Case law and precedent

Question 1

what system was most commonly used in australia in the past? Why has it changed?

Answer 1

The case law system was prominent in australia in the 20th century

Due to increase in government regulation, statues otherwise known as legislations is the most used form of legal rules in Autralia

Question 2

what are tribunals?

Answer 2

Tribunals are bodies that are established through a statute

Question 3

What is the role of judges in common law courts?

Answer 3

To solve disputes and provide reasonable compensation to plaintiff for the wrongdoing of defendant

Question 4

Purpose of legislature?

Answer 4

To regulate

Question 5

How is the neighbour principle endorsed in law?

Answer 5

The essence of neighbour principle proposed one should have duty of care to others by having reasonable care in one’s actions to avoid injuring neighbour

Question 6

What does the doctrine of precedent propose?

Answer 6

The law presented in one case can be used for similar cases in the future

Question 7

Who is the plaintiff?

Answer 7

The party who brings action against defendant and is at the initial hearing of civil case

Question 8

Who are the parties in criminal case?

Answer 8

The prosecutor (traditionally in criminal proceeds acted on behalf of Crown with the case name being ‘ the Queen’ or King’ or R for Regina or R for rex’ which depends on the gender of the monarch at the time of their reign

the defendant/ the accused

Question 9

How may a person’s identity in a courst case be made anonymous?

Answer 9

Initials of the party’s names are used eg. those applying for refugee status

Question 10

what is the headnote of the case?

Answer 10

The summary of facts of the case and court’s decision at beginning of reported judgement

Question 11

CASE ANALYSIS:

what does procedural history refer to?

Answer 11

The procedural history of a case records various courts the case has been heard.

if the case was ‘at first instance’ , it would be heard for the first time

cases on appeal wold have faced earlier decisions

eg.’ this was a first instance decision’

Question 12

CASE ANALYSIS
Grounds for appeal and/or issues to be decided

what’s the differnce between questions for first instance judgements and appeals?

Answer 12

questions are based upon amalgam of fact and law whereas for

**appeals, questions of law will be used **to prove actions breached the law given that facts were decided in first trial

Question 13

CASE ANALYSIS
Grounds for appeal and/or issues to be decided

what are factors to deciding the issue

Answer 13

Whether a party was negligent

When a case is appealed, court needs to decide on grounds of appeal.

Question 14

CASE ANALYSIS

Summary of court’s analysis of law

What does this contain and what must the court account for?

Answer 14

When the content of law is in dispute. there will be reference to key authorities, whether common law or statute was applied or discussed or distinguished

account for opposing arguments and legal AUTHORITIES SUCH AS LEGAL PRINCIPLES USED in previous cases of similar case

However, if the law was not in dispute, legal analysis by court is not required

Question 15

Case analysis

Principle of law to be applied

Answer 15

Principle of law will be determined by the outcome of the legal analysis if the law was at dispute. In cases when law is not of opposition, court will propose the appropriate legal principle for the case

Question 16

Case analysis

Description of how law applied to the facts

Answer 16

application of legal principles to material facts of case as it will lead to decision

Question 17

Case analysis

Decision

Answer 17

Outcome of application of facts of law is recorded

It will determine whether the case was negligenet, payable amount of demages awarded

Question 18

case analysis

order by the court

Answer 18

At the end of judgement

Legal consequences from the decision such as payable amount of damages to compensate plaintiff, injunction if needed

Question 19

11. Case analysis

social or cultural context

Answer 19

not present in all cases but same cases may have statements that portray social or cultural context of which judgement was delivered

eg. gender roles, environment, societal values

Question 20

Why may principles of law not be stated in a case?

Answer 20

They are implicit in judgements

Question 21

What rules are more fleixlbe?

Answer 21

Case law rules are more flexible than legal rules in statutory provisions however, all legal rules are clearly documented in legislations

Question 22

What is another term for doctrine of precedent?

Answer 22

Stare decisis

Question 23

What legal systems adopt the doctrine of precedent?

Answer 23

Majority of legal systems adopt the doctrine of precedent. Countries with legal systems that orignated from English Common Law follow the principle of stare decisis ( the doctrine of binding precedent) which accounts the ‘ratio decidendi’ or decisions from previous case in making the decision

Question 24

What are rules of the doctrine of precedent in common law systems?

Answer 24

• Courts bound by decisions of courts higher in hierarchy
• decision of a court in a different hierarchy or lower in the same hirerarchy may be persuasive but not binding
• Court generally not bound to their own past decisions
• ratio decidendi of past case is binding
• obliter dicta (remarks in passing) can be persuasive but not binding
• precedents sustain their significace over time

Question 25

what does stare decisis promote?

Answer 25

It promotes certainty: giving individuals certainty that same law will be applied to their case

• equality , consistency: like cases alike
• Efficiency: less time and resources for subsequent courts. Discourages litiation that are not likely to succeed
• justice: no bias by judge but establishes imparital rues based upon reasonal judgements

Question 26

How can higher court decisions be binding on lower courts?

Answer 26

Higher court has power to overrules decisions of lower court appeal

Question 27

what are limitations of stare decisis?

What may judges do?

