Chapter 5 SAC

Question 1

Explain the need for civil law.

Answer 1

To restore parties to their original position thought the enforcement of human rights.

Question 2

Explain how courts form new laws.

Answer 2

1. Setting a precedent.
   - Court makes a decision that is the first of its kind.
   - Ratio decidendi (Reason for the decision).
   - Precedent must be followe by lower courts in the hierarchy (Binding precedent)
   OR
   - Precedent from courts in other states can be persuasive (allowing the judge to choose whether or not to follow the decision).
2. Statutory Interpretation.
   - Process by which a judge clarifies of interprets the laws written by Parliament.

Question 3

Common Law.

Answer 3

Judge-made law, made by statutory interpretation.

Question 4

Statute Law.

Answer 4

Laws made by Parliament.

Question 5

Statutory Interpretation.

Answer 5

When judges decide on the meaning and application of the words or terms in an Act to resolve a dispute before the court.

Question 6

Doctrine of Precedent.

Answer 6

The common law principle by which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar.

Question 7

IF COMMON LAW AND STATUTE LAW CONFLICT, STATUTE LAW PREVAILS.

Answer 7

t(-.-t)

Question 8

Precedent.

Answer 8

A court decision that is followed by another court lower in the hierarchy.

Question 9

Ratio decidendi.

Answer 9

Reason for a decision - directly form precedent.

Question 10

Obiter dictum.

Answer 10

Statements made that do not form a ‘ratio decidendi’ but may be persuasive - statements made by judge on points of law.

Question 11

Stare decisis.

Answer 11

To stand by what has been decided - Courts are bound to stand by the decisions of higher courts in the same hierarchy in like cases.

Question 12

Binding precedent.

Answer 12

A decision of a higher court that must be followed by lower courts in the same hierarchy.

Question 13

Persuasive precedent.

Answer 13

A decision of another court, which is influential but not binding.

Question 14

Explain the ‘neighbour principle’.

Answer 14

A person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’; that is, the people who would be closely and directly affected by their acts and omissions.

Question 15

List the four ways to develop or avoid earlier precedents.

Answer 15

• Reversing
• Overruling
• Disapproving
• Distinguishing

Question 16

Explain Reversing.

Answer 16

Where a higher court hears a case on appeal and decides that the lower court had wrongly decided the case, it will reverse the decision.

Question 17

Explain Overruling.

Answer 17

When a higher court decides not to follow the decision of a lower court in a previous cases, the higher court is said to overrule the earlier decision.

Question 18

Explain Disapproving.

Answer 18

Where a judge in a court refuses to follow an earlier decision of another judge at the same level, they are said to have disapproved the decision.

Question 19

Explain Distinguishing.

Answer 19

If the facts of a previous case are different in some way to this case a judge will not follow the precedent.