sources of contemporary australian law: common law Flashcards
development of common law
The common law system was first developed in England…referred to as “English Common Law”
● The justices made sure there was a common law for everyone to follow
● Upon colonisation by the British, Australia adapted a common law system
● Can be described as a collection of legal principles and reviews that derived
from the decisions of judges in higher courts.
● Used to differentiate between law that is developed by judges and law
imposed by parliament
● If common law and statute exits, the statute law must always be followed.
Equity
Common law does not always provide a fair outcome
- Too many strict procedure to follow and law remedies were too rigid
and inflexible
- Equitable remedies were needed for situations where money was not
adequate, e.g judicial order stopping you from completing another
action
- Fusion of Common Law and equity - if there is ever conflict between
common law and equity…equity always prevails
precedent - doctrine of precedent
When making decisions in current case, the judge must apply the same
reasoning and decision of judges in previous similar cases
- Previous case must have been decided in a higher court which is
binding precedent (must follow) on lower courts
- Precedent from the same court is persuasive (should be followed)
- Precedent from higher courts overseas are persuasive in Australia, as
are precedent from different state courts
ratio decidendi
a statement from the judge about their decision
obiter dicta
other statements such as personal opinion
adversarial system of trial
- Judge doesn’t investigate, makes decisions and decides on Questions of Law
● Jury doesn’t investigate and decides on Questions of Fact
● Court is inactive in determining how claims are presented
● Defendant vs Prosecution (both want to win)
inquisitorial system of trial
- The inquisitorial process grants more power to the judge who oversees
the trial, and the court is actively involved in determining the way in
which claims are presented.
○ In the inquisitorial system, all evidence is allowed as the judge makes
the decision; most evidence is written.
if there is ever conflict between
common law and equity…equity always prevails - Ratio Decidendi & Obiter Dicta
○ The inquisitorial system benefits society, as there are no guilty pleas and right to silence, meaning if the defendant is guilty there is no lesser sentence to be negotiated
○ Lawyer plays a very little role
state and territory courts
lower
- local & magistrates
- land & environment
- coroner’s court
- children’s court
intermediate
- district court
superior
- supreme courts
local & magistrates court
- Deal with minor criminal matters and minor civil disputes
- Most criminal matters are head in the local or magistrate court, as only serious crimes are referred to the District or Supreme Court
- In indicative offences, the magistrate will listen to an outline of the evidence to determine if it is enough to try the defendant in the District or Supreme Court
- Deals with monetary matters up to $100 000
land & environment court
- A specialist court for interpreting and enforcing environment law in NSW
coroner’s court
- Ensures that unexplained deaths, fires and explosions are properly investigated
district court
- Deals with more serious criminal matters, these range from larceny up to manslaughter, sexual assault and large scale drug importation
- Handles cases claimed up to $750 000
- appellate jurisdiction
children’s court
- Deals with civil matters concerning the protection and care of children
and young people
appellate jurisdiction
ability/power of a court to hear appeals of the
supreme courts
- Highest court in state or territory hierarchy
- Deals with the most serious criminal matters involving large sums of money (no monetary limits on its jurisdiction)
