COURTS

Question 1

What is a court

Answer 1

There are a large variety of courts and other dispute resolution bodies that operate in Australia. Each state and territory has its own judicial system

Question 2

Original Jurisidiction

Answer 2

Original jurisdiction refers to a court’s authority to hear and decide a case for the first time before any appellate review occurs.

Question 3

Criminal law is

Answer 3

Actions regarded as anti-social and dangerous to the community. Such actions are prohibited by statutes and prosecuted and punished by government.

Question 4

Civil law is

Answer 4

The body of law that regulates the ordinary private relationships in a community. These disputes can be adjudicated by civil courts.

Question 5

The court hierarchy in Western Australia is divided into three main levels:

Answer 5

Magistrates Court
District Court
Supreme Court

Question 6

Methods Of Statutory Interpretation

Answer 6

There are three tools that courts use when interpreting statutes to achieve parliaments intentions:

Maxims to ensure consistency: Rules and legal principles that have developed over a long period of time. The maxims of interpretation assist courts in applying consistent methods of interpretation of statue law

Rules to declare the law

Acts Interpretation Acts passed by parliament which provide guidance.

Question 7

Ejusdem Generis

Answer 7

Ejusdem Generis is Latin for “of the same kind”. Applied to a list of words where a general word appears after a list of specific words of a similar case. This allows the court to decide on a case by case basis if other things are of the same category.

Question 8

Noscitur a Sociis

Answer 8

Latin for, “by the company it keeps – to know a thing by its associates.” The meaning of a word may be known from the accompanying words.

Question 9

Expressio unis est exclusio alterius

Answer 9

Latin for, “the express mention of one excludes all others.”

Parliament may list a series of specific things in a class / category. Unlike general terms allowing for ejusdem generis, the use of specific terms without a general term following prevents the courts from expanding the class / category.

Question 10

What does common law need to work

Answer 10

Common law requires the following elements to operate:

an overarching principle that underpins the entire system

a doctrine that is applied by courts in every case

a court hierarchy within which these operate.

Question 11

What does stare decisis mean

Answer 11

Stare decisis is Latin for, ‘To stand on what has been decided’. This is the basis of the doctrine of precedent, that judges should abide by past judgements.

Question 12

Stare decisis results in:

Answer 12

Fairness – parties treated the same as in previous cases
Predictability – parties can expect what a judgement based on similar cases will be
Consistency – similar cases = similar outcomes
Flexibility if a court is convinced that no similar case exists. The new judgement becomes part of case law. This flexibility also allows the law to adapt to new circumstances.

Question 13

What is a precedent

Answer 13

A precedent is a judge made decision that stands as an example / guide for future decisions in cases of similar factual circumstances

Question 14

Expressio unis est exclusio alterius

Answer 14

Latin for, “the express mention of one excludes all others.”
Parliament may list a series of specific things in a class / category. Unlike general terms allowing for ejusdem generis, the use of specific terms without a general term following prevents the courts from expanding the class / category

Question 15

Statutory Interpretation: Rules

Answer 15

There are three main rules of statutory interpretation. These are:
The Literal rule
The Golden rule
The Purpose (mischief) rule

Question 16

The Literal Rule

Answer 16

A rule for statutory interpretation in which the courts apply the standard dictionary definition of a word in a statute i.e. the courts use the ordinary meaning of the language within the statute – the Act is read literally.

Question 17

The Golden Rule

Answer 17

A rule of statutory interpretation in which the court seeks alternative meanings of a word in a statute if the literal meaning results in absurd or unjust outcomes.

Question 18

The Purpose Rule

Answer 18

Also known as the mischief rule. A rule for statutory interpretation in which the court seeks the original purpose of a statute i.e. what mischief did it seek to prevent?

Question 19

Conservative Judge

Answer 19

A conservative judge relies heavily on literal interpretations of statutes i.e. the law says what it means and means what it says.

These judges are reluctant to change the meaning of statutes through interpretation – they believe this is the task / role of the parliament as the legislative branch.

Question 20

Activist judge

Answer 20

An activist judge is more likely to use their discretion in order to keep the statute updated and in line with social, economic, technological and cultural change.

These judges more readily use the golden and purpose rules

Question 21

Ratio decidendi

Answer 21

Ratio decidendi is Latin for ‘reason for deciding’. Judges must explain their judicial reasoning – this enhances the openness and transparency of the court proceedings.

Question 22

Obiter dicta

Answer 22

Latin for ‘sayings by the way’ – judges comments on other cases to illustrate and clarify their judgements. The obiter is not binding, but may influence subsequent decisions.

Question 23

Precedent Rules

Answer 23

Ratio decidendi (rationale based on law) of judges in higher courts with appellate jurisdiction, may create common law

The precedents of higher courts bind lower courts within the same court hierarchy

Higher courts may be persuaded by the ratio decidendi and obiter dicta (observations – not binding) of lower or equivalent courts

Question 24

A binding precedent

Answer 24

is a decision of a higher court that must be followed by a lower court in the same hierarchy.