AOS 3 - The courts as Law-Makers

Question 1

Reversing case

Answer 1

Queen v Klamo - SC (COA) reversed the decision of the SC (TD) in the same case on appeal

Question 2

Overruling

Answer 2

AON v ANU (2009) - High court overruled a previous decision they made in QLD v JR Holdings (1997) by disallowing ANU to change its claim during a case

Question 3

Distinguishing

Answer 3

Davies v Waldron (1989) - Judge distinguished the material facts from the Gillard v Wenborn, where the driver was not at risk of driving the car under the influence

Question 4

Disapproving

Answer 4

Trigwell (1979) - judge followed the precedent of the searle v wallbank, but expressed his disapproval, resulting in the Wrongs(Animals straying on highways) Act 1984 (vic)

Question 5

precedent

Answer 5

precedent
stare decisis
ratio decidendi
binding
persuasive
obiter dictum

reversing
overruling
distinguishing
disapproving

Question 6

Statutory interpretation define

Answer 6

statutory interpretation refers to the process by which judges interpret words or phrases in an act of parliament in order to give the words meaning

Question 7

reasons for interpretation

Answer 7

not account for future circumstances
mistakes
general terms/broad

Question 8

effects

Answer 8

the words are given meaning
precedents are set
extending of the law

Question 9

finality

Answer 9

remains until reversed or overruled

parliament can confirm or change through legislation

Question 10

s and w of courts as lms

Answer 10

quick - immediate law relevant to case, precedent which is then binding straight away
Appropriate case, someone must bring the case to the court, only rule on the case whose scope is narrow, creating small specific laws, resolves disputes before it makes laws.
independent, no political pressures, since they are appointed they can assess the most appropriate law without fear of voter backlash.
non-elected, not representative or responsible, don’t reflect society, judges are drawn from narrow socioeconomic groups, and there may be concerns about the degree to which they are in touch with the community, e.g. aboriginals have been misinterpreted.
precedent is effective, provides f, c and p since past decisions are applied to current ones, the legal system is being made by the most senior and exp of judges in the higher courts, which is binding on the lower ones.
Access can be difficult, hard to locate relevant cases, understand relevant parts of judgement, once found, further time and expertise is required to find the ratio decidendi, which is often written in technical complex language, which further complicates the process

Question 11

relationship b/w parliament and courts

Answer 11

parliament passes legislation to establish courts and their jurisdiction - supreme court act 1984
courts apply and interpret legislation
parliament can change laws passed by courts
parliament can codify laws passed by courts
statements made by courts can influence parliament’s decisions