Court Hierarchy and Case Law

Question 1

What laws does parliament create?

Answer 1

Bills, legislation, statute law, acts of parliament

Question 2

What legislation do delegated authorities make?

Answer 2

Delegated legislation, local laws, bylaws, regulations

Question 3

What legislation do courts make?

Answer 3

common law, judge-made law, case law, precedent, unenacted law, legal principles

Question 4

What are the two types of courts?

Answer 4

Courts of General Jurisdiction (General Courts) and Courts of Specialised Jusidiction (Specialty Courts)

Question 5

What cases do general courts hear?

Answer 5

A variety of types of cases

Question 6

What cases do Specialty courts hear?

Answer 6

Only one type of case

Question 7

What are some examples of general courts in SA?

Answer 7

The magistrates court, the district court and the supreme court

Question 8

What are some examples of specialty courts?

Answer 8

Family Law Court

Question 9

What is Australia’s court hierarchy?

Answer 9

high court

federal courts and state courts

federal circuit court, family court, supreme court

district court

magistrates court

Question 10

Which section of the Constitution deals with the Federal Court Hierarchy?

Answer 10

Mainly set out in Chapter III of the constitution and laws created by commonwealth parliament

Question 11

What are the 4 types of federal courts?

Answer 11

High court
Federal court
Family Court
Federal Circuit Court

Question 12

Which court is the most superior in Australia?

Answer 12

The High court which sits at the top of the federal court hierarchy

Question 13

How many justices are in the High Court?

Answer 13

7 justices (Chief justice and six other justices)

Question 14

What are the two jurisdictions of the High Court?

Answer 14

Original jurisdiction and appellate jurisdiction

Question 15

What does the High Courts original jurisdiction involve?

Answer 15

Constitutional disputes where all 7 justices sit as a full bench.

Question 16

Can constitutional interpretations from the High court be overturned?

Answer 16

Constitutional interpretations made by the high court are final and can’t be overturned by an act of parliament

Question 17

What are some recent decisions made in the High Court’s original jurisdiction?

Answer 17

Love v Commonwealth and Thoms v Commonwealth [2020] HCA 3

Question 18

What does the High Courts appellate jurisdiction involve?

Answer 18

The court hears appeals from superior state and federal courts on all branches of law (except constitutional). They sit as a bench of 5 or 7 justices and this jurisdiction forms the majority of their workload

Question 19

Are appeals to the High Court automatic?

Answer 19

Appeals to the High Court are not automatic. People must apply for permission through a special leave application. A panel of 3 justices determines which appeals will be granted and which will be rejected.

Question 20

What is a recent High Court case within their appellate jurisdiction?

Answer 20

Pell v the Queen [2020] HCA 12 and The Queen v Abdirahman-Khalif [2020] HCA 36

Question 21

What is the federal court of australia?

Answer 21

This jurisdiction has a single justice and is the superior court of record and court of law and equity. This court sits in all Australian capital cities. They have a broad jurisdiction including most areas of federal civil law and some summary indictable criminal matters.

Question 22

What types of matters does the federal court of Australia hear?

Answer 22

bankruptcy, industrial relations, corporations (appointing liquidators, corporate management and misconduct), maritime claims, native title claimed, intellectual property claims, taxation

Question 23

What is the full court of the federal court?

Answer 23

this court has appellate jurisdiction meaning that it covers a number of courts, tribunals and different areas of law. The Full Court sits as a panel of 3 justices.

Question 24

Where does the Full Court of the Federal Court of Australia hear appeals from?

Answer 24

From a single justice of the federal court and cases from state supreme courts, the administrative appeals tribunal, the federal circuit court (although not in family law matters) and the national native title tribunal.

Question 25

Can judges of the Federal Court have additional judicial appointments?

Answer 25

Yes they can. Many of the current Federal Court judges hold an additional commission or appointment. There are currently 53 judges of the Federal Court.

Question 26

What was the Family Court?

Answer 26

It is the superior court of record and hears complex family law matters. It has 1 chief justice, 1 deputy chief justices and other judges. However, it merged with the Federal Circuit Court in 2021 and no longer exists as a separate entity.

Question 27

What is the Federal Circuit Court of Australia?

Answer 27

Formerly known as the Federal magistrates court, it was created to reduce the workload of the federal court and the family court of Australia. It is an inferior court and hears less complex matters.

Question 28

What cases does the federal circuit court hear?

