Chapter 7 and 8: Courts as lawmakers, Civil and criminal legal process

Question 1

Appeal

Answer 1

A challenge to a judgement of a lower court in a higher court. Appeals are a major reason for having a court hierarchy.

Question 2

Black letter of the law

Answer 2

The doctrine that the interpretation of statutes by courts must reflect the literal meaning of the law.

Question 3

Binding precedent

Answer 3

A decision of a higher court that must be followed by a lower court in the same jurisdiction eg District Court must follow precedent set in the Supreme Court.

Question 4

Distinguishing

Answer 4

When a court departs from established precedent because it decides that the case before it is substantially different from the facts involved in an earlier case.

Question 5

Disapproving

Answer 5

Occurs when a court decides a precedent set by a previous judgement in a court at the same level is wrong in law.

Question 6

Caveat emptor

Answer 6

This means ‘Let the buyer beware’ and was a principle which led to the development of the tort of negligence.

Question 7

Damages

Answer 7

Financial compensation ordered by a court to offset loss or suffering caused by another’s fault or negligence. There are three types of damages - compensatory, exemplary and nominal.

Question 8

Duty of care

Answer 8

The legal obligation of a person to exercise reasonable care in the conduct of an activity. It is the key principle behind the tort of negligence.

Question 9

Federal courts

Answer 9

Part of the hierarchy of Commonwealth courts established in 1976 under the Constitution to hear civil and criminal disputes under Commonwealth law eg Family Court

Question 10

Federal tribunals

Answer 10

Bodies established to adjudicate matters of dispute under Commonwealth jurisdiction which exist to provide specialist and speedy judgement eg Administrative Appeals Tribunal, Migration Review Tribunal

Question 11

Ejusdem generis

Answer 11

A common law rule followed by courts when interpreting statutes. It means ‘of the same kind’ and allows judges to assess if a situation before them fits the common class in an Act.

Question 12

Golden rule

Answer 12

One of the three standard approaches of a court to interpreting statutes. If the application of a statute would lead to an absurd outcome, then a judge may refer to the general aim of the statute in interpreting an apparently inconsistent part of the Act.

Question 13

Hierarchy of courts

Answer 13

The order of importance of courts in legal decision making. A hierarchy exists to allow for specialization and for appeals to be made.

Question 14

Indictable offence

Answer 14

A more serious criminal offence. These are usually heard before a judge and jury and include rape and murder.

Question 15

Landmark High Court cases

Answer 15

Cases which have been instrumental in changing the legal landscape because of the impact of the ruling. These include Mabo and Dietrich (changing common law) .

Question 16

Literal rule

Answer 16

Also called the black letter approach to the law, where the wording of the statute is used to interpret the meaning, regardless of context.

Question 17

Mischief rule

Answer 17

An approach to statutory interpretation which requires the judge to assess the purpose of the legislation or the mischief the Act seeks to prevent.

Question 18

Noscitur a sociis

Answer 18

A common law rule that states the questionable meaning of a word can be ascertained by its association with other words within the context of the phrase.

Question 19

Litigation

Answer 19

The action of taking legal proceedings against another person.

Question 20

Overruling

Answer 20

When a higher court takes a decision in a similar but subsequent case and departs from the original judgement believing the lower court wrongly decided the original case.

Question 21

Obiter dicta

Answer 21

Literally means ‘sayings by the way’. This forms a second part of a legal judgement, where the ratio spells out the reasons for the decision and the obiter dicta are outside the core reasoning.

Question 22

Persuasive precedent

Answer 22

A common law precedent that may be used in a court at the same or a lower level to help decider the case. It is not binding on that court.

Question 23

Precedent

Answer 23

The basis of common law, which is that cases are decided in accordance with the decisions made in prior cases, which form precedent.

Question 24

Ratio decidendi

Answer 24

Literally means ‘the reason for deciding’ and is the core principle underlying a court judgement. This forms precedent and is binding on all lower courts in the jurisdiction.

Question 25

Simple offence

Answer 25

A minor criminal offence heard through a criminal summons in the Magistrates Court. An example is being drunk and disorderly in a public place.

Question 26

Stare decisis

Answer 26

Literally means to ‘let the decision stand’. It is the basis of the doctrine of precedent that judges should abide by the legal rules or principles that were established in past cases.

Question 27

Statutory interpretation

Answer 27

The determination of the meaning of an Act of parliament by a court before they apply it to a specific case. This can be done literally, to avoid the mischief intended or to apply the golden rule to prevent an absurd outcome.

Question 28

Tort of negligence

Answer 28

A tort is an action that is a’wrong’ that does not arise from a breach of contract. This tort was established in Australia by the Grant v Knitting Mills case of 1936, following the precedent established in Britain of Donoghoe v Stephenson (1932).

