Legal Institutions 2 Flashcards
1
Q
Jurisdiction
A
The authority granted to a legal body to administer justice within a defined field of responsibility
2
Q
“Intro vires”
A
A court must act within its legal jurisdiction
3
Q
“Ultra vires”
A
Invalid decision/outside jurisdiction
4
Q
Most NZ courts have _________ source for their jurisdiction
A
Statutory
e.g. section 56, senior courts act 2016
1. The court of appeal may hear and determine appeals………..
5
Q
Which New Zealand Court has inherent jurisdiction
A
High Court
6
Q
Inherent jurisdiction in the high court means that the high court has:
- the judicial jurisdiction that may be necessary to administer the _____________________
A
Inherent jurisdiction in the high court means that the high court has:
- the judicial jurisdiction that may be necessary to administer the laws of New Zealand
7
Q
Original Jurisdiction
A
The jurisdiction of a court to hear and determine proceedings brought before in the first instance rather than on appeal from a lower court
8
Q
Appellate jurisdiction
A
The power of a court to hear and determine an appeal from a decision of a court or other decision maker lower in the judicial hierarchy
9
Q
Which of the following is not advanced as an argument in favour of contingency fees as a mechanism to improve access to justice?
A) Freedom of contract
B) Effectiveness for class actions
C) Efficiency on the part of the lawyer
D) The state is avoiding its responsibilities
A
Answer: D
10
Q
Pro Bono: Arguments in favour of compulsion include….
Duty Arguments:
A
Pro Bono: Arguments in favour of compulsion include….
Duty Arguments:
- Cost of legal monopoly
- Commitment to justice system
- Specially situated/suited to assist e.g. no such thing as an off-duty lifeguard
11
Q
Pro Bono: Arguments in favour of compulsion include….
Egoistic Argument:
A
Pro Bono: Arguments in favour of compulsion include….
Egoistic Argument:
- Even if motivated by self interest you do good things that is still good e.g. prestige/publicity/flow of paid work
- it is ‘good’ for students and early career lawyers e.g. experience, educational, pattern for future practise
12
Q
Pro Bono: Arguments against compulsion include….
A
Pro Bono: Arguments in favour of compulsion include….
- Definition issues
- No comparable duty in other professions or trades
- No duty to be charitable
- Illegitimate tax - time is money
- Government avoids responsibility
- Stirs up litigation - Demand > Supply
- Second rate service - forced work
13
Q
Litigation
A
The process of taking legal action
14
Q
Crime: define
A
“A wrong punishable by the state. A crime is an act which is forbidden or the omission to perform an act which is commanded, by statute or regulation, the remedy for which is the offender’s punishment at the instance of the state”
E.g. theft, assault, etc
15
Q
Civil: define
A
“….a civil remedy is one available to a private person by action, as opposed to a criminal prosecution”
E.g. breach of contract, negligence, etc
16
Q
When it comes to criminal cases:
R v Owens [2017] NZHC 319
-> say The King ‘_____’ Owens
R = Rex or Regina [Latin]
Police v Wright [2016] NZDC 2501
-> say Police ‘____’ Wright
[some might say Police ‘________’ Wright]
A
When it comes to criminal cases:
R v Owens [2017] NZHC 319
-> say The King ‘and’ Owens
R = Rex or Regina [Latin]
Police v Wright [2016] NZDC 2501
-> say Police ‘and’ Wright
[some might say Police ‘against’ Wright]
17
Q
Common law: describe (England)
A
Administered by common law courts, developed by court decisions, very procedural - strict rules
18
Q
Equity: describe (England)
A
Evolved to remedy common law defects; cases decided on ‘fairness or justice’ bases in the Court of Chancery
19
Q
In NZ most legal proceedings are _________ process
A
adversarial
20
Q
Adversarial process: describe
A
Parties placed in opposition to one another, argue their case/present evidence in support, resulting in winner. The Judge doesn’t decide on anything other that’s the parties cases
21
Q
Inquisitorial process: define
A
European approach (and some NZ tribunals), the judge engages in “fact-finding”, does own research, more interventionist in proceedings, etc
22
Q
How are Judges appointed
A
The Governor-General appoints in the name of and on behalf of His Majesty the King on recommendation of the Attorney-General. (May consider Chief Justice PM’s recommendation)
23
Q
Judges of the Supreme Court and Court of Appeal are all _____________________
A
Judges of the high court
24
Q
Practising certificate for minimum of _____ to be appointed a judge
A
7 years
25
Do Judges have civil or criminal immunity?
