legal aos1b

Question 1

statutory interpretation

Answer 1

the process whereby courts/judges apply meaning to key words within Acts or legislation made by parliament to determine the outcome of a case before them
DOESN’T CHANGE THE WORDS THEMSELVES, ONLY THE BOUNDARIES OF THE DEFINITION

Question 2

reasons for statutory interpretation

Answer 2

-need to determine the specific meaning of words
-changing nature of words
-unforeseen circumstances= at the time passing the legislation, parliament did not foresee a particular issue arising, or the wording was unclear

Question 3

impacts of statutory interpretation

Answer 3

-interpretation narrowed the definition of the word
interpretation broadened the interpretation of the word
-interpretation created a precedent
-interpretation influenced parliament to amend legislation

Question 4

studded belt case

Answer 4

-deing was wearing a belt with raised studs and was subsequently arrested and found guilty in Magistrates Court for possessing a regulated weapon
-charged under S6 of the Weapons Act 1990 (Vic) which states that it is illegal to “possess, carry, or use any regulated weapon without lawful excuse”–> court had to interpret the words “regulated weapon” as written in the Control Of Weapons Act 1990 (Vic) and determine if studded belts are included in that category
-appealed in SCTD decision= judge narrowed the interpretation of weapon by excluding items

Question 5

how does statutory interpretation create law

Answer 5

-any decision created by judges is common law
-when judges make decisions over wording of a statute, this creates common law–> should another case come before the courts in future, same meaning of the words should be applied if OG interpretation was in a superior court= binding precedent= lower courts must follow to ensure consistency and fairness
-exception is if parliament were to disagree with the common law decision and amend the Act to clarify that the meaning of the words does not mean what the courts infer–> precedent set by courts is abolished and amended Act is the principle in operation

Question 6

strengths of statutory interpretation

Answer 6

-can allow changes to the law to be in an efficient and independent manner because they do not have to face political pressures such as MPs over controversial areas nor do they have to debate for making amends to law
-judges are legal experts in the law, therefore when they are applying meaning to words= done so with expertise= judges can also rely on resources eg. legal dictionaries, other precedents outside of their jurisdiction
-common law should be appealed depending on where in the court hierarchy the decision was made-> if judgement is incorrect, there is an opportunity to correct the decision after it has been reviewed by higher court
-decisions from judges can also influence parliament to codify legislation to strengthen the legal precedent also established

Question 7

weaknesses of statutory interpretation

Answer 7

-judges cannot freely change the law through statutory interpretation=must wait for a case to come before the courts
-judges must rely on individuals with standing to bring a case to courts to provide statutory interpretation = standing aside= bringing a case can be expensive and timely which may limit an individuals ability
-judges are not democratically elected and come from a narrow socio-economic group= interpretation of statutes may not reflect society whereas MP’s are more representative of the people
-common law can be reversed, overruled by higher courts or abrogated by parliament= judges ability to change meaning of words is limited

Question 8

what is precedent

Answer 8

a legal principle that incorporates the reasoning behind judges decision when making a judgement

Question 9

how is precedent found within a judgement

Answer 9

-stare decisis= to stand what has been previously decided which ensures consistency and fairness provided there is an existing precedent

if they choose to create new precedent:
-ratio decidendi= reason for the decision, these are the elements of a new precedent being created
-obiter dictum= statements made by the way and comments made within the judgement that provides context for the judge’s decision but is not binding and does form part of the precedent

Question 10

donoghue v stevenson

Answer 10

-donoghue’s friend purchased donoghue a ginger beer and when she drank it a decomposed snail was found in the bottom of the glass= diagnosed with an illness=alleged the presence of the snail caused her illness and sued the manufacturer
-main issue was for court to decide whether or not the manufacturer owed a duty of care hw ruled in favour of donoghue and stated there was a duty of care that was owed and also established the neighbour principle and also established the principle of negligence
-case was heard in the UK

Question 11

reason for precedent

Answer 11

operation of precedent relies on the judge considering material facts of previous cases and the one before them
-material facts= the key facts or details that exist within the previous case that are critical to the current judges decision, FACTS CANT BE IDENTICAL

reasons:
-guidance for judges to be able to look back at previous cases to gain an understanding or idea of the legal rationale to determine their case
-consistency through allowing legal representatives to provide advice for their client on the outcome of their case through referring to past decisions
-not wasting courts resources due to having to preside over the same matter time and time again

Question 12

how can we tell if something is binding or persuasive

Answer 12

not relevant at the time the precedent was made but a judge in future needs to access the precedent by determining:
-there is no precedent to follow since this is a test case
-they are bound by existing precedent
-they are only persuaded by existing precedent

Question 13

binding precedent

Answer 13

-an existing precedent that was made by a superior (higher court)
-in the same court hierarchy
-they share similar material facts with the current case

