Chapter 14: The Courts

Question 1

What is the main role of the courts?

Answer 1

resolve disputes and hear cases - applying and enforcing law

Question 2

In which situations do courts make law?

Answer 2

• when resolving a dispute in which there is no existing law: might need to expand on existing legal principle so it can be applied to new situation
• when statutory interpretation is needed so law can be applied to the case before the court: broadening/narrowing the meaning of words and phrases in statute via interpreting = making law by establishing new legal principle to be followed in future

Question 3

What is a precedent?

Answer 3

A new legal principle established in a legal case that is followed by courts in cases where the material facts are similar.
Can be binding or persuasive.

‘the reasoning behind a court’s decision’

Question 4

What are material facts?

Answer 4

The key facts or details in a legal case that are critical to the court’s decision.

Question 5

Can a verdict given by a jury create precedent? Why or why not?

Answer 5

No.
Bcos juries only determine the facts of the case, and don’t decide on points of law vs. judges deciding on points of law.
Juries don’t give reasons for their decisions vs. judges give reasons.

Question 6

What is the doctrine of precedent?

Answer 6

The common law principle by which the reasons for the decision of higher courts are binding on lower courts in the same hierarchy in cases where the material facts are similar.

Question 7

Identify the key features of the doctrine of precedent

Answer 7

• stare decisis
• ratio decidendi
• binding precedents
• -persuasive precedents
• obiter dicta

Question 8

What is meant by the principle of stare decisis?

Answer 8

To stand by what has been decided.
It is the basic principle underlying the doctrine of precedent.
Describes the process of lower courts following the reasons for the decisions of higher courts.

Question 9

What is ratio decidendi?

Answer 9

Means ‘the reason for a decision’
The legal reasoning which explains and forms the binding part of a court judgement.

Question 10

True or False
The ratio decidendi is the decision itself and refers to the sanction and remedy given by a court.

Answer 10

False
It is the legal reasoning behind the decision.

Question 11

What is a binding precedent?

Answer 11

The legal reasoning for the decision of a higher court that must be followed by a lower court in the same hierarchy in cases where the material facts are similar.

Question 12

What are persuasive precedents?

Answer 12

• legal reasoning behind decision
• lower/equal court in same jurisdiction OR court in different jurisdiction
• considered relevant or used as source of influence
• not binding

Question 13

Precedents set by courts of the same standing within the same court hierarchy are persuasive, not binding.
But, in reality, judges almost inevitably follow them.
Why is this the case?

Answer 13

• consistency

BUT even though it likes consistency, the High Court will not stand by a past precedent if it no longer considers it to be good law e.g. justices consider the law to be outdated due to changes in community attitudes, tech etc.

Question 14

What is obiter dictum?

Answer 14

‘by the way’
Comments made by the judge in a particular case that may be persuasive in future cases (but do not form a part of the reason for the decision and are not binding).

Question 15

Do you even know what a court judgement is?

Answer 15

A statement made by the judge at the end of a case that outlines the decision and the legal reasoning behind the decision.

Question 16

If a judge is NOT bound by a previous precedent, what may they decide to do?

Answer 16

• adopt the precedent (follow/apply it; affirming)
• choose not to follow the precedent & create new precedent

Question 17

Apart from following a precedent, how can precedents be developed or avoided?

Answer 17

distinguishing
reversing
overruling
disapproving

Question 18

Outline distinguishing a precedent

Answer 18

• lower court decides that material facts of case are sufficiently different to that of case in which precedent was set by superior court
• thus not bound to follow it

Question 19

Outline reversing a precedent

Answer 19

• superior court changes previous precedent set by lower court in the same case on appeal
• creating new precedent which overrides earlier precedent

Question 20

Outline overruling a precedent

Answer 20

• superior court changes previous precedent set by lower court in a different and later case
• creating new precedent which overrules the earlier precedent

Question 21

Outline disapproving a precedent

Answer 21

• court expresses dissatisfaction of existing precedent
• but still bound to follow it

Question 22

Why might a lower court disapprove a precedent, event though they are ultimately bound to follow it?

Answer 22

statement of discontent may be used during an appeal to indicate original judge’s dissatisfaction with the precedent

may encourage parliament to change the law

Question 23

Why might judges in courts of the same standing and judges in superior courts also express their disapproval of an existing precedent rather than overruling it?

Answer 23

May prefer a superior court or the parliament to change the law

Question 24

How can courts expand common law by applying and standing by an earlier precedent?

Answer 24

• might still need to refine the law and make it clearer as they apply a precedent to a new case = law expands and develops over time
• might need to interpret the meaning of words and phrases used in past precedents = meaning is broadened or narrowed by future courts

Question 25

What is statutory interpretation?

Answer 25

The process by which judges give meaning to the words and phrases in an act of parliament so it can be applied to resolve the case before them

Question 26

What are reasons for statutory interpretation?