Absolute civil immunity
26
Judges _______ cannot be reduced during their period of service
Salaries
27
retirement age for judges is usually ___
70
28
Under what Act is the retirement age for judges under
District Court Act 2016 (s28)
29
Under what acts can judges salaries not be changed
Senior Courts Act 2016 (s141) + Constitution Act 1986 (s24)
30
How is a district court judge removed from office?
The Governor-General may, on the advice of the Attorney-General, remove a [District Court] judge from office on the grounds of inability or misbehaviour
31
Under what act can a district court judge be removed
District Court Act 2016 (s29)
32
Under what grounds can a district court judge be removed from office
inability or misbehaviour
33
Under what grounds can a judge from the high court be removed from office
Misbehaviour or incapacity to discharge the functions of that Judge’s office
34
A Judge of the High Court shall not be removed from office except by the __________ or the ________________, acting upon an address of the ______________________, which address may be moved only on the grounds of that Judges ____________ or ___________ to discharge the functions of that judges office.
A Judge of the High Court shall not be removed from office except by the sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judges misbehaviour or incapacity to discharge the functions of that judges office.
35
Which act states how a high court may be removed from office
Constitution Act 1986, s23
36
Judicial Conduct Commissioner: Function
Judicial Conduct Commissioner:
- receives and assesses complaints about conduct
- cannot challenge legality or correctness of judge’s actual decision
37
Depending on the seriousness of the conduct, a range of options for Commissioner:
Depending on the seriousness of the conduct, a range of options for Commissioner:
- Dismiss complaint
- Refer to the relevant head of bench
- Most serious cases recommend the Attorney-General appoint a judicial conduct panel to inquire
38
Court of record
A court that has its acts and judicial proceedings recorded and preserved, and has the power to punish for contempt of its authority e.g. district court, high court, court of appeal, Supreme Court
39
Contempt of Court
Anything that plainly tends to create a disregard of the authority of courts of justice
40
Under what act is the punishment for contempt made?
Contempt of Court Act 2019
41
What are the principal purposed of the contempt of court act 2019, section 3
What are the principal purposed of the contempt of court act 2019, section 3
A) promote and facilitate the administration of justice and uphold the rule of law
B) maintain and enhance public confidence in the judicial system; and
C) reform the law of contempt of court
42
Penalties for contempt: first instance judge
For…..
-
Penalties for contempt: first instance judge
For wilful disruption or unlawful disobeying of a direction during a hearing
- Exclusion from court room or held in custody for a period no longer than the balance of the sitting day for the court
43
Penalties for contempt: serious matter - hearing before another judge
Penalties for contempt: serious matter - hearing before another judge
- issue a warrant not committing the person to imprisonment for a term not exceeding 3 months; or
- impose a fine not exceeding $10,000; or
- order the person to do community work, not exceeding 200 hours
44
Juries for trials:
- ___ jurors
- Criminal trial:
- Civil trial:
-
Juries for trials:
- 12 jurors
- Criminal trial: a right fro offences with a penalty of imprisonment for 2 years or more
- Civil trial: not civil other than for defamation, false imprisonment, or malicious prosecution
- Both District court and High court hold jury trials within their respective jurisdiction
45
What act sets out guidelines for juries for criminal trials?
New Zealand Bill of Rights Act 1990, s24
46
What act sets out guidelines for juries for civil trials?
Senior Courts Act 2016, s16
47
Who advises the Governor-General on the appointment of the Chief Justice?
A) retiring Chief Justice
B) Attorney-General
C) Solicitor-General
D) Prime Minister
Answer:D
48
Divisions of the District Court
- General
- Family Court
- Youth Court
- Disputes Tribunal
49
District Court usually presided over by ____________
- lower level criminal matters are presided over by…….
District Court usually presided over by District Court Judge
- lower level criminal matters are presided over by Community Magistrates / Justices of the peace (CM/JP)
50
District Court Jurisdiction: Civil Proceedings
- o________ and l_______ a_________
District Court Jurisdiction: Civil Proceedings
- original and limited appellate
51
District Court Jurisdiction: Civil Proceedings
Original Jurisdiction - General div
- Civil Jurisdiction to max $350,000
- Jurisdiction over contracts made by minors
- Appeals usually to high court
52
District Court Jurisdiction: Civil Proceedings
Original Jurisdiction - General div
Under what act does civil jurisdiction go to max $350,000?
District Court Act 2016
53
District Court Jurisdiction: Civil Proceedings
Original Jurisdiction - General div
Under what act does the District Court have jurisdiction over contracts made by minors?
Contract and Commercial Law Act 2017
54
District Court Jurisdiction: Civil Proceedings
Original Jurisdiction - General div
Under what act do appeals usually go to the high court?
