Chapter 7 and 8: Courts as lawmakers, Civil and criminal legal process Flashcards

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1
Q

Appeal

A

A challenge to a judgement of a lower court in a higher court. Appeals are a major reason for having a court hierarchy.

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2
Q

Black letter of the law

A

The doctrine that the interpretation of statutes by courts must reflect the literal meaning of the law.

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3
Q

Binding precedent

A

A decision of a higher court that must be followed by a lower court in the same jurisdiction eg District Court must follow precedent set in the Supreme Court.

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4
Q

Distinguishing

A

When a court departs from established precedent because it decides that the case before it is substantially different from the facts involved in an earlier case.

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5
Q

Disapproving

A

Occurs when a court decides a precedent set by a previous judgement in a court at the same level is wrong in law.

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6
Q

Caveat emptor

A

This means ‘Let the buyer beware’ and was a principle which led to the development of the tort of negligence.

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7
Q

Damages

A

Financial compensation ordered by a court to offset loss or suffering caused by another’s fault or negligence. There are three types of damages - compensatory, exemplary and nominal.

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8
Q

Duty of care

A

The legal obligation of a person to exercise reasonable care in the conduct of an activity. It is the key principle behind the tort of negligence.

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9
Q

Federal courts

A

Part of the hierarchy of Commonwealth courts established in 1976 under the Constitution to hear civil and criminal disputes under Commonwealth law eg Family Court

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10
Q

Federal tribunals

A

Bodies established to adjudicate matters of dispute under Commonwealth jurisdiction which exist to provide specialist and speedy judgement eg Administrative Appeals Tribunal, Migration Review Tribunal

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11
Q

Ejusdem generis

A

A common law rule followed by courts when interpreting statutes. It means ‘of the same kind’ and allows judges to assess if a situation before them fits the common class in an Act.

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12
Q

Golden rule

A

One of the three standard approaches of a court to interpreting statutes. If the application of a statute would lead to an absurd outcome, then a judge may refer to the general aim of the statute in interpreting an apparently inconsistent part of the Act.

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13
Q

Hierarchy of courts

A

The order of importance of courts in legal decision making. A hierarchy exists to allow for specialization and for appeals to be made.

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14
Q

Indictable offence

A

A more serious criminal offence. These are usually heard before a judge and jury and include rape and murder.

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15
Q

Landmark High Court cases

A

Cases which have been instrumental in changing the legal landscape because of the impact of the ruling. These include Mabo and Dietrich (changing common law) .

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16
Q

Literal rule

A

Also called the black letter approach to the law, where the wording of the statute is used to interpret the meaning, regardless of context.

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17
Q

Mischief rule

A

An approach to statutory interpretation which requires the judge to assess the purpose of the legislation or the mischief the Act seeks to prevent.

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18
Q

Noscitur a sociis

A

A common law rule that states the questionable meaning of a word can be ascertained by its association with other words within the context of the phrase.

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19
Q

Litigation

A

The action of taking legal proceedings against another person.

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20
Q

Overruling

A

When a higher court takes a decision in a similar but subsequent case and departs from the original judgement believing the lower court wrongly decided the original case.

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21
Q

Obiter dicta

A

Literally means ‘sayings by the way’. This forms a second part of a legal judgement, where the ratio spells out the reasons for the decision and the obiter dicta are outside the core reasoning.

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22
Q

Persuasive precedent

A

A common law precedent that may be used in a court at the same or a lower level to help decider the case. It is not binding on that court.

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23
Q

Precedent

A

The basis of common law, which is that cases are decided in accordance with the decisions made in prior cases, which form precedent.

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24
Q

Ratio decidendi

A

Literally means ‘the reason for deciding’ and is the core principle underlying a court judgement. This forms precedent and is binding on all lower courts in the jurisdiction.

25
Q

Simple offence

A

A minor criminal offence heard through a criminal summons in the Magistrates Court. An example is being drunk and disorderly in a public place.

26
Q

Stare decisis

A

Literally means to ‘let the decision stand’. It is the basis of the doctrine of precedent that judges should abide by the legal rules or principles that were established in past cases.

27
Q

Statutory interpretation

A

The determination of the meaning of an Act of parliament by a court before they apply it to a specific case. This can be done literally, to avoid the mischief intended or to apply the golden rule to prevent an absurd outcome.

28
Q

Tort of negligence

A

A tort is an action that is a’wrong’ that does not arise from a breach of contract. This tort was established in Australia by the Grant v Knitting Mills case of 1936, following the precedent established in Britain of Donoghoe v Stephenson (1932).

