AOS 3 EXAM QUESTIONS Flashcards
Precedent relies on an existence of a court hierarchy. Explain this statement
If there was no hierarchy of courts the doctrine of precedent could not operate. The decision of higher courts are binding on lower courts in similar cases in the same hierarchy, therefore if there wasn’t a court hierarchy and all courts were on the same level, there would be no way of determining which was a binding precedent and which was a persuasive precedent, so the doctrine of precedent would not operate.
To what extent are judges limited in their ability to make law
Although judges can make law, they are limited in their ability to a certain extent. INTRO
Courts are limited in their ability to make law because they act ex-post facto. This means that courts cannot make a law until a case comes before them. Therefore, they cannot make laws whenever they want (unlike parliament). REACTIVE
Courts are also limited because they are bound by precedents made by higher courts in the same court hierarchy where the legal principles within similar circumstances. Therefore, if a binding precedent exists, courts do not have any ability to change the law and must abide by it. BOUND
Courts are often also limited because judges can be very conservative and reluctant to change a bad law. Courts also cannot seek public opinion or consult committees before making a decision. CONSERVATIVE/PUBLIC
Despite this, however, courts do have some ability to make law. Judges are not ‘elected’ by the people and are therefore free to make decisions and not be influenced or pressured by consequences of not being re-elected if they make an unpopular ruling. DEPRESSURISED
Further, judges have some flexibility in being able to avoid following precedent. A common method is to distinguish the facts of the case before them from the facts in the case which is a binding precedent, thereby being free to make a ruling different to the binding precedent. Another common method is to disapprove a decision made in a higher court, therefore opening the door for that case to be overruled in a future case in a higher court. FLEXIBILITY
Overall, courts do have the ability to make laws, but are limited to some extent. CONCLUSION
Describe the law making process that the court will use to determine whether Sam possessed an offensive weapon within the meaning of the statue.
Statutory interpretation is the process by which a judge interprets the words or phrases in a statute to give the words or phrases meaning. In this instance, the words ‘offensive weapon’ require interpretation to determine whether it includes high-heeled shoes. STAT INT
The judge will use various methods to interpret the statute – using intrinsic and extrinsic materials such as the explanatory memorandum, the words of the statute, the long title of the statute, headings, schedules, dictionaries and other statutes. METHODS
Although there is no precedent, a judge may consider other similar cases – for example, there may be a case that involves a different form of footwear where the judge’s reasoning may assist in this case. PAST DECISIONS
Describe one reasons why a court may need to interpret a statute?
One example for statutory interpretation is the changing nature of words. Sometimes, there may be a particular word in a statute which a court will need to interpret because, at the time parliament passed the law, a particular meaning of the word was not contemplated. This happened in the Kevin and Jennifer marriage case with the interpretation of the word ‘man’.
Outline why the supreme court of appeal does not have to follow its previous decisions.
The doctrine of precedent operates such that decisions made by the same court are only persuasive on that court. Therefore, the Court of Appeal does not have to follow decisions it has previously made because it is only bound by decisions made by higher courts, such as the High Court.
Parliament cannot override decisions by the supreme court of vic. Is this statement correct? Explain
This is incorrect. Parliament is our supreme law-making body. Because of its supremacy in law-making, if the Supreme Court has made a decision which then becomes precedent for future cases, and Parliament does not agree with the precedent, it can make law which abrogates that precedent, thus overriding the law. EXPLAIN
This happened when the Victorian Parliament in 1984 introduced an amendment to the Wrongs Act in relation to owners of animals being liable for the animals’ action, after the High Court’s decision in the Trigwell case. EXAMPLE
Flexibility strength and weakness
INTRO THEN RODD THEN FINALLY
The courts, by avoiding this consistency in precedents, also have some flexibility in avoiding precedents which including reversing, overruling, distinguishing and disapproving. INTRO
However, there are some limitations in these methods of flexibility. Disapproving of a precedent is normally used by a judge in a lower court and does not change the precedent; it just highlights their disapproval of it.
Reversing is only available when the case in which a precedent was set or followed is at appeal and the higher court decides to overrule the decision.
Overruling is only available to courts higher than the court that set the precedent, and even then judges are often conservative and may not decide to overrule a precedent.
Furthermore, distinguishing can only be available where the facts are different enough for this method to be justified.
Finally, although these methods are available to the courts, they can cause the doctrine of precedent to be inconsistent and unpredictable, therefore need to be used in the appropriate case
In a recent decision the Victorian Supreme Court (Trials Division) established a new precedent.
To what extent are judges bound to follow the new precedent in future cases with similar fact situations?
Some judges are bound to follow the new precedent, but others are not. In this case, judges in the County and Magistrates’ Courts are bound to follow the precedent set by the Supreme Court, as they are lower in the hierarchy, unless the judge is able to use one of the methods available to him/her to avoid following it. For example, the judge may be able to find some of the facts are distinguishable so that he/she is not required to follow the new precedent. EXPLAIN
Courts higher than the Supreme Court are not bound by the new precedent, but may be persuaded by the decision. Higher courts may be inclined to follow the precedent, or they may decide on their case differently and therefore choose not to follow the precedent, therefore overruling the precedent made in this case. HIGHER
If this case goes on appeal, the appellate judge may decide that the decision made by the Supreme Court was wrong and he/she may decide to reverse the earlier decision, thus creating a new precedent. APPEAL
Finally, judges in other hierarchies, such as New South Wales courts or courts overseas, are not bound to follow the new precedent but again may be persuaded to follow it.
OTHER
Discuss the ability of courts to change the law 6 marks
EXPLAIN ROLE OF THE COURTS AND HOW ITS LAW MAKING ROLE IS LIMITED AS THEY ARE PRIMARILY DISPUTE RESOLVERS
EXPLAIN WHEN CHANGES CAN BE MADE (STAT INT
AND PRECEDNT)
EXPLAIN RODD