District Court Act, s124
55
District Court Jurisdiction: Civil Proceedings
Limited Appellate Jurisdiction - General div
Meaning……..
- Can hear certain limited appeals from disputes tribunal and some other administrative tribunals
56
District Court Jurisdiction: Criminal Proceedings
- o________ and l_______ a_________
Original and limited appellate
57
District Court Jurisdiction: Criminal Proceedings
Original Jurisdiction - General div
- Less serious crimes (often imprisonment ________ or less and fines ___ or less), sometimes heard by ___________________________
District Court Jurisdiction: Criminal Proceedings
Original Jurisdiction - General div
- Less serious crimes (often imprisonment 3 months or less and fines $2k or less), sometimes heard by community magistrate or justices of the piece
58
District Court Jurisdiction: Criminal Proceedings
Original Jurisdiction - General div
- More serious crimes (punishable by more than _________________) tried by _____________
District Court Jurisdiction: Criminal Proceedings
Original Jurisdiction - General div
- More serious crimes (punishable by more than 2 years imprisonment) tried by District Court Judge
59
District Court Jurisdiction: Criminal Proceedings
Limited Appellate Jurisdiction - General div
Describe……..
District Court Jurisdiction: Criminal Proceedings
Limited Appellate Jurisdiction - General div
- For Conviction by Community Magistrate / Justice of the Peace: A District Court Judge hears appeal
60
District Court: Family Court Division
Judges….
Given authority by what act?…….
Judges are District Court Judges and by reason of training, experience, and personality, are a suitable person to deal with matters of family law.
Family Court Act 1980, s5
61
District Court: Family Court Division
Procedure……..
Slightly less formal, usually not public, media restrictions
62
District Court: Family Court Division
Governed by what act?
Family Court Act 1980
63
District Court: Family Court Division
Can make…….
Family-related orders e.g. marriage separation/dissolution, etc
64
District Court: Youth Court Division
Governed by what act?…….
Orange Tamariki Act 1989 / Children’s and Young People’s Well-Being Act 1989
65
District Court: Youth Court Division
Youth Court has wide jurisdiction to deal with
-
-
- Children (under 14 years)
- Young persons (aged between 14 and 18)
66
District Court: Youth Court Division
Aim…….
For interventions other than court, to try avoid criminal proceedings against a young person
67
District Court: Youth Court Division
Procedure………
Less formal, usually not public, media restrictions
68
District Court: Youth Court Division
Hears most such cases, but exceptions e.g. __________________
District Court: Family Court Division
Hears most such cases, but exceptions e.g. murder, manslaughter
69
District Court: Youth Court Division
Judges……….
Youth Court Judges are Family Court Judges (therefore District Court Judges) but must be suitable to deal with matters within the jurisdiction of the youth court by virtue of their training, experience, and personality and understanding the significance and importance of different cultural perspectives and values
70
District Court: Te Kōti Rangatahi and Pasifika Youth Courts
- 15 x ___________ and 2 x ___________ apply the same law as any other Youth Court, but in a _____________________ incorporating culturally relevant ___________________.
District Court: Te Kōti Rangatahi and Pasifika Youth Courts
- 15 x Rangatahi and 2 x Pasifika Courts apply the same law as any other Youth Court, but in a marae or pasifika community setting incorporating culturally relevant languages and protocols.
71
District Court: Te Kōti Rangatahi and Pasifika Youth Courts
Rangatahi Court - describe
A Rangatahi Court hearing is held on a marae, and facilitated by a Youth Court Judge together with kaumātua/kuia (elders)
72
District Court: Te Kōti Rangatahi and Pasifika Youth Courts
Pasifika Courts - describe
Pasifika Courts are held at pasifika churches or community centres. A judge will facilitate the hearing with assistance from pasifika elders
73
District Court: Disputes Tribunal Division
Jurisdiction is ______ only
Civil
74
District Court: Disputes Tribunal Division
Value: sum in dispute does not exceed __________
$30,000
75
District Court: Disputes Tribunal Division
Judge…..
“Referee”: person capable, by reason of personal attributes, knowledge, and experience, of performing the functions
76
District Court: Disputes Tribunal Division
Governed by:
Disputes Tribunal Act 1988
77
District Court: Disputes Tribunal Division
“Small claims” covers
Faster/less legalistic/informal/court enforceable outcomes
78
High Court:
Governed by……
Senior Courts Act 2016
79
High Court:
Until _____, known as the __________
Until 1980 known as the Supreme Court
80
High Court:
Usually, a case is presided over by _______
One High Court Judge
81
High Court: General Civil Proceedings
Within and beyond __________________ (i.e. over $____) or given by ________
High Court: General Civil Proceedings
Within and beyond District Court jurisdiction limits (i.e. over $350k) or given by statute
82
High Court: Civil Proceedings
- Defendant in district court may require transfer to High Court if………..