Answer 26

• Sections of a statute may be drafted in very broad, general terms to cover wide range of circumstances = ambiguity = interpretation needed (meaning of words/phrases narrowed) to clarify meaning according to intention of statute & ensure it can be applied to a specific fact scenario e.g. studded belt case

• The meaning of words may change over time and statute may become out of date; judges need to clarify meaning OR broaden/narrow meaning of words to reflect community views/values e.g. ‘de facto relationship’ originally meant man and woman living in domestic relationship. Now changed to mean a couple living in domestic relationship, regardless of gender.

• As Parliament makes laws in futuro, they may be unable to foresee a particular situation and the
courts must step in to clarify the law to the case before them.

• Mistakes in drafting a bill e.g. act may be silent on an issue (gaps in statute) = court must interpret (broaden/narrow meaning of words/phrases) to resolve case

Question 27

What factors affect the ability of courts to make law?

Answer 27

the doctrine of precedent
judicial conservatism
judicial activism
cost and time of bringing a case to court
the requirement for standing

Question 28

Explain the ability of the doctrine of precedent to assist the ability of courts to make law

Answer 28

Consistency = rule of law upheld via fair application of law + judges in lower courts guided by wisdom of more experienced judges

Predictability and transparency in application of law = reps can guide parties on likely outcome of case

Save time and resources as same point is not decided upon over and over again

Allows for flexibility via RODD = precedents can change & develop over time

Enables law-making via establishing/applying of precedent = refining the law as judges interpret the meaning of words and phrases used in statute or past precedents, making them clearer = allows law to expand and change over time

Judges not bound to follow precedents established in different jurisdictions or by lower/equal courts

Question 29

Explain the ability of the doctrine of precedent to hinder the ability of courts to make law

Answer 29

Lower courts bound to follow possibly outdated precedents set by higher courts even if they disapprove = unjust outcome

Time-consuming + $$$ to locate past precedents + difficult to identify ratio decidendi

Only Superior Courts can make law, so if party unsatisfied with outcome due to outdated precedent, they will need to appeal to higher court = using $ + resources of courts

Subject to supremacy of parliament (except for High Court when constitutional validity of statute is concerned)

Higher courts reluctant to reverse/overrule precedent in interest of consistency, or preferring to leave onus of law reform on parliament

Restricted to interpreting legislation when relevant case is brought before the court ($$$ + standing) = can only make laws and clarify meaning of statute after a dispute has arisen (ex post facto)

Question 30

What is judicial conservatism?

Answer 30

When judges adopt a narrow interpretation of the law, avoiding major politically-influenced changes and leaving the onus of law reform on parliament

Question 31

How does judicial conservatism assist courts in law-making?

Answer 31

maintains stability of law as judges show restraint when making decisions that could markedly change the law

lessens possibility of appeals on a question of law = saving time and resources of courts

allows parliament, which has the role of reflecting community views and values, to make more significant, all-encompassing and controversial changes in law (as the scope of courts in law-making is limited to the facts of the specific cases which are brought before them, whereas parliament can legislate on whole issues)

Question 32

How does judicial conservatism hinder courts in law-making?

Answer 32

restricts ability of courts to make significant changes to law that may be outdated and need changing to reflect community attitudes

can discourage judges from considering a range of social and political factors when making law

may be seen as unprogressive and ignorant towards modern views and values

Question 33

What is judicial activism?

Answer 33

When judges adopt a broad interpretation of the law, considering a range of social + political factors in decision-making and undertaking a secondary role in implementing law reform.

Question 34

How does judicial activism assist courts in law-making?

Answer 34

can broadly interpret statute in a way that recognises the rights of people

allows judges to consider range of social and political factors and community views when making a decision = can update outdated law = possibly more fair + representative judgements

allows judges to be more creative when making decisions and implementing significant legal change

can put pressure on parliament to make legislative changes e.g. native title act 1993 (Cth)

Question 35

How does judicial activism hinder courts in law-making?

Answer 35

possibly more appeals on a question of law

may lead to courts making more radical, politically-influenced changes in law that do not reflect community values (difficult to gauge views of the majority)

judges may base decisions on their own political biases = not impartial = hinder fairness

judges going beyond legislative power by expanding meaning of statute beyond original intention of parliament = undermine independence

progressive judges may constantly seek to modify and develop the law which can cause inconsistency and confusion.

must still wait for a relevant case to come before them before actively changing the law.

Question 36

What cost factors are involved in taking a case to court?

Answer 36

cost of legal rep
court fees (e.g. filing fees, hearing fees, jury costs) e.g. a jury in the Supreme Court costs $804.20 for the 1st day
expensive appeal process e.g. standard application for leave to appeal to Supreme Court of Appeal costs $2257

Question 37

What time factors are involved in taking a case to court?

Answer 37

court backlogs = long wait (months/years) to have matter heard before courts

lengthy pre-trial procedures = time-consuming but can reduce length of trials e.g. 11 years to proceed to trial in Sanrus v. Macarthur Coal case

usually, only higher courts can set precedent = must pursue time-consuming and $$$ appeal process e.g. standard application for leave to appeal to Supreme Court of Appeal costs $2257

Question 38

How do cost factors assist court in law-making?

