Chapter 2-Sources Of Contemporary Astralian Law Flashcards
What is common law?
Law made by courts
What is statue law?
Law made by parliament. A way to remember is that a statue is more likely to be of a prime minister then a judge.
What is the adversarial system of trial?
A system of resolving legal conflicts, used in common law. Which relies on the skill of representatives for each side (e.g defence and prosecution lawyers) who present their cases to a decision -maker.
What is the inquisitorial system?
A legal system where the judge takes part in the court and tries to resolve by asking questions, etc. THIS IS NOT IN AUSTRALIA AND IS IN EUROPE, JAPAN, ETC.
How did australia start using common law and how did it originate itself?
It started off when England was captured by Norman’s. When William the conqueror wanted to go back to France he set out common law so that order would stay in England. When England invaded Australia it was passed on.
What is equity?
The body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness.
What is the doctrine of precedent?
The doctrine that a decision must be followed by all lower courts
What is precedent?
A judgement that is authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts.
The purpose of precedent is to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion.
When a judge gives a decision in a case it usually is made up of two parts. Which two parts?
- The ratio decidendi- essential legal reason why a judge came to a particular decision. A decidendi in a higher court will set a binding precedent on lower courts.
- Orbiter dicta- other remarks made by the judge regarding the conduct of the trial; for example, about the credibility of a witness. These remarks do not form part of the decision and thus, do not set a precedent.
What is ratio decidendi?
(Latin) the legal reason for a judge’s decision
What is obiter dicta?
(Latin) comments from a judge in a case that are not directly relevant to the case and , therefore, not legally binding (singular: orbiter dictum)
What is Binding precedent?
What ever a higher court follows the lower court must follow.
What is persuasive precedent?
They do not have to follow it but if they want to they can for instance if another state’s Supreme Court makes a law. If NSW Supreme Court wants to follow it they can and same thing applies for international if England makes a law, Australia can decide if they want to follow or not.
What is Jurisdiction?
The powers of a court , depending on its geographic area, the type of matters that it can decide, and the type of remedy that it can award.
What is an appeal
An application to have a higher court reconsider a lower courts decision, on the basis of an error of law.
What is an summary offence and when is it used?
Criminal offence that can be dealt with by a single judge without a jury and do not require a preliminary hearing. It is used when the offence is minor like obstructing traffic and is dealt in lower courts.
What is an indictable offence and when is it used?
Serious criminal offence that requires indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and a jury and is subject to a greater penalty. It is usually dealt with cases like murder and is done in higher courts.
What happens in local courts and magistrates’ court?
Serious cases are not dealt here. It deals with minor criminal matters and minor civil disputes ($100,000). (look and court hierarchy sheet). And it also deals with committal hearing.
What is a committal hearing and what is the reason it is used?
Inquiry held in the local or magistrates’ court to determine if there is enough evidence to move up to higher courts like district and supreme. In order to not waste courts like that time.
What is the coroner’s court?
When suspicious deaths accuse they investigate and if necessary, coronial inquest are carried out and criminal action is found they will give to higher courts.
What is children’s court?
It deals with offences of involving person under the age of 18 so they the environment is not as harsh.
What is District court of NSW?
This court deals with matters from larceny to manslaughter and civil disputes up to $750,000 and also deals with appellate jurisdiction.
What is larceny?
Taking another persons property with the intention of permanently depriving them from it.(stealing)
What is appellate jurisdiction?
It is the ability/power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions.
What is the Supreme Court?
It is the highest court in NSW and it deals with matter such as murder
What does the federal circuit court of australia do?
The federal court has jurisdiction to over areas such as family law and child support,human rights, copy right, bankruptcy , migration, consumer protection and trade practices, privacy, administrative law and industrial law. It was established to relieve case loads off Federal and family courts and reduce cost and time required to deal with minor federal matters.
What is the federal court of australia and what does it deal with?
It is equivalent to the Supreme Court of NSW and it deals with matters like bankruptcy and industrial matters.
What is the family court of Australia?
It is superior federal court that deal waits very complex family matters such as divorce, parenting orders, the division of property and spousal maintenance. And has appellate jurisdiction from single Family court Judge
