Outcome 3 Unit 3

Question 1

Doctrine of precedent

Answer 1

Refers to the way judges make the law (and decide cases) by referring to previous decisions (precedents).

Question 2

Precedent

Answer 2

A judgement of a court that sets a principle of law

Question 3

Ratio decidendi

Answer 3

The reason for the decision, forms the statement of law that is the binding part of a precedent

Question 4

Obiter dictum

Answer 4

Statements of the judges opinion on a legal principle, which is not for consideration of the case at hand. These can be used persuasively in the future.

Question 5

Stare decisis

Answer 5

Standing by what has been decided. Crucial to the doctrine of precedent to maintain the principle of stare decisis because judges are encouraged through binding precedent to stand by what they have decided

Question 6

Judges and courts ability to make law

Answer 6

1. Judges make laws on a new issue that arises, on which there is no previous statute or common law, or the current law requires expansion.
2. Through the interpretation of legislation as it applies to the case before them.

Question 7

Limitations on judges ability to make law

Answer 7

• can only make law when test case arises. Willingness and money to start a case
• the personality of a judge, some are conservatives who see themselves as adjudicators others believe they’re responsible to make change and see themselves as adjudicator and law maker
• the position of the court in the hierarchy, only superior courts create precedent.

Question 8

Binding precedent

Answer 8

Precedent created by courts higher in the same court hierarchy that must be followed by the lower courts when making a judicial decision.

Question 9

Persuasive precedent

Answer 9

Precedent that courts are not bound to follow, such as those made by lower courts or courts of another jurisdiction, but courts may look to when making a judicial decision. Different hierarchy

Question 10

Reversing

Answer 10

A judge in a higher court deciding a case on appeal may rule that the lower court wrongly decided. Higher court can reverse or change the previous decision.

Question 11

Overruling

Answer 11

A judge deciding on a case in a higher court may not agree with the precedent set by a lower court. The higher court may decide to not follow the persuasive precedent and may overrule or change it.

Question 12

Distinguishing

Answer 12

A judge may find that there are different facts existing between the the case at hand and the case in which an earlier binding precedent was set.

Question 13

Disapproving

Answer 13

A judge may refuse to follow an earlier decisions of another judge in the same court. They are showing their lack of agreement with the case and can change it.

Question 14

Relationship between court and parliament in law making

Answer 14

1. Though legislation, parliament establish courts structure and jurisdiction. E.g. Magistrates’ court act established structure
2. When settling a dispute, courts need to apply relevant legislation made by parliament including delegating legislation. E.g. Deing v. Tarola shows courts ability to interpret legislation created by parliament.
3. Parliament can change laws created by courts, because of sovereignty. E.g. State government insurance commission v. Trigwell and others, duty of care was owed proving parliaments ability to override courts decision

Question 15

Case examples of precedent

Answer 15

Negligence
Donoghue v Stevenson- House of Lords decision was one must take reasonable care to avoid acts or omissions that you can foresee and would be likely to injure neighbour.
Grant v. Aus knitting mills- privy council decided manufactures owed a duty of care
Naive title
Mabo v. Queensland state- high court 6:1 terra nullius applied and abo people were recognized. The principle of Mabo were later codified by the federal parliament in the native title act

Question 16

determining the purpose of legislation/ AIDS use to determine

Answer 16

Intrinsic sources contained within the act such as word of the act, definitions sections, long title and preamble.
Extrinsic sources outside the act such as parliamentary debates, reports from parliamentary committees, previous decisions

Question 17

Reasons for interpretation

Answer 17

Mistakes in drafting the bill, due to lapse of communication.
Changing nature of words, the meaning or application of words can be changed to give meaning to the act
Words can be ambiguous, due to an attempt to make legislation cover a broad range of situations, this may result in confusion

Question 18

Strengths of law making through courts

Answer 18

Courts are able to make law quickly - when relevant case is brought before them they can create immediate law
courts maintain flexibility- maintain flexibility in both the development of common law and statutory interpretation through methods of developing precedent, this way it isn’t too rigid.
The appeal process allows for the review of decisions, decisions made in a lower court can be checked by high court, allowing for precedent to be reversed.

Question 19

Weaknesses of law making through courts

Answer 19

Must wait for an appropriate test case, willing to contest case.
Courts may find themselves restricted in their ability to make law if they are bound by old precedent and are unwilling to use methods of avoiding precedent. Making it inflexible
Law making by courts is only ever ex post facto- after the fact. These acting retrospectively and are unable to make laws for future

Question 20

Effects of interpretation by judges

Answer 20

A wide interpretation of a word or phrase may extend the law covering a new area of law.
A narrow interpretation of a word may restrict the law to cover only certain situations.
Words in the legislation are given meaning through interpretation.

Question 21

Advantages of doctrine of precedent

Answer 21

Creates consistency as case will be determined similarly to a previous.
Flexibly due to avoiding precedent
Allows judges to create new areas of law in order uphold rights

Question 22

Disadvantages of doctrine of precedent

Answer 22

Some uncertainties as no two cases are the same
Inflexible bound to follow precedent
Complicated he judicial law making process