Revision Cards

Question 1

What are the three main sources of law in Australia?

Answer 1

1. The constitution
2. Law made by parliament (legislation or statute law)
3. Law made by Judges (common law)

Question 2

What is statutory interpretation?

Answer 2

Statutory interpretation is the process undertaken by courts to interpret Acts before determining their proper application. Judges make law when they do this.
Judges make law when they give decisions in cases in areas which parliament has not regulated by statute.

Question 3

What is the doctrine of precedent?

Answer 3

The underlying principle of the doctrine of precedent is that cases must be decided alike. This creates consistency and fairness.
The doctrine can be defined as: Courts are bound to follow the decision of a higher court in the same jurisdiction.
Lower courts must follow the decisions of a higher court in the same jurisdiction. This is called a binding precedent.
Decisions of lower courts, the same level, or of courts in other jurisdictions are persuasive precedents only.
Essentially, Judges are not free to make their own decisions, but instead are bound by the decisions of judges in previous cases.

Question 4

What is legally binding from a past precedent?

Answer 4

There are two components to a judge’s ruling:
Ratio decidendi and Obiter dicta.
Ratio decidendi: The “reason for decision” which is binding upon later courts.
Obiter dicta: “Incidental things said”. Opinions and “By the way” comments. These are not binding upon later courts.

Question 5

What is the difference between civil and criminal actions?

Answer 5

Civil courts aim to resolve disputes, which are disagreements between members of society who believe they have had their private legal rights infringed by the acts or omissions of others.

Alternatively, criminal law seeks to punish people who commit criminal actions.

Breakdown of components:

1. Civil: The plaintiff making the claim, and the defendant resisting it
2. Criminal: The crown and the accused. (The lawyers are the prosecutor and the defence)
3. Civil: The onus of proof is on the plaintiff
4. Criminal: The onus of proof is on the prosecutor.
5. Civil: The standard of proof is the balance of probabilities.
6. Criminal: The standard of proof is beyond a reasonable doubt
7. Civil: Litigation, Alternative Dispute Resolution
8. Criminal: Trial, plea deal
9. Civil: Plaintiff v Defendant e.g. Jones v Smith
10. Criminal: State(Prosecution) v Defendant e.g. R v Smith

Question 6

What is alternative dispute resolution?

Answer 6

Alternative dispute resolution aims to settle a dispute without having to go through a more formal process such as a court hearing.
Methods include:
Mediation: A process of negotiation with the assistance of a neutral third party. The parties do not reach a resolution unless all sides agree. The mediator facilitates negotiations but does not offer advice. Agreement (non binding) is a ‘terms of settlement’.
Conciliation: A process where an independent third party, the conciliator, helps people in a dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement. Similar to mediation, however, they do offer advice. Agreement (non binding) is a “terms of settlement”.
Arbitration: Is like a court process as parties still provide testimony and give evidence similar to a trial, but it is usually less formal. The arbitrator (e.g. retired judge) provides a legally binding decision which both parties must honour.

Question 7

Legislation and ADR

Answer 7

Both commonwealth and state governments have introduced Laws:
Civil Dispute resolution act 2011 (Cth) - people must make genuine steps to resolve disputes before civil proceedings are instituted.
(genuine steps must be a sincere attempt to resolve the dispute having regard to the person’s circumstances and circumstances of the dispute)

QUEENSLAND:
Civil proceedings act 2011 (Qld) - focus to make new provisions for civil proceedings in Supreme, District and Magistrates court.
Aim:
- To achieve negotiated settlement and satisfactory resolution of disputes
- Improve access to justice

Question 8

Civil Dispute Resolution Act (2011)?

Answer 8

The object of this act is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted

Question 9

Explain the following defences and what remedies:
Mistake
Misrepresentation
Duress
Undue Influence
Unconscionable conduct
Illegality
Restraint of trade

Answer 9

Mistake: A mutual mistake means no meeting of minds, therefore no contract
Remedy: No contract as both parties contributed to the mistake

Misrepresentation: A false representation of a fact made orally or in writing or by conduct, inducing the contracting party to enter into the contract, and resulting in the innocent party suffering a loss.
Three types: fraudulent, innocent, negligent
Fraudulent: Rescind agreement, plus damages
Innocent: Rescission (not plus damages)
Negligent: Rescission, damages and/or indemnity

Duress: Actual or threatened violence or unlawful restraints or threats directed towards the contracting party or a member of his close family.
Remedy: Contract voidable

Undue influence: One party acquired over another a measure of influence or ascendancy, and the ascendant person takes unfair advantage.
Remedy: Contract voidable

Unconscionable contract: The innocent party was in a disadvantaged position
Void and damages
Illegality: Illegal contracts are not enforceable
Remedy: Unenforceable, voided

Restraint of trade: One party agrees to restrict its freedom in the future to carry on trade with other parties who are not parties to the contract
Remedy: Void