Lecture 3: The role of courts in law-making Flashcards
civil case
private disputes between individuals (include corporations) that is taken to court
basic procedure in a civil case
- hire a lawyer
- write a document that sets out what the law is and what you hope to get out the cases
- send document to the other party to review and change if need be
- document given to court to also look at
- direction hiring-both parties come to court and the judge tries to figure out where the parties are at
- parties see that they agree with certain points
- judge will usually only have disagreements with certain points in the documents
- judge give a timeline for when witnesses and documents are told to the other party and additional documents given to the parties
- judge sets a trial date
- more than 2 hrs. to 3 months
- solisters-experience in drafting documents and giving advice
- baraster-people that argue in court
- plaintiff present open argument about facts and what they hope the outcome to be
- defendant does the same
- witnesses (examinations and cross examinations) and document
- re-examination plaintiff baraster allowed to fill out the holes
- closing remarks or summaries
- judge reserve judgement (read transcript and right up reason argument and finding-constitute case law)
- can take 3 weeks to 1 yr depending on length of trial
- parties called back on a specific date
- reason for judgement given to the parties and placed online
- include series of reason
- legal expenses
basic procedure in a civil case
- civil litigation with an exchange of written documents (pleadings) in order to define the nature and extent of the dispute
- when the case comes to trial in court, evidence is in court, evidence is led from witnesses, or by producing documents, to establish the facts relied on by the plaintiff and defendant
- each side then presents an argument as to what the relevant law is and how it should be applied
- the court decides what facts are provided, and what the law is
- the cases is decided according to the law and an appropriate order is made
A judge’s power to make law
- normal expectation is to apply existing law to new cases
- judges have no direct authority to make law but indirectly make laws when they decide cases
- use legislation or other judges reason for judgement
role of judges
-reason for judgement and approaches that form part of law
opportunities to make law when deciding cases
- when deciding cases, judges simply find an established rule of law and apply it
- judge may not be able to find an established rule of law to apply sometimes so they have these various alternatives
- declare a rule as a rule of Australian law the first time like a previously unwritten rule of law, or one deriving from natural law or custom
- interpret an existing rule of law, to establish its meaning
- extend an established rule of law to a new situation
opportunities to make law when deciding cases:wiggle room
- ability to behave creatively
- set out new law to deal with new case
- find old rule and decide to explain use of broad rule to apply to this situation
- use old rule and extended it
opportunities to make law when deciding cases:judge
- reactive role
- only given to make law based on the facts placed in front of them
how English judges developed the ‘common law’
- after the 14 th ce, a uniform (common) body of law came to be applied by the King’s courts throughout England, replacing local laws
- this case-law came to be known as common law
- common law is applied in a strict, legalistic way
- appeals were heard by the King’s Chancellor, but now it is heard by the Court of Chancery
Tiers of common law
- 2 tiers
- common law-series of principle and judgments that intentionally came out of the first courts in England
- established body of representatives for the monarchs and hear disputes to decide cases
- monarch representative
- strict and legalistic
- adopt reason in a very strict way
- common law courts applying reason of judges to strictly
- created courts above the common law courts-court of chancery
- incorrect or immoral resolution could be appealed in Court of Chancery
- people in the courts would be heard in front of priest
the development of ‘equity’
-equity-these rules are based on notions of justice and fairness
-equitable courts-soften the results of common law
-principle of equity and common law are both applied in today’s court
called case law or general law-give use principles to use
doctrine of precedence
-if there is a previous decision on a series of fact have to use the same approach as the previous judge did even if the outcome is different
the principle of ‘stare decisis’
-let the decision stand or lay down the rule by which later such cases will also be decided
- every judge sets out a hierarchy
- only have to look at previous decision of superior judges
- second phase get out of jail card
- judge convince that facts are so different than a previous case
- judge doesn’t have to use the law of previous case (distinguish it) and create a new law
- pretty hard to do
-ratio decidendi’ of case
- consist of the legal principle, rule or reason which the court applied to the materials facts of the case to arrive at its decision
- is a flexible and sometimes difficult thing to ascertain with absolute precision
- is the essential part of the precedent
-ratio decidendi case continued
- only part of the previous judgment is binding to use is where the judge sets out the principle for their judgement
- most of the judgments is the facts
- only care about where the judges say follow this approach
-judge writes in pros
-other judges have to workout the binding parts
binding part of judgement-ratio of case of ratio decidendi
-actual reason used to get to an outcome
- judges place in helpful bits of advice for future judges-overture dictor
- not binding as it is not the actual rules in judgment
Taylor v Johnson case
- first time equity was used
- it is contrary to good conscience to enforce a contract if all three things happened:
- one of the parties is seriously mistaken and
- the second party was aware of circumstances that indicate the first party is mistaken, and
- the second party deliberately acts to ensure the error is not discovered until it is too late
