Court Hierarchy and Case Law Flashcards
1
Q
What laws does parliament create?
A
Bills, legislation, statute law, acts of parliament
2
Q
What legislation do delegated authorities make?
A
Delegated legislation, local laws, bylaws, regulations
3
Q
What legislation do courts make?
A
common law, judge-made law, case law, precedent, unenacted law, legal principles
4
Q
What are the two types of courts?
A
Courts of General Jurisdiction (General Courts) and Courts of Specialised Jusidiction (Specialty Courts)
5
Q
What cases do general courts hear?
A
A variety of types of cases
6
Q
What cases do Specialty courts hear?
A
Only one type of case
7
Q
What are some examples of general courts in SA?
A
The magistrates court, the district court and the supreme court
8
Q
What are some examples of specialty courts?
A
Family Law Court
9
Q
What is Australia’s court hierarchy?
A
high court
federal courts and state courts
federal circuit court, family court, supreme court
district court
magistrates court
10
Q
Which section of the Constitution deals with the Federal Court Hierarchy?
A
Mainly set out in Chapter III of the constitution and laws created by commonwealth parliament
11
Q
What are the 4 types of federal courts?
A
High court
Federal court
Family Court
Federal Circuit Court
12
Q
Which court is the most superior in Australia?
A
The High court which sits at the top of the federal court hierarchy
13
Q
How many justices are in the High Court?
A
7 justices (Chief justice and six other justices)
14
Q
What are the two jurisdictions of the High Court?
A
Original jurisdiction and appellate jurisdiction
15
Q
What does the High Courts original jurisdiction involve?
A
Constitutional disputes where all 7 justices sit as a full bench.
16
Q
Can constitutional interpretations from the High court be overturned?
A
Constitutional interpretations made by the high court are final and can’t be overturned by an act of parliament
17
Q
What are some recent decisions made in the High Court’s original jurisdiction?
A
Love v Commonwealth and Thoms v Commonwealth [2020] HCA 3
18
Q
What does the High Courts appellate jurisdiction involve?
A
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
19
Q
Are appeals to the High Court automatic?
A
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.
20
Q
What is a recent High Court case within their appellate jurisdiction?
A
Pell v the Queen [2020] HCA 12 and The Queen v Abdirahman-Khalif [2020] HCA 36
21
Q
What is the federal court of australia?
A
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.
22
Q
What types of matters does the federal court of Australia hear?
A
bankruptcy, industrial relations, corporations (appointing liquidators, corporate management and misconduct), maritime claims, native title claimed, intellectual property claims, taxation
23
Q
What is the full court of the federal court?
A
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.
24
Q
Where does the Full Court of the Federal Court of Australia hear appeals from?
A
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.
25
Can judges of the Federal Court have additional judicial appointments?
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.
26
What was the Family Court?
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.
27
What is the Federal Circuit Court of Australia?
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.
28
What cases does the federal circuit court hear?
bankruptcy, migration and family law.
29
Does the federal circuit court have an appellate jurisdiction?
It does not, meaning that no appeals are heard within this court.
30
What is the SA court hierarchy?
High court
Court of appeal
Supreme court
District court
Magistrates court
31
What is the hierarchy of civil jurisdiction in the magistrates court?
general claims division
consumer and business claims
minor claims division
32
What is the hierarchy of criminal jurisdiction in the magistrates court?
Summary jurisdiction
committal jurisdiction
33
What are SA's 3 courts of general jurisdiction?
The Magistrates court, the district court and the supreme court.
34
What jurisdictions do the district and supreme court both have?
An original and appellate jurisdiction
35
What are the two jurisdictions of the Magistrates court?
criminal and civil. The magistrates court also has the power to hear a range of commonwealth matters.
36
What are criminal cases?
an individual against the government or crown e.g. R v Jones. This includes summary and indictable offences.
37
What is a summary offence and where are these matters heard?
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
38
What is a indictable offence and where are these matters heard?
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.
39
What is a civil case?
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
40
What is a general claim and where are these matters heard?