29
Q

Arbitration

A

An ADR method by which an independent and neutral third party hears and considers the facts of a dispute and gives a final and binding decision

30
Q

Alternative dispute resolution

A

The resolution of conflicts and legal disputes privately through methods such as mediation, arbitration and negotiation.

31
Q

Adversarial law

A

The system of law adopted in Australia and common law countries which supports the principle that justice is best served through competing parties presenting their arguments to a neutral adjudicator for resolution.

32
Q

Bail

A

The money or sureties put up by a person accused of a crime to assure a court they will present themselves at a subsequent trial. This is granted if the person is deemed not be a risk to the community or a flight risk.

33
Q

Discovery

A

A part of the pre trial phase of a civil case where each litigant requests information of the other side to discover relevant facts.

34
Q

Defence and/or counterclaim

A

In a civil trial, it can form part of the defence of a claim against the plaintiff, where they issue a counterclaim against the plaintiff.

35
Q

Community work order

A

A sanction which may be issued by a judge or magistrate where an offended must carry out work in the community.

36
Q

Hearsay evidence

A

Evidence which is not admissible in the adversarial system by virtue of its unreliability, which has been provided second hand to the court.

37
Q

Injunction

A

A court order that requires a party to take specific action or refrain from a specific action.

38
Q

Inquisitorial system

A

A system of law which exists in much of continental Europe which have a civil law code which is adjudicated by judges who conduct many aspects of the process before the case is heard.

39
Q

Further and better particulars

A

The second stage of the pre trial phase of a civil dispute. It includes interrogatories and discovery in order to further prepare the litigants for resolution of a dispute.

40
Q

Defendant

A

The person charged with a criminal offence or with a civil matter, who can then defend the allegation.

41
Q

Memorandum of appearance

A

This is a writ which announces to a plaintiff the need to formally respond to the writ outlining the civil dispute and is served on the plaintiff.

42
Q

Examination in chief

A

The key part of a trial where witnesses are examined by legal counsel. This may be followed by cross examination and then, reexamination.

43
Q

Mediation

A

A form of ADR where a mediator helps the parties to a dispute attempt to resolve the matter. There are no formal rules and mediation may be abandoned at any stage by either party.

44
Q

Negotiation

A

A voluntary form of ADR where each party attempts to resolve a civil dispute.

45
Q

Plaintiff

A

The person charged with a criminal offence or with a civil wrong.

46
Q

Remand

A

The act of holding a person charged with an offence in detention between their arrest and trial. This is used if there is a perception of danger to the community or flight risk if bail were granted.

47
Q

Rules of evidence

A

Rules governing the acceptability and presentation of evidence in a trial. These are intended to ensure fairness and include the rule on relevance and inadmissibility of hearsay.

48
Q

Sanction

A

A remedy which may be used by a judge to punish a guilty party, including community service, fines and custodial sentences.

49
Q

Privilege

A

This can be claimed by a defendant when evidence is called for which may be deemed privileged because it was part of a communication that was private and should not be subject to public examination eg attorney and client, husband and wife.

50
Q

Similar fact evidence

A

A rule of evidence which establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.

51
Q

Statement of claim

A

In the pre trial phase of a civil matter, a Statement of Claim is a court document that sets out how much the plaintiff claims you owe them and why they are making the claim.

52
Q

Restitution and rescission

A

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of a contract. Rescission is the name for the remedy that terminates the contractual duties of both parties.

53
Q

Writ

A

A written order issued by a court, commanding the party to whom it is addressed to perform or cease performing a specified act.

54
Q

Specific performance

A

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

55
Q

State Administrative Tribunal

A

The main WA tribunal established to provide an accessible means of adjudicating and resolving disputes not covered by the original jurisdiction of courts eg objections made to decisions taken by government officials or bodies.

56
Q

Relevance

A

This is a general principle that is usually stated in the form that only evidence that is relevant to a fact in issue is admissible. The evidence will be relevant only if it is capable of assisting the inquiry, one way or the other, when determining the existence of an alleged fact.

57
Q

Corroboration

A

Evidence that confirms or reinforces the testimony of another witness or party in a trial.

58
Q

Balance of probabilities

A

The standard of proof required in order to be successful in civil proceedings. and to find a party at fault.

59
Q

Standard of proof

A

The level or quality of proof required in order to attain a verdict in a criminal or civil case. In a criminal case, the standard is ‘beyond reasonable doubt’. In a civil case, it is on ‘the balance of probabilities’.