unit 4 aos 1/ b Flashcards
What is the order of the court hierachy within Victoria?
High court-federal
Supreme (court of appeal)-State
Supreme (Trial division)-State
County court-state
Magistrates court-state
What are the 2 ways in which court can make law?
Through making precedents in areas of law in which legislation has not been made by parliament, Judges ‘Ratio decendi’ (the reasoning) can become binding precedent on lower courts with similar cases, therefore creating common law.
Can also be made via statutory interpretation, courts can interpret statue made by parliaments, with this interpretation becoming precedent, potentially binding on lower courts.
example of statutory interpretation?
deing vs tarola
What are the reasons for statutory interpretation?
-Problems as a result of drafting process; Complexities in drafting legislation mean that inivetibaly some terms and phrases used will be unclear and in need of interpretation before they can be applied to resolve the case before the law; Bill might not have taken future circumstances into account,the intention of the bill might not have been clearly expressed,mistakes in the drafting of the bill. (Ambiguous, for example deign vs tarola)
-Problems apply statue to case; Most legislation is drafted in general terms so it can cover a wide range of circumstances however terms might be so broad that they need to be interpretation before thye can be applied to specific circumstances, The act may have become out of date and no longer reflect community views and values. The meaning of words may be ambiguous, The act might be silent on an issue and the courts may need to fill the gaps within legislation, The meaning of words can change over time.
what are the effects of statutory interpretation?
-Give meaning to words and phrases; allows the relevant statue to be applied to a case, gives guidance for parties involved in a similar cases
-Decision is binding on parties:Once a court has made a decision, binding on parties until one party lodges a successful appeal against the decision.
-Precedent to be followed in future:statutory interpretation can establish precedent, if made in a higher court it is binding on lower courts.
-Meaning of legislation- (can either broaden or narrow):If a court interprets a word or phrase narrowly,restricts the scope of law.Contrastingly;a broad interpretation of a word or phrase in a statue can extend the meaning of legislation to cover a wider range of circumstances or area of law.
what does the doctorine of precedent refer too?
Rule that the reasons for the decisions of higher courts(ratio decendi) is binding on lower courts in the same hierarchy, that have similar facts.
Reasons for precedents
Reasons for precedents:Application of precedents help ensure common law is consistent and predictable.Precedent ensures that;
-Like cases are decided in a like manner.Establishes the parties in a dispute to look back to previous cases to gain some idea of how the court may determine a case.
-Legal representatives are able to give advice on the likely outcome of a case, as they will have some understanding as to how the court may decide a case.
-Judges have some guidance, as they can refer back to cases and decide accordingly
-decisions made by more experienced judges in higher courts are followed in lower courts
-The same point is not being decided over and over again, which would be a waste of time.
What is binding and persuasive precedent?
-Binding:Legal reasoning for a decision in a higher court that must be followed by lower courts in the same jurisdiction, where facts of the case are similar.
-persuasive:Precedents used that may be considered relevant (As it may have similar facts) and may be used as a source of influence even though it isint binding, courts may use a judges obiter dictum (side comments), when talking about persuasive precedent, which may have the potential to be influencing on a case.
How can courts avoid using precedents they don’t like? (RODD)
-reversing:Judge in superior court may disagree with precedent, therefore the old precedent made by lower court is is reversed and a new precedent is made.
Same case appealed, made a precedent, on appeal its been changed, same case
-Overruling(different case, future case):
Future case,high court looks at previous case(not the same case).
-Distinguishing:Finding different facts of the case they are deciding to those of the precedent,saying that they arent the same and therefore the same precedent does not apply.
-Disapproving:Lower courts can express their dissatisfaction with a precedent, however the lower court is still bound to this precedent.However it may act as an appeal towards a higher court to create a new precedent.
what are the 4 factors affecting the ability of courts to make law?
-the doctrine of precedent
-judicial conservatism and judicial activism
-costs and time in bringing a case to court
-the requirement for standing.
How does the doctrine of precedent affect the ability for courts to make law?
Positives:
-Application of precedents helps consistency and predictability
-Creates consistency and predictability about how the law can be applied, allows parties to take a case to court and anticipate how the law may apply to the situation, as similar cases are decided in a similar manner.
