Legal Insitutions 2 Flashcards
1
Q
What is the hierarchy of NZ’s courts?
A
- Supreme Court of New Zealand
- Court of Appeals
- High Court
- District Court
- Tribunals
2
Q
What does ‘intra vires’ mean?
A
For a court to act within its legal jurisdction.
3
Q
What does ‘ultra vires’ mean?
A
When a court acts outside of its repetitive jurisdiction.
4
Q
What is the statutory legislation for the District Court?
A
District Court Act 2016
5
Q
What is the statutory legislation for the Court of Appeal, the Supreme Court and the High Court?
A
Senior Courts Act 2016
6
Q
What is the Court of Appeals jurisdiction?
A
Can hear only appeals from:
- a judgement, decree, or order of the High Court.
- any court or tribunal under any other act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
- under the Criminal Procedure Act 2011.
7
Q
What is the high court inherent jurisdiction?
A
- The jurisdiction that the Senior Courts Act 2016 provides to the High Court.
- The judicial jurisdiction that may be necessary to administer the laws of New Zealand
- The jurisdiction conferred on it by any other act.
8
Q
What is ‘original jurisdiction’?
A
The jurisdiction of a court to hear and determine a case in its first instance of appearing in the courts.
9
Q
What is ‘appellate jurisdiction’?
A
the power of a court to hear and determine a decision of a court or other decision maker lower in the judicial hierarchy.
10
Q
What does the Universal Declearation of Human Rights UN 1948 entitle everyone to?
A
Everyone has the right to fair and competent legal systems.
11
Q
Did New Zealand courts system (post 1840) start with both a common law and equity jurisdiction?
A
Yes.
12
Q
What is an ‘adversarial process’ in courts?
A
- courts argue in a competition style, one side argues their point, other side argues against it. One side wins the other doesn’t. Judge only decides cases on the arguments made by the two sides. This is what NZ uses mainly in the courts.
13
Q
What is an ‘inquisitorial process’ in courts?
A
Common in Europe (in some NZ tribunals). Judge is more active, investigates the case, doesn’t just decide cases on the arguments of both sides but on their own information gathered.
14
Q
Who does the Governor-General appoint on the recommendation of the Prime Minister?
A
Chief of Justice
15
Q
Do judges need to be lawyers and have held a practicing certificate for at least 7 years before they can be accepted as judges?
A
Yes
16
Q
Are judges appointed or elected?
A
Appointed by Governor-General
17
Q
Do judges have criminal immunity, civil immunity, or both?
A
Only civil.
18
Q
Are Judges’ salaries protected?
A
Yes.
19
Q
Can a judge be dismissed.
A
Yes, but never happened and very rare.
20
Q
What are ‘courts of record’?
A
Courts that are recorded.
21
Q
What does ‘contempt of court’ mean?
A
Anything that plainly tends to create a disregard of the authority of the courts.
22
Q
What Act holds the legislation for punishment of those held in contempt of the court?
A
Contempt of Court Act 2019
23
Q
Who deals with complaints about judges?
A
Judicial Conduct Commissioner
24
Q
What are the three main principles of the Contempt of Court Act 2019?
A
A) promote and facilitate the administration of justice and uphold the rule of law.
B) Maintain and enhance public confidence in the judicial system.
C) Reform the law of contempt of court.
25
What act governs juries for criminal trials?
Juries Act 1981
26
Who advises the Governor-General on all appointment of judges apart from the Chief of Justice?
Attorney-General
27
Generally, how many judges sit on a district court matter?
One district court judge.
28
What are the four divisions of the district court?
- General
- Family Court
- Youth Court
- Disputes Tribunal
29
Under the District Court Act of 2016, what is the maximum civil jurisdiction (in monetary figures) the District Court can hear?
$350 000
30
Can the District Court hear matters relating to royal titles and wills?
No
31
What is the District Court’s appellate jurisdiction?
Limited. Can hear certain appeals from Disputes Tribunal and some other tribunals.
32
Can the District court hear cases relating to theft, aggravated robbery, sexual assaults, and some other criminal charges?
Yes
33
The district court does not have appellate jurisdiction for appeals of decisions made by Courts Magistrates or Justice of Peace Officers. True or False?
False
34
What is the legislation governing the Family Court Division?
Family Court Act 1980
35
Do District Court judges require extra training and skills to become a judge for the Family Court Division?
Yes.
36
What is the act governing the Youth Court Division?
Children’s and Young People’s Well-being Act 1989
37
What are the requirements to be a Youth Court Judge?