Answer 28

bankruptcy, migration and family law.

Question 29

Does the federal circuit court have an appellate jurisdiction?

Answer 29

It does not, meaning that no appeals are heard within this court.

Question 30

What is the SA court hierarchy?

Answer 30

High court

Court of appeal

Supreme court

District court

Magistrates court

Question 31

What is the hierarchy of civil jurisdiction in the magistrates court?

Answer 31

general claims division

consumer and business claims

minor claims division

Question 32

What is the hierarchy of criminal jurisdiction in the magistrates court?

Answer 32

Summary jurisdiction

committal jurisdiction

Question 33

What are SA’s 3 courts of general jurisdiction?

Answer 33

The Magistrates court, the district court and the supreme court.

Question 34

What jurisdictions do the district and supreme court both have?

Answer 34

An original and appellate jurisdiction

Question 35

What are the two jurisdictions of the Magistrates court?

Answer 35

criminal and civil. The magistrates court also has the power to hear a range of commonwealth matters.

Question 36

What are criminal cases?

Answer 36

an individual against the government or crown e.g. R v Jones. This includes summary and indictable offences.

Question 37

What is a summary offence and where are these matters heard?

Answer 37

A summary offence has a maximum penalty of 2 years imprisonment. This can include drink driving, swearing in public and theft. These are heard in the Magistrates court

Question 38

What is a indictable offence and where are these matters heard?

Answer 38

An indictable offence has a maximum penalty of more than 2 years imprisonment. A preliminary hearing will be held to decide if the matter should be heard in the Magistrates court or sent to a higher court.

Question 39

What is a civil case?

Answer 39

A case between individuals or organisations e.g. smith v smith. This includes general claims, consumer and business claims and the minor civil division claims

Question 40

What is a general claim and where are these matters heard?

Answer 40

A general claim is a claim up to $100,000. This can include motor vehicle accident claims and are normally heard in magistrates courts.

Question 41

What is a consumer and business claim and where is this matter usually heard?

Answer 41

A consumer and business claim is commercial, meaning that it can be a dispute between landlords and tenants, disputes about domestic buildings or warranties on second hand vehicles. These claims are usually heard in the magistrates court.

Question 42

What is a minor civil division claim and where are these matters usually heard?

Answer 42

A claim of up to $12,000. Actions in this court are more informal and in most cases legal representation is not allowed. This is usually heard in the magistrates court.

Question 43

What are the jurisdictions of the disctrict court?

Answer 43

Criminal, civil and appellate

Question 44

What is involved in the criminal jurisdiction of the district court?

Answer 44

Matters are heard by 1 judge, defendant has the right to a trial by jury and the maximum penalty is life imprisonment.

Question 45

What types of cases are heard in the criminal jurisdiction of the district court?

Answer 45

serious assaults, kidnapping, sexual offences, death by dangerous driving.

Question 46

What types of cases are heard in the civil jurisdiction of the district court?

Answer 46

Wide range of cases. Hears anything beyond the scope of the Magistrates court except for the most complex matters.

Question 47

What cases are heard in the appellate jurisdiction of the district court?

Answer 47

Limited in the appeals it can hear. It can hear appeals from specialised tribunals and some jurisdictions of the magistrates court.

Question 48

What cases are heard in the criminal jurisdiction of the supreme court?

Answer 48

Most serious cases in SA. Max penalty is life imprisonment without parole. This includes murder and treason.

Question 49

What is involved in cases within the Supreme Court’s criminal jurisdiction?

Answer 49

Cases are heard by a single judge or trial by jury.

Question 50

What cases are heard within the supreme court’s civil jurisdiction?

Answer 50

only the most complex civil matters. There is no limit on damages (financial compensation)

Question 51

What cases are heard within the supreme court’s civil jurisdiction?

Answer 51

only the most complex civil matters. There is no limit on damages (financial compensation)

Question 52

What is involved in cases within the civil jurisdiction of the supreme court?

Answer 52

All cases must go through a form of Alternative Dispute resolution prior to trial

Question 53

What cases are heard in the miscellaneous jurisdiction of the supreme court?

Answer 53

Matters not allocated to other courts such as probate (wills) and admiralty cases.

Question 54

How did the specialist appeals court become part of the supreme court?

Answer 54

through the Supreme Court (Court of Appeal) Amendment Act 2019 (SA)

Question 55

What is involved in the Supreme Court Court of Appeal?

