L5 - Common Law

Question 1

What is the meaning of ratio decidendi?

Answer 1

Reason for deciding

Question 2

When will the decision from a different Australian jurisdiction be binding on a Victorian court?

Answer 2

Never

Question 3

Chicken and egg question: Mabo decision versus native title act.

Answer 3

Mabo decision came before the native title act

Question 4

What are examples of a primary source of law?

Answer 4

• The law itself; cases, statutes, subordinate legislation.

Relied on in arguments and submissions.

Question 5

What are examples of secondary law?

Answer 5

• Texts, articles, legal digests, encyclopaedias, dictionaries.

Used for research and to aid in locating primary sources.

Question 6

When citing case law order the following in preference; authorised version, unreported version, or law report series.

Answer 6

Authorised Version, law report/unauthorised version, then unreported.
I.e
IMM V the Queen (2016) 257 CLR 300, IMM v the Queen (2016) 90 ALJR 529, IMM v the Queen [2016] HCA 14.

Question 7

How do pronounce the V in criminal and civil cases?

Answer 7

Criminal v = against
Civil v = and

Question 8

What is Obiter Dictum?

Answer 8

• a remark in passing.
• an observation on a point of law that did not require consideration to determine the case.
• not binding on lower courts but may be persuasive.

Question 9

What is distinguishing?

Answer 9

Where the facts or law of a case are different enough from a previous case, the case can be differentiated or distinguished.

Question 10

What is analogising?

Answer 10

When the case is similar:
- similar point of law.
- similar facts.