A general claim is a claim up to $100,000. This can include motor vehicle accident claims and are normally heard in magistrates courts.
41
What is a consumer and business claim and where is this matter usually heard?
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.
42
What is a minor civil division claim and where are these matters usually heard?
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.
43
What are the jurisdictions of the disctrict court?
Criminal, civil and appellate
44
What is involved in the criminal jurisdiction of the district court?
Matters are heard by 1 judge, defendant has the right to a trial by jury and the maximum penalty is life imprisonment.
45
What types of cases are heard in the criminal jurisdiction of the district court?
serious assaults, kidnapping, sexual offences, death by dangerous driving.
46
What types of cases are heard in the civil jurisdiction of the district court?
Wide range of cases. Hears anything beyond the scope of the Magistrates court except for the most complex matters.
47
What cases are heard in the appellate jurisdiction of the district court?
Limited in the appeals it can hear. It can hear appeals from specialised tribunals and some jurisdictions of the magistrates court.
48
What cases are heard in the criminal jurisdiction of the supreme court?
Most serious cases in SA. Max penalty is life imprisonment without parole. This includes murder and treason.
49
What is involved in cases within the Supreme Court's criminal jurisdiction?
Cases are heard by a single judge or trial by jury.
50
What cases are heard within the supreme court's civil jurisdiction?
only the most complex civil matters. There is no limit on damages (financial compensation)
51
What cases are heard within the supreme court's civil jurisdiction?
only the most complex civil matters. There is no limit on damages (financial compensation)
52
What is involved in cases within the civil jurisdiction of the supreme court?
All cases must go through a form of Alternative Dispute resolution prior to trial
53
What cases are heard in the miscellaneous jurisdiction of the supreme court?
Matters not allocated to other courts such as probate (wills) and admiralty cases.
54
How did the specialist appeals court become part of the supreme court?
through the Supreme Court (Court of Appeal) Amendment Act 2019 (SA)
55
What is involved in the Supreme Court Court of Appeal?
5 justices sit in the Court of Appeal and they are able to sit across a range of jurisdictions as necessary.
56
Can Supreme court justices sitting in the original jurisdiction sit in the Court of Appeal?
No however the chief justice may sit in the Court of Appeal if requried.
57
Are appeals to the Supreme Court automatically granted?
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.
58
Why do court hierarchies exist?
- Flexibility and choice
- Avenues for appeal
- Doctrine of precedent
- Efficiency
- Specialisation
(FADES)
59
What is the Dietrich principle?
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.
60
Why is judicial review important?
It is essential to the separation of powers and helps uphold the rule of law
61
Is anyone able to have a trial go to court?
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.
62
Why are specialised judges and magistrates important?
Allows for faster and more efficient resolution to occur.
63
What are some examples of specialised courts?
Youth Court, Coroner's Court (Inquisitorial System), Environment, Resources and Development Court.
64
Why do courts use case management?
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.
65
What does case management usually result in?
More pre-trial conferences, and direction hearings to try and settle matters before trial.
66
What are the aims of case management?
Bring about faster resolutions, encourage parties to engage in ADR, save parties time and money, reduce reliance on an overcrowded court system
67
What does administrative efficiency mean?
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.
68
What does judicial independence mean?
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.
69
Can judges hold a position in the legislature or executive?
no as this would blur the lines between the separation of powers.
70
What are judges' decisions based on?
They can only be based on evidence and legal submission made by parties during the trial. This includes judicial guidance and precedents.
71
What are the 2 ways judges make law?
judicial pronouncement and statutory interpretation.
72
Why are specialised judges and magistrates important?
Allows for faster and more efficient resolution to occur.
72
What is judicial pronouncement?
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.
73
What is an example of a judicial pronouncement?
Donoghue v Stevenson 1932, created law of negligence.
74
Can judges make law about any matter they wish?
No, they can only make law concerning a dispute that comes before them in court.
75
What guides a judge's decision?
Past precedents
76
How does a judge resolve a dispute when no applicable precedents exist?
The judge will create new case law to resolve the dispute.