Question 29

Arbitration

Answer 29

An ADR method by which an independent and neutral third party hears and considers the facts of a dispute and gives a final and binding decision

Question 30

Alternative dispute resolution

Answer 30

The resolution of conflicts and legal disputes privately through methods such as mediation, arbitration and negotiation.

Question 31

Adversarial law

Answer 31

The system of law adopted in Australia and common law countries which supports the principle that justice is best served through competing parties presenting their arguments to a neutral adjudicator for resolution.

Question 32

Bail

Answer 32

The money or sureties put up by a person accused of a crime to assure a court they will present themselves at a subsequent trial. This is granted if the person is deemed not be a risk to the community or a flight risk.

Question 33

Discovery

Answer 33

A part of the pre trial phase of a civil case where each litigant requests information of the other side to discover relevant facts.

Question 34

Defence and/or counterclaim

Answer 34

In a civil trial, it can form part of the defence of a claim against the plaintiff, where they issue a counterclaim against the plaintiff.

Question 35

Community work order

Answer 35

A sanction which may be issued by a judge or magistrate where an offended must carry out work in the community.

Question 36

Hearsay evidence

Answer 36

Evidence which is not admissible in the adversarial system by virtue of its unreliability, which has been provided second hand to the court.

Question 37

Injunction

Answer 37

A court order that requires a party to take specific action or refrain from a specific action.

Question 38

Inquisitorial system

Answer 38

A system of law which exists in much of continental Europe which have a civil law code which is adjudicated by judges who conduct many aspects of the process before the case is heard.

Question 39

Further and better particulars

Answer 39

The second stage of the pre trial phase of a civil dispute. It includes interrogatories and discovery in order to further prepare the litigants for resolution of a dispute.

Question 40

Defendant

Answer 40

The person charged with a criminal offence or with a civil matter, who can then defend the allegation.

Question 41

Memorandum of appearance

Answer 41

This is a writ which announces to a plaintiff the need to formally respond to the writ outlining the civil dispute and is served on the plaintiff.

Question 42

Examination in chief

Answer 42

The key part of a trial where witnesses are examined by legal counsel. This may be followed by cross examination and then, reexamination.

Question 43

Mediation

Answer 43

A form of ADR where a mediator helps the parties to a dispute attempt to resolve the matter. There are no formal rules and mediation may be abandoned at any stage by either party.

Question 44

Negotiation

Answer 44

A voluntary form of ADR where each party attempts to resolve a civil dispute.

Question 45

Plaintiff

Answer 45

The person charged with a criminal offence or with a civil wrong.

Question 46

Remand

Answer 46

The act of holding a person charged with an offence in detention between their arrest and trial. This is used if there is a perception of danger to the community or flight risk if bail were granted.

Question 47

Rules of evidence

Answer 47

Rules governing the acceptability and presentation of evidence in a trial. These are intended to ensure fairness and include the rule on relevance and inadmissibility of hearsay.

Question 48

Sanction

Answer 48

A remedy which may be used by a judge to punish a guilty party, including community service, fines and custodial sentences.

Question 49

Privilege

Answer 49

This can be claimed by a defendant when evidence is called for which may be deemed privileged because it was part of a communication that was private and should not be subject to public examination eg attorney and client, husband and wife.

Question 50

Similar fact evidence

Answer 50

A rule of evidence which establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.

Question 51

Statement of claim

Answer 51

In the pre trial phase of a civil matter, a Statement of Claim is a court document that sets out how much the plaintiff claims you owe them and why they are making the claim.

Question 52

Restitution and rescission

Answer 52

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of a contract. Rescission is the name for the remedy that terminates the contractual duties of both parties.

Question 53

Writ

Answer 53

A written order issued by a court, commanding the party to whom it is addressed to perform or cease performing a specified act.

Question 54

Specific performance

Answer 54

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

Question 55

State Administrative Tribunal

Answer 55

The main WA tribunal established to provide an accessible means of adjudicating and resolving disputes not covered by the original jurisdiction of courts eg objections made to decisions taken by government officials or bodies.

Question 56

Relevance

Answer 56

This is a general principle that is usually stated in the form that only evidence that is relevant to a fact in issue is admissible. The evidence will be relevant only if it is capable of assisting the inquiry, one way or the other, when determining the existence of an alleged fact.

Question 57

Corroboration

Answer 57

Evidence that confirms or reinforces the testimony of another witness or party in a trial.

Question 58

Balance of probabilities

Answer 58

The standard of proof required in order to be successful in civil proceedings. and to find a party at fault.

Question 59

Standard of proof

Answer 59

The level or quality of proof required in order to attain a verdict in a criminal or civil case. In a criminal case, the standard is ‘beyond reasonable doubt’. In a civil case, it is on ‘the balance of probabilities’.