- Defendant in district court may require transfer if civil claim is over $90k
83
High Court: Civil Proceedings
- District Court judge may transfer to High Court if civil claim is over $90k, if judge thinks ……..
- District Court judge may transfer to High Court if civil claim is over $90k, if judge thinks import issues of law or fact arise and Def requests
84
High Court: Civil proceedings
- HC judge may order transfer from District Court to High Court on application of any party of several grounds including……………….
High Court:
- HC judge may order transfer from District Court to High Court on application of any party of several grounds including complexity, importance of issues, interests of justice.
85
High Court: Criminal Proceedings
- ________ District Court criminal jurisdiction limits =……………………
High Court: Criminal Proceedings
- Beyond District Court criminal jurisdiction limits = original jurisdiction over very serious crimes e.g. murder
86
High Court: Appellate jurisdiction
- From ____________ criminal trial in district court
- _________ civil appeals from ____________
- Some appeals from __________ and ________
- Appeals from some _________
High Court: Appellate jurisdiction
- From judge-alone criminal trial in district court
- General civil appeals from District Court
- Some appeals from Family Court and Youth Court
- Appeals from some tribunals
87
Where do District Court jury trials appeal to?
Court of Appeal
88
High Court: Appellate jurisdiction
When do tribunals appeal to the high court?
Usually when the chair of the tribunal is a District Court Judge or retired District Court Judge
89
Appeals from High Court civil or criminal decisions go to…..
Court of Appeal
90
High Court: Supervisory / Public Law Jurisdiction
- Power to engage in “________” - constitutional function
- Can supervise exercise of powers by _________________________
-Power to engage in “judicial review” - constitutional function
- can supervise exercise of powers by inferior courts, administrative tribunals and persons carrying out official function
91
What is Judicial review?
“The oversight by the courts of the decisions and processes of decision-making agencies; the exercise of the courts’ power to determine whether action is lawful or not and to award suitable relief”
92
Purpose of giving the High Court the power to engage in “judicial review”
To ensure they do not exceed the scope of their powers
93
Court of Appeal:
What act is the court of appeal governed by?
Senior Courts Act 2016
94
Court of Appeal:
Also known as “___________” meaning between High Court and Supreme Court
Intermediate appellate court
95
Court of Appeal:
Usually sits in ___________
But can have a “_______” of _ in limited circumstances
- Usually sits in Division of 3 judges
- But can have “full house” of 5 in limited circumstances
96
Court of Appeal:
Headed by the _________
Name:
Headed by the “president” - Cooper P
97
Court of Appeal:
Judgements are per __________
Judges who reach a decision that is different from the majority is said to be in the “______” or to be “___________”
Court of Appeal:
Judgements are per majority
Judges who reach a decision that is different from the majority is said to be in the “minority” or to be “dissenting”
98
Court of Appeal: Jurisdiction
Statutory:
Almost exclusively appellate
99
Court of Appeal: Jurisdiction
Original - ________ exercised
- Civil proceedings transferred from ___________, In exceptional circumstances e.g. _________________________
Court of Appeal: Jurisdiction
Original - rarely exercised
- Civil proceedings transferred from High Court, In exceptional circumstances e.g. urgent matter of public importance
100
Court of Appeal: Jurisdiction
Appellate - requires “_____________”
- Appeals from _________
- Appeals from _________________
- From District Court _______________
Court of Appeal: Jurisdiction
Appellate - requires “Leave to Appeal”
- Appeals from High Court
- Appeals from Maori Appellate Court
- From District Court criminal jury trials
101
What is Leave to Appeal?
Permission from a court to appeal decision from a lower court
102
What act governs the Supreme Court?
Senior Courts Act 2016
103
Supreme Court:
Headed by the “_________”
Name:
Chief Justice - Winkelmann CJ
104
Supreme Court:
- Substantive matters usually heard by _______
- decisions about certain _____________ or ______________ may be heard by fewer
- Judgements are ____________
Supreme Court:
- Substantive matters usually heard by 5 Judges
- decisions about certain procedural issues or leave to appeal may be heard by fewer
- judgements are per majority
105
Supreme Court: Jurisdiction
Only hears cases if it grants _________ under the _________
Only hears cases if it grants “leave to appeal” under the senior courts act 2016, s73
106
Supreme Court: Jurisdiction
Criteria for granting leave to appeal under the senior courts act 2016, s73
-…..
