FOL - Topic 3 Flashcards
1
Q
Issues in judicial decisions
A
- sometimes principles of law applied are implicitly considered
- difficult when rules are applied in multiple judges
2
Q
Issues in applying the doctrine of precedent
A
- weight of a case may vary
- binding and persuasive precedents
- judicial regrets of applying binding precedent
3
Q
Rationale for the DOP
A
- certainty/consistency
- equality, by treating like cases alike
- promotes efficiency as later courts don’t need to expend resources reconsidering it
4
Q
Difficulties in identifying the ratio
A
- determining whether the principle of law was in contention in the earlier case, a legal requirement to form a ratio
- scope of the ratio
- distinguishing the ratio from the obiter dicta
- not every statement of law leading to a decision is part of the ratio
5
Q
Legal requirement for a ratio
A
must be a ruling on a point of law relevant to the case, rather than a statement of law
6
Q
Finding the ratio among diverging judgments
A
- find the common legal principles/reasoning of the majority
- ratio decided by the majority
7
Q
Equally divided courts and ratio
A
- usually avoided with odd number of judges
- in any other case, opinion of the Chief Justice (or Senior Justice) decides
8
Q
Equally divided court - VIC
A
- ultimately decided with the opinion of the senior judge of appeal present
- unless the appeal is heard by a Full Court with 2 judges, then a rehearing by a Court of Appeal with more than 2 judges must occur
9
Q
Facts of Cohen v Sellar [1926]
A
- Miss C (p) and Mr S (d) agreed to marry, and in Dec 1923 Mr S gave her a diamond engagement ring w/o any explicit conditions
- broke up in Dec 1924, p claimed d refused to marry her, d claimed otherwise
10
Q
Procedural history of Cohen v Sellar [1926]
A
- previous action in the County Court by d to determine who was entitled to the ring
- matter adjourned first hear the HC decision and became a counterclaim in the proceedings
11
Q
Issues in Cohen v Sellar [1926]
A
- whether or not the p or d had made the refusal to marry
- whether or not the engagement ring should be returned to the d
- whether or not there was a legal justification to not marry
12
Q
Ratio of Cohen v Sellar [1926]
A
- if a man refuses to carry out his promise to marry, without legal justification, he may not demand the return of the engagement ring
13
Q
Facts of Papa v Vaco [2007]
A
- AV (p) gave VP (d) an engagement ring worth $15,250 on Aug 6, 2005
- 10 days later, relo deteriorated and VP called off the wedding
- VP tried to return the ring, but AV told her to keep it
- later, VP had her father dispose of the ring with other mementos of the relo
14
Q
Issues in the Papa case
A
- appeal on question of law
- whether the magistrate erred in law by ruling in favour of detinue for the value of the ring
- whether AV was estopped from seeking to recover the value of the ring
- whether the conditional gift (ring) became an absolute gift due to occurrences on 16 Aug, 2005
15
Q
Decision in the Papa case
A
- the magistrate did not err in law
- summons of VP dismissed, ordered to compensate AV for the cost of the ring
16
Q
Reasons for decision in the Papa case
A
- party cannot reject a gift and later claim it as a gift if they continue to assert they do not want it
- not open to the bailee to cause the item bailed to be thrown away
- VP never accepted the ring, and thus became a bailee of it
- AV had the intention of preserving the marriage
17
Q
Application of Cohen v Sellar to the Papa case
A
- the former case found that if a woman is given a ring in contemplation of marriage and refuses to fulfil the condition of marriage (w/o legal justification), she must return it
18
Q
Facts of Toh v Su [2017]
A
- Mr Toh (p) and Ms Su (d) agreed to marry in October 2015
- during the relationship the p bought gifts for the d valued at $5,000
- opened a shared bank account on 17 Oct 2015
- 25 Oct p bought a $15,500 engagement ring, a $500 male wedding band and an $800 female wedding band
- p proposed on 5 Dec
- late Feb 2016, they purchased a bedroom suite for $2,640 (joint account)
- d said she paid $1,000 to the account and p said he later transferred $2,640 to the account
- d received personal refund of $1,000, remaining $1,640 transferred to account
- 5 Mar, p called off the marriage and parties agreed to return everything belonging to the other party
- p’s demand for the return of the rings and gifts were denied
19
Q
Issue in Toh v Su
A
- p suing for the engagement ring on the basis it was a conditional gift
- p suing for the return of the wedding bands
- p suing for the return of the 5 gifts
- p suing for the $1,640 and the $1,000 paid by the furniture shop
20
Q
Decision in Toh v Su
A
- d deliver to the p only the 2 wedding bands, and pay him $1,000
21
Q
Reasons for decision in Toh v Su
A
The engagement ring
- termination of marriage not “initiated by the donee or mutual consent”, so no order of the engagement ring
Agreement to return property
- items unconditionally gifted by one party to another don’t belong to the person who purchased them
the contract was constituted by words used, not the conduct
Wedding bands
- purchased by p in contemplation of marriage, thus should be returned to him
The $2,640
- insufficient evidence for full analysis
- implied agreement that the p would contribute the full price of the furniture, so when the transaction cancelled, implied he would get the money back
- d was doubly reimbursed for her $1,000 contribution, must pay the p $1,000
22
Q
History of judge-made law
A
- Parl emerged in England in the late 13th century
- prior, legal answers/rights found in community decisions
- in the 13th century, disputes came before the King’s Justices, making law ‘common’ to the realm
23
Q
Declaratory theory of law
A
- the law is just there and courts mysteriously discover it and declare it
- any change is merely an earlier court having made a mistake about it
- a myth
24
Q
Criticisms/problems with judicial law-making
A
- unelected judges
- retrospectivity problem (people being punished for acts they didn’t know were crimes)
- separation of powers
25
When will the HC overrule itself?
