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
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.
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).
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.
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.
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
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.
8
Q
Reversing
Flexibility of Precedent
A
- Will occur when an apellate court reverses the decision of the original court
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.
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.
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.
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.
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.
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.
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.
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.
