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case law a Flashcards

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1
Q

what decides if a case is binding

A

if the prior case is relevant (if the facts are materially/substantially the same and if the legal issue is the same the precedent is relevant) and if it comes from a hierarchically superior court in the same jurisdiction

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2
Q

what does cur adv vult stand for

A

curia advisari vult

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3
Q

what is a ratio decidendi

A

the principle of law you can take from the decided case

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4
Q

what are material facts

A

cases are alike if their material facts are alike - they’re the actual facts taken to a suitable level of abstraction that are essential to the decision

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5
Q

what is the issue

A

abstract question of law

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6
Q

what terms are used for a judges positive treatment of a case

A

followed, applied, approved, adopted

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7
Q

what terms are used for a judges negative treatment of a case

A

distinguished, not followed, overruled, doubted, disapproved, criticised

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8
Q

what terms are used for a judges neutral treatment of a case

A

considered, explained

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9
Q

when is the term followed used

A

where a court is expressing itself as bound by a previous decision of a court of coordinate or superior jurisdiction where facts are materially similar

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10
Q

when is the term applied used

A

where a court applies the principles of a previous decision to the case before it where the facts are materially different

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11
Q

when is the term approved used

A

where a court approves the decision of a previous court of inferior jurisdiction

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12
Q

when is the term adopted used

A

using a case from an overseas jurisdiction and adopting it into NZ law

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13
Q

when is the term distinguished used

A

where a court decides not to follow a previous decision, even where it would otherwise be bound by it, because there is some salient difference

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14
Q

when is the term not followed used

A

when a court has declined to follow a decision of a court of coordinate jurisdiction where the facts are similar

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15
Q

when is the term overruled used

A

when a court decides a previous decision of a court of inferior jurisdiction in unrelated proceedings is wrong

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16
Q

when are the terms doubted, disapproved or criticised used

A

where a court disagrees with a previous decision but it is either not necessary for the purpose of the case before it to overrule the decision or in the case of co-ordinate courts does not have the power to overrule

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17
Q

when is the term considered used

A

where a court considers a previous decision but does not actually follow, apply, distinguish etc.

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18
Q

when is the term explained used

A

where a court interprets and states what a previous decision means

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19
Q

when is analogical reasoning used

A

comparing similarities and differences because like cases should be treated alike

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20
Q

what is the IRAC structure

A

introduction, issue, relevant law, application of the law to the facts, conclusion

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21
Q

describe Armory v Delamirie

A

chimney sweep boy found ring on the street and carried it into the defendant jewellery shop. an apprentice in the shop took out the stones and gave him back the empty socket

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22
Q

what are the material facts of armory

A
  • Lost item
  • Finder
  • True owner could not
    be found
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23
Q

what is the issue of armory

A

Whether the finder of an item can claim it as his/her property against all others when the true owner cannot be found?

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24
Q

what is the ratio of armory

A

The finder of an item can claim it as his/her property against all others when the true owner cannot be found.

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25
Q

describe bridges

A

found banknotes on the floor of a shop and handed the notes to the shopkeeper. the shopkeeper advertised in the newspaper to try find the true owner but was unsuccessful. bridges came back 3 years later to get the notes back

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26
Q

what is hawkesworth’s argument in the bridges v hawkesworth case

A

that the lost item was in his possession at the time because it was found in his shop

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27
Q

what is bridges’ argument in the bridges v hawkesworth case

A

that ownership of the place where the item was found does not give the owner rights to the lost item. he found the money and therefore had greater finder rights

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28
Q

what did Patteson J in Bridges decide

A

if the shopkeeper had any right to the money it must have accrued prior to the finding. the money was never in the custody of protection of the shopkeeper before it was found. the steps taken by the shopkeeper to find the true owner were taken as agent of the finder

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29
Q

who was the judge in Armory

A

sir john pratt CJ

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30
Q

what were the material facts in bridges v hawkesworth

A
  • a lost item has been found
  • owner cannot be found
  • place where the item was found was owned by a person
  • owner of place did not have item in his/her protection
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31
Q

what was the issue in bridges v hawkesworth

A

Whether the owner of the place where a lost item is found acquires a better right to it than the finder (when the true owner cannot be found), when the lost item is not in his/her custody or within the protection of his/her property, before it is found?

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32
Q

what was the ratio in bridges v hawkesworth

A

The owner of the place where a lost item is found does not acquire a better right to it than the finder (when the true owner cannot be found), when the lost item is not in his/her custody or within the protection of his/her property, before it is found.