Answer 55

5 justices sit in the Court of Appeal and they are able to sit across a range of jurisdictions as necessary.

Question 56

Can Supreme court justices sitting in the original jurisdiction sit in the Court of Appeal?

Answer 56

No however the chief justice may sit in the Court of Appeal if requried.

Question 57

Are appeals to the Supreme Court automatically granted?

Answer 57

No. Parties apply to the appellate court and argue why an appeal should be granted. Arguments must relate to issues of law, and/or issues of fact in the original trial.

Question 58

Why do court hierarchies exist?

Answer 58

• Flexibility and choice
• Avenues for appeal
• Doctrine of precedent
• Efficiency
• Specialisation

(FADES)

Question 59

What is the Dietrich principle?

Answer 59

Full bench HCA - a criminal trial can’t proceed for a serious indictable offence if the accused is denied legal representation through no fault of their own.

Question 60

Why is judicial review important?

Answer 60

It is essential to the separation of powers and helps uphold the rule of law

Question 61

Is anyone able to have a trial go to court?

Answer 61

High Court has ruled that anyone with legal standing is entitled to have their matter heard in a court of law. Individuals or organisations can test the exercises of this power in an independent court.

Question 62

Why are specialised judges and magistrates important?

Answer 62

Allows for faster and more efficient resolution to occur.

Question 63

What are some examples of specialised courts?

Answer 63

Youth Court, Coroner’s Court (Inquisitorial System), Environment, Resources and Development Court.

Question 64

Why do courts use case management?

Answer 64

They use it to try and resolve disputes as efficiently as possible. It takes some of the responsibility away from the parties to try and progress matters as quickly as possible.

Question 65

What does case management usually result in?

Answer 65

More pre-trial conferences, and direction hearings to try and settle matters before trial.

Question 66

What are the aims of case management?

Answer 66

Bring about faster resolutions, encourage parties to engage in ADR, save parties time and money, reduce reliance on an overcrowded court system

Question 67

What does administrative efficiency mean?

Answer 67

It means that minor, simpler cases heard in inferior courts like the magistrates courts, will hear a high volume of cases. Meanwhile, highest courts hear more serious, complex matters. These courts hear far fewer cases and are more expensive to run, therefore, there are less of them.

Question 68

What does judicial independence mean?

Answer 68

Judges are free from interference, intimidation and pressure. This is essential for any democracy as people need to be confident that disputes will be resolved fairly, without bias and government interference.

Question 69

Can judges hold a position in the legislature or executive?

Answer 69

no as this would blur the lines between the separation of powers.

Question 70

What are judges’ decisions based on?

Answer 70

They can only be based on evidence and legal submission made by parties during the trial. This includes judicial guidance and precedents.

Question 71

What are the 2 ways judges make law?

Answer 71

judicial pronouncement and statutory interpretation.

Question 72

Why are specialised judges and magistrates important?

Answer 72

Allows for faster and more efficient resolution to occur.

Question 72

What is judicial pronouncement?

Answer 72

AKA creation of extension of judicial precedent. Means that a judge creates a new principle in an area where there is no statute or common law that can be used to resolve the dispute.

Question 73

What is an example of a judicial pronouncement?

Answer 73

Donoghue v Stevenson 1932, created law of negligence.

Question 74

Can judges make law about any matter they wish?

Answer 74

No, they can only make law concerning a dispute that comes before them in court.

Question 75

What guides a judge’s decision?

Answer 75

Past precedents

Question 76

How does a judge resolve a dispute when no applicable precedents exist?

Answer 76

The judge will create new case law to resolve the dispute.

Question 77

What is statutory interpretation?

Answer 77

When judges give meaning to words or phrases in legislation to resolve a legal dispute. This can create new legal principles.

Question 78

What does a judge need to consider on when making a decision?

Answer 78

Issues and questions of law and issues and questions of fact

Question 79

What are issues and questions of fact?

Answer 79

These questions answer what happened and help the court determine the truth concerning the allegations. The issue and questions are answered through the witnesses’ evidence.

Question 80

Who is the determiner of fact in a civil case?

Answer 80

a judge alone

Question 81

Who is the determiner of fact in a criminal case?

Answer 81

Jury or a judge

Question 82

What is the ultimate ‘fact’ determined at trial in a criminal case?

Answer 82

Whether or not the defendant is guilty or not guilty.

