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ILR LAW1101 > Hierachy and Precedent > Flashcards

Hierachy and Precedent Flashcards

1
Q

Victorian Court Hierachy

A

— Magistrates’ Court of Victoria
— County Court of Victoria
— Trial Division: Supreme Court of Victoria
— Court of Appeal: Supreme Court of Victoria
— High Court of Australia

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2
Q

Magistrates’ Court

  • civil disputes
  • criminal disputes
A

Civil Disputes
- Civil disputes less than $100, 000 (debts, damages for breach of contract, damage to property or for injury)
- Civil disputes >$100, 000 with consent in writing by all parties (choice to go to Magistrates’ court may be quicker and cheaper but the court is not used to complex cases)
Criminal Disputes
- Summary offences
- Indictable triable summarily
- Committal hearing to decide evidence for trial in Supreme or County Court

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3
Q

Coroner’s Court

A

Investigates sudden, unexpected, unnatural and/or violent deaths
Doesn’t decide questions of guilt - makes reports/recommendations to the DPP

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4
Q

County Court

A

Civil Disputes
- Personal injury or death: no limit
- Other civil: unlimited
Criminal disputes
- Indictable offences (other than serious indictable offences)
- Appeals from Magistrates’ and Childrens’ Courts

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5
Q

Supreme Court: Trial Division

A

Civil Disputes
- Unlimited
- Appeals on question of law from Magistrates’ Court
- Appeals from Victorian Civil and Administrative Tribunal
Criminal Disputes
- Serious indictable offences (treason, murder, serious drug offences)
- Actually has jurisdiction over all Victorian cases (but doesn’t year them due to time etc.)

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6
Q

Supreme Court of Appeal

A

Civil Disputes
- Appeals from single County Court judge and Supreme Court Judge
- Appeals on question of law from the president and vice president of VCAT
- Matters referred directly from Trial Division
Criminal Disputes
- Appeals from single judge with jury in County and Supreme Court Trial Division

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7
Q

High Court

A

Exclusive jurisdiction over federal constitutional issues
Civil disputes:
- Appeals from Court of Appeal in special leave granted (only hear matters of importance to Australia)
Criminal disputes:
- Original jurisdiction for all indictable offences against federal laws (in theory but rarely used - mostly sent to state or federal court)

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8
Q

Jurisdiction - where does it come from?
High Court
Supreme Court
Magistrates’ and County courts

A

High Court: Derived from Constitution
Supreme Court: Derived from Common law
County and Magistrates’ Courts: Derived from a statute creating them e.g. Magistrates’ Court Act 1989 (not constitutionally protected)

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9
Q

Commonwealth Court Hierarchy

A

Federal Circuit Court
Federal Court/Family Court
Full Court of Federal Court/ Full Court of Family Court
High Court

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10
Q

Federal Circuit Court

A

The jurisdiction of the Federal Circuit Court includes family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices.
The court shares those jurisdictions with the Family Court of Australia and the Federal Court of Australia.
The objective of the Federal Magistrates Court is to provide a simpler and more accessible alternative to litigation in the superior courts and to relieve the workload of those courts.

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11
Q

Federal Court

A

Hears appeals from decisions of single judges of the Court and from the Federal Circuit Court of Australia in non-family law matters.
Court’s jurisdiction now covers almost all civil matters arising under Australian federal law and some summary and indictable criminal matters.
Jurisdiction to hear and determine any matter arising under the Constitution through the operation of s 39B of the Judiciary Act 1903.

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12
Q

Family Court

A

Resolve their most complex legal family disputes. Simpler issues are heard by the Federal Circuit Court

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13
Q

Reporting Decisions - why is it important?

A
  • important for future decisions to be bound

- Unreported cases cannot be relied upon in court as an authority unless it has been authenticated by a barrister

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14
Q

When did Law Reports begin to be published?