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33
Q

what is obiter dictum

A

“a statement of a judge on a point of law that is not essential to the decision of the case before him or her”

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34
Q

describe elwes v brigg gas company

A

the landlord leased to brigg gas company for 99 years. when the gas company was excavating to erect the gas holder brigg found a prehistoric boat under the surface. the existence of the boat was unknown to the landlord/owner elwes

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35
Q

who did the prehistoric boat in elwes v brigg gas company go to

A

the owner

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36
Q

what were the material facts in elwes v brigg gas company

A
  • landlord/property owner leased land to tenant/occupier
  • lease did not implicitly or impliedly say that items found in land were to be the property of the tenant
  • tenant found under surface of the land
  • true owner could not be found
  • property owner/landlord unaware of existence of item until found
37
Q

what was the issue in elwes v brigg gas company

A

Whether a landlord or property owner, despite being unaware of their existence, has a better right to items found under the surface of their land than the tenant/occupier finder (when the true owner cannot be found) in the absence of an explicit or implied term in the lease stating otherwise?

38
Q

what was the ratio in elwes v brigg gas company

A

A landlord/property owner, despite being unaware of their existence, has a better right to items found under the surface of the land than a tenant/occupier finder (when the true owner cannot be found) in absence of an explicit or implied term in the lease stating otherwise.

39
Q

what happened in south staffordshire water company v sharman

A

the water company owned the Minster Pool and Sharman was an employee to clean the pool and found two gold rings in mud at the bottom of the pool

40
Q

what was the water companies arguments in south staffordshire water company v sharman

A

that armory should be distinguished as that case concerned conversion by a wrongdoer

41
Q

what was Sharmans argument in staffordshire water company v sharman

A

finders rights apply as in armory and bridges and ownership of land does not create a presumption of possession of items found on the land

42
Q

who was the judge in south staffordshire water company v sharman

A

lord russell of killowen CJ

43
Q

who was the judge in elwes v brigg gas company

A

chitty J

44
Q

describe hannah v peel

A

peel bought a house but never actually got to live in it because it got requisitioned by the military. hannah was stationed at the house and found a brooch in a crevice on a windowsill

45
Q

from hannah v peel: it is clear from authorities that a person possesses everything ___________ his/her land, but a person does not necessarily possess a thing which is ________

A

attached to or under, lying unattached

46
Q

who was the judge in hannah v peel

A

birkett j

47
Q

what were the material facts of hannah v peel

A
  • property owner had never occupied house
  • property requisitioned by government
  • item found in property
  • item was not attached to property
  • property owner did not know of existence of item
48
Q

what was the issue in hannah v peel

A

Whether the owner of a property, who has never been in physical possession of it, has a stronger right to items found in or on it, but not attached to it, when he/she is unaware of the existence of the items, than the finder?

49
Q

what was the ratio decidendi from hannah v peel

A

The owner of a property, who has never been in physical possession of it, does not have a stronger right to items found in or on it, but not attached to it, when he/she is unaware of the existence of the items, than the finder.

50
Q

how to judges make decisions with conflicting precedents

A

which precedent has more weight, whats more similar on the facts, how long the principle has stood unchallenged, any distinguishing features, quality of reasoning by the judge

51
Q

in what court was parker v british airways board decided

A

the english court of appeal

52
Q

describe parker v british airways board

A

parker found a gold bracelet in a british airways executive lounge in heathrow airport. british airways sold the bracelet for 850 pounds

53
Q

what was the key point of eveleigh LJ’s judgment in Parker v British Airways Board

A

the spectrum of control between bank vault and public park, requiring higher end of the spectrum not to demonstrate clear intention to possess as there already is one but when its weak more like a public park the intention to possess items must be very clear

54
Q

what was the key point of sir david cairns’ judgment in parker v british airways board

A

the occupier has a better claim than the finder if he had possession of the article immediately before it was found and only when the article is on the land, not in or attached to the land and when the occupier’s intention to exercise control is manifest

55
Q

what were the material facts from parker

A

An occupier restricted entry to its property to certain members of the public. The occupier did not take any steps to demonstrate an intention to control items found on the property. A person was lawfully on the property and found an item on the floor. He took it into his possession. The true owner could not be found.

56
Q

what was the issue in parker

A

Whether an occupier who restricts entry to his/her property to certain members of the public, but takes no other step to demonstrate an intention to exercise control over things found on the property, has a superior right to items found there over the finder who is lawfully on the property, when the true owner cannot be found?

57
Q

what was the ratio decidendi in parker

A

An occupier who restricts entry to his/her property to certain members of the public, but takes no other step to demonstrate an intention to exercise control over things found on the property, does not have a superior right to items found there over the finder who is lawfully on the property, when the true owner cannot be found.