Answer 38

courts are able to narrow issues in a dispute to lower costs for parties, helping them pursue case until final determination

high costs mean than only legit cases with merit are pursued all the way to appeal courts that can set precedent and make law

Question 39

How do cost factors hinder courts in law-making?

Answer 39

high costs deter litigants (who cannot afford legal action and don’t qualify for legal aid) from pursuing their case & rights in court - court is not able to make law in all necessary areas if relevant disputes are not brought before them

high costs deter parties from pursuing appeals process - court unable to develop law in all necessary areas if appeals not pursued, as higher appeal courts possess power to set precedent & make law

Question 40

How do time factors assist courts in law-making?

Answer 40

courts can make law relatively quickly once a case is brought before them e.g. courts not required to follow lengthy law-making processes e.g. developing, debating, drafting a bill etc.

cases continue until a decision is made to resolve dispute = certainty of outcome

Question 41

How do time factors hinder the courts in law-making?

Answer 41

some courts, particularly appeal courts where most precedents are set, can take very long to determine case due to complexity of the facts

parties delayed in getting a case ready for trail = undermine fairness + integrity of evidence = can reduce the validity of law made via courts

superior courts need to wait for a case to come before them before they can develop law; the time taken to appeal to the higher courts slows the development of the law.

Question 42

What is locus standi?

Answer 42

‘standing in a case’

that is, the litigant must be directly affected by the issues/matters involved in the case for the court to be able to hear and determine the case

Question 43

What is standing?

Answer 43

Refers to the ability of a party to appear before and be heard by a court, on grounds that they are an aggrieved party and have been directly impacted by the issues/matters involved in the case so as to justify their involvement.
Based on locus standi.

Question 44

A party can have standing if they demonstrate a ‘special interest’ in the case. What does this mean?

Answer 44

more affected by the issues/matters involved in the case than members of general public

show that they’ll gain greater material advantage (more than just winning) if action succeeds and greater material disadvantage (more than just losing) if the action fails, in comparison to members of general public

Question 45

How does legal standing assist the courts in law-making?

Answer 45

Ensures cases are only brought to court by ppl who are genuinely affected by issue/matter = prevent wasting court time + resources on listening to parties who are not aggrieved

Encourage ppl not directly affected by issue to seek other avenues of redress e.g. demonstration

Question 46

How does legal standing hinder courts in law-making?

Answer 46

people with general interest in case (e.g. where legislation potentially breaches individual rights) have no right to pursue legal action on behalf of public interest = not everyone can influence law reform via courts = inaccessible = laws not improved

reduced opportunity for developing common law as people with only intellectual interest are barred from pursuing legal action

Question 47

What are the key features of the relationship between the courts and parliament?

Answer 47

supremacy of parliament
ability of courts to influence parliament
interpretation of statutes by courts
codification of common law
abrogation of common law

Question 47

What are the key features of the relationship between the courts and parliament?

Answer 47

supremacy of parliament
ability of courts to influence parliament
interpretation of statutes by courts
codification of common law
abrogation of common law

Question 48

outline the supremacy of parliament

Answer 48

parliament - supreme law-making body - can pass/change any laws within constitutional powers

• can pass legislation to codify/abrogate common law, with the exception of high court decisions on constitutional matters
• responsible for passing statute to establish the courts and their jurisdiction + can pass statute to change their jurisdiction e.g. Magistrates’ Court Act amended every year since passing, creating divisions like Koori Court
• can pass statute that restricts the ability of courts to make decisions with respect to certain matters e.g. mandatory min. sentences

Question 49

outline the ability of courts to influence parliament?

Answer 49

can provide ratio decidendi & obiter dictum to encourage parliament to implement law reform

court’s decisions may highlight flaw/gap in existing law:
- parliament may change law if court is bound by past precedent and makes decision that creates injustice
- court decision may cause public uproar

court may exercise judicial conservatism, relying on parliament to investigate and implement law reform

court may exercise judicial activism, influencing parliament to change law e.g. mabo case

Question 50

outline the interpretations of statute by courts

Answer 50

statutory interpretation = clarify + give meaning to words and phrases in statute and broaden/narrow meaning = can be applied to resolve the specific cases before them = set precedent that is followed in future similar cases and, together with the statute, forms a part of the law.

high court can interpret meaning of words and phrases in aus. cons. = ensure parliament acts within law-making power + can change division of law-making powers between cth. and states

Question 51

What does the codification of common law involve?

Answer 51

as supreme law-making body, parliament can make law that confirms & reinforces a precedent set by courts in ruling e.g. mabo case native title act

Question 52

What does the abrogation of common law involve?

Answer 52

Parliament can pass legislation to override decisions made by the courts, with exception of high court decisions on constitutional matters.