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Flashcards in Chapter 5 SAC Deck (19)
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1

Explain the need for civil law.

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

2

Explain how courts form new laws.

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.

3

Common Law.

Judge-made law, made by statutory interpretation.

4

Statute Law.

Laws made by Parliament.

5

Statutory Interpretation.

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

6

Doctrine of Precedent.

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.

7

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

t(-.-t)

8

Precedent.

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

9

Ratio decidendi.

Reason for a decision - directly form precedent.

10

Obiter dictum.

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

11

Stare decisis.

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.

12

Binding precedent.

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

13

Persuasive precedent.

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

14

Explain the 'neighbour principle'.

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.

15

List the four ways to develop or avoid earlier precedents.

- Reversing
- Overruling
- Disapproving
- Distinguishing

16

Explain Reversing.

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.

17

Explain Overruling.

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.

18

Explain Disapproving.

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.

19

Explain Distinguishing.

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