Question 83

What are issues and questions of law?

Answer 83

They are the foundation of the case law process and can only be decided by a judge. They refer to the interpretation of statutes and the application of case law.

Question 84

How does a judge decide a question of law?

Answer 84

By applying precedent or creating a new one.

Question 85

What are the two elements involved when a judge makes a decision and creates new case law?

Answer 85

Ratio decidendi and obiter dictum

Question 86

What is the ratio decidendi?

Answer 86

In latin it means ‘the reason for deciding’. The ratio provides the binding principle.

Question 87

What is the Obiter dictum?

Answer 87

In Latin it is a ‘remark in passing’. These are remarks made by the judge which might support their decision but are not essential for the decision itself - therefore do NOT form part of the binding principle.

Question 88

What is the doctrine of precedent?

Answer 88

Means that decisions made in previous matters must be followed in future cases with similar facts. Gives practical application to the legal principle of ‘stare decisis’ (to stand by things decided).

Question 89

Where is the doctrine of precedent applied?

Answer 89

to case law, statutory interpretation, sentencing and awards of damages

Question 90

What are the impacts of the doctrine of precedent?

Answer 90

Provides fairness, consistency, uniformity and predictibility

Question 91

Does the doctrine of precedent apply for all cases?

Answer 91

Doctrine only applies in cases with similar material facts, or similar issues of law. When there is significant difference between cases, judges have the flexibility to avoid previous precedents.

Question 92

What is a precedent decision?

Answer 92

An original decision, or an issue or question of law.

Question 93

What are the different types of precedent?

Answer 93

Original, persuasive and binding precedent.

Question 94

What is original precedent?

Answer 94

Created when interpreting a statute (R v McGuinness) or creating a common law principle (Mabo) for the first time

Question 95

What is persuasive precedent?

Answer 95

When courts consider precedents set in other hierarchies e.g. SA courts don’t have an SA precedent to look at similar cases in NSW to help guide them to a decision for SA. The principles set out in the NSW cases are not binding on SA. Comments made in Obiter dictum are also in this category.

Question 96

What is binding precedent?

Answer 96

Means that inferior courts must follow the decision of superior court in the same hierarchy. e.g. SA district and magistrates courts MUST follow decisions of SA supreme court in similar cases.

Question 97

How can courts avoid precedents?

Answer 97

distinguishing, reversing, overruling and disapproving.

Question 98

How can a judge distinguish cases to depart from precedent?

Answer 98

If the facts of the case are materially different, judges are able to distinguish between the two.

e.g. Tomson v Nix 1976 WA Supreme Court. The WA Supreme Court chose not to follow the Searle v Wallbank rule (an owner is not responsible for any injuries caused by straying livestock) in this case due to significant material differences between the injuries caused in the original case and the Thomson case, & it would be inappropriate to consider it an authority.

Case of Searle v Wallbank involved a cyclist colliding with a horse on a country road at night. Nix v Tomson involved a sealed highway with good visibility.

Question 99

What does it mean when a judge reverses precedent?

Answer 99

A court higher in the hierarchy overturns the decision of a lower court on appeal.
A higher court disagrees (on appeal) with the decision of a lower court and reverses it.

e.g. The Wik People v The State of Queensland and Ors 1996 (High Court of Australia)
Full Bench of the High Court overturned a decision of the Full Court of the Federal Court which held that Native Title could not co-exist with Pastoral Leases in Queensland

Question 100

What does it means when a judge overrules precedent?

Answer 100

When a higher court decides not to follow the precedent set by a lower court in the same court hierarchy. A higher court is not obligated to apply the same precedent that was established in a lower court in the same court hierarchy.

For example, if the Supreme Court of SA faced a case with similar facts that had previously come before the District Court, the Supreme Court does not have to make the same decision (apply the same precedent) that the District Court made. If the Supreme Court therefore made a different decision than the District Court did, then the Supreme Court overruled the decision made in the District Court. Overruling therefore sets a new binding precedent on all lower courts with similar facts in the same hierarchy.

In the case of overruling, decisions made by lower courts can often persuade higher courts to make the same decision. Persuasive precedent is not binding on courts, but can be influential on the decisions that courts make.

Question 101

What does it mean to disapprove of precedent?

Answer 101

Disapproving a precedent occurs when a judge decides not to follow an earlier precedent set by another judge on the same level, as they disagree with it or believe it would result in an unjust outcome. Precedent set by a court is only binding on other lower courts within the same hierarchy. Precedent however is not necessarily binding on courts at the same level within the same hierarchy.