Supreme Court: Jurisdiction
Criteria for granting leave to appeal under the senior courts act 2016, s73
- It is necessary in the interests of justice
107
Supreme Court: Jurisdiction
In order for an appeal to be necessary in the interests of justice it must…
- be a matter of _________________________;or
- a substantial ______________________________ unless the appeal is heard; or
- the appeal involves a matter of ___________________
- be a matter of general or public importance;or
- a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or
- the appeal involves a matter of general commercial significance
108
Supreme Court: Jurisdiction
Under s73 of the Senior Courts Act 2016
- Treaty of Waitangi……
And therefore qualifies for leave to appeal
Supreme Court: Jurisdiction
Under s73 of the Senior Courts Act 2016
- A significant issue relating to the treaty of Waitangi is a matter of general or public importance
And therefore qualifies for leave to appeal
109
Judicial Law Making
Courts may modifying/extend/add to the common law:
- To the extent necessary to ____________
- Building on __________________ (cases)
- Taking into account factors including ___________________________
Judicial Law Making
Courts may modifying/extend/add to the common law:
- To the extent necessary to resolve a dispute
- Building on existing legal authorities (cases)
- Taking into account factors including legislative developments and changes of social values
110
Read the following scenario and answer the question that follows.
Mr and Mrs K hired a moving company to transport their household effects, including many antiques, from their Christchurch home to their new Nelson retirement apartment. They employed Supercare Transit Ltd for the whole job – packing, moving and unpacking. They paid $2,500 upfront for the job. Supercare advertised that it was the “antiques moving specialist.” The packing was done poorly, and a valuable antique grandfather clock was completely destroyed in transit. Two independent experts (acceptable as witnesses in any court or tribunal) say the clock is irreparable and only worth about $800 as scrap parts. These experts both agree the clock was worth $32,000. Mr and Mrs K want to claim against Supercare for the damaged clock and for a refund of the money they paid upfront.
Q: In no more than three sentences, outline the options the Ks have in terms of bringing their claim against Supercare in a New Zealand court or tribunal. (3 marks)
A: The marker will be looking for valid points that answer the question asked and that are expressed in complete sentences i.e. do not list in bullet points. A maximum of 3 marks will be awarded based on the quality of answer. A strong answer will use appropriate jargon and be accurate. Valid points may include:
- The K’s may make a civil claim directly in the District Court|Te Kōti ā Rohe
- They would be claiming damages within that court’s $350000 jurisdictional limit
- In order to save costs and time, another option would be to reduce their claim to $30,000 and file in Disputes Tribunal
- The limit in the Disputes Tribunal is $30,000
- (Not really suitable for the High Court – low $ value, hardly complex case)
111
True or False:
All senior court judges must have held a lawyer’s practising certificate for at least 7 years
True
112
True or False:
Under the Contempt of Court Act, a person who interrupts a court proceeding could be sentenced to two months prison by the presiding judge.
False – max is 3 months but must be by another judge (i.e. not the presiding judge)
113
True or False:
It is impossible to complain about a judge because you could be punished for contempt
False – it depends on how and when you complain – Judicial Conduct Commissioner rather than by contemptuous interruptions in courtroom
114
A court is ‘bound’ to follow a precedent if both…..
- it is ‘________’ (similar _____________ - facts and legal issue)
AND
- it Is from a _________ court in the same _______ / _______
A court is ‘bound’ to follow a precedent if both…..
- it is ‘relevant’ (similar material Facts)
AND
- it Is from a superior court in the same jurisdiction / hierarchy
115
Curia advisari vult (‘cur adv vult’)
indicates that the court’s judgment is reserved; that is, delivered not at the end of the hearing but at a later date after consideration.
116
Persuasive precedents and weighted consideration:
- degree of ______________ similarity
- _______________ of court which created the precedent
- Whether __________________ (‘cur adv vult’)
- How the precedent has been treated by ______________
- How long the precedent has remained _____________
- Whether the _____________ context has changed
Persuasive precedents and weighted consideration:
- degree of factual/legal similarity
- Hierarchical position of court which created the precedent
- Whether decision was reserved (‘cur adv vult’)
- How the precedent has been treated by subsequent courts
- How long the precedent has remained unchallenged
- Whether the social or legal context has changed
117
CJ =…
Chief Justice
118
J =
Justice of the High Court, Court of Appeal or Supreme Court
119
JJ =
Two or more justices
120
P =
President of the Court of Appeal
121
Judge =
District Court Judges are referred to as Judge _____ (rarely DCJ)
122
No. Of judges
Supreme Court -
Court of Appeal -
High Court -
District Court -
No. Of judges
Supreme Court - 5
Court of Appeal - 3-5
High Court - 1-2
District Court - 1
123
R v Smith is being heard by Tompkins J sitting alone in a New Zealand court.