A

Since 1865 the Councils of Law Reporting put out reports of important cases

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15
Q

What began in 1865

A

the Councils of Law Reporting began to put out reports of important cases

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16
Q

Plaintiff:

A

person who brought action (name is first)

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17
Q

Defendant:

A

person whom action is brought against

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18
Q

Decision:

A

Resolution of the dispute or an aspect of the dispute

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19
Q

Order:

A

The outcome that binds the parties; a direction for the party to do something (e.g. perform some act, make a payment, file a document or complete a transaction) or a sanction

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20
Q

Judgement:

A

The reasons for the decision

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21
Q

How to cite a case?

A

Dastari v Student (2014) 175 CLR 232

Plaintiff v defendant (year) volume number report series page number

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22
Q

When are round brackets used?

A

Round brackets are used if the volume number is important (volumes are ordered by volume number)

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23
Q

When are square brackets used?

A

Square brackets are used if the volume number is not important or there is no volume number (volumes are ordered by year)

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24
Q

What does ‘R’ mean?

A

‘R’ for Regina (The Queen) - prosecution by the Commonwealth

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25
Q

Citing Family Cases

A

Re Mark: An application relating to Parental Responsibilities (2003) FLC 93-173

- Starts with Re - often only one party in a family case
- Often surnames not used for privacy
- End numbers are paragraph numbers
26
Q

When are decisions binding?

A

Courts are bound by decisions on the same or similar issues of courts higher in the same hierarchy

27
Q

When are decisions persuasive?

A

Courts are persuaded by decisions on the same or similar issues of courts lower in the same hierarchy or courts in a different hierarchy

28
Q

Justifications for the doctrine of precedent

A

Fairness - all cases treated alike
Limits judicial law-making: higher courts have much more law-making than lower courts
Reduces disputes by making the law more certain
Reduces court time - the court doesn’t have to rethink every issue every time it is brought before the court

29
Q

Ratio decidendi:

A

The rule or principle relied upon to decide any issue that is necessary to court’s decision
Decision given by the majority
If the judges agree on the verdict but give different reasos, the ratio is the facts. The court is bound by the ratio if the facts are the same.

30
Q

Obiter dicta:

A

Any proposition of law, however fully considered, that was not the basis of the decision. Persuasive - only ratio is binding.
An observation in the course of an argument
Application of the law in a hypothetic situation
Remarks indicating how the decision fits in with other principles of law

31
Q

Ways of ‘avoiding’ precedent

A

Claim a difference in facts - the precedent relies on facts lining up
Claim the statement of law in the earlier case is too wide and should be confined to its facts
Claim the statement in earlier case is obiter not ratio (and therefore not binding)

32
Q

Ways of ‘avoiding’ precedent in the High Court

A

Claim the precedent shouldn’t be applied due to changed social conditions
Claim the precedent is unsatisfactory: something crazy happened as a result
Claim precedent was decided wrongly in a previous case

33
Q

Problems with Multi-member courts

A

Can be equally decided: often Chief Justice will decide

Often a majority will agree on a decision but for different reasons (different ratio)

34
Q

Persuasiveness of non-binding decision depends on…

A

The standing of the court - High Court has a high standing so obiter is highly persuasive
The standing of the judge - Good reputation is more likely to be followed - at discreten of judge hearing new case
The quality of the courts’ reasoning - clear reasoning will be more persuasive
Has the decision been followed by other courts since?`

35
Q

Privy Council (Limitation Appeals) Act 1968

A

No more appeals from the High Court on Federal issues

36
Q

Privy Council (Appeals from the High Court) Act 1975

A

No more appeals from the High Court on State issues

Appeals could go to either the High Court or the Privy Council, but not both

37
Q

Viro v R (1978) :

A

High Court no longer bound by decisions of the Privy Council even if those decisions had been handed down before

38
Q

Australia Act 1986

A

No appeals to the Privy Council from any court

39
Q

Cook v Cook (1986) :

A

Decisions made after the Australia Act are not binding, but merely persuasive on all Australian courts

40
Q

Cole v Cunningham (1983) 49 ALR 123:

A

Privy Council decisions are very persuasive but not binding on the Federal Court of Australia

41
Q

Are state courts bound by the decisions of the Privy Council?

