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Legal Studies 3/4 > Chapter 5 - Sac Study > Flashcards

Chapter 5 - Sac Study Flashcards

1
Q

How can Courts make laws? (3)

A
  • deciding on a new issue that is brought before them in a case
  • when a previous principle of law requires expansion to apply to a new situation
  • statutory interpretation
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2
Q

How are judges ability to make law restricted?

A

Judges can only make laws in the following situations:

  • if a case is brought before a superior court
  • if there is no previous binding decision, if a court is bound they can’t make a precedent, however there may be opportunity to establish new principle of law if distinguishing differences can be shown
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3
Q

what is the acronym for explaining how precedent operates?

A 
PHROBS
P - persuasive precedent
H - hierarchy 
R - ratio decidendi 
O - obiter dictum
B - binding precedent
S - stare decisis
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4
Q

When is a precedent persuasive? (4)

A
  • precedent from courts in same hierarchy
  • precedent from courts in another hierarchy
  • precedent from inferior courts (lower courts in hierarchy)
  • obiter dicta from another court
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5
Q

When is a precedent binding?

A

precedents in superior court in same hierarchy dealing with the same legal principles and sufficiently similar facts

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6
Q

What is an example of a persuasive precedent?

A

Donoghue v. Stevenson - this was not binding on Australian courts, but was used as persuasive precedent in Grant v. Aus Knitting Mills, which established the law of negligence in Aus

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7
Q

What are the ways judges can develop precedent or avoid following an earlier decision?

A 
RODD
R - reversing
O - overruling
D - distinguishing
D - disapproving
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8
Q

What is an example of a judge distinguishing?

A

‘Davies v. Waldron’ case distinguished the case from a previous case because of the difference in material facts

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9
Q

What is an example of a judge reversing?

A

Queen v. Klamo the court of appeal decided to uphold appeal against the conviction and ordered Klamo to be acquitted. This reversed decision of the supreme court

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10
Q

What is an example of disapproving?

A

Trigwell case the judge expressed his disapproval, but did follow the old common law and urged parliament to change the legislation

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11
Q

What are 2 reasons for interpretation of statutes by judges?

A
  • The meaning of the words may be ambiguous
  • Changing nature of words
  • Mistakes in drafting the bill
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12
Q

Why may the meaning of the words of an Act be ambiguous?

A

words and phrases in Act attempt to cover broad range of issues, as a result the meaning of some words might be ambiguous.
Courts need to interpret the words to decide on their meaning according to intention of the Act

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13
Q

What is an example of the words in an Act being ambiguous?

A

Court needed to interpret the phrase ‘start to drive’ in the Road Safety Act to see whether is included attempting to turn on the ignition - the court held that it did

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14
Q

What is changing nature of words in an Act?

A

meaning of words can change over time as society changes; legislation needs to be interpreted to clarify meaning of words

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15
Q

What is an example of the nature of words in an Act changing?

A

‘de facto relationship’ was a man and a woman living in a domestic relationship. This changed to a couple living in a domestic relationship, regardless of gender.

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16
Q

What are the methods used by judges to interpret acts? (plus 3 examples)

A

intrinsic materials - the actual words in the act, the long title, headings
extrinsic materials - reports from committees and law reform bodies, dictionaries, precedents

17
Q

what are 3 effects of statutory interpretation by judges?

A
  • the interpretation becomes or is part of the ratio decidendi and can set a precedent
  • the interpretation can narrow the application of the term or expression interpreted. (studded belt case narrowed definition of ‘regulated weapon’)
  • ruling can broaden the application (mansfield v. kelly “public place” included private vehicle in public place)
18
Q

How final is a courts decision? (4)

A

is a final statement of law unless:

  • one of parties decides to appeal against decision
  • reversing, overruling or abrogating (cancelling) a decision
  • extending a previous decision
  • narrowing a precedent
19
Q

How can a court extend a previous decision and what is an example? (finality of courts decision)

A

courts can extend previous decisions to include wider meaning
eg. extending negligence by a manufacturer to cover all types of negligence

20
Q

How can a court narrow a precedent and what is an example of this? (finality of courts decision)