The following prior ‘cases’ are available:
Lowe v Highe [2009] 2 NZLR 5 (Greg P, Matthews, Bryant, Taylor and Smith JJ)
binding or persuasive in the case of R v Smith? Why?
Lowe v Highe [2009] 2 NZLR 5 (Greg P, Matthews, Bryant, Taylor and Smith JJ) Possibly binding – Greg P = President = NZCA; CA higher than NZHC – only binding if relevant
124
R v Smith is being heard by Tompkins J sitting alone in a New Zealand court.
The following prior ‘cases’ are available:
R v Queene [1978] 1 NZLR 455 (NZHC)
binding or persuasive in the case of R v Smith? Why?
R v Queene [1978] 1 NZLR 455 (HC) – coordinate HC/HC so technically persuasive not binding but almost certainly will be followed if relevant because of judicial comity - only binding if relevant
125
R v Smith is being heard by Tompkins J sitting alone in a New Zealand court.
The following prior ‘cases’ are available:
Stone v Crowe - A decision of the High Court of Australia
binding or persuasive in the case of R v Smith? Why?
Stone v Crowe - A decision of the High Court of Australia – overseas/outside NZ jurisdiction so at best persuasive never biding on NZ courts
126
R v Smith is being heard by Tompkins J sitting alone in a New Zealand court.
The following prior ‘cases’ are available:
Police v Emelda Marconi [2017] NZDC 21500
binding or persuasive in the case of R v Smith? Why?
Police v Emelda Marconi [2017] NZDC 21500 – at best persuasive DC lower than HC – HC may “approve” DC decision – higher courts never bound by lower courts = hierarchy in action
127
R v Smith is being heard by Tompkins J sitting alone in a New Zealand court.
The following prior ‘cases’ are available:
Blue v Greene [2017] EWCA 209
binding or persuasive in the case of R v Smith? Why?
Blue v Greene [2017] EWCA 209– overseas/outside NZ jurisdiction so at best persuasive never binding on NZ courts
128
‘Res Judicata’
“A matter that has been finally adjudicated upon”, the decision bind the parties to the case
129
Ratio decidendi (plural rationes decidendi)
“Reason for deciding”, principle of law for which the case can be cited as authority, reasoning applies to future cases
130
Conflicting precedents - General approach
Lower court faced with two higher court precedents, both of which are on same legal point, but which reach different outcomes?
- Lower court expected to follow the higher decision that is later in time if the later took into account the earlier
- if the later precedent failed to take into account the earlier case, the lower court may choose which higher decision to follow
131
Judicial Committee of the Privy Council
- NZ highest court prior to ______
- comprised of UK _______________ and senior judges from the _______________
- heard (and hears) appeals from _______________________
- NZ courts only bound by Privy Council appeals from ___
- Privy Council precedents pre-2004 continue to bind ________________________________
Judicial Committee of the Privy Council
- NZ highest court prior to 2004
- comprised of UK House of Lords / Supreme Court judges and senior judges from the commonwealth
- heard (and hears) appeals from some other commonwealth jurisdictions
- NZ courts only bound by Privy Council appeals from NZ
- Privy Council precedents pre-2004 continue to bind NZ courts (other than Supreme Court)
132
Per incuriam
A decision reached in ignorance of a relevant statue or precedent - only coordinate or superior courts may declare a decision per incuriam and only if satisfied decision would have been different
133
Every NZ court is bound by relevant decisions of hierarchically superior NZ courts unless
- the precedent can be ‘distinguished’
- the precedent has been ‘overruled’ by a higher court
- the precedent was per incuriam
134
No NZ court is bound by its own previous decisions but:
invariably follows co-ordinate decisions out of “comity” and for certainty
135
Judicial Comity
courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction
136
No NZ court is bound by its own previous decisions but:
- They may depart if they might otherwise___________
perpetuate bad law or as a result of change in social or legal values/negative treatment by a higher court
137
Why do we read past cases?
We analyse closely a previous case to see if the reasoning in it might be useful in our current case, is it a useful blueprint or precedent.
138
Goodhart method: Equation
Material Facts + Decision = Ratio Decidendi
139
GoodHart Method:
Legal Issue - describe? How is it framed?
- The legal point under dispute in the case
- Framed as a legal question based on the material facts (“whether…..[insert material facts]”)
140
GoodHart Method:
Material facts…
- The facts that are legally relevant to the issue
- Framed as a statement (what happened in the case but they are abstracted/generalised)
- Include the fact that a person was charged with whatever offence (criminal context)
- Can each be framed narrowly or broadly - judgement/choice
- What the judge saw as significant
141
GoodHart Method:
The role of the case as a potential precedent and cases can only be authority for ………..
