Outcome 1 - The operation of the doctrine of precdent (ANTHONY ERA)

Question 1

Primary role of the judge

Answer 1

The Judge is able to adjudicate in cases by finding facts and then reach a decision based on those facts.

Question 2

Secondary Function of Judges

Answer 2

Is to make law. They can make laws through:

• Common law or case law
• Statutory interpretation

Question 3

Common law or Case law

Answer 3

When Judges make laws based on new issues that arises in a case before them. They exist so that the current common law can have expansion.

Question 4

Statutory Interpretation

Answer 4

This is when Judges need to interpret a legislation to a case when it is either ambiguous or unclear. The Judge use resources such as dictionaries and interpretation sections within Acts.

Question 5

Ratio Decidendi

Answer 5

Is the reasoning for the decision made by the judge.
Ration Decidendi can be determined by distinguishing material facts from unimportant facts, restricting analysis to the majority opinion or by reading out subsequent decisions and considering it at several levels.

Question 6

Binding Precedent

Answer 6

Under the doctrine of precedent, a lower court is bound to follow the decision of a higher court in similar cases. This helps to maintain a degree of consistency in cases with similar facts.

Question 7

Obitur Dictum

Answer 7

Obiter dictum provides some insight or explanation into how the judge interprets the facts and legal principles in order to reach their decision.

Question 8

Responsbilities of the court

Answer 8

The courts responsibility is to resolve disputes and to test/enforce laws in a fair and rational manner.

Question 9

Precedent

Answer 9

A precedent is a legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts.
Example is the snail story where negligence was created.

Question 10

Persuassive Precedent

Answer 10

A precedent which a judge is not obliged to follow, but is of importance in reaching a judgment.

Question 11

4 ways to develop or avoid earlier Precedents

Answer 11

Distinguish
Reverse
Overule
Dissapprove

Question 12

Developing or avoiding earlier precedents- Distinguish

Answer 12

If the facts of a case are sufficiently different from the facts in a binding precedent, a lower court may not have to follow the precedent.
They may instead distinguish the present case from the previous case and make a different decision.

Question 13

Developing or avoiding earlier precedents- Reverse

Answer 13

A precedent can be reversed when the same case is taken to a higher court on appeal. For example;
A case may have been decided in the Supreme Court and then taken on appeal to the Court of Appeal, where the decision is changed.

Question 14

Developing or avoiding earlier precedents- Overule

Answer 14

A precedent can be overruled by a higher court in a different case. For example;
The High Court may overrule a decision of a different case decided in the Court of Appeal. When a precedent is overruled, it no longer applies.

Question 15

Developing or avoiding earlier precedents- Disapprove

Answer 15

In some instances a court is bound by a precedent but expresses its disapproval of the precedent.

Question 16

Tort

Answer 16

A tort, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the act.

Question 17

Tort (Negligence)

Answer 17

Negligence means a failure to take reasonable care. A person is obliged to take reasonable care in regard to other people, where it is reasonably foreseeable that other people could be harmed by their actions.

Question 18

Key Principals of Negligence

Answer 18

• The person who was negligent owed a duty of care to the person injured.
• The duty of care was breached
• The breach of the duty of care caused loss or damage (Causation)
• The wronged person has suffered loss or damage.

Question 19

Duty of care

Answer 19

Is a moral or legal obligation to ensure the safety or well-being of others.

Question 20

Tort (Defamation)

Answer 20

To constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed.

Question 21

Statutory Interpertation (Act)

Answer 21

An act or statue is written to apply to all types of situations. Sometimes an unusual situation arises and the courts have to interpret words within the act.

Question 22

Statutory Interpertation (Reasons for Statutory Interpertation)

Answer 22

• Mistakes can occur during the drafting of an act of parliament.
• The act may not include new types of technology, such as smartphones or tablets.
• A word may not be defined. If a word is not defined, a court may need to consider what it means.
• The meaning of the words may be ambiguous.
• Word meanings can change over time.

Question 23

How to prove Defamation.

Answer 23

• The Statement is defamation
• Refers to plaintiff
• Published to people or public

Question 24

Stare Decisis

Answer 24

The policy where courts are to abide to principles established by decisions in earlier cases.

Question 25

Doctrine

Answer 25

A rule or principle or the law established through the repeated application of legal precedents

Question 26

Defense of Defamation

Answer 26

- Justification (Mostly True) - Fair Report for public interest - Trivial - Absolute privilege

Question 27

Defense of Negligence

Answer 27

- There was some risk involved anyway - Contributing to negligence - Polar opposite to proving that negligence existed

Question 28

The need for Civil Law

Answer 28

Civil law Protects individuals rights. it aims to return a person whose rights have been infringed back to their original state.

Question 29

Distinction Between Civil and Criminal Law

Answer 29

A criminal dispute aims to protect society as a whole. it aims to apprehended, prosecute, punish and deter people who have broken the law. A civil dispute on the other hand Protects individuals rights. it aims to return a person whose rights have been infringed back to their original state. In criminal there is the prosecution (Crown or state) and the accused. In civil there is the Plantiff (Victim) vs the defendant

Question 30

Doctrine of Precedent (Define)

Answer 30

The doctrine of precedent refers to when a court follows principles of law established in a previous case where the facts are similar. In other words, judges follow past decisions in future cases with similar facts. The doctrine of precedent is based on the principle of stare decisis, where lower courts stand by the decisions already made by a judge in a higher court in cases where the facts are similar. This is the basis of the doctrine of precedent.

Question 31

QUESTION Explain Doctrine of Precedent

Answer 31

1)Doctrine of Precedent (Define) 2)Explain Binding Precedent 3)Explain Persuasive Precedent 4)RODD 5)Explain Ratio Decindi 6) Explain Obiter Dictum 7) Explain Donoghue v. Stevenson (1932) and Grant v Australian Knitting Mills (1936).

Question 32

Donoghue v. Stevenson (1932) and Grant v Australian Knitting Mills (1936)

Answer 32

The decision in the Grant v. Australian Knitting Mills where the manufacturer owed a duty of care to the consumer established the law of negligence in Australia, and created a binding precedent for Australian courts.

Question 33

2 Strengths of Juries in a Civil Dispute

Answer 33

- A jury trial is considered to be a ‘trial by one’s peers’, as they are randomly selected according to age, gender, occupation and education etc -The decision-making is shared among six people, rather than a judge alone. This means that more than one person is involved in the decision- making process, allowing for different views to be considered.

Question 34

2 Weaknesses of Juries in a Civil Dispute

Answer 34

- It is claimed that civil juries do not represent a true cross-section of society because not all people are eligible to be on a jury since they can be excused for a good reason, such as because of work commitments. - Jury members may not actually be impartial and can bring personal biases or prejudices to the courtroom.

Question 35

Conclusion on Jury in Civil Disputes (MY OPINION)

Answer 35

Juries should be retained in civil cases as community values , and attitudes expressed in each verdict promotes confidence in the judicial system.

Question 36

QUESTION Evaluate Juries in a civil case

Answer 36

- Define Juries - 2 strengths on Juries - 2 Weaknesses that counter the strengths - Conclusion