Question 102

Why are specialised judges and magistrates important?

Answer 102

Allows for faster and more efficient resolution to occur.

Question 103

What does it mean to disapprove of precedent?

Answer 103

Disapproving a precedent occurs when a judge decides not to follow an earlier precedent set by another judge on the same level, as they disagree with it or believe it would result in an unjust outcome. Precedent set by a court is only binding on other lower courts within the same hierarchy. Precedent however is not necessarily binding on courts at the same level within the same hierarchy.

SGIC v Trigwell and Ors 1978 Full Bench of High Court of Australia

-Full Bench of High Court disapproved the rule in Searle v Wallbank. However, they still followed it, as the decision in Searle v Wallbank was a decision of the House of Lords in England (a superior court to the high Court). Arguably this lead to a unjust outcome- however, the Justices of the High Court stated that it was not up to them to change bad law- this was the role of parliament.

Question 104

What does general disapproval mean?

Answer 104

General disapproval- when a coordinate group of lower court disapproves of a previous decision, but chooses to follow it anyway.

Question 105

What does general disapproval mean?

Answer 105

General disapproval- when a coordinate group of lower court disapproves of a previous decision, but chooses to follow it anyway.

SGIC v Trigwell and Ors 1978 Full Bench of High Court of Australia

-Full Bench of High Court disapproved the rule in Searle v Wallbank. However, they still followed it, as the decision in Searle v Wallbank was a decision of the House of Lords in England (a superior court to the high Court). Arguably this lead to a unjust outcome- however, the Justices of the High Court stated that it was not up to them to change bad law- this was the role of parliament.

Question 106

Why is legislation ambiguous?

Answer 106

Sometimes the ambiguity is intentional as it leaves it up to the courts to interpret. However, sometimes it is unintentional and the legislation itself is just badly drafted with a lack of clarity of language.

Question 107

Why might legislation need to be interpreted?

Answer 107

The intention of the act is not clear, the act is about a complex and technical topic, difficulty in foreseeing possible future applications of the act, inconsistencies within an act or between acts, time pressures in drafting legislation, problems relating to defining words, words used may not cover recent changes.

Question 108

What is an example of a judge interpreting legislation?

Answer 108

Bassell v McGuiness (1981) SASC where the judge interpreted the Road Traffic Act 1961 (SA) deciding that a driver under tow was counted as a driver and thus could be charged with a drink driving offence.

Question 109

What are the methods of statutory interpretation?

Answer 109

Common law rules and parliamentary guidance

Question 110

What are the common law rules for statutory interpretation?

Answer 110

Literal rule, golden rule, mischief rule, noscitur a sociis, ejusderm generis

Question 111

What is the literal rule?

Answer 111

Apply the literal meaning of the words

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found in by an examination of the language used in the statute as a whole. … what does the language mean; and when we find what the language means, in its ordinary natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable

Question 112

What is the golden rule?

Answer 112

Allows court to modify interpretation if a literal interpretation leads to absurdity

Lord Wensleydale in Grey v Pearson: The grammatical or ordinary sense of the words is to be adhered to unless that would result in some absurdity, or some repugnance or inconsistency … In which case the grammatical and ordinary sense of the words may be modified.

Question 113

What is the mischief rule?

Answer 113

What mischief was the Parliament trying to remedy?

The mischief or purpose rule of construction… required an ambiguity or inconsistency before a court could have regard to purpose

Bassell v McGuiness (1981)
Full Court of SA Supreme Court

“driver” in s.74 Road Traffic Act
Drink driving includes a driver
Intoxicated whilst under tow – can veer sharply and cause injury or harm
Same kind of mischief that other drivers could cause

Question 114

What is noscitur a sociis?

Answer 114

The meaning of a word is established by the “surrounding” words.

Latin: the meaning of the words can be understood from the words around them

So, ambiguous words or phrases can be clarified by referring to the context in which they are used

In Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 the court had to decide whether a floor used for storage came under the Factories Act 1961, whereby ‘floors, steps, stairs, passageways and gangways’ had to be kept free from obstruction.

The court held that as all the other words were used to indicate passage, a floor used exclusively for storage did not fall within the Act.

Question 115

What is ejusderm generis?