- Must already be a Family Court Judge
- Must undergo more training to then become a Youth Court Judge
38
What legislation governs the Disputes Tribunal Division of the District Court?
Disputes Tribunal Act 1988
39
Who presides over a Disputes Tribunal?
A referee, not an offical judge.
40
Do Disputes tribunals deal with criminal matters?
No, only civil
41
What is the Disputes Tribunal jurisdiction limited by?
- Value, only civil matters up to $30 000
- Subject matter, only certain specified matters (e.g contract claims)
42
What was the High Court known as before 1980?
Supreme Court
43
What two types of jurisdictions does the High Court have?
- Statutory
- Inherent
44
What is High Court’s criminal jurisdiction?
Very serious crimes, e.g murder
45
What is High Court’s civil jurisdiction?
Within and beyond the District Courts jurisdiction. Can deal with cases that the District Court would have dealt with if it is deemed necessary and can also deal with large values in disputes i.e over 350k.
46
What is the High Court’s Appellate jurisdiction?
- Judge ruling alone (no jury) criminal cases in DC.
- General civil appeals from DC.
- Some appeals from YC and FC.
- Appeal from some tribunals.
47
What is the High Court’s Public Law Jurisdiction?
Can engage in “judicial review” = supervising exercise of powers by lower courts to ensure their jurisdiction and power is not exceeded.
48
How many judges usually sit on a Court of Appeal case? Can it be more?
3. Yes, can be “full court” of 5 judges.
49
Does the Court of Appeal have a “president”?
Yes.
50
Do judgements of the Court of Appeal have to be unanimous or is a split by majority decision acceptable.
Majority is acceptable, not all have to agree.
51
What is ‘leave to appeal’?
Permission from a court to appeal decisions from a lower court.
52
What is the Court of Appeal’s appellate jurisdiction?
- Appeals from HC
- Appeals from Maori Appellate Court
- Appeals from DC criminal jury trials
53
Does the Court of Appeal have original jurisdiction?
Can have original but very rare, usually only exercised if the matter is of urgent public importance.
54
Who heads the Supreme Court?
Chief of Justice
55
How many judges sit on a Supreme Court case?
5
56
Are Supreme Court judgements unanimous or per majority?
Per majority.
57
What is the requirement for the Supreme Court to grant ‘leave to appeal’ for the Supreme Court to hear the case?
- It is necessary in the interests of justice for the court to hear and determine the appeal.
58
What does the “interests of justice” for the Supreme Court to hear an appeal include?
- Matter of general or public importance. (Significant issue to the Treaty of Waitangi = matter of general or public importance)
- Substantial miscarriage of justice will occur if appeal not heard.
- Matter of general commercial significance.
59
What is common law?
Law created from the decisions of courts and judges presiding over cases.
60
What are the conditions courts must adhere to when adding to common law?
- To the exent necessary to resolve a dispute.
- Building on existing legal cases.
- Taking into account factors including legislative developments and changes of social values.
61
What is precedent or otherwise known as ‘stare decisis’?
Precedent is the use of judgements and principles from previous cases which are similar to the current case to make a ruling, thus treating like cases alike.
62
What two factors are required for precedent to be binding?
- Legal facts and legal issues are relevant (similar).
- The previous decision was from a superior court in the same hierarchy.
63
If precedent is not binding but still relevant, it is know as ______
Persuasive
64
Are co-ordinate courts bound?
No
65
What does “judicial comity” mean?
Where co-ordinate courts regard themselves as bound to a decision by another co-ordinate court even though technically it is only persuasive.
66
Is precedent from another jurisdiction, e.g Australia’s Supreme Court, binding in NZ?
No, it can only be persuasive
67
What does “Curia advisari vult” mean?
That the decision of the court was “reserved”. The judge went away and spent time to consider their ruling.
68
What do the following abbreviations stand for?:
NZSC
NZCA
NZHC
NZDC
New Zealand Supreme Court
New Zealand Court of Appeal
New Zealand High Court
New Zealand District Court
69
Which court does the following abbreviation belong to?
Elias CJ, Gault, Keith, Tipping, and Thomas JJ
Supreme Court
70
Which court does the following abbreviation belong to?
Kos P, Miller and Asher JJ
Court of Appeal
71
Which court does the following abbreviation belong to?
Brown J / Associate Judge Lester
High Court
72
Which court does the following abbreviation belong to?
Judge Smith
District Court
73
What does “res judicata” mean?
When the dispute between the parties has been finalised.
74
What does “ratio decidendi” mean?
