Week 2 Important

Question 1

1. What is the judiciary and what is its role?

Answer 1

The Courts – role is to apply, interpret and make law.

Question 2

Equity

Answer 2

Equity developed because of perceived (and actual) rigidities and injustices in the common law in medieval times. Litigants appealed to the Lord Chancellor who would sometimes intervene. This evolved into a set of rules called equity administered in the Court of Chancery.

Question 3

Three important creations of equity:

Answer 3

Specific performance

Injunction

The trust

Question 4

Specific performance

Answer 4

At Common Law the remedy for breach of contract is damages or compensation. Equity will, for some kinds of contract, order the party in breach, to actually perform the contract. This is called specific performance.

Question 5

Injunction

Answer 5

An injunction is a court order not to do or to do something. It is issued at the discretion of the court if one party is in breach of the law.

Question 6

The trust

Answer 6

Only equity recognises and will enforce the beneficiaries interest in a trust. This is equity’s most important creation. They are in very common use and it is important that accountants understand them.

Question 7

Common Law and Equity clash

Answer 7

When the rules of the common law and equity clash, equity prevails. Both systems are now administered and applied in the same courts.

Question 8

Distinguish between common law and statutory law

Answer 8

Common Law here means unenacted law. Statutory Law means enacted law. Statutes must be interpreted by judges, hence case law is still important here. Also statutory law is “silent” in many areas of law. For example, most of contract law is governed by hundreds of years of precedents (the rules that have evolved from the cases). Negligence too is largely governed by case law.

Question 9

Distinguish between common law and civil law systems of law

Answer 9

Civil Law refers to the other most common system based on the French system. Napoleon ordered the codification of French Law. This was achieved in 1804. Codification means that, theoretically, the entire law is written down and enacted as a series of very detailed statutes. The common law system also uses statutes extensively but a significant proportion of the law is not in statutes but decided by judges in cases. In civil law countries the role of judges is to interpret and apply the code. Judges are still influential but their role is different. Systems based on the civil law, in the sense that they are based on codes influenced by the French code, have been adopted by many countries throughout the world.

Question 10

Civil law

Answer 10

Civil law, in this context, deals with private wrongs between individuals. A wronged individual, a plaintiff, sues another individual, a defendant in a court, for an alleged wrong against the plaintiff. If the plaintiff proves the case he/she usually obtains compensation for damages from the defendant, or in some cases may be entitled to an injunction. It is up to the wronged individual whether to sue or not. The state does not interfere. If the individual does take action and the parties cannot settle the matter, the state provides a forum, usually a court. Examples of civil wrongs are breach of contract, trespass, nuisance, assault, conversion, conspiracy and negligence.

Question 11

Criminal law

Answer 11

Criminal law deals with those wrongs which are considered wrongs against the entire community or the State and not just against an individual. Indeed a crime may not be committed against an individual at all. A person (the defendant) accused of a crime may be prosecuted, in almost all cases by the State, in some form or other. If found guilty the defendant can be punished by the State by, for example, being sentenced to a term of imprisonment, a fine, a community work order or being placed on a good behaviour bond. The State may prosecute even where a wronged individual does not wish it. It may often choose not to do so in such circumstances for minor offences. Examples of crimes are treason, murder, manslaughter, assault, rape, and theft.

Question 12

The same act may be at once a crime and a civil wrong.

Answer 12

For example many cases of conversion may also be theft. In such cases the individual wronged may sue in a court for damages for the loss of property while the State may launch a separate prosecution against the wrongdoer to seek punishment. Where someone is assaulted, the State may bring a criminal prosecution against the defendant seeking some form of punishment; the victim may also seek monetary damages (for such things as medical expenses, hospital expenses, loss of wages from missed employment and pain and suffering) in a civil court.

Question 13

There are important differences between civil and criminal cases

Answer 13

In a civil case the plaintiff must usually prove their case on the balance of probabilities and the defendant may be compelled to testify. In a criminal case the prosecutor has to prove its case beyond a reasonable doubt, a higher standard of proof, and the defendant cannot be compelled to testify.

Question 14

Ratio decidendi or Ratio

Answer 14

The legal proposition which explains or is essential to the decision in a case. Only the ratio, if there is one, is binding on a later, lower court in the same hierarchy of courts.

