Courts and law making

Question 1

Civil cases

Answer 1

Private dispute between people or companies

Question 2

Criminal case

Answer 2

Public dispute between a natural person and the state/corporation

Question 3

Constitutional case

Answer 3

Dispute about the meaning of the constitution or the application of its limits

Question 4

Jurisdiction

Answer 4

Official power to make legal decisions and judgements

Question 5

General jurisdiction

Answer 5

Courts can hear a wide range of cases including civil and criminal matters and administrative law

Question 6

Major jurisdiction

Answer 6

Jurisdiction in civil and criminal disputes

Question 7

Non justiciable

Answer 7

West minster conventions are incapable of adjudication by the court as there are no texts to interpret

Question 8

Original jurisdiction

Answer 8

When the court hears the case for the first time

Question 9

Appellate jurisdiction

Answer 9

When courts hear a case on appeal

Question 10

What are the jurisdictions of the District court vs Magistrates court

Answer 10

Both have general jurisdiction, District court also sees more serious cases

Question 11

Why do statutes need to be interpreted (5)

Answer 11

Word meanings, inconsistencies and contradictions between acts, inconsistencies and contradictions within acts, drafting error and time and changing circumstances

Question 12

What does it mean that statute law is written ‘in futuro’

Answer 12

Laws made that foresee future problems

Question 13

Why is the principle of ‘stare decisis’ applied (3)

Answer 13

Fairness meaning parties are treated the same in similar cases, predictability and consistency

Question 14

What is ‘ratio decidendi’

Answer 14

The idea that judges must explain why and how they decide a case

Question 15

What is ‘obiter dicta’

Answer 15

persuasive ‘by the way statement’ as judges only include the main reasons and some other considerations they took

Question 16

What is ‘Stare decisis’

Answer 16

When courts stand by what has been decided before them

Question 17

What is persuasive precedent

Answer 17

Can influence higher courts but they aren’t forced to follow it

Question 18

Doctrine of precedent avoidance mechanisms

Answer 18

Distinguishing, overturning, reversing, disapproving

Question 19

Distinguishing precedents

Answer 19

If a party thinks the facts are different from the previous cases, they can convince the judge to distinguish the case, so the past precedent doesn’t apply

Question 20

Overturning precedents

Answer 20

Superior appellate courts have the power to overrule precedents, so we don’t have outdated law applying to modern law

Question 21

Reversing precedents

Answer 21

When cases are appealed to a higher court which finds that the original decision was wrong meaning it substitutes its ratio decidendi in place of the lower courts in turn reversing the original decision

Question 22

Disapproving precedents

Answer 22

Lower courts can express disapproval of a precedent despite having to apply it. Their ration outlines the reasons why they think the law is unjust and the judges are essentially inviting a party to appeal to a higher court where a different decision might be made
Can also occur between courts on the same level where both precedents stand until a higher court resolves the conflict

Question 23

Strengths of law making in the courts

Answer 23

Courts can change law quickly if a relevant case is brought before them.
Can’t be influenced by the politics – ultra vires, Precedents are predictable, Up to the courts to interpret laws and make precedents
Courts are consistent, Can be more flexible for specific cases

Question 24

Weaknesses of law making in courts

Answer 24

Courts cannot change the law unless a case is brought before the court.
If Parliament doesn’t like an outcome, they can create statute law to abrogate it, Lower courts have no choice but to follow precedents from higher courts, Abrogate

Question 25

Differences between parliament and courts

Answer 25

Parliament is elected and responsible to the people, makes statute law in futuro, can make broad and general but rapid change and have delegated legislation, Courts have judges that aren’t elected, make precedents/common law ex post facto, make specific but slow decisions, no delegated powers

Question 26

Similarities between parliament and the courts

Answer 26

Parliament makes new law and amends new law, courts make precedent on new issues and can over-rule old precedents, commonwealth law and high court precedents are superior, both use majority rule to make decisions