A

courts can narrow previous decisions by interpreting a previous precedent more narrowly
eg. general duty of care for negligent advice was narrowed in a later case to only include advice given by someone with special skill

21
Q

What are 5 strengths of law making through the courts? (DERP-Q)

A

DEVELOP - courts can develop areas of law not covered by legislation by making a decision on a matter when it arises (law of negligence established then further developed)
EXPERT - judges are expert and experienced in the law and see the effects of laws and how they are applied in everyday cases. Makes laws relevant & statutory interp.
RIGID - courts can keep law from becoming too rigid by dist, overr, or rev previous decisions
POLITICAL INFLUENCE - courts are not subject to political influence when making a decision which allows them to make more objective assessments
QUICK - courts can change a law quickly if a relevant case is brought before them eg. Marriage Act ACT

22
Q

What are 5 weaknesses of law making through the courts?

SCEBR

A

BOUND - doctrine of precedent may mean they are bound and cannot make a new law when case is brought before it
RELEVANT CASE - Must wait for relevant case before they can change/make the law, person must also have standing. e.g. McBain case
ELECTED - judges are appointed not elected so may not rep. values of maj. of people & aren’t answerable and acc. to people
CONSULTATION - Unable to partake in community consultation or engage experts to provide advice about change to law (par can investigate whole areas)
SLOW - changes in a particular area of law through the courts can be slow to develop, such as the law of negligence

23
Q

What is the relationship between courts and parliament in law-making? (5)

A
  • parliament creates courts & their jurisdictions
  • parliament can override decisions made by courts
  • parliament can be influenced by decisions made by courts
  • courts can interpret the law
  • parliament and the courts work together
24
Q

what is ‘parliament creates courts and their jurisdictions”? plus example (relationship between par and courts)

A
  • with exception of HC, all courts were created by an act of parliament and could be disbanded by an Act. Par. creates special divisions of courts to make the court system more effective
    eg. Vic par passed an Act to create a division of the county court
25
Q

What is ‘parliament can override decisions made by courts’? plus example (relationship between par and courts)

A
  • where a court upholds law that is outdated & no longer reflective of community views, par. can legislate to change the law or avoid such decisions & previous precedent is no longer applicable
    eg. Vic par. passed an Act, making rape of a wife by husband a crime, as previous legislation that allows this was outdated and no longer reflected community views
26
Q

what is ‘parliament can be influenced by decisions made by courts’ plus example (relationship between par and courts)

A
  • court decision cannot overrule a decision of parliament if act is within jurisdiction of parliament. However, par. can be influenced by decisions made by courts
    eg. in trig well case court was bound by a common law. The HC suggested this law was outdated and par. should change it, so vic. parliament overrode the common law
27
Q

what is ‘courts can interpret the law’? (relationship between par and courts)

A
  • many statues have errors or are ambiguous and require interpretation.
  • It is role of the court to determine meaning of the word or phrase in question and create new precedent
  • courts fill gaps or correct errors in leg. made by par.
28
Q

what is ‘parliament and the courts work together’? (relationship between par and courts)

A
  • par. is supreme law making body and its main function is to pass laws. Courts have responsibility of resolving disputes that arise form breaches of those laws
29
Q

What is ‘if a case is brought before a superior court’? restriction on judges ability to make law

A
  • judges can only make/change law when a case is brought before them.
  • person must have standing, taking case to higher court is expensive & the court can only make law on relevant issues in question in that case
30
Q

What is an example of an obiter dictum?

A

The obiter dictum in Heaven v. Pender was to be used as a persuasive precedent in later cases to establish a general duty of care

31
Q

What are two reasons why precedent provides for effective law making?

A
  • IMPROVES EFFICIENCY - provides for an element of predictability and certainty, parties can anticipate what will happen in their case. Improves efficient
  • CONSISTENCY & FAIRNESS - all parties can be assured they are treated in the same way
32
Q

What does precedent depend on?

A

precedent depends on the courts being organised in a hierarchy. Courts high in the hierarchy, are the courts involved in making law

Legal Studies 3/4 (24 decks)

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