Outcome 1 - The operation of the doctrine of precdent (ANTHONY ERA) Flashcards
Primary role of the judge
The Judge is able to adjudicate in cases by finding facts and then reach a decision based on those facts.
Secondary Function of Judges
Is to make law. They can make laws through:
- Common law or case law
- Statutory interpretation
Common law or Case law
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.
Statutory Interpretation
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.
Ratio Decidendi
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.
Binding Precedent
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.
Obitur Dictum
Obiter dictum provides some insight or explanation into how the judge interprets the facts and legal principles in order to reach their decision.
Responsbilities of the court
The courts responsibility is to resolve disputes and to test/enforce laws in a fair and rational manner.
Precedent
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.
Persuassive Precedent
A precedent which a judge is not obliged to follow, but is of importance in reaching a judgment.
4 ways to develop or avoid earlier Precedents
Distinguish
Reverse
Overule
Dissapprove
Developing or avoiding earlier precedents- Distinguish
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.
Developing or avoiding earlier precedents- Reverse
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.
Developing or avoiding earlier precedents- Overule
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.
Developing or avoiding earlier precedents- Disapprove
In some instances a court is bound by a precedent but expresses its disapproval of the precedent.
Tort
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.
Tort (Negligence)
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.
Key Principals of Negligence
- 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.
Duty of care
Is a moral or legal obligation to ensure the safety or well-being of others.
Tort (Defamation)
To constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed.
Statutory Interpertation (Act)
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.
Statutory Interpertation (Reasons for Statutory Interpertation)
- 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.
How to prove Defamation.
- The Statement is defamation
- Refers to plaintiff
- Published to people or public
Stare Decisis
The policy where courts are to abide to principles established by decisions in earlier cases.
Doctrine
A rule or principle or the law established through the repeated application of legal precedents
Defense of Defamation
- Justification (Mostly True)
- Fair Report for public interest
- Trivial
- Absolute privilege
Defense of Negligence
- There was some risk involved anyway
- Contributing to negligence
- Polar opposite to proving that negligence existed
The need for Civil Law
Civil law Protects individuals rights. it aims to return a person whose rights have been infringed back to their original state.
Distinction Between Civil and Criminal Law
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
Doctrine of Precedent (Define)
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 Explain Doctrine of Precedent
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).
Donoghue v. Stevenson (1932) and Grant v Australian Knitting Mills (1936)
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.
2 Strengths of Juries in a Civil Dispute
- 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.
2 Weaknesses of Juries in a Civil Dispute
- 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.
Conclusion on Jury in Civil Disputes (MY OPINION)
Juries should be retained in civil cases as community values , and attitudes expressed in each verdict promotes confidence in the judicial system.
QUESTION Evaluate Juries in a civil case
- Define Juries
- 2 strengths on Juries
- 2 Weaknesses that counter the strengths
- Conclusion
