Readings Flashcards
What does the “declaratory theory” outline for judges making laws?
Law = seperate entity, judges merely define and apply law.
What does the “legal postivist theory” outline for judges making law?
Judges create law
Law doesn’t exist before judge creates it
What does the “incremental theory” outline for judges making law?
Judges only create law when new situation arises, however law must be made in accordance to what already exists.
What does “judicial dicta” mean?
Obiter dicta = so relevant that it is considered same level of binding as ratio decidendi.
What is non-restrictive distinguishing?
Distinguished on:
- facts of current case fall outside past case facts.
What is restrictive distinguishing?
Distinguished on:
- Current case MF not considered in past case, thus past case ratio doesn’t apply to current case.
What is the “but for” test?
Principle only = ratio decidendi if reversed principle changes outcome of case.
To test ratio, frame in reverse and see if outcome would change.
What are Terrell and Wildmans’ 6 values to define the professionalism of lawyers?
- ethic of excellence
- ethic of integrity
- positive respect for the legal system and rule of law
- respect for other lawyers
- commitment to accountability
- responsibly for the adequate distribution of legal services
What two types of law does equity deal with (under private law)?
- Trusts
- Succession
What is a members bill?
Bill sponsored by MP.
Can legislative powers be delegated?
Yes
What is the “regulations review committee” role?
Representing Parliament to review delegated legislation.
Can a lawyer directly contact the opposing client when their legal representation could have be contacted?
No, they must contact legal representation where possible.
In what scenario can a lawyer directly contact their opposing client?
When the matter is of urgent importance and the opposing client’s council cannot be contacted and the associates of the council cannot be contacted.
Does the NZHC have both common law and equity jurisdiction?
Yes, since 1841.
In a criminal trial, what are the requirements for a jury trial?
Minimum penalty of at least two years imprisonment.
What three types of cases in civil cases have the option to be heard by a jury?
Defamation
False imprisonment
Malicious prosecution
There are two conflicting precedents from the High Court considered binding to the DC judge’s case. The later case does not acknowledge the first case. Which case must the DC follow?
Neither, the DC judge is free to choose between the two.
There are two conflicting precedents from the High Court considered binding in the DC judge’s case. The later case does acknowledge the first case but still reached a different outcome. Which precedent should the DC judge follow?
The later case.