Question 15

Obiter Dictum

Answer 15

Propositions of law, or opinions on the law made by a judge in a case which are not essential to the decision and which by themselves are not binding. They need not be followed by a later lower court. Nevertheless, they may be carefully considered, and if made by a higher court be very influential and become ratio by being followed and applied in later cases.

Question 16

What is the doctrine of precedent?

Answer 16

The doctrine of precedent requires a judge to decide a case in the same way that similar cases have been decided in the past. This gives the law predictability, certainty and consistency.

Question 17

In other words, precedent means that a previous decision must be followed by a court when:

Answer 17

The material facts of the two cases are sufficiently similar and cannot be reasonably distinguished; and

The previous decision is a decision of a superior court in the same court hierarchy as the court deciding the new case.

Question 18

Binding precedent

Answer 18

A binding precedent is a decision with similar facts to the case at hand where the decision was decided by a superior court in the same hierarchy of courts. The lower court must follow the precedent.

Question 19

:Persuasive precedent

Answer 19

A persuasive precedent is one where the previous decision was on facts that are not sufficiently similar to the new case or if is not based on a decision of a higher court in the same hierarchy as the court deciding the case. The strength of a persuasive precedent depends on the status of the court, the age of the case, how similar it is the case being decided and other factors.

Question 20

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(a) Which court is this decision reported from?

Answer 20

High Court of Australia.

Question 21

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(b) Is this a matter heard at first instance?

Answer 21

No. It is an appeal from the Full Court of the Supreme Court of Victoria (since replaced by the Court of Appeal) which in turn was hearing an appeal from a single judge of that court.

Question 22

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(c) Who is the appellant? Who is the respondent?

Answer 22

The appellant was Australian Safeway store.
The respondent was Mrs Zaluzna. Mrs Zaluzna was the plaintiff and Australian Safeway Stores was the defendant. They remained so throughout but who the appellant and respondent were changed according to who was appealing against the preceding stage.

Question 23

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(d) What was the decision of the court?

Answer 23

Decision:

- Appeal dismissed
- Mrs Zaluzna, the plaintiff and respondent, won the appeal.

Question 24

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(e) Which judge(s) comprised the court?

Answer 24

Judges:

- Mason, Wilson, Brennan, Deane and Dawson JJ.

Question 25

AUSTRALIAN SAFEWAY STORES PTY LTD v ZALUZNA
HIGH COURT OF AUSTRALIA
MASON, WILSON, BRENNAN, DEANE and DAWSON JJ
36 November 1986, 10 March 1987 – Canberra
Negligence – Duty of care – Duty of occupier to invitee – Occupier’s liability – Personal injuries – Plaintiff slipped on wet floor – Whether special duty of care owed to invitee – Whether general duty of care.
The respondent was injured when she slipped in the appellant’s supermarket on a floor which had become wet as a result of persons entering from the rain outside. The trial judge applied the statement of the duty of care owed by an occupier to an invitee formulated in Indermaur v Dames (1866) LR 1 CP 274 and found that, it being a rainy day, the moisture on the floor did not constitute an “unusual danger” within that formulation. Accordingly, he dismissed the respondent’s action.
The respondent appealed on the ground, inter alia, that the trial judge should have considered whether the appellant owed a general duty of care to the respondent in addition to the special duty of care owed to an invitee. The Full Court of the Supreme Court of Victoria allowed the appeal on this ground and an appeal from that decision was taken to the High Court.
Held, per Mason, Wilson, Deane and Dawson JJ, dismissing the appeal:
The duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common
law duty to take reasonable care.
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417; Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1, followed.
Indermaur v Dames (1866) LR 1 CP 274, explained.
London Graving Dock Co Ltd v Horton [1951] AC 737, disapproved.
What was reasonable would vary with the circumstances of the plaintiff’s entry upon the premises. Observations on the nature of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers and in other circumstances.
San Sebastian pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2986) 68 ALR 161; Cook v Cook (1986) 61 ALJR25; 68 ALR 353, referred to.
Appeal
This was an appeal from the order of the Full Court of the Supreme Court of Victoria allowing an appeal from the decision of a single judge of the court and ordering a new trial. The trial judge had dismissed the plaintiff’s action.
J E Barnard QC and J G Meagher for the appellant.
D J Ashley QC and P F O’Dwyer for the respondent.
Now answer the following questions:

(f) Is this a civil or a criminal matter?

Answer 25

Civil (Mrs Zaluzna was suing Safeway Stores for negligence).