Week 8 Lecture Flashcards
What is case law?
Case law = Statements of law developed by judges.
What does each case represent?
“Each case represents the solution to a particular dispute between two parties about which the …judge… has made a decision.”
Are cases singular statements of law?
Yes
Are cases global statements of law?
Yes
What kind of reasoning does case law require?
Both deductive and inductive reasoning.
What is the plantiff?
The party who brings civil action.
What is the prosecution?
The person conducting proceedings on behalf of the crown.
What is the defendent?
Person being sued/prosecuted.
What is the appellant?
The person bringing the appeal.
What is the respondent?
The person responding to the appeal.
What does r stand for?
rex or regina?
What are reprorted cases?
REPORTED cases are those cases of significance to the legal system.
What are reported cases tied to?
They are tied to the history of law reporting.
When was the council for law reporting established?
Council for Law Reporting was established in 1865 (UK).
What was the purpose of the COuncil for law reporting 1865?
Purpose was to systematise and publish law reports for the public and the profession
When was the incoprporated council for law reporting for the state of queensland?
1901.
What does the council do?
The Council formally reports certain reports as the official law reports for the State
What are records of all matters determined by courts and tribunals?
Unreported.
Why are many cases unreported?
They are unreported because they have little impact beyond individual instance.
What are authorised cases?
Cases which have been formally approved by the Courts
Who are authorised cases produced by?
Councils of Law Reporting
What is an unauthorised case?
Any case report that has not been produced by a Council of Law Reporting
Who are unauthorised cases often produced by?
Specialist law publishers
What are judicial reports?
Judicial Reports are the decisions from COURTS
It is a reference to decisions from:-
What are judicial reports a reference to?
Magistrates, Single Judge Decisions and Bench Decisions
What are tribunal reports?
Tribunal Reports (as the name suggests!) are the decisions of Tribunals.
What can tribunal decisions include?
Tribunal decisions can include both single and “full bench” decisions
Do tribunal decisions supercede judicial decisions?
No.
What is a foreign report?
Technically, any decision from another jurisdiction is a “foreign decision”
What needs to be considered with foreign reports?
Some cases are, however, regarded more highly than others
What is an international report?
Decision from the “international jurisdiction” are a separate form of report again
What is each court bound by?
By decisions of courts higher in its hierarchy.
How will a decision of a court in a different hierachy or lower in the same hieracy change thing?
a decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding
What part of a past case is binding?
ratio decidendi
What does ratio decideni mean?
Reason for a decision.
Do precdedent lose their force by a lapse of time?
No
What does obiter dicta mean?
Remarks in passings.
Are obiter dicta binding?
No but they may be persuasive.
What is ratio decindi?
Usually this is the core ruling on a point of law, rather than a statement of the rule
What must the ratio be sourced in?
Ratio must be sourced in the dispute of the parties, not the agreed facts / law
What is precedent value partly determined by?
Precedent value is partly determined by the strength of the ratio decidendi
Is identifying a ratio easy?
No
Do all cases have a ratio?
No
If there is no dispute about the law, what happens?
If there is no dispute about the law, then there is usually only deployment of past ratio and current law, rather than a determination of law
What is the ratio in multijudge systems?
Determined primarily by looking at the agreement between judges on the question of law
Easy in unanimous and split decisions
Far more difficult in multiple judgments
Where there is no clear consensus, there is no ratio
When can a party appeal?
Where a party is dissatisfied with the outcome, can appeal to a higher court
What are appeals generally limited to?
Generally limited to questions of law
What are alternatives for dispute resolution?
Methods for resolving disputes apart from courts
Often voluntary and less adversarial
What are benefits for alternatives for dispute resolution?
Faster, cheaper, less formal, parties can contribute to resolve dispute
What are common alternatives for dispute resolution?
Negotiation Mediation Conciliation Arbitration Referral
