The British Origins of Australian Law

Question 1

two meanings of common law

Answer 1

1. Common law is the law made by judges according to the doctrine of precedent (as opposed to statute law)
2. Common law refers to the legal system first developed in England, when Australia was colonised by the British it adopted a common law ‘adversarial;’ system (as opposed to inquisitorial systems)

Question 2

historical development of common law

Answer 2

• After the Norman Conquest post-1066, the Feudal System was established in England
• committed crimes were a crime against the King and it could be trialled in the King’s courts
• a more standardised set of rules based on customary law was developed

Question 3

equity

Answer 3

decisions are made based on conscience, not legal principles

Question 4

the doctrine of precedent

Answer 4

the process by which courts use decisions made in earlier cases to help decide what should be the outcome of the case presently under consideration

Question 5

two main ways precedent is developed

Answer 5

1. Precedent is created when a judge arrives at a decision when there is no existing common or statute law
2. Precedent can be created by the way judges interpret legislation

Question 6

ratio decidendi

Answer 6

the principle or reason for deciding the case in a particular way, forms the binding precedent

Question 7

obiter dicta

Answer 7

other remarks, is not binding on other courts

Question 8

binding precedent

Answer 8

lower courts are bound to follow the decisions in superior courts

Question 9

persuasive precedent

Answer 9

superior courts do not have to follow the decisions made in lower courts, though they can help them make a decision.

Question 10

the adversarial system

Answer 10

• the two sides of the case try to present and prove their version of the facts and disprove the version of the other side
• an impartial judge usually along with a jury, listens to the evidence and makes a decision as to which side is correct

Question 11

hearsay evidence

Answer 11

evidence given in court by one person about what he or she heard another person say. This is not admissable evidence

Question 12

opinion evidence

Answer 12

a person can not give their opinion in court unless that person is an expert in that field

Question 13

relevant evidence

Answer 13

only evidence that relates to the matter in dispute can be heard by a court

Question 14

original jurisdiction

Answer 14

hearing the case for the first time

Question 15

appellate jurisdiction

Answer 15

hearing appeals from lower courts

Question 16

supreme court

Answer 16

• the highest court in NSW, deals with the most serious criminal matters
• unlimited civil jurisdiction
• claims of more than $750 000
• hears appeals from the Supreme Court and lower courts

Question 17

district court

Answer 17

• middle court, indictable (serious) criminal offences except for murder, treason and piracy
• claims from $100 000 to $750 000 and all motor accident cases
• appeals from the local court are heard

Question 18

local court

Answer 18

• all criminal and civil cases begin in the Local Court
• civil claims up to $100 000
• summary (less serious) offences including stealing, assault and possession of drugs

-no appellate jurisdiction

Question 19

federal court

Answer 19

• original jurisdiction relating to areas such as administrative law, taxation, intellectual property and admiralty
• two divisions- a General Division and a Fair Work Division
• no criminal jurisdiction

Question 20

the high court of australia

Answer 20

• the highest court in the judicial system
• interpret and apply the law of Australia
• decide cases of special federal significance
• hear appeals from Federal, State and Territory courts