at the same level are not binding
- Decisions of courts provide legal principles which precedents are created
What are the principles for common law?
Stare decisis
Ratio decidendi
Obiter dicta
List the expectations of courts
Independent
Authoritative and consistent
Equitable (fair)
What is society’s most direct method for change?
Parliament
What is common law
The gradual accumulation of cases and judgements to create a consistent approach to disputes
What are indictable offences?
Serious criminal offences such as rape and murder
What does ratio decidendi mean?
The key reasons behind a descision
What are key features of a law report
- The names of the parties involved
- The date of decisions
- A summary of the facts
- Arguments of both sides
- Full text of court judgement
What are the civil and criminal requirements for magistrates court?
Under $75000 and simple and either way offences
What are the four ways of avoiding/changing a precedent and explain each
Reversing the decision: if a higher court finds the law has been misapplied then it will reverse the judgement and substitute a correct ratio.
Overruling: a superior court may reconsider a case where the legal principle was created in a lower court, it may then create a new ratio.
Disapproving: this occurs when a court decides not to follow a precedent set by a court of the same level.
Distinguishing: if a court finds that a case is substantially different it will distinguish it.
How did the tort of negligence develop?
Began in 1932 (Donoghue v Stevenson)
Privy council found that Stevenson owed her a duty of care
The ratio was that a manufacturer owed a duty of care to the consumer
Thus, the tort of negligence was created
1936 the common law of negligence was applied to Australia in the decision of Grant v Australian Knitting Mills
1995 Prast case was unsuccessful against City of Cottesloe
Nagle case of 1993 with rotto is an example of a successful negligence claim
To prove negligence, one has to show
The person accused owed a duty of care to the accuser
The acts were a breach of that duty
The damage was reasonably foreseeable
Describe the common law surrounding straying animals
(Searle v Wallbank) (1947)
Applied in Australia with Brisbane v Cross 1978
Common law was that farmers did not owe a duty of care, however parliament passed statutes which altered this
What are 2 land mark cases?
Mabo case Before->terra nullius After-> native title act Act had two criteria: 1. A connection had been maintained 2. The title could not be extinguished Dietrich case Established right to legal aid
What are some advantages of common law?
Creates fairness
Legal advisers give reliable advice
Superior courts have the ability to adjust
Creates the basis for unbiased decisions
What are some disadvantages of common law
Tends to lag behind social change
Decisions are dependent on lawyers skills
Uncertainty arises from the possibility to change precedent
Expensive process
Decisions are always retrospective
What is it called when a judge applies a statute to a dispute?
Declaring a statute
Why is statutory representation needed?
Drafting problems
Inconsistencies
Words and definitions
What are the three ways to interpret laws
Literal rule
Golden rule
Mischief rule
When is the golden rule used?
When the literal meaning produces an absurd or unfair ruling
What are 5 tools used for interpretation?
Dictionaries
Legal dictionaries
Other segments of the same act
Previous decisions concerning the act
What are interpretation acts?
Legislation used to guide judges. Such as to improve clarity by setting standards for new acts
What are two principles of interpretation?
Ejusdem generis: if there is a list ending in a general statement, then judges must see if the object of dispute is within the set
Noscitur a sociis: meaning of an unclear word can be gained from context
What are 3 legal rights?
The right to access courts
Protection of self-incrimination
Security of lawful property rights
What does parliamentary sovereignty allow parliament to do in terms of common law?
- Endorse common law principles
- Coexist in areas left blank by common law
- Overturn common law