Majority in 'John'
- earlier questions didn't rest on a principle carefully worked out in a number of cases
- differences between the reasons of justices making up the majority
- earlier decisions achieved no useful result
- decisions not independently acted on
In 'Imbree'
- whether the change is necessary for a better connection with more fundamental principles/doctrines
26
Significance of R v L (1991)
- marital rape case
- principle that marriage gave the wife's irrevocable consent was no longer accepted
- HC unanimously held this should be abolished
27
Dividing Aus criminal law jurisdictions
Common law jurisdictions
- NSW, VIC, SA
Code jurisdictions
- QLD, WA, TAS, (NT, ACT)
28
Difference between 'plainly wrong' and per incuriam precdents
Plainly wrong -- demonstrably wrong and thus not bound
- broader than per incuriam
Per incuriam (through lack of care) -- decision made without proper consideration of relevant statutes or binding precedents
29
Criteria for a plainly wrong precedent
Greenwood J in BHP v NCC
- consideration of an incorrect statutory instrument in the resolution
consideration of a provision not enacted at the date of events, or failure to consider a relevant provision
- failure to apply to a binding decision of a higher court in the same hierarchy, an intermediate Court of Appeal of another jurisdiction or clear persuaive dicta of the HC
30
when does the per incuriam rule apply?
- when a court reviews its own decision
- lower courts still must follow even if they believe a precedent is incorrect
31
issues with labelling decisions 'plainly wrong'
- clashes with the idea of comity, the courtesy or civility between courts and judges
32
Situations where there is a strong desire for conformity
- common law, interpreation of Cth legislation and interpretation of unifrom national legislation
- Aus should follow decisions of higher courts in different Aus hierarchies unless they consider a decision 'plainly wrong'
33
Facts of the Sperluncean Explorers
- cave explorers trapped by a landslide with no food
- contact a rescue team, say it will be another 10 days before rescue
- lottery held, loser (Whetmore) is killed and eaten
- when rescued, they are prosecuted for murder
34
Truepenny CJ -- judgment
- GUILTY
- no exception to the provision applies
- leaves it to the executive
- very narrow, legalisitc adherence
35
Foster J -- Judgment
- NOT GUILTY
- purposive approach
- defs were in a state of nature, enacted law was inapplicable
36
Tatting J
- WITHDRAWS
- legal positivist approach, but also torn between sympathy and disgust
- rejects the law of nature, but also the interpretation of the statute
- statute has many purposes
37
Keen J -- judgment
- GUILTY
- Executive clemency is a matter for the Chief Executive, and the judiciary should not be seen to breach this separation of powers
- would pardon entirely the defendants on the grounds that they had already suffered enough, but this is a remark made as a private citizen not a judge.
- puts aside his morality --> legal positivism
38
Handy J -- Judgment
- NOT GUILTY
- Critical legal theory -- sees law as politics
- accounts for public opinion (90%)
- common sense approach
39
Re Mark case??????
40
Term and length of appointment for judges
- fixed term
- can be removed for 'proved misbehaviour or incapacity' (s 72 of the Constitution for federal judges, and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth))
- must retire at 70 (s 72 of the Constitution)
41
Judicial independence
- ensures judges not subject to external pressures
- judicial conduct should not be criticised in parliamentary debate
- judges immune to civil and criminal liability in their judicial functions, provided they have acted with the honest belief that their actions are within their jurisdiction