Answer 27

The rule may not be suitable in a different social context

Lower court may still be bound notwithstanding the rule not applicable to new social expectations

Not changing the law, unresponsive to changing social developmets and community values. While changing the law can creating legal certainty by ‘usupring the role of the legislature’

Establish fictions by altering existing rules to adapt to new environment, however can be harmful when not used with heed

Question 28

in an appeal, who are the parties?

Answer 28

The appellant, the person who brings the appeal to court. The Respondetnt

Question 29

How does doctrine of precedent draw a distinction in cases?

Answer 29

The ratio decidendi are binding

The obiter dicta, at best persuasive but not binding

Question 30

Why may identifying ratio be difficult?

Answer 30

Level of generality of ratio

majority not necessarily favour a ratio

Obiter dicta and ratio n case

Ratio in strict legal sense hard to distingish

Question 31

For ratios to be use for subsequent cases, not identical but similar, how much the ratio be stated?

Why?

Answer 31

The ratio should be stated with a higher level of generality for it to be applied to more cases in the future and have greater signifance as a precedent

However, should not be too general because and in that circumstance, the judge can reject the doctrine of precedent to prevent it from becoming a rule of law and being applicable in unsuitable situations. as Lon Fuller explains.

Lon Fuller, Legal Fictions (Stanford University Press, 1967) 65-70

Question 32

ratio decidendi is agreed by?

Answer 32

the reasons for the decion agreed by majority of the court

Question 33

What occurs when there is no discernible ratio decidendi due to different reasoning (arguments and princple appilcation) by the majority?

Answer 33

subsequent courts analyse the legal issues and use legal reasoning applicable but supports ‘actual decision’ in earlier case (binding) and small proposition formed from material facts (finding)

The individal judgements are not binding but can be highly persuasive

Laying down the law p 125

Question 34

what happens when there are divergent reasoning behind the decisions by majority justices?

Answer 34

There is no ratio decidendi

Question 35

What occurs when there is no discernible

Question 36

When may a judge use obiter dictum?

Answer 36

provide resolution to a hypothetical dispute predicated on yet still differed from events of material facts of case

Illustrate principle

Question 37

Difference between obiter dictum and obiter dicta

Answer 37

Obiter dictum is singular obier dicta is plural

Question 38

How can obiter dicta influence decisions?

Answer 38

These are passing remarks by the judges

They are not binding but are very persuasive for judges in later courts. They are persuasive precedents

Question 39

What happens when there are more than one reasoning for decions but one is more specific and sagacious in its reasoning?

Answer 39

the specific, sagacious reasoning will become the ratio while the other weaker reasonings will be obiter dicta

Question 40

Where are obiter dicta more common?

Answer 40

Obiter dicta expanding in dismissed criminal appeals

Question 41

are all statements of rule of laws ratio or obiter?

Answer 41

No, judges may discuss propositions of laws from previous cases which will assist with the judge’s reasoning but ]this will not be ratio or obiter unless judge provides endorsement

Question 42

What may an authorative obiter dicta do?

Answer 42

This is when the obiter dicta is expounded by the supreme court

Greatly respected. Very influential

It leans more towards funciton of a ratio than an obiter dicta and may even take greater superiority than a ratio

Question 43

What may dicta by High Court of Australia be regarded as?

Answer 43

The obiter dicta by HCA (highest court in Australian judicial hierarchy) takes on significane and can be highly influential to later judges in courts.

eg. decision adopted by NSW Court of Appeal was overturned because it did not support dicta by HCA

Question 44

Does the authority of precedent lose significance after time?

Answer 44

No, it retains its authority and infuential power. However, if the application of the precedent does not fit in the social and economic settings of the present, it would not be used

Question 45

What is ratio decidendi ?

Answer 45

ratio decidendi of a case is any rule expressly (rule stated by judge that is directly applicable to the law in contention in case)

Or impliedly (rule of law implicit in the reasoning of judge to justify decision)

treated by judge as necessary means to reach conclusion.

It can also be the explicit or implicit reason given by judge for decision

Question 46

What is case law?

Answer 46

law developed by judges in common law

Question 47

Can state courts deal with federal matters? what about federal court dealing with state matters?

Answer 47

In the HCA decision in RE Wakim; Ex Parte Mcnally (1999), states can deal with some federal matters but federal courts cannot deal with state matters

Question 48

What do Law Reports contain?

Answer 48

Only important (often binding) judgments from superior courts are to be found

There are many unreported jdugements

Question 49

The family court is?

Answer 49

within the federal court hierarchy

Question 50

The federal magistrates court is…

Answer 50

inferior court and is therefore bound bysuperior courts in its own hierarchy.

bound to follow appellate decisions of both the Federal Court and the Family Court as these are superior courts within the same judicial hierarchy.

Question 51

Decisions from administrative tribunals

Answer 51

Are not regarded as binding precedent by the state supreme courts. Are not regarded as binding precedent by the Federal Court of Australia. Do not need to follow their own precedent.

Question 52

In 1989, the HCA

Answer 52

declared unanimously in the case of Viro v The Queen (1978) that it no longer regarded itself as being bound by decisions of this English authority. The year 1989 also occurs after the Australia Act 1986 (Cth).