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Legal Studies Units 3/4 > Unit 4 AOS 1 Part 2 > Flashcards

Unit 4 AOS 1 Part 2 Flashcards

1
Q

Common Law

Common Law

A
  • A court can make law when a new situation arises, when there is no legislation or previously made common law.
  • When this new situation arises court must make a decision.
  • Also known as precedent
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2
Q

Ratio Decidendi

Common Law

A
  • The reasoning behind the decision when a new situation arises.
  • This is what forms precedent, a legal principle.
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3
Q

Binding Precedent

Common Law

A
  • Precedent will be binding on all lower courts in the same hierarchy.
  • Ensures consistency, certainty, and predictability.
  • Principle of “stare decisis” applies (a court is to stand by what has been decided).
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4
Q

Persuasive Precedent

Common Law

A
  • Precedent can be influencial on higher courts, courts of the same level, and courts of a different hierarchy.
  • Can stem from a court’s “obiter dictum” a statement of the court made by the way.
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5
Q

Donoghue v Stevenson

Common Law (Case)

A
  • Case which established common law.
  • Donoghue found a decomposed snail in a opaque bottle of ginger beer, and subsequently got very sick.
  • Donoghue sued the manufacturer.
  • This British case resulted in precedent that a manufacturer owes a duty of care to the ultimate consumer.
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6
Q

Flexibility of Precedent

Flexibility of Precedent

A
  • Can be argued there is a lack of flexibility with the doctrine of precedent due to its binding nature.
  • However, courts can avoid precedent.
  • Four Processes:
  • Overruling
  • Reversing
  • Distinguish
  • Disapprove
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7
Q

Overruling

Flexibility of Precedent

A
  • A superior court is not bound to follow a lower courts precedent.
  • Can set a new precedent abolishing the existing one.
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8
Q

Reversing

Flexibility of Precedent

A
  • Will occur when an apellate court reverses the decision of the original court
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9
Q

Distinguish

Flexibility of Precedent

A
  • A court can distinguish the material facts of the current case from those of the precedent setting case, subsequently creating new law.
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10
Q

Disapprove

Flexibility of Precedent

A
  • If disapproval comes from a court on the same level as the precedent setting court, new precedent will be made.
  • If disapproval comes from a lower court, the preceden must still be followed.
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11
Q

Statutory Interpretation

Statutory Interpretation

A
  • Besides when ruling on a new situation, courts can develop precedent when engaging in statutory interpretation.
  • Required when a case arises before a court and legislation exists, but there is uncertainty in relation to certain words and terms within the statute.
  • Court needs to give meaning to the words and terms which are unclear.
  • Upon meaning being given, precedent will be created.
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12
Q

Studded Belt Case

Statutory Interpretation (Case)

A
  • One case in which involved S/I is the “Studded Belt Case”
  • The terms “regulated weapon and “lawful excuse” required meaning.
  • The SC (TD) ruled a studded belt being worn as a belt, with “innocent intent” was not a regulated weapon.
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13
Q

Reasons for S/I
(Mistake during Drafting)

Reasons for S/I

A
  • A mistake may have stemmed from a lack of communication between the responsible minister and the parliamentry counsel.
  • A mistake may have stemmed from rushed drafting and the accompanying pressure.
  • A mistake may have stemmed from parliamentry counsel’s lack of expertise in a technical case.
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14
Q

Reasons for S/I
(Intention of Parliament Not Clear)

Reasons for S/I

A
  • The court will be required to determin parliament’s rationale behind the law in order to give meaning to words within the law.
  • The court might consider parliamentry debates when determining intention.
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15
Q

Effects of S/I
(Meaning given)

Effects of S/I

A
  • The court cannot change the written words within an Act.
  • However, meaning will be provided.
  • In future cases this interpretation will be read alongside the statute.
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16
Q

Effects of S/I
(Precedent is Created)

Effects of S/I

A
  • The interpretation given will be followed by all lower courts in the same court hierarchy in the future when similar cases arise.
17
Q

Effects of S/I
(Scope Broadened)

Effects of S/I

A
  • Activist approach will see an interpretation which takes into account different situations or factors.
  • Eg: Mansfield v Kelly, it was determined a “public place” included a “private car in a public place”.
18
Q

Effects of S/I
(Scope Narrowed)

Effects of S/I

A
  • Conservative approach will see an interpretation restrict the applications of a piece of legislation.
19
Q

Factors Affecting the Ability of Courts to make law
(Doctrine of Precedent)

Factors Affecting the Ability of Courts to make law

A
  • A court can establish law when a new situation arises or when a statute requires interpretation.
  • Precedent will subsequently be binding on all lower courts in the same court hierarchy, and persuasive on other courts.
  • Difficulties exist:
  • Challenging to find a relevant case.
  • Upon locating relevant case the ratio decidendi needs to be indenitfied.
  • Outdated precedent may exist, application of it will likely result in injustice.
  • Some judge or judges may not be willing to embrace the role of law-maker.
20
Q

