Courts As Lawmakers Definitions

Question 1

Common law

Answer 1

Law created in the courts based on previous judgements.

Question 2

Statutory interpretation

Answer 2

Distinguishing of parliamentary set laws

Question 3

Parliamentary sovereignty

Answer 3

Parliament has absolute sovereignty and is supreme over all other branches of government (executive and judiciary).
Reason is because as a democratic country, they represent the people and so have the countries sovereignty.

Statute law prevails in dispute with court common-law because population didn’t give sovereignty to the courts.

Question 4

Negligence

Answer 4

Where an act of failure to act by a person causes damage to another person or to their property. “you must take reasonable care to avoid acts or omissions that can reasonably foresee to enjoy your neighbour”

Question 5

Lawmaking roles of parliament vs. the courts

Answer 5

Parliament- makes laws in the form of state acts of parliament (statute
Courts- creates precedent (common

Question 6

Copy a diagram of court hierarchy

Answer 6

High court
__________________|__________________
| |
State courts Common wealth courts
| _________|___________
Supreme courts | |
| Federal courts Family courts
District courts |____________________|
| |
Magistrates court Federal magistrates court

Question 7

Civil and criminal jurisdiction of magistrates Court

Answer 7

Notes

Question 8

Civil and criminal jurisdiction of district court

Answer 8

Notes

Question 9

Criminal and civil jurisdiction of Supreme Court

Answer 9

Notes

Question 10

Three reasons why court hierarchy exists

Answer 10

Doctrine of precedent
Appeals
Specialisation

Question 11

Doctrine of President is

Answer 11

Principle that lower courts are bound by the legal principles created in the decisions made by higher courts.

Question 12

Stare decisis

Answer 12

To standby that decided. It is the foundation of doctrine of precedent

Question 13

Ratio Decidendi is

Answer 13

Reason for deciding It is the judges legal reasoning for reaching decisions established in the case. It is binding for lower courts and persuasive to sources of equal or higher standing

Question 14

Orbiter dicta

Answer 14

Statements made by the way. It is additional info made to our judgement. It is persuasive to all courts a.k.a. not binding

Question 15

Persuasive precedent is

Answer 15

Legal precedent that does not have to be followed. Can be used as a guide by all courts in future cases.

Question 16

Binding president is

Answer 16

Legal president that must be followed. Locals follow decisions made in higher courts (doctrine of President.). In order to use, it must be courts of the same hierarchy and cases must be similar

Question 17

What is following common-law

Answer 17

Subsequent court applying the precedent set in previous decisions of case.
Example negligence in Donoghue v. Stevenson to grant v. Australian knitting Mills

Question 18

What is reversing common-law

Answer 18

Higher court is a case on appeal and decides lower court which had heard the case wrongly decided the case, it will reverse the decision.
Ratio decidendi of lower court no longer valid, replace by higher courts one.
Example studded belt Supreme Court repealed decision of magistrates Court.

Question 19

What is overruling common-law

Answer 19

case in a higher court that relies on legal principles that have been formed an earlier case in lower court.
Judge in higher court may believe earlier case was wrong we decided and higher court doesn’t follow precedent set by law court, it overalls LU decision.

Question 20

What is disapproving common-law

Answer 20

Courts at equal standing on not binding on each other.
When Judge from equal standing refuses to follow decision made they disapprove.
May result in appeal and higher court to determine law

Question 21

How is common law made: negligence

Answer 21

Look at notes

Question 22

Decision of House of Lords in Donoghue V. Stevenson

Answer 22

Ratio to send I that was that Manufacturer Stevenson are used a duty of care to final consumer. To follow tort of negligence.
-Introduced neighbour principal.
-Neighbour is anyone who is so closely and directly
affected through loss or injury by the actions of
another, so much that it is reasonable to
contemplate how one’s actions could affect them.
= Stevenson reasonably could contemplate how actions could affect final consumer

Question 23

Advantages and disadvantages of common-law

Answer 23

Advantages.
-Consistency – the doctrine of President insures consistency through the use of President.
-Political independence – unlike parliament, courts not dominated and controlled by a party policies or ideology.
-Unforeseen cases – can examine and develop responses to real life situations.
Disadvantages.
-Lack of review.
-Easily overridden by legislation.

Question 24

Why is statutory interpretation needed

Answer 24

Ambiguity in law due to:
– drafting problems 
– inconsistencies and contradictions 
– words and definitions. 
****Parliamentarians don’t have experience and 
        expertise with law. 
They may:
– have loopholes 
– interpret in a way not intended 
– contradict with similar one 
– have a vague or interpretational definition

Question 25

What is literal rule

Answer 25

Interpret words of an act as written, the supplying literal meaning of the words.

Example road rules exclude pedestrians from freeway therefore you would break rule walking in emergency lane for assistance

Question 26

What is the golden rule

Answer 26

Used when literal would result in inconsistent or logical outcome, or it is inconsistent with purpose of the act.
Applied by taking into consideration the circumstance and purpose of the act

Question 27

What is the purpose rule

Answer 27

Allows judges to refer to general purpose of the legislation to find the mischief that act set out to prevent.
Judges must determine intention and then apply.

Example drink-driving on road? Yes, still mischief

Question 28

What are the elements of negligence

Answer 28

1- Duty of care.
Is owed when you should be able to reasonably foresee that your actions would closely and directly affected that person.
2- Breach of duty of care.
Can be determined by assessing the standard of care required from a reasonable person against the care provided by the defendant.
3- Loss or injury – was reasonably foreseeable
and not to remote.
Must show causation, must show not remoteness

Question 29

Relationship between courts and Parliament

Answer 29

Look at notes