A

It is not known if state courts are bound by decisions of the Privy Council, because the issue hasn’t come up yet

42
Q

R v Judge Bland: ex parte DPP [1987]

A

Where a decision of the Privy Council conflicted with a decision of the Full Court of the Supreme Court a single judge of the Supreme Court was bound to follow the Full Court decision

43
Q

Is the Supreme Court of the UK (House of Lords) binding in Australia?

A

No, not binding on any courts

44
Q

Piro v W Foster & Co Ltd (1943)

A

Cases in clear conflict between a division of the House of Lords and the High Court should ordinarily follow the House of Lords decision on matters of general legal principle

45
Q

Parker v R (1963) 11 CLR 610, 632:

A

Court decided the House of Lords decision was too far against their own decisions and principles and used High Court precedent over the House of Lords precedent

46
Q

Can the High Court overrule its own decisions?

A

Yes but must consider carefully

47
Q

Factors for the high court to consider when overruling it’s own previous decision

A

Conflict in the reasoning of judges in the case used for precedent
Results of the previous ruling - effective or not?
Was the principle of the case developed over a string of cases or just one ruling?
Have people acted in reliance with the decision?

48
Q

John v Federal Commissioner of Taxation (1989) 166 CLR 417:

A

High Court overruled decision in Curran v Federal Commissioner of Taxation (1974) 131 CLR 409

  • Curran does not stand in a line of cases giving rise to a recognised principle
  • Judges in Curran, Barwick CJ, Menzies J had differing opinions to Gibbs H
  • The decision has been relied upon by taxpayers which presents a strong case for following the precedent. However, ‘there is no part of a court’s function to perpetuate error and to insist on an interpretation which, it is convinced does not give effect to the legislation.’ The judges believed it was the wrong interpretation so rightfully they can overrule it.
49
Q

Decisions of the States Supreme Court - when do they bind themselves?

A

Not always bound - can depart with caution

50
Q

Nguyen v Nguyen (1990)

A
  • Appeals to the High Court are only on special leave: Supreme Court is often a last resort
  • The court can depart from it’s earlier decision if done so cautiously and when it believes the conclusion in the earlier decision was wrong
  • In cases where appeal is not available or is not taken to the High Court, rigid adherence to precedent is likely, on occasions, to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.
51
Q

Other State Supreme Courts binding on Victorian Supreme Court?

A

Yes, in uniform legislation

52
Q

Farah Construction pty ltd v Say-Dee Pty ltd (2007) CLR 89 at [151]

A

Supreme Courts should follow other state supreme courts with uniform national legislation unless they conclude that the decision is plainly wrong

53
Q

Minister for Immigration and Multicultural Affairs (MIMA) v Farahanipour [2000] FCA 605

A

A single judge is bound by decisions of the Full Court of the Federal Court

54
Q

Is a single judge is bound by decisions of the Full Court of the Federal Court

A

Yes

55
Q

Is a single judge of the Federal court bound by another single judge of the Federal Court?

A

No

56
Q

La Maccia v Minister for Primary Industries and Energy (MPIE) (1992) 110 FCA 201

A

A single judge is not bound by the decision of another single judge

57
Q

Is the Full Court of the Federal Court bound by it’s previous decisions

A

It is very reluctant to depart from previous decisions

58
Q

Transurban v Allan (1999) 95 FCR 553

A

The Full Court of the Federal Court is very reluctant to depart from it’s own previous decisions and will only do so with sufficient reasons and consideration

59
Q

Judges of the High Court

A 
Present:
Robert S French AC
Kenneth M Hayne AC
Susan M Crennan AC
Susan M Kiefel AC
Virginia Bell AC
Stephen Gageler
Patrick Keane
60
Q

Judges of the Supreme Court

A 
Chief Justice: Marilyn Warren (November 2003)
President of Court of Appeal: Chris Maxwell (July 2005)
Judges:  
Peter Buchanan (28 October 1997); 
Geoffrey Nettle (8 June 2004); 
Marcia Neave (22 February 2006);
Robert Redlich (8 May 2006);
Mark Weinberg (28 July 2008); 
Bernard Bongiorno (17 August 2009); 
David Harper (4 November 2009); 
Pamela Tate (16 September 2010); 
Robert Osborn (7 February 2012)

ILR LAW1101 (4 decks)

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