77
What is statutory interpretation?
When judges give meaning to words or phrases in legislation to resolve a legal dispute. This can create new legal principles.
78
What does a judge need to consider on when making a decision?
Issues and questions of law and issues and questions of fact
79
What are issues and questions of fact?
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.
80
Who is the determiner of fact in a civil case?
a judge alone
81
Who is the determiner of fact in a criminal case?
Jury or a judge
82
What is the ultimate 'fact' determined at trial in a criminal case?
Whether or not the defendant is guilty or not guilty.
83
What are issues and questions of law?
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.
84
How does a judge decide a question of law?
By applying precedent or creating a new one.
85
What are the two elements involved when a judge makes a decision and creates new case law?
Ratio decidendi and obiter dictum
86
What is the ratio decidendi?
In latin it means 'the reason for deciding'. The ratio provides the binding principle.
87
What is the Obiter dictum?
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.
88
What is the doctrine of precedent?
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).
89
Where is the doctrine of precedent applied?
to case law, statutory interpretation, sentencing and awards of damages
90
What are the impacts of the doctrine of precedent?
Provides fairness, consistency, uniformity and predictibility
91
Does the doctrine of precedent apply for all cases?
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.
92
What is a precedent decision?
An original decision, or an issue or question of law.
93
What are the different types of precedent?
Original, persuasive and binding precedent.
94
What is original precedent?
Created when interpreting a statute (R v McGuinness) or creating a common law principle (Mabo) for the first time
95
What is persuasive precedent?
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.
96
What is binding precedent?
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.
97
How can courts avoid precedents?
distinguishing, reversing, overruling and disapproving.
98
How can a judge distinguish cases to depart from precedent?
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.
99
What does it mean when a judge reverses precedent?
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
100
What does it means when a judge overrules precedent?
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.
101
What does it mean to disapprove of precedent?
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.
102
Why are specialised judges and magistrates important?
Allows for faster and more efficient resolution to occur.
103
What does it mean to disapprove of precedent?
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.
104
What does general disapproval mean?
General disapproval- when a coordinate group of lower court disapproves of a previous decision, but chooses to follow it anyway.
105
What does general disapproval mean?
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.
106
Why is legislation ambiguous?
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.
107
Why might legislation need to be interpreted?
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.
108
What is an example of a judge interpreting legislation?
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.
109
What are the methods of statutory interpretation?
Common law rules and parliamentary guidance
110
What are the common law rules for statutory interpretation?
Literal rule, golden rule, mischief rule, noscitur a sociis, ejusderm generis
111
What is the literal rule?
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
112
What is the golden rule?
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.
113
What is the mischief rule?
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
114
What is noscitur a sociis?
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.
115
What is ejusderm generis?
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.
116
Why are specialised judges and magistrates important?
Allows for faster and more efficient resolution to occur.
117
What are the canons of construction?
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.
118
What are the canons of construction?
Rules created by judges to guide them when there are no existing rules to help in that specific context.
119
What assumptions do the canons of construction allow judges to make?
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.
120
What is the parliamentary guidance for statutory interpretation?
The Acts Interpretaion Act, specific guidance in the act itself i.e. definitions of words use in the act, open definitions and closed definitions.
121
What is an example of a closed definition?
the definition of a fish hook is a "hook especially designed to catch trout"
122
What is an example of an open definition?
The definition of a fish hook is "a hook especially designed to catch underwater creatures including but not limited to trout."
123
How can parliament respond to a court decision?
Let the decision stand, codify the decision or remediate the decision.
124
What does it mean when parliament codifies a court decision?
They put the decision of the court into legislation
125
Why might parliament wish to codify a court decision?
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).
126
What are some examples of when parliament has codified a court decision?
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
127
Why might parliament remediate or override a court decision?
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
128
What are some examples of remedial legislation?
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
129
What are the advantages of lawmaking by case law?
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.
130
What are the disadvantages of lawmaking by case law?
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'.
131
Why are specialised judges and magistrates important?
Allows for faster and more efficient resolution to occur.
