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Flashcards in U4 AOS2: The courts Deck (29)
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Role of the courts

Courts are primarily responsible for settling disputes and applying the law. State and federal courts can undertake lawmaking when hearing cases.

The main role of the courts is to resolve disputes and hear cases.
Judges are sometimes able to make law when deciding cases that have been brought before them:
- when there is no existing law
- when there is a statute that requires interpretation.
- When judges make decisions, the reasons for the decision establishes a new legal principle to be followed (referred to as a precedent).



Judges in superior courts (Supreme / high court) able to make law when deciding cases that have been brought before law


Courts are able to make laws when

Court resolves a dispute in which there is not existing law
- No existing statue or principle of law that can be applied to resolve the case

Conducting statutory interpretation
- By interpreting the meaning of the words in Act in order to apply the Act to the case before the court, a precedent will be set for the way in which those words are to understood in the future


The doctrine of precedent

Judges in the Victorian court hierarchy rely on previous court decisions to guide them. A precedent is the reasoning behind a court’s decision – the process of following legal reasoning is referred to as the doctrine of precedent.
The doctrine of precedent creates predictability and consistency within common law by requiring lower courts to follow precedents set in superior courts.

Gen in appeal cases. The doctrine of precedent requires lower courts and higher courts, so there is a need for a hierarchy.


High court

Takes place in law making when
- Interpretation of the words of the AC or Act or parliament
- Expanding or changing a previous principle of law so that it may be applied to a new situation, or when deciding on a case where there is no other law to apply

Does not have to follow the interpretation of statues or the principals of common law set by the other courts in Aus


Statutory interpretation

Statutory interpretation is another way judges make law. This refers to the process by which judges interpret the words or phrases in an act of parliament (statute), in order to give the words meaning.
Acts are often written in general terms and have to be interpreted and applied by judges so that they can decide the specific cases before them.


Binding precedent

A binding precedent is a legal principle that must be followed. The doctrine of precedent depends on lower courts following the decisions of higher courts. The general rule is that a decision of a higher court in the same hierarchy is binding or must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases.

For example: in Victoria a judge of the County Court must follow the decisions of judges in the Supreme Court. The decision of the High Court (the highest court in Australia) is binding on all other Australian courts.


Persuasive precedent

Persuasive precedents are not binding on courts but they are considered to be noteworthy and highly regarded propositions of law. They are considered as influential on the judges decisions.
Therefore persuasive precedent is optional for the judge to follow.


The need for statutory interpretation

The need for this interpretation arises when a case is brought before a court in which there is a dispute about whether the words or phrases contained in an act apply to the particular situation before the courts.
For judges to provide interpretation of words in an act there must be a case before the court.


Reasons for statutory interpretation

The intention of the Act is not clear: Parliament’s intention may not be clear enough. Accurate instructions and direction may not have been given to the parliamentary counsel.

The Act is about a complex and technical topic: Parliamentary counsel are extremely skilled in drafting legislation. However, they may not be familiar with specialist areas, such as areas of technology.

Difficulty in foreseeing possible future applications of the Act: It is difficult to consider all future applications of an Act. In our rapidly evolving society, it is almost impossible to predict changes in technology and science, or social and environmental conditions.


The impact of statutory interpretation

When a judge interprets the meaning of a word, or words, in a statute, the reasoning behind this interpretation sets a precedent which other judges who are required to interpret the meaning of those words in the same act will then follow in the future. The new precedent then becomes part of the law along with the statute.

The judge’s decision does not change the actual words of the act of parliament, but adds meaning to the words to be applied in future cases and situations.


How does the doctrine of precedent affect the ability of the courts to make law

Judges can only make law if there is a test case before them
- They must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute or common law).

Binding precedents
- That has been established by a higher court, so they have to follow it. However, if the case they are hearing is significantly different from the case in which the precedent was established, judges may be able to distinguish the precedent.

Parliament can override judge made law
- Parliament retains the right to override common law. This limits the extent that judges can change the law.


Advantages VS disadvantages of the role of courts in law-making

- Principle of stare decisis ensures consistency in common use because lower courts must follow precedents set by higher courts with similar facts
- Principle of stare decisis ensures predictability in common law because parties can anticipate how the law is likely to be applied to resolve the dispute

- Lower courts must follow a binding precedent even though they may consider it to be outdated or inappropriate
- Given the large amount of precedents n existence, and the different judgements in the same cases. The process of identifying the relevant precedent can be time consuming and costly


Stare decisis

Latin term meaning ‘let the decision stand’ – i.e. to stand by what has been decided.
Law-making generally occurs in appeal cases but not in jury matters as juries determine only the facts of the case.


Ratio decidendi

This is the reason for the decision behind a judgment.
It is the binding part of the judgment – a statement of law to be followed in the future.
The material facts only are relevant.


Obiter dictum

Something that a judge reflected on and contemplated when making their decision but it does not form part of the binding precedent.
Can still be relevant and influential.



Lower court decides that the material facts of case they are deciding is different to the material facts of the precedent set, so lower courts do not have to follow



When a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent



When a superior court changes a previous precedent establish by a lower court, in a different and later case thereby creating a new precedent which override the earlier precedent



When a court expresses dissatisfaction of an exiting precent but is still bound to follow it, hence made an obiter dicta, may encourage a party to the case to appeal against the verdict (reverse) or indicate a higher court to overrule the precedent. May also indicate to parliament to override to change existing law


Judicial activism

This is the opposite to conservatism. This is where a judge takes into account a variety of social, political and ethical factors into their interpretation. Of the law and are usually considered to be progressive – taking greater initiative than a conservative judge.


Judicial conservatism

Where a judge can be reluctant to be proactive with regards to judicial making. That is, to avoid controversial changes adopting a narrow interpretation of the law when interpreting the words of an Act and deciding cases


Judicial C - ability of courts to make laws

If you happen to have a lot of conservative judges, then this could holt the development of common law. If the judges are not taking opportunities to develop law through the courts then common law will become static.


Judicial A - ability of courts to make laws

When judges are being more active in developing the common law then it enables us to progress, due to them taking a progressive approach to their role as secondary law makers.


Costs of taking case to court

- Cost of legal representation
- Court costs – lodging a civil case incurs filing fees, hearing fees and jury costs
- Can restrict a person to take a civil case to court in which precedents can be established and changes


Time of taking case to court

- Courts can make law relatively quickly once a dispute has been brought before them
- Judges can also make decisions relatively quickly to resolve a case and create law
- Cases can still be delayed by pre-trail procedures, complexity of the dispute, lack of court resources and support services, and an increase in cases heard by the courts


How does cost and time affect the ability of the courts to make law

Due to high costs litigant may be discouraged from pursuing their case in the court system. With less cases coming through the courts there is less opportunity for the common law to develop as it cannot be made at the judges discretion


The requirement for standing

Locus standi - 'standing in a case' the litigant must be directly affected by the issue or matters involved in the case for the county to be able to hear and determine the case


How does the requirement of standing affect the ability of the courts to make law

Ensure that cases are initiated by parties genuinely affected by the issue at hand (that is, in the case of class actions there are not too many degrees of separation between the issue and the party seeking compensation) thus avoiding unnecessary costs and delays in the court system.