The principle of law for which the case be be cited as an authority.
75
What does “distinguished” mean?
When the facts and/or legal situation are not legal relevant and therefore the case, in terms of precedent, does not dictate the outcome of the current case.
76
When was the Privy Council abolished?
2003 act was passed, came into effect 2004.
77
When will Supreme Court depart from its own decisions?
Only in compelling circumstances.
78
What does “per incuriam” mean?
When a decision in reached in ignorance of a relevant statute or precedent.
79
Who can declare “per incuriam”?
Only co-ordinate or higher courts and they can only declare if they believe that the decision would have been different if the previous case had taken the statute or precedent into account.
80
Are NZ courts (apart from Supreme Court) still bound by Privy Council unless the Supreme Court has ruled otherwise?
Yes
81
What is Goodhart’s method for determining ratio decidendi?
Material Facts + decision made = Ratio Decidendi
82
What are material facts?
- Facts essential to the decision, if MF wasn’ there, outcome would be different.
- Facts that can be taken to an appropriate level of abstraction so that when combined with legal issue = ratio decidendi that can be used in other cases.
83
Is the charge in a criminal case always a material fact?
Yes, it is vital to the case as this is what the defendant is being charged with.
84
Should the legal issue always start with “whether” and be proposed as a question?
Yes
85
Define “Obiter dictum”.
Any statement on a point of law which is not an essential part of the ratio decidendi.
86
Is Obiter dictum binding?
No.
87
What are the four positive treatments of precedent cases?
Followed
Applied
Approved
Adopted
88
What are the four negative treatments of precedent cases?
Distinguished
Not followed
Overruled
Doubted, disapproved, criticised
89
What are the two neutral/equivocal treatments of precedent cases?
Considered
Explained
90
What does the positive treatment “followed” entail?
Court expresses itself as bound by previous case where MF are same/very similar.
91
What does the positive treatment “applied” entail?
Court applies ratio, but MF are substantially different from previous case.
92
What does the positive treatment “approved” entail?
Court approves decision of lower court in unrelated proceedings.
93
What does the positive treatment “adopted” entail?
Court uses ratio of decision of court not binding in NZ (e.g overseas court).
94
What is the four step process for assigning treatments to cases?
1. Know relative position of two cases in hierarchy.
2. Look at language judge uses to describe cases.
3. Assign a term from the glossary.
4. Find quote to back up choice.
95
What does the negative treatment “distinguished” entail?
Court does not follow ratio even though it normally would be bound due to substantial difference between the cases.
96
What are the four common bases used to distinguish a case?
Differences in MF
Differences in legal issue
The “ratio” is actually only obiter dictum
The law has had material change since the decision of the previous case.
97
What does the negative treatment “not followed” entail?
Court not using ratio of co-ordinate jurisdiction case where the MF are the same or very similar.
98
What does the negative treatment “overruled” entail?
Court finds decision of lower court in unrelated proceedings to be wrong.
99
What does the negative treatment “doubted, disapproved, or criticised” entail?
Court disagrees with previous case decision but there is no need or no ability (co-ordinate jurisdiction) to overrule the previous decision.
100
Can the NZCA and NZSC overrule themselves?
Yes
101
Can the NZDC and NZHC overrule themselves?
No
102
What does the neutral treatment “considered” entail?
Court considered previous case decision but treated it in no positive or negative manner (e.g distinguishing).
103
What does the neutral treatment “exlpained” entail?
Court interprets previous decision and state what it means. No positive or negative treatments.
104
What are the three types of reasoning usually used in case law?
Deductive
Inductive
Analogical
105
What is “analogical” reasoning?
Like cases should be treated alike. Focuses on similarities of legal issues and MF between cases, if the are alike, then the outcome should be relatively similar.
106
Reasoning from the general law to the particular.
E.g general law is the speed limit of 50, the particular is a person driving over 50, thus it can be reasoned that the person is in violation of the general law.
What type of legal reasoning is this?
Reasoning by deduction.
107
Reasoning from particulars to the general law.
From particular cases, principles of law are argued, created and defined. This in turn creates and defines the general law which can be applied to other cases.
What type of legal reasoning is this?
Reasoning by induction.
108
What does “A Fortiori” mean?
If the law cannot be applied to more extreme cases, it cannot then be applied to less extreme cases.
109
What does “De minimis non curat lex” mean?
Some breaches of rules hold so little importance that they should not be Delt with in a court of law.
110
What does “as absurdum” mean?
If the argument presented is accepted as right, an absurd result will occur.
