Flashcards in Australian Law: Common Law Deck (10)
Outline historical development of common law system
In England in the 11th century after the Normal Invasion. In order for William the Conqueror to consolidate his position in his newly conquered land, he sent judges on 'circuits' throughout the country. Royal justices ensured that their rulings were similar thus developing concept of precedent. As a consequence, uniform set of rules developed in the country.
How did concept of equity develop?
After the Oxford of Provisions was introduced, there was much inflexibility therefore the people turned to the King to have their matters heard. The King's decision was not based on dictates of precedent but instead on achieving the fairest outcome.
Court order which requires a person not to do something
Judgement made by a court that establishes a point of law
2 main ways precedent is developed?
1/ Judges interpretation of law
2/ Judges arrive at a decision in a case with no existing common or statute law
Difference between binding and persuasive precedent?
Binding precedent: A court must follow (if set by a higher court) no matter whether they believe a decision is correct or not;
Persuasive precedent may influence a decision but a court would not be bound to follow it
Define 'obiter dicta'
Other statements made by judges (personal statements) that create no immediate precedent but can be used later to justify a precedent.
Key features of adversary system:
1/ Cross examination
2/ Mediation rising in recent years
Differentiate between appellate and original jurisdiction
Appellate: power of a court to hear a matter on appeal from a lower court Original: power of a court to hear a matter for the first time