Factors Affecting the Ability of Courts to make law
(Judicial Conservatism)

Factors Affecting the Ability of Courts to make law

A
  • A conservative judge is not willing to embrace the role of law-maker
  • Such a judge will not move far beyond established law.
  • Antiquated precedent may then be upheld.
  • Acts of Parliament will be narrowly interpreted.
  • According to conservative judges, law making is the responsibility of Parliament.
  • A conservative approach was evident in the Trigwell case.
21
Q

Trigwell Case

Judicial Conservatism/Abrogation (Case)

A
  • Matter stemmed from a driver proceeding along a rural SA road.
  • Driver colided with roaming sheep and then hit an oncoming car containging the Trigwell family.
  • The driver died, and the Trigwell family sued the drivers insurance company and the farmer.
  • Case took place at both state level in the SC and then at HC level. The old British precedent that a livestock owner did not owe a duty of care for roaming livestock was upheld.
  • Victorian Parliament made law which made the precedent no longer apply.
22
Q

Factors Affecting the Ability of Courts to make law
(Judicial Activism)

Factors Affecting the Ability of Courts to make law

A
  • An activist judge is one willing to embrace the role of law-maker.
  • In the 1940s this term was used to refer to the US Supreme Court broadly interpreting rights in the US Constitution.
  • Activist judges portrayed a willingness to go beyond the traditional mainstream views and protect minority interests.
  • In the early 1990s, the Hish Court of Australia made a number of progressive rullings including the Mabo case.
  • Another case of judicial activism was of the case of Kevin and Jennifer.
23
Q

Mabo Case

Judicial Activism/Codification (Case)

A
  • HC case of 1992
  • Traditional Aboriginal ownership of land was recognised.
  • The concept of “terra nullius” - land belonging to no one - was no longer applicable.
  • After this ruling C/W parliament passed the Native Title Act 1993
24
Q

Kevin and Jennifer

Judicial Activism (Case)

A
  • Family law case
  • The terms “man” and “marraige” were defined for a new age.
  • The marraige between Kevin, who had been born female and Jennifer was deemed valid.
25
Q

Factors Affecting the Ability of Courts to make law
(Costs and Time)

Factors Affecting the Ability of Courts to make law

A
  • Costs associated with legal action are extensive
  • A party will be required to pay for legal advice, suchas an initial meeting with a solictior.
  • Legal representation, specifically employing a barrister to present a case at trial.
  • Court fees, including administrative fees.
  • Optionally, expert witnesses (medical practitioners) and a civil jury will entail costs.
  • Time is also substantial.
  • Delays can stem from extensive pre-trial procedures, such as pleadings and discovery of documents,
  • Complex legal matters,
  • Workload of lawyers and courts,
  • Insufficient human and physical resources.
  • A party engaging in legal action might decide to abandon the matter because of the costs and delay.
  • If abandoned, it will not appear before court, and court will not have the opportunity to develop law.
26
Q

Factors Affecting the Ability of Courts to make law
(Standing)

Factors Affecting the Ability of Courts to make law

A
  • For a matter to proceed to court for resolution, the initiating party must possess standing or “locus standi”.
  • Initiating party must establish it is more affected by the matter than an average person of the public.
  • Must have special or sufficient interest in the matter; if successful the party will be materially advantaged and, if unsuccessful, the party will be materially disadvantaged.
  • Case of ACF demonstrated a lack of standing
  • If a matter does not proceed to court due to a lack of standing the court will not have the capacity to develop law.
27
Q

ACF Case

Standing (Case)

A
  • Australian Conservation Foundation.
  • Argued against the development of a resort in QLD, the ACF lacked standing.
  • Despite its investment in nature it was deemed the ACF was not substantially affected by the issue.
28
Q

Supremacy of Parliament

Supremacy of Parliament

A
  • At both C/W and state level, parliamentry sovereignty exists.
  • As a result parliament is the ultimate or supreme law-making body.
  • No law of a court or a subordinate authority will override a law of parliament.
  • Parliament is not bound by the legislation passed by a previous parliament, new law which abolishes past law can be made.
  • A government’s legislative agenda must be approved by parliament.
29
Q

Abrogation

Relationships

A
  • Will occur when a parliament disagrees with law established by a court.
  • Legislation will be passed, addressing the courts law, and the common law or interpretation of statute will be abolished.
  • Seen in Trigwell case.
30
Q

Codification

Relationships

A
  • Will occur when parliament is supportive of law established by a court.
  • Legislation will be passed, incorporating court made law into legislation, the common law or interpretation of statute will be affirmed.
  • Seen in Mabo case.
31
Q

Influence

Relationships

A
  • A courts decision may influence parliament in making future legislation.
  • Seen in Thomas Towle case, 6 chrages of dangerous driving causing death, given 10 years imprisonment (minimum of 7)
  • Subsequently Victorian parliament increased the maximum sentence from 5-10 years.

Legal Studies Units 3/4 (6 decks)

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