Question 14

persuasive precedent

Answer 14

-originates from a lower court in the same court hierarchy
-originates from same level court in the same court hierarchy
-originates from a court outside of the court hierarchy
-comment from a judgement that is obiter dictum

Question 15

four ways in which precedent can be applied

Answer 15

-reversing
-overruling
-disapproving
-distinguishing

Question 16

reversing precedent

Answer 16

occurs when a decision is appealed to a higher court and the higher court overturns the original court
-clues= same case

Question 17

overruling precedent

Answer 17

occurs when a superior court overrides a precedent established at trial
-clues= two seperate cases
-eg. a case heard in SCTD–> 10 years later a case with similar facts and materials appealed in SCCOA

Question 18

disapproving precedent

Answer 18

-occurs when a court disagrees with a precedent established at the same level and chooses not to follow it and creates another precedent–> two precedents are established
-a lower court who is bound to follow a precedent expresses their disagreement but needs to follow the precedent anyways

Question 19

distinguishing precedent

Answer 19

occurs when a judge is bound to follow a precedent but argues that similar material facts does not exist and therefore it would be unfair to apply the same precedent

Question 20

strengths of fliexbility of precedent

Answer 20

-if no existing precedent or acts exist, judges can create precedent to resolve a dispute and cover a gap in the law eg. test case Donoghue v Stevenson
-judges who are bound to follow precedent have option of distinguishing their case, arguing that a different material facts exists and therefore do not have to be bound by existing precedent
-through obiter comments judges who are bound to follow precedent can express their disapproval which may alert parliament to amend the law eg. trigwell case
-because there is a court hierarchy superior courts can overrule or reverse a precedent which can ensure common law is up to date and subsequent cases are not bound by outdated precedent
-because there is a court hierarchy precedent that originates from higher courts are established upon legal expertise and knowledge of specialist judges and more likely to be judicially just
-judges on the same level are not bound to follow each others precedent, also applies to the high court which means if they believe an error has been made= able to review and correct it

Question 21

weaknesses of flexibility of precedent

Answer 21

-for precedent to even be created, a case must be brought before the courts because judges don’t have autonomy to amend/interpret existing law unless a relevant matter is brought to them

-an individual with standing and resources have to bring matter to courts which may limit their opportunity

-judges can only create precedent or common law EX POST FACTO, after the wrong has occurred , this is different to parliament who can make laws for the future

-courts can only develop new laws if no relevant law currently exists, this means courts cannot make laws just because they disagree with legislation

-judges in lower courts who cannot distinguish the material facts of their case or just are a lower court are bound to follow existing precedent which means they can’t correct an incorrect or outdated precedent until a successful appeal is lodged

-parliament is the supreme law making authority and can abrogate common law decision which limits finality of common law

-setting a precedent relies on willingness of judges to step outside their judicial roles= may be controversial because their primary role is to APPLY THE LAW NOT CREATE LAW and because they aren’t democratically elected, may lead to legislation may not reflecting whole community

Question 22

judicial activism

Answer 22

an approach adopted by judges who:
-consider a range of broad social and political factors
-interpret the wording of Acts or broadly/ with greater flexibility in the way that recognises the rights of the people

Question 23

impacts of judicial activism

Answer 23

-lead to courts making common law that is deemed radical and may not reflect the views and values of the ENTIRE community
-judges aren’t democratically elected by the people and there are free from political pressure and fear of not getting re elected–> can make controversial changes to the law
-may lead to more appeals on question on law
-lead to parliament abrograting a decision if it doesn’t agree with HC
-reinforce authority of the HC

Question 24

mabo case

Answer 24

-mabo lodged a TEST case against qld govt and commonwealth in HC to determine legal rights of FNP= HC ruled in favour of FNP–> overturned the common law principle “terra nullius” and legally recognised the rights of FNP ownership to land and set a precedent
-broadly interpreted the law
-cth parliament codified the law the native title act 1993 recongising owndership

Question 25

judicial conservatism

Answer 25

an approach where a judge shows restraints when making decisions such as:
-not considering a range of broad social and political factors
-interpret wording of Acts in a more literal and narrow sense

Question 26

impacts of judicial conservatism

Answer 26

-allow parliament to amend or make changes in the law that are representative of the people
-provide stability as courts are conscious that their decision and are in line with parliament legislation
-restrict the ability of courts to influence progress changes in the legal system and not reflect current social values
-reduces likelihood of appeals being made on question of law when a precedent has been reversed

Question 27

judicial conservatism case

Answer 27

-HC had to determine whether a senator who was elected was allowed to be a MP= dual British and Australian citizen should be removed as in constitution disqualifies any person who is a citizen of a foreign country to be a MP in federal parliament= judges adopted a conservative approach= not eligible to be elected to senate bc her British citizenship had not been revoked before she was elected= upheld a similar precedent
- literal and narrow approach to interpreting the meaning of section 44