58
Q

what are the 6 subissues arising out of Parker

A
  1. Can the true owner be found
  2. is there anything that could lessen the finder’s rights?
  3. was the item found upon, in, under or attached to the ground
  4. did the finder take it into his/her possession?
  5. how strong was the intention to control the property and items found on it?
  6. was the intention manifest (clear) to those coming onto the property?
59
Q

what was the key point of sir david cairns’ judgment in parker v british airways board

A

the occupier has a better claim than the finder if he had possession of the article immediately before it was found and only when the article is on the land, not in or attached to the land and when the occupier’s intention to exercise control is manifest

60
Q

what were the material facts from parker

A

An occupier restricted entry to its property to certain members of the public. The occupier did not take any steps to demonstrate an intention to control items found on the property. A person was lawfully on the property and found an item on the floor. He took it into his possession. The true owner could not be found.

61
Q

what was the issue in parker

A

Whether an occupier who restricts entry to his/her property to certain members of the public, but takes no other step to demonstrate an intention to exercise control over things found on the property, has a superior right to items found there over the finder who is lawfully on the property, when the true owner cannot be found?

62
Q

what were the material facts in tamworth industries ltd v attorney general

A
  • occupier leased property
  • public had reasonable
    access to the property that
    was unrestricted
  • item found in box on
    ground under building
  • true owner could not be
    found
63
Q

what are the 6 subissues arising out of Parker

A
  1. Can the true owner be found
  2. is there anything that could lessen the finder’s rights?
  3. was the item found upon, in, under or attached to the ground
  4. did the finder take it into his/her possession?
  5. how
64
Q

what was the ratio decidendi of the tamworth industries v attorney general case

A

An occupier has not manifested an intention to exercise control over the property and the things that may be on it, to give him/her a stronger claim to an item found there than the finder when the true owner cannot be found, when he/she has allowed unrestricted public access to the property.

65
Q

describe tamworth industries ltd v attorney general

A

drug money was found under the floorboards of derelict buildings on leased land that included a plot of maize people could access and pick via a track, the only nz case

66
Q

who was the judge in tamworth industries ltd v attorney general

A

eichelbaum cj

67
Q

what were the material facts in tamworth industries ltd v attorney general

A
  • occupier leased property
  • public had reasonable
    access to the property that
    was unrestricted
  • item found in box on
    ground under building
  • true owner could not be
    found
68
Q

what was the issue in tamworth industries ltd v attorney general

A

Whether an occupier has manifested an intention to exercise control over the property and the things that may be on it, to give him/her a stronger claim to an item found there than the finder when the true owner cannot be found, when he/she has allowed unrestricted public access to the property?

69
Q

what does QB stand for

A

court of queens bench

70
Q

what does KB stand for

A

court of kings bench

71
Q

what does nzdc stand for

A

new zealand district court

72
Q

what does nzhc stand for

A

new zealand high court

73
Q

what does LJ stand for

A

lord justice

74
Q

what does cj stand for

A

chief justice

75
Q

what does ca stand for

A

court of appeal

76
Q

what does all er stand for

A

all england reports

77
Q

what does nzlr stand for

A

new zealand law reports

78
Q

who is the plaintiff

A

person bringing the claim or action

79
Q

what does round/square brackets mean

A 
round = refer to volume
square = case can be found by the year
80
Q

who is the appellant

A

person bringing appeal of the decision of the lower court

81
Q

who is the respondent

A

party responding to the appeal

82
Q

what does cur adv vult mean

A

it is a reserved decision and the judge has taken time to decide. it is latin for curia advisari vult and means the court wishes to be advised

83
Q

what is obiter dicta

A

statement of a principle of law but not strictly necessary to the decision

84
Q

how should your introduction go

A

i have been asked to advise ___ whether as the finder stronger right or the owner blah blah. this will require the application of the law relating to finders

85
Q

donaldson lj’s statements should be at the start of 3 of the subissues, what 3 are they

A

was there anything to lessen the finders rights, public access, manifest intention

86
Q

what should be said about donaldson lj’s comments under the anything to lessen finders rights heading

A

that he said the finder acquires limited rights if they take the item into their possession with dishonest intentions or while trespassing

87
Q

what should be said about donaldson lj’s comments under the public access heading

A

that he discussed a spectrum of control between bank vault and public park

88
Q

what should be said about donaldson lj’s comments under the manifest intention heading

A

he said intention must be clear and obvious

laws 101 (6 decks)

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