Answer 115

General words have the meaning of specific words mentioned

Where words follow specific words, the general words are to be taken as referring only to those things of the same class as specifically mentioned e.g. ‘cats and dogs’ does not include wild animals.

In Powell v. Kempton Park Racecourse Co. [1899] AC 143 the House of Lords had to decide whether s. 1 of the Betting Act 1853, which prohibited the keeping of a ‘house, office, room or other place’ for the purpose of betting, applied to Tattersall’s Ring, which was an outdoor area at the racecourse. The court said it did not, as the specific places were all indoors. However, if the words ‘other place’ had been followed by a word like ‘wheresoever’ or ‘whatsoever’, the rule would not apply. The rule is really a presumption, which can be displaced by a contrary intention shown in the legislation. In the example given, adding the words ‘wheresoever’ or ‘whatsoever’ would show that the words ‘other place’ should not be limited to places which were indoors.

Question 116

Why are specialised judges and magistrates important?

Answer 116

Allows for faster and more efficient resolution to occur.

Question 117

What are the canons of construction?

Answer 117

Rules created by judges to guide them when there are no existing rules to help in that specific context.
This allows judges to make the following assumptions, when interpreting the law:
Parliament would not deliberately remove someone’s rights
If the parliament has passed complementary legislation, it show their approval of the Court’s decision
Judges may use common sense when interpreting statutes to ensure parliament’s intentions are upheld.

Question 118

What are the canons of construction?

Answer 118

Rules created by judges to guide them when there are no existing rules to help in that specific context.

Question 119

What assumptions do the canons of construction allow judges to make?

Answer 119

This allows judges to make the following assumptions, when interpreting the law:
Parliament would not deliberately remove someone’s rights
If the parliament has passed complementary legislation, it show their approval of the Court’s decision
Judges may use common sense when interpreting statutes to ensure parliament’s intentions are upheld.

Question 120

What is the parliamentary guidance for statutory interpretation?

Answer 120

The Acts Interpretaion Act, specific guidance in the act itself i.e. definitions of words use in the act, open definitions and closed definitions.

Question 121

What is an example of a closed definition?

Answer 121

the definition of a fish hook is a “hook especially designed to catch trout”

Question 122

What is an example of an open definition?

Answer 122

The definition of a fish hook is “a hook especially designed to catch underwater creatures including but not limited to trout.”

Question 123

How can parliament respond to a court decision?

Answer 123

Let the decision stand, codify the decision or remediate the decision.

Question 124

What does it mean when parliament codifies a court decision?

Answer 124

They put the decision of the court into legislation

Question 125

Why might parliament wish to codify a court decision?

Answer 125

Parliament may wish to codify to avoid any later over-rulings by superior courts, or to strengthen the principle established through clarification legislation (complementary legislation).

Question 126

What are some examples of when parliament has codified a court decision?

Answer 126

Federal parliament passed the Native Title Act 1993 (Cth) after the Mabo judgment

State parliament passed the Manufacturers Warranties Act to codify consumer rights regarding defective goods

Question 127

Why might parliament remediate or override a court decision?

Answer 127

If parliament disagrees with the interpretation of a statute or the creation of a common law principle it may pass remedial legislation to over-ride the decision

Question 128

What are some examples of remedial legislation?

Answer 128

Wrongs Act Amendment Act (no2) 1983 (SA)
SA parliament changed the Wrongs Act to override the High Court’s decision in Trigwell which upheld the old common law rule that farmers were not liable for straying sheep.

SA parliament to pass changes to the sentencing laws to prevent release of Colin Humphreys

Question 129

What are the advantages of lawmaking by case law?

Answer 129

It is developed by judges - free from political pressure.
Made according to principles of the rule of law and natural justice.
The use of the doctrine of precedent brings consistency.
Courts can respond flexibly to the individual requirements of each case.
Courts can avoid precedent if required.
The course hierarchy and appeal process provides checks.
The process is open to public scrutiny.

Question 130

What are the disadvantages of lawmaking by case law?

Answer 130

Judges are not democratically elected.
Rigid adherence to precedent may result in injustice e.g. trigwell
Courts can only make law when cases come before them.
Courts are expensive and not accessible to the disadvantaged.
Judgements and precedents can be difficult to analyse and open to interpretation.
May require the parliament to ‘fix’ courts ‘mistakes’.

Question 131

Why are specialised judges and magistrates important?

Answer 131

Allows for faster and more efficient resolution to occur.