Flashcards in Chapter 5 SAC Deck (19)
Explain the need for civil law.
To restore parties to their original position thought the enforcement of human rights.
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)
- 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.
Judge-made law, made by statutory interpretation.
Laws made by Parliament.
When judges decide on the meaning and application of the words or terms in an Act to resolve a dispute before the court.
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.
IF COMMON LAW AND STATUTE LAW CONFLICT, STATUTE LAW PREVAILS.
A court decision that is followed by another court lower in the hierarchy.
Reason for a decision - directly form precedent.
Statements made that do not form a 'ratio decidendi' but may be persuasive - statements made by judge on points of law.
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.
A decision of a higher court that must be followed by lower courts in the same hierarchy.
A decision of another court, which is influential but not binding.
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.
List the four ways to develop or avoid earlier precedents.
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.
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.
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.