Courts Flashcards
What are civil cases?
Begins when plaintiff serves defendant with a statement of claim
D responds by preparing a defence. If fails to do so, court may grant a default judgement.
D may also make a counterclaim.
Each party make ask questions of other (interrogatories), request to see copies of relevant documents (via discovery).
What are the court processes?
- Evidence is led by both parties from witnesses, or by producing documents (adversarial system)
- Court decides what facts are proved and what the law is
- Case is decided by applying the law to the proven facts and an appropriate order is made
- judicial decisions include not only order, but reasons for decision (reasons are the source of common law rules)
- unsuccessful party may appeal a decision to a court higher in court hierarchy.
What are the common law presumptions?
- Words have their current meaning. (contemporary meaning)
- Words have their technical meaning.
- Words have consistent meanings. (statute uses same word few times, same meaning each time)
- There is no surplus-age.
- The provision is constitutional.
- The provision is consistent with international law.
- The provision is not extra-territorial.
- The provision is not retrospective.
- The provision does not contradict established rights.
- The provision does not bind the Crown.
- Penalties have limited application.
- Offences and penalties correspond.
- Things not included are excluded.
- Specific provisions override general provisions.
- Later provisions override earlier provisions.
What is equity?
Chancellor had to base decisions on principles of ‘conscience, good faith, honesty and equity’
- trained as priests
- took different approach to judges, did not feel bound by precedent and decided cases on basis of conscience
- after reformation, chancellors with legal rather the ecclesiastical training can be appointed
- led to legislation of equity
- parliament can override equitable rules by passing legislation
Common law and equity merge?
- Administration of common law and equity was merged by Judicature Act 1873.
- Reforms aimed at avoiding inconvenience of separate court systems, and the confusion stemming from incomplete division of courts
- However it was administration of these laws, not their principles of law that were merged.
- In Vic, the SC was established in 1852, was given both common law and equitable jurisdiction.
What are law reports?
Judges record their decision and reasons in a written judgement
Published in law reports
What is the doctrine of precedent?
Achieves a degree of consistency in common law
Previous decisions of superior courts must be followed, unless facts of case can be distinguished.
A decision of a court lower in same H or in a different court H creates persuasive, not binding precedent.
Ratio decidendi and obiter dicta?
Ratio decidendi: consists of a legal principle, rule or reason, the application of which was essential to the court’s resolution of the dispute
Obiter dicta: which are comments made by the judge that were not essential to the decision reached
Balfour v Balfour [1919] 2 KB 571 (English COA) ORIGIN
Facts → husband promised to pay wife (allowance), reason being that his wife is unwell and can’t join in overseas where he works
Legal Issue → Husband didn’t deny promise, issue of enforceability, parties relying on trust and confidence in each other rather than legal institutions
Ratio Identification → those agreements don’t result in contracts, did not intend they have legal consequences, parties never agreed for contract to be legally enforceable, husband wins and wife loses
Binding → would be persuasive in Australia
NOTE: when married persons enter into domestic agreements, the reasonable assumption is that they do not intend such agreements to be legally enforceable.
Cohen v Cohen [1929] 42 CLR 91 (High Court of Australia) APPLIED
Facts → plaintiff alleged that prior to marriage, defendant promised to pay her 100 a year as a dress allowance, plaintiff alleged that 278 was owing, parties then separated
Legal Issue → whether the agreement is legally binding or to be attended with legal consequence
Aus HC followed approach in Balfour, used as persuasive precedent
Ratio Identification → When married persons enter into domestic agreements, the reasonable assumption is that they do not intend such agreements to be legally enforceable.
Binding → ratio decidendi is binding on all Australian courts that are below HC (i.e. all)
Merritt v Merritt [1970] 1 WLR 1211 DISTINGUISHED
Facts → parties separate, husband left to be with someone else, wife will continue to pay mortgage, husband give her allowance, mortgage paid, doesn’t give house to her
Legal Issue → whether parties intended contract to be legally binding
Distinguishing facts → safely presumed that they intend to create legal relations as couple was not in amity, about to separate
Ratio Identification → when married persons whose relationship has already broken down enter into agreements, even of a domestic nature, the reasonable assumption is that they do intend such agreements to be legally enforceable
Binding → ratio is only persuasive in Australian court
Ermogenous v Greek Orthodox Community [2002] 209 CLR 95 (HCA) OVERRULED
Facts → employed as minister, promised payment, after resignation sued for unpaid annual leave and long service leave, statutory right to unpaid service leave
Legal Issue → enforceable contract?
HC overrules the use of presumptions in cases like Balfour, Cohen, and Merritt
Whether parties intended their agreement to be legally binding should be determined by considering
- subject matter of agreement
- status of parties to it and their relationship to one another
- other surrounding circumstances
