Chapter 7 and 8: Courts as lawmakers, Civil and criminal legal process Flashcards
Appeal
A challenge to a judgement of a lower court in a higher court. Appeals are a major reason for having a court hierarchy.
Black letter of the law
The doctrine that the interpretation of statutes by courts must reflect the literal meaning of the law.
Binding precedent
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.
Distinguishing
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.
Disapproving
Occurs when a court decides a precedent set by a previous judgement in a court at the same level is wrong in law.
Caveat emptor
This means ‘Let the buyer beware’ and was a principle which led to the development of the tort of negligence.
Damages
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.
Duty of care
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.
Federal courts
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
Federal tribunals
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
Ejusdem generis
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.
Golden rule
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.
Hierarchy of courts
The order of importance of courts in legal decision making. A hierarchy exists to allow for specialization and for appeals to be made.
Indictable offence
A more serious criminal offence. These are usually heard before a judge and jury and include rape and murder.
Landmark High Court cases
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) .
Literal rule
Also called the black letter approach to the law, where the wording of the statute is used to interpret the meaning, regardless of context.
Mischief rule
An approach to statutory interpretation which requires the judge to assess the purpose of the legislation or the mischief the Act seeks to prevent.
Noscitur a sociis
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.
Litigation
The action of taking legal proceedings against another person.
Overruling
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.
Obiter dicta
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.
Persuasive precedent
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.
Precedent
The basis of common law, which is that cases are decided in accordance with the decisions made in prior cases, which form precedent.