-Allows legal practitioners to give advice to their clients about how a court may decide a case
-Doctrine of precedent is flexible, precedents can change and develop over time to allow the gradual expansion of common law.Through the process of RODD.
Limitations
-The difficulty and cost involved in locating relevant precedents (law reps need to search for precedents)
-Ratio decindi is hard to find, so they don’t make clear law
-conflicting authorities
-Can be difficult to locate precedents due to large volume of precedents, not make law in a timely manner.
-Identifying the relevant legal reasoning (ratio decidendi) behind a decision.
-Difficulty in predicting future developments, as precedents can be overruled by parliament.
-Doctorine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by the higher court.
-Judges in superior courts may be reluctant to reverse or overrule exisisting precedents.
-While not technically bound by their own courts decision,judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them.
-Judge needs to wait for a relevant case needs to be brought before the courts before being able to make common law.
-Parliament can always choose to abrograte precedent made by judges.
How does judicial conservatism and judicial activism affect the ability for courts to make law?
Judicial conservatism: desire of judges that seeks to promote and preserve traditional institutions, customs, and values
Positives;
-Judges exercising conservatism help maintain responsibility in the law, as judges are cautious and show restraint when making decisions that could lead to significant changes to the law.
-Conservatism could lessen the possibility of appeals on a question of law.
-Allows parliament which has the ability to reflect communities views and values to make more significant and controversial changes in the law.
Negatives;
-Judicial conservatism restricts the ability of the courts to make major or controversial changes in the law
-Judges may not consider a range of social and political factors when making law
-May seem to some as not being progressive enough or factoring in 21st century views or values when deciding cases.
Judicial activism:Refers to the willingness of judges to consider a range of social and political factors when interpretation the law and making decisions.
Positives;
-Allows judges to broadly interpret statues in a way that recognises the rights of the people and may lead to more fair judgements.
-Allows judges too be more creative when making decisions and significant legal change (such as the mabo case)
negatives:
-lead to courts making more radical change in the law and do not reflect community values or are beyond the communities level of comfort.
-May lead to more appeals on the question of law (question about how the law has been applied)
-Judges are limited to being “progressive” or “active” given the nature of their role in deciding cases within the confines of the case and in light of existing law.
-Since Parliament is the supreme law making body, it can abrogate any decisions they don’t agree with.
how do costs and time affect the ability of court to make law?
Costs
Positives;
-Cost involved in bringing a case to court include costs of legal rep and hearing/filing fees
-The courts are able to to manage disputes to narrow the issues in a dispute,possibly saving the parties cost and allowing them to proceed all the way to the final trial
-High court cost may mean that only those with legitimate and solid claims will be pursued
Negatives;
-High costs can deter litigants who cannot afford these costs and who do not qualify for legal aid, from pursuing their case and their rights in courts.
-High costs can deter parties from pursuing the appeals process
-Prohibited nature of costs may mean that old or bad precedents aren’t challenged.
Time
Positives;
-Courts can make law relatively quickly once a dispute has been brought before them and cases must continue until a decision has been made to resolve the dispute
-Courts are not required to follow lengthy processes like in parliament which involves the developing,drafting and passing of a bill
Negatives:
-Some courts (particularly appeal courts), can often take months to hear and determine more complex cases.
-Parties can be delayed in getting a case ready for trial.
How does the requirement for standing affect the ability of court to make law?
The requirement for standing;The requirement that a party must be directly affected by an issue or matter in order for a court to be able to hear a case and determine it.
Positives:
-Requirement for standing ensures cases are only brought to court by people who are genuinly affected by an isssue or matter rather than wasting valuable time of the court time and resources on listening to people not affected by a matter
-It encourages people not directly affected by an issue or matter to seek other avenues of resolution.
Negatives:
-People may not be willing to go to courts, costly, timely, may not want to be involved in the case
-Requirement for standing means that people arent directly affected by an issue but have interest have no right to pursue a legal challenge on behalf of common good or public interest.
-means potential improvements to the law that could have been made by listening to those without standing.
what are the 4 features of the relationship between courts and parliament in law making?
-the supremacy of parliament
-the ability of courts to influence parliament
-the codification of common law
-the abrogation of common law.