The role of the case as a potential precedent and cases can only be authority for what they decide on their own facts
142
Goodhart Method:
What is a material fact?
A fact _______ to the decision – but for the presence of this fact the case would have been decided _________
A fact taken to an appropriate level of ___________ such that when combined in the legal issue will result in a ________________ useful in future cases
I.e. A fact generalised enough to have significance beyond ____________________
What is a material fact?
A fact essential to the decision – but for the presence of this fact the case would have been decided differently
A fact taken to an appropriate level of abstraction such that when combined in the legal issue will result in a ratio decidendi useful in future cases
I.e. A fact generalised enough to have significance beyond the particular case before the court.
143
Goodhart Approach
- Blue BMW driven negligently by Arthur crosses centre line on Hereford St at 3pm last Tuesday, collides with a red Toyota driven by Brenna causing damage to the Toyota.
- Arthur (BMW) convicted of dangerous driving on a public road
Generalise/abstract facts to reflect outcome of case but which delivers a principle useful in future cases
A person who negligently drives a vehicle on a public road and crosses the centre-line causing damage to another vehicle is guilty of dangerous driving.
144
Issue – take the MF (abstracted and converted to a statement of facts) and form a question starting with “whether”
A person assembled materials intending to manufacture a controlled drug but took no other physical step actually to make the drug was charged with attempting to manufacture the drug under s72 Crimes Act 1961.
Whether a person who assembles materials intending to make a controlled drug but takes no other physical step to make that drug can be said to have attempted to manufacture that drug in terms of s72 Crimes Act 1961.
145
Ratio (‘answer’ to the issue – a principle of law for which case is authority)
Whether a person who assembles materials intending to make a controlled drug but takes no other physical step to make that drug can be said to have attempted to manufacture that drug in terms of s72 Crimes Act 1961.
A person who assembles materials intending to make a controlled drug but takes no other physical step to make that drug cannot be said to have attempted to manufacture that drug in terms of s72 Crimes Act 1961.
146
Treatment of authorities: Positive
Followed….
Where a court is expressing itself as bound by a previous decision of a court of co-ordinate or superior jurisdiction in a case where the material facts were the same or substantially similar
147
Treatment of authorities: Positive
Applied….
Where a court is applying the principle of a previous decision to the case before it, the facts of which are materially different from those of the earlier case
148
Treatment of authorities: Positive
Applied….
You will know MF is different because…
- The judge will say enough about the facts of the prior case or;
- the decision / outcome in the previous case differed from that in the case you are analysing
149
Treatment of authorities: Positive
Approved….
Where the court approves a previous decision of a court of inferior jurisdiction in unrelated proceedings
Unrelated - not the appeal case in the same proceedings
150
Treatment of authorities: Positive
Adopted….
Where the reasoning of a decision which is not binding authority in New Zealand is used at arriving at a decision in the later case
151
In a test what if the treatment is positive but I don’t know enough about the facts or outcome confidently to choose between followed/applied?
Answer “followed or applied” (and you would say why you can’t choose between the available glossary words)
152
William Young P, the judge in Allbright v Nolight Ltd [2006] NZCA 1023 said at para [22]:
“I endorse the approach set out by Windsor LJ in Blokes Apparel Ltd v Mates Materials Ltd [2001] UKSC at 13. Using Windsor LJ’s test, there is but one outcome; this Court finds in favour of Mr Allbright.”
How did William Young P treat the case of Blokes Apparel?
William Young P adopted Blokes Apparel. At para [22], the President positively “endorses” the approach of and “uses” the test of the judge in Blokes Apparel. Blokes was decided in the UK Supreme Court so is outside the NZ hierarchy and could never bind the NZ Court of Appeal.
153
“s3D of the Police Offences Act has been the subject of authoritative consideration by the Court of Appeal in Melser v Police [1967] NZLR 437” (p925, line 46).
“As Turner J has pointed out in the Melser case (at p 444) the question is one of degree and circumstance, and the conduct complained of must annoy or insult “sufficiently deeply or seriously to warrant the interference of the criminal law”(p925, line 53)
“the activity complained of... falls well short of the conduct defined by the Court of Appeal…” (p926, lines 12-13).
Q: How did Woodhouse J treat the case of Melser v Police (i.e. did he follow it, apply it, adopt it, etc?) How do you know?