Question 28

costs to take a case to court

Answer 28

will mostly fall on plaintiff:
-legal representation= conduct research/ gather evidence/ analyse document/ gather witnesses/ comply with the rules of evidence and procedure
as a result, if a plaintiff is barred from legal rep= judges are limited in their ability to create law to future cases
-cost of court fees eg. filing fees/ hearing fees/ jury fees= leave to appeal in SCCOA is $2423 and hearing fees cost= $896.80

Question 29

strengths of costs being mitigated

Answer 29

-vla is available for some civil matters=access resources that can assist them in pursuing their case= provide more opportunities for courts to create law
-judges can also give directions to parties as a form of case management = reduce time and therefore cost= more affordable for a party–> provide greater opportunities for courts to make law

Question 30

limitations of costs being mitigated

Answer 30

-criteria for vla is hard to meet for civil cases= parties who don’t meet vla may not be able to afford the costs involved in bringing their case to courts
-reluctance of parties to pursue the matter through courts= fewer opportunities for judges to develop common law

Question 31

time factors

Answer 31

-courts may be more efficient then parliament=not requied to follow processes such as drafting/ proposing/ debating etc
-delays can include= amount of time it takes for parties to gather evidence and prepare for trial
-lengthy trial processes= oral evidence and witnesses
-delay tactics used by parties
-court backlogs from covid
-2022= 47% of all civil matters in mag court=pending for more then 6 months

Question 32

strengths/ resolution for time factors

Answer 32

-give directions to party= limiting no of witnesses/ evidence used= reducing length of trial and allow more opportunities for courts to make law as more cases are heard
-vic court hierartchy= administrative convenience=distribute resources more effectively to allow more complex cases to be prioritised to higher courts= increase no of cases heard

Question 33

weakness/problem with time factors

Answer 33

-reluctance of parties to pursue a matter through courts due to the time it takes for a case to be resolved= fewer opportunities
-judges need to wait for a case to come before them

Question 34

requirement for standing

Answer 34

-judges must wait for a case to be brought to them and party that does bring it court must have standing;
standing= the requirement that a party must be directly affected by the issues of matters involved in the case for courts to be able to hear and determine
–> purpose is to ensure that cases pursued are by ppl who are affected by legislation=prevents a waste of courts time and resources on matters which plaintiff isn’t affected by
-cases brought to HC= special interest= gain more than just winning if case succeeds
example= bishops against ivf=personally disagreed bc of religion + x align with christian values

Question 35

strengths of standing

Answer 35

-reduce number of frivolous claims being made in court by individuals

Question 36

limitations of standing

Answer 36

-limits individuals with a general interest to change law as they can’t pursue the matter
-even with standing, costs can still be an issue

Question 37

supremacy of parliament

Answer 37

the legal concept that parliament has the freedom to make, amend, or abolish laws, excluding those outlined in the constitution, and is supreme over the executive and judiciary
rationale/ two main reason:
#1 reason: parliament is the ultimate law making authority because members are democratically elected by the people and are therefore the representatives and voice of society and should create laws that adhere to social views and values
#2 reason: operation of courts= courts main role is to apply the law, the jurisdiction of courts exists due to legislation that parliament has created and without it, the courts would not exist

Question 38

ability of courts to influence parliaments

Answer 38

-ability to influence parliaments through comments made in their judgement, obiter dictum
-eg. if judge doesn’t want to take a law making role, and follow precedent, they can signal to parliament that a change in legislation is needed
-if a court is bound by precedent and creates a decision that reinforces a bad law, parliament can amend or create legislation

Question 39

examples of courts influencing parliaments

Answer 39

-2014= there was an increase in one punch killings in vic and the dissatisfaction with sentences imposed led to parliament introducing one punch laws requiring those found guilty to serve a minimum of 10 years before being eligible for parole

Question 40

trigwells case

Answer 40

-HC found that it wasn’t farmers responsibility for their sheep’s actions and not liable for the accident that the Trigwell family suffered by following old common law established in Britain in a time where cars weren’t used as often–> in the obiter dictum= stated that law making should be left to parliament and later influenced the vic parliament to pass the wrongs act 1984 (vic) and abrogated common law and est that farmers did have a responsibility on the movements of their livestock

Question 41

codification

Answer 41

-the process of parliament confirming/ reaffirming/ protecting/ strengthening/ absorbing common law by enacting legislation
-occurs when parliament agrees with common law and attempts to reinforce it by making it into legislation= either amending/ creating=provides consistency and predictability of the law
-once codified, judges can’t reverse the decision and must follow for future cases

Question 42

abrogation

Answer 42

overruling common law by creating a statute that conflicts or is contrary to it
-occurs when a court us bound by precendent and reinforces a bad law and parliament recognises this and overrides the precedent by creating new legislation
-judges must follow the Act in their application or the law in the future