L1 - Australian Legal System Flashcards
Where does statute law come from?
- Parliamentary sovereignty.
- Derived from constitutions.
Where does common law come from?
– Judge made law
– Doctrine of precedent
What is the Victorian court hierarchy?
– High Court of Australia
– Supreme Court of appeal
– Supreme Court
– County Court
– Magistrates Court
– Children’s court
What are the two basic principles of the doctrine of precedent?
And what does the doctrine of precedent provide?
– That like cases should be decided in a like manner, and;
– That courts should decide cases according to existing law
Provides certainty and predictability
What is a binding court decision?
– The decision of a superior court in the same high hierarchy.
What is a persuasive court decision?
The decision of a court of the same level in either the same or a different hierarchy.
What can be considered a highly persuasive court decision?
WHEN there is an absence of a decision of a superior court in the same hierarchy, the decision of a superior court from a different hierarchy is considered highly persuasive.
Would a High Court decision be binding on the Victorian state Supreme Court of appeal?
Yes, High Court decisions are binding on all courts with Australia.
Where are the Victorian court appeal decisions binding?
Victorian Supreme Court of appeal decisions are binding on all lower courts within Victoria.
What if there is a single judge of the Supreme Court?
Single judges of the Supreme Court are not bound to follow each other’s decision decisions but they should follow previous decisions of other judges unless there is some good reason not to do so.
Are County Court decisions binding on Magistrates Court?
Not binding but persuasive.
Are decisions of magistrate courts binding on other magistrates courts?
Not binding.
What is the concept of national uniformity?
Regarding legislation schemes such as corporations law and the national road rules.
– A court should consider itself bound by the decisions on the same legislation from court superior to it regardless of whether they are a part of the app hierarchy applicable to it or not.
Promotes national consistency.
Regarding national uniformity provide an example.
A lower court in Victoria can consider itself bound by a decision of a higher court interstate.
- National Heavy Vehicle legislation. QLD legislation adopted by every other states besides WA and NT.
What are the two main legal professions?
– Barristers (usually briefed by solicitors to run contested matters in court)
– Solicitors (usually first point of contact for any legal advice)
What is the legislation that enables police to appear on behalf of informant in the magistrates and children’s court?
The criminal procedure act 2009, section 328 (C)
Is the VSCA bound by its previous decisions?
No not bound by previous decisions however SHOULD follow them unless convinced an earlier decision was incorrect.
You are studying a case, and find two previous conflicting decisions from two separate matters from the VSCA, which one should you follow?
The later decision.
The Magistrates Court is making a decision regarding Uniform National Legislation. There is no previous decisions from Victorian courts, however there is a previous decision from the NSW Supreme Court and also the Magistrates Court in Tasmania on the issue. Which should the Magistrate Court consider, and is it binding or persuasive?
The Magistrates Court should consider itself BOUND by the decision from the NSW Supreme Court.
As courts dealing with national uniform legislation should consider itself bound by the decisions on the same legislation from courts SUPERIOR to it, regardless of whether they are part of the appellate hierarchy applicable to it or not. This promotes national consistency in the application of legislation.
A single judge is sitting on the Supreme Court. There is a previous decision made on the topic by another Judge on the Supreme Court. Is the single judge bound by the previous decision by this other judge?
Not bound, but it is the practice, that they should follow them out of comity.
