Chapter 3 - Sources of Law: Civil Law Flashcards
Describe the basic procedure in a civil case.
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Explain the judge’s power to make law.
In most cases, when deciding cases, judges simply find an established rule of law and apply it. But sometimes, the judge may not be able to find an established rule of law to apply. In such cases, judges have various alternatives. They may:
- Declare a rule as a rule of Australian law the first time, eg, a previously unwritten rule of law, or one deriving from natural law or custom.
- Interpret an existing rule of law, to establish its meaning
- Extend an established rule of law to a new situation.
How English judges developed ‘common law’?
After the 14th century, a uniform body of law came to be applied by the King’s courts throughout England, replacing local law. This is called ‘common law’. The down turn is that the common law is applied in a strict and legalistic manner (since judges need to follow past rulings).
What are equitable law (general law)? What is common law (case law)? How are they different?
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Describe the principle of ‘stare decisis’.
‘Stare decisis’ means ‘let the decision stand’ i.e. let it be seen as laying down the rule by which later such cases will also be decided.
In particular, the doctrine of precedent states that:
previous decisions of SUPERIOR COURTS must be followed, unless the cases can be CONSIDERED ‘DISTINGUISHIBLE’ on their material facts and therefore treated as sufficiently different to justify applying different rules.
Explain the phrase ‘ratio decidendi’ of the case.
The ratio decidendi of a case consists of the legal principle, rule or reason which the court has applied to the materials facts of the case to arrive at its decision. A ratio decidendi is a flexible and sometimes difficult thing to ascertain with absolute precision. The ratio decidendi is the essential part of the precedent.
Explain how to ascertain when a ratio decidendi is binding.
-When courts are ranked in seniority, with a right of appeal from lower level courts to superior courts, they are said to have a hierarchical relationship.
Lower courts are bound to follow the previous decisions of superior courts in the same hierarchy.
The decisions of courts outside of a hierarchy are not binding, but may be persuasive (encouraged by the High court).
What are the Commonwealth Hierarchy for?
To judge on Commonwealth legislation.
How does each case is cited?
After a case is decided, a written ‘law report’ is published, setting out what the case was about and what the judge decided. The reports of individual cases are published in collections called ‘law reports series’. Each of these collections has its own name, eg the Commonwealth Law Reports (CLR).
Each case has its own citation, consisting of a name; a year; a volume number, the abbreviation of the law report series in which the law report is published; and a page number, eg:
Taylor v Johnson (1983) 151 CLR 422.
Explain the phrase ‘obiter dictum’
It is the Latin phrase meaning “by the way”, that is, a remark in a judgment that is “said in passing”. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
