Cases Sources of Law

Question 1

Doctrine of Precedent

Answer 1

• Donoghue v Stevenson
• Grant v Australian Knitting Mills (itchy undies)
• Shaddock v Paramatta City Council (giving of financial advice)
• Coffey v Jaensch (nervous shock)

Question 2

Reversal of Precedent

Answer 2

• The Wik People v The State of Qld and Ors (HC)
  Full Bench of the HC overturned a decision of the Full Court of the Federal Court which held that native title could not co-exist with Pastoral leases.

Question 3

Distinguishing

Answer 3

• Thomson v Nix
  WA supreme Court chose not to follow the decision in Searle v Wallbank (on owner is not responsible for any injuries caused by straying livestock) due to significant material differences between the injuries caused in the original case and the Thomson case.

Searle v Wallbank involved a cyclist colliding with a horse on a country road at night. Thomoson v Nix involved a sealed highway with good visibility

Question 4

Overruling

Answer 4

• Brodie v Singleton Shire Council
  Brodie sued the council for injuries sustained as a result of driving over a 50 yr old bridge that collapsed. HC held that the long standing ‘Highway rile’ which gave legal immunity to for authorities for failure to repair highways and other thoroughfares-should not apply as it was no longer good law.

Question 5

General Disapproval

Answer 5

• SGIC v Trigwell (HC)
  The full bench of the HC disapproved the Searle v Wallbank rule. However, they chose to follow it, as the rule had been made in the House of Lords in England which was a superior court. While this arguably led to an unjust decision the HC Justices stated that it was not their role to change bad law and that this was the responsibility of parliament.

Question 6

Disapproval or a co-ordinate court

Answer 6

• Engineers case
  Full Bench of the HC departed from its own conventions by not following the doctrines of implied prohibition of mutual-non-interference. HC declared that it disapproved of those doctrines and would no longer follow them as they were bad law.

Question 7

Disapproval of courts in other hierarchies

Answer 7

• Bassel v McGuiness
  SA Full Court of the Supreme Court disapproved of the NSW Full court of the Supreme Court of R v Martin. In that case the NSW Supreme Court held that a man under two was not the driver or a vehicle because he had no control over the vehicle’s moving force.

Question 8

Need for interpretation of statues.

Answer 8

*R v McGuiness
The judge was required to determine whether or not a driver under tow was a driver under the Road Traffic Act as parliament had not foreseen the issue and had not addressed this in the Act.

Question 9

Esjusdem generis rule

Answer 9

R v Brislan
HC held that The High Court ruled that the Commonwealth Parliament had the power to impose and collect licence fees. The Court ruled that wireless (radio) came under Section 51 (v) of the Constitution which gave the Commonwealth power to legislate on “Postal, telephonic, telegraphic and other like services”.

Question 10

Supervision of the legislative

Answer 10

oilermakers case
-Example of Judicial review- in particular, validity of legislation can be challenged in court. Courts can declare legislation invalid is parliament has exercised power ultra vires the Constitution.
-High court declared legislation invalid as it permitted an executive body to exercise judicial power contrary to the implied principle of judicial independence in Chapter 1 of the Constitution

Question 11

South Australia v Tanner 1989 (HCA)

Answer 11

-SA Full Court of the Supreme Court held regulation made under the Waterworks Act (1932) was invalid as the government exercised and executive power ultra vires the Enabling Act. (Regulation had been used to stop the Tanner family from having an aviary in the Adelaide Hills because it was a watershed area for a local reservoir.
-On appeal-Full Court of the High Court reversed the Supreme Court’s decision as the regulation had not been made ultra vires the Enabling Act.

Question 12

Remedial legislation

Answer 12

Remedial legislation (Parliament overrides or ‘remedies’ bad or inappropriate case law through legislation-Wrongs Act SA

Question 13

Complementary Legislation

Answer 13

Mabo (No 2) (Parliament creates legislation complementing case law in the form of the Native Title Act

Question 14

High Court

Answer 14

• The Wik People v The State of Qld and Ors (full title- The Wik People v The State of Qld and Ors; The Thayorre People v The State of Qld and Ors)
• In The Wik Peoples v The State of Queensland & Ors; the High Court held that native title rights could coexist on land held by pastoral leaseholders. The High Court decided that:
  1) the granting of a pastoral lease does not necessarily confer rights of exclusive possession to the pastoralist
  2) the rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted
  3) the mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights
  4) if there is an inconsistency between the rights of the native title holders and the rights of the pastoralist, the rights of the native title holders must yield.

Question 15

Burden of Proof

Answer 15

R v Che

Question 16

Juries

Answer 16

Ali Chaouk: Mistrial was declared after one of the juror’s sent the judge a note “Do we need to be concerned for our security and safety being in the presence of the accused and witnesses?” fear of the person whose innocence or guilt they were supposed to be determining.

Question 17

R v Holmes

Answer 17

Delays/ineffectiveness caused by juries.
Hung jury results in a mistrial, further trial to be convened.
Possibility of an alternate verdict.

A jury has been discharged after failing to reach a verdict at the trial of an NSW man accused of the one-punch murder of his mate after arguing over a missing tobacco pouch.

Question 18

Expert Evidence (admissible)

Answer 18

Lamborghini driver hit and killed pedestrian (Naismith). Supercars and stunt driver Luke Youlden gave evidence as an expert witness, saying the car must have been in sports mode before Campbell lost control of the vehicle.

Question 19

Flawed Expert Evidence

Answer 19

Lindy Chamberlain
- fibers were dingo not cat hair
-marks in car were not blood
-forensics expert had only been in the role for 3 months, based her report on what the media were saying.

Question 20

Circumstantial Evidence

Answer 20

Keli Lane: Keli lane hid her pregnancy from everyone. When she gave birth, she says that the father of the child came to the hospital, and she gave him the baby. However, when questioned by the police she could not give a name that the police could locate. Ms Lane was charged and found guilty of murdering her baby based purely on circumstantial evidence. This was even though the baby’s body was never found.

Question 21

Expert Evidence

Answer 21

Lloyd Rainey used his own experts to successfully challenge evidence obtained by the police. This case can also be used to discuss:
- the importance of legal representation/need for financial means
-Police investigation
-Innocent until proven guilty

Question 22

Cheatle v the Queen

Answer 22

All people are entitled to a ‘representative’ jury- but did not state how this was to be decided. HC decided that all people are entitled to a ‘representative’ jury even though courts and parliament had not decided how this would be achieved. In this case the HC declined to consider this question themselves.

Question 23

Civil Cases

Answer 23

Ben Robert Smith: Defamation The trial took over a year.
It is estimated that the trial has cost over $35 million dollars. in civil trials costs normally ‘follow the event’. This means that the losing party will usually be responsible for not just their own but also a large portion of the other sides costs.