week 2

Question 1

How are judges appointed?

Answer 1

federal by GG on rec of cabinet

state by governor on rec of state executive council

Question 2

How long are judges appointed for?

Answer 2

until 70

or ‘ proved misbehavior or incapacity’ section 72 of const

Question 3

judicial misbehavior…

Answer 3

judicial misbehavior and incapacity act 2012

Question 4

why are judges appointed

Answer 4

formal qualification (lawyer form eg kings council ),

seniority,

respect among law profession

or political ideals

Question 5

Doctrine of precedent - stare decisis

general rules

Answer 5

each court bound by decisions of higher courts

• lower courts or different hierarchy can be persuasive
• only the ratio decidendi is binding- obiter dicta not binding can be persuasive
• prescient do not lose power after certain amount of time
• same court not bound by its own decisions

Question 6

Doctrine of precedent why x 4

Answer 6

Certainty ->clear guide for conduct of individuals

equality-> similar cases treated similarly.

efficiency -> Once case decided future courts do not have to re consider.

justice-> creates impartial rules of law not dependent of the personal views of the judge

Question 7

key factors which determine weight of precedent

Answer 7

1. position of the court in court hierarchy

2.was the reason/ principle stated in the ratio decidendi or the orbiter statement

3.the number of judges which have given support to the statement

Question 8

Ratio decidendi

Answer 8

The reason for the decision on a point of law

any proposition of law expressly or impliedly used to reach the final decision.

is binding on lower courts.

Question 9

obiter dictum

Answer 9

A remark made by a judge in passing,

which is not binding.

eg hypothetical scenario
Statement of background law
remarks about how decision fits in with other areas of law

Question 10

reasons for a court hierarchy

Answer 10

• specialization
• appeals
• efficiency
• doctrine of precedent

Question 11

Judges have the power to make new common law if…

Answer 11

there is a gap in legislation

If legalization is vague

if they are in a higher court and so can reject lower courts precedent

Question 12

Judges making law issues

Answer 12

not elected

-Cant make entirely new law can only interpret legislature in applying it to a case

-people can be punished for crimes which are made up by judges retrospectively hence punishing a person for a crime which was not a crime when they committed the act

-forms a new precedent which lower courts are bound to and may not keep up with changing comm values

Question 13

precedent is good b/c promotes

Answer 13

comity -> respect for other courts

certainty

equality

efficiency

and appearance of justice

Question 14

Decision rendered ‘ per incuriam’ means…

Answer 14

Failure to involve all legal materials and authorities -> precedent is plainly wrong showing ignorance or forgetfulness

rare occurrence

cant be used by lower courts to avoid precedent

lower court could encourage appeal so higher court can use this principle

Question 15

Ways precedent can be distinguished (not binding)

Answer 15

on facts distinguish

statement of law is to wide (higher courts only)

statement of law was obiter not ratio

precedent is to old (higher courts only) R V L 1991

simply unsatisfactory/ wrongly decided (higher courts only)

Question 16

john v commissioner of taxation 1989

Answer 16

example of high court not following its previous decisions

about a cockatoo

Question 17

Nguyen v Nguyen 1990

Answer 17

SC applied a decision they knew to be wrong, believing the only way to not apply it would be to find a conflict with a higher authority.

HC found that cautious, infrequent and exceptional departure was no danger to the doctrine of precedent, and departed from previous decision.

Question 18

multimember courts

Answer 18

single judge v full court

single judge not bound by single judge of same court..
full court not bound by another full court.
single judge is bound by full court b/c e.g. 1v 6

Question 19

R v L (1991)

Answer 19

250 year old precedent said can’t rape your wife

but in 1990 society had changed therefor HC deemed precedent out of keeping with current views

precedent was abolished.

Question 20

Parliamentary Supremacy

Answer 20

legislation can abrogate the common law.

however, hc can deem law invalid if unconstitutional ultra vires

Question 21

issues with doctrine of precedent

Answer 21

no clear ratio

lack of distinction btw ratio and obiter

alternative lines of reasoning from judges even if made same final decision

Question 22

abolishment of privy council appeals

Answer 22

fedural law matters -1968

high court matter -1975

state supreme court appeals 1986 (aust acts)

Question 23

Viro v R (1978)

Answer 23

high court not bound by decisions of PC

WHENEVER THEY WHERE MADE

Question 24

Cook v Cook (1986)

Answer 24

decisions made after Aus act not binding on any Aust court.

Question 25

R v Judge Bland: ex parte DPP (1987)

Answer 25

where pre Aust act PC conflicts with full SCV single judge to follow SCV

Question 26

administrative tribunals

Answer 26

Quasi-judicial bodies empowered to decide administrative law cases,

no precedent

whose decisions may be appealed to the court system