A: Woodhouse J follows or applies Melser v Police, which was decided in the Court of Appeal (a superior court to that of Woodhouse J in Kinney.) We do not know the outcome of the Melser case or the facts except that it involved the same charge as in Kinney but Woodhouse J positively uses the test laid down in Melser to resolve the Kinney case. Woodhouse J says “(A)s Turner J has pointed out in Melser the question is one of degree and circumstance, and the conduct complained of must …warrant the interference of the criminal law’(p925, line 53) and goes on to say in relation to Kinney’s activity: “...it falls well short of the conduct defined by the Court of Appeal…” (p926, lines 12-13).
154
Treatment of authorities: Negative
Distinguished……
Where a court decides that it need not follow a previous decision even where it would otherwise be bound by it, because there is some salient difference between the previous case and the one before it.
155
Lower courts are bound by higher authority – so a lower court that engages in distinguishing needs to have ___________________________ to justify the failure to follow a higher authority
Lower courts are bound by higher authority – so a lower court that engages in distinguishing needs to have solid grounds/convincing analysis to justify the failure to follow a higher authority
156
Co-ordinate courts are not strictly bound but remember they tend to follow (for reasons of ________________)
Co-ordinate courts are not strictly bound but remember they tend to follow (for reasons of certainty and comity)
157
Treatment of authorities: Negative
Not Followed………
Where a court has declined to follow a decision of a court of co-ordinate jurisdiction in a case where the facts were the same or substantially the same
158
Treatment of authorities: Negative
Overruled………
Where a court decides that a previous decision of a court of inferior jurisdiction in unrelated proceedings is wrong
159
Treatment of authorities: Negative
Overruled:
CA and SC can _________________ – very rare and only in appropriate, compelling cases
DC and HC do not overrule __________ instead
choose “___________” so for e.g. there can be two inconsistent HC decisions awaiting the CA to clarify which is correct (again rare)
CA and SC can overrule themselves – very rare and only in appropriate, compelling cases
DC and HC do not overrule themselves instead choose “not follow” so for e.g. there can be two inconsistent HC decisions awaiting the CA to clarify which is correct (again rare)
160
Treatment of authorities: Negative
Overruling the precedent in the sense of the ratio
i.e. the prior decision _____________ as a precedent; its principle of law (ratio) is no longer ‘__________’
overruling does not change the ______________ – res judicata – can’t unsettle the decision as it applies to the parties in overruled case
Note definition refers to unrelated proceedings i.e. not talking about ________________ allowing an _______ in same proceeding
- BUT overruling may activate/reactivate an ________________________
i.e. the prior decision loses its weight as a precedent; its principle of law (ratio) is no longer ‘good law’
overruling does not change the decision of the lower court – res judicata – can’t unsettle the decision as it applies to the parties in overruled case
Note definition refers to unrelated proceedings i.e. not talking about appellate court allowing an appeal in same proceeding
- BUT overruling may activate/reactivate an appeal in the overruled case itself
161
Treatment of authorities: Negative
Doubted, disapproved or criticised……
Where a court disagrees with a previous decision but either it is not necessary for the purpose of the case before it to overrule the previous decision, or both courts being of co-ordinate jurisdiction there is no power to overrule the previous decision
- District and High courts cannot overrule themselves
- Court of Appeal and Supreme Court can overrule themselves
162
Treatment of authorities: Negative
Doubt………
A court doubts but doesn’t ____________________
A court doubts but doesn’t take any further step to change the doubted case’s principle
163
Treatment of authorities: Negative
Disapproved or Criticised………
A superior court disapproves/criticises which _____________________
A superior court disapproves/criticises which reduced the principle’s reliability/standing/force but still not overruled
164
“The decision of the High Court of Australia in Blue Heelers Ltd v Dinkum Dingoes Ltd was cited to us but, ultimately, that case turned on the fraudulent behaviour of the directors of Blue Heelers Ltd and significantly there is no suggestion of fraud or misrepresentation in the facts of the present case.”
How did Richards P treat the case of Blue Heelers?
Distinguished [+ explanation/quote.]
165
Treatment of authorities: Neutral/equivocal
Considered…..
Where a court considered a previous decision but does not actually follow, apply, distinguish it, etc
- not usually the best answer
166
Treatment of authorities: Neutral/equivocal
Explained…….
Where a court interprets a previous decision and states what it means
- not usually the best answer
167
Treatment of Authorities
For authorities outside NZ hierarchy - most common would be _________________
Adopted or distinguished
168
As absurdum
If the argument presented is accepted as right, an absurd result will occur
169
A fortiori
If the law cannot be applied to more extreme cases, it cannot then be applied to less extreme cases
170
De minimis non curat lex
Some breaches of rules hold so little importance that they should not be dealt with in a court of law
