Unit 3: AOS 3-The Doctrine of Precedent Flashcards Preview

Legal Studies Unit 3/4 > Unit 3: AOS 3-The Doctrine of Precedent > Flashcards

Flashcards in Unit 3: AOS 3-The Doctrine of Precedent Deck (38)
Loading flashcards...

Explain the Victorian Court Heirachy

-High Court
-Federal Court/Family Court (equal status)
-Supreme Court of Appeal
-Supreme Court of Trial Division
-County Court
-Magistrates Court


What is common law/case-law/judge-made law?

Law that has been developed through the courts


How can courts make law?

-Deciding on a new issue that is brought before them in a case or when a previous principle of law requires expansion to apply to a new situation.
-Statutory Interpretation-Interpreting the meaning of the words in an Act of Parliament when applying them to a case the court is hearing.


What are the restrictions on the judges ability to make law?

-If a case is brought before a superior court: Judges can only develop or change the law when a relevant case is brought before the courts. A person bringing a case must have "standing"that is, be directly affected by the case.
-If there is no previous binding decision in a higher court in the same heirachy that must be followed by the lower courtsL Principles of law established in a higher court are binding on lower court in the same heirachy.


Explain the doctrine of precedent

The doctrine of precedent, relates to stare decisis in other words, to stand by what has already been decided, refers to the process by which lower courts in the same heirachy follow decisions of higher courts in similar cases with similar circumstances.


What is statutory interpretation?

Interpreting the words in an act of Parliament.


What does stare decisis mean?

To stand what has been decided


What is ratio decideni?

The reasoning for a decision and forms the binding part of the judgement made by the judge.


What is obiter dictum?

An accompanying statement that is not binding but can guide future judges in making decisions, it will act as persuasive precedent.


When is precedent considered to be binding?

When a decision has been set by a superior court to the one it is being heard in, in the same court heirachy and when faced with a similar fact situation. The precedent must be followed.


When is precedent considered to be persuasive?

Precedent is persuasive when it is set by courts of a lower level, different hierachy or courts of equal status in the same court heirachy.


How can persuasive precedent be used?

It can be looked upon by the courts to help guide them in their decision, however it does not have to be followed


Can a jury create precedent?

A jury decision cannot create precedent as juries do not decide on points of law.


Do judges always have to follow a previous precedent?

Judges may not always have to follow a previous precedent and, in some cases, may be free to create new precedents. Apart from following a binding precedent, there are four other ways that judges can treat previous decisions.


Explain overruling

It involves two cases, the present case is heard in a high court than the previous case and the higher court overrules the previous decision. Only higher courts can overrule. There is a change in precedent to higher court decision. When a superior court decides not to follow the precedent of the lower court, it overrules the previous precedent.


Explain Reversing

It involves one case on appeal to a higher court. The higher court can reverse the decision of the lower court and favour the other party. Only courts of appeal can reverse a decision. The new precedent created by the superior court is then the precedent that is to be followed in future cases.


Explain disapproving

Any court can disapprove of a decision however lower courts are bound to follow the previous decision. They can express their disapproval an this can encourage the parties to appeal the decision.


Explain distinguishing

Any court can distinguish between the material facts of the current case to the previous case. Involves two cases, where the present case has different material facts than the previous case that has set the precedent. This can result in that the courts are not bound to follow the exsisting precedent.


Explain the development of the tort of negligence through the courts

Donogue vs Stevenson
(precedent is expanded to consumable products)
Grant vs Australia Knitting Mills
(the duty of care doctrine was widened to cover different types of articles.)
Hedley Byrne v Heller
(financial and economic loss, intangible)


Explain Statutory Interpretation

Another way judges can create law, it is the process by which judges interpret the words or phrases in an Act of Parliament in order to give meaning to the words.


Why is statutory interpretation

Needed when a case is brought before a court where there is a dispute over whether the words of the act apply to the situation before the court.


How does statutory interpretation create precedent?

When judges interpret the words/phrase in a statute, the meaning behind the interpretation sets a precedent for all lower courts, in the same hierarchy applying the act in the future. The new precedent becomes part of the law along with the statue.


Reasons for Statutory Interpretation

-The intention of the Act is not clear Parliament's intention may not be clear enough. Accurate instructutions and direction may not have been given to the parliamentary counsel.
-It is difficult to foresee all applications of an Act. In a rapidly evolving society, it is impossible to predict changes in areas such as technology and environmental conditions.
-The words in an Act may attempt to cover a broad range of situations, but the courts have to interpret whether a specific situation comes under this broad definition. Or words may not be defined in the Act or the meanings of words change over time.
-The Act is about a complex and technical topic. Parliamentary counsel are extremely skilled in drafting legislation, they may not be familiar with specialist areas such as areas of technology.


Effects of Statutory Interpretations

-Consistency and predictability-as the courts follow the previous decisions when deciding similar case, this results in a degree of predictability and consistency with the outcome of the case.
-Words of phrases in the legislation are given meaning: When a judge interprets the words/phrases in an Act then these words/phrases are given meaning
-Extending the law through a broad interpretation of an Act: A wide interpretation of a word/phrase in an Act may extend the law to cover a new situation or area of law.
-Restricting the law through a narrow interpretation: If a court gives a narrow interpretation to the words/phrases of an Act, this may restrict the scope of the law.


What are intrinsic materials

Intrinsic materials are contained in the Act itself and include:
-the words of the Act
-the long title


What are extrinsic materials

Extrinsic materials are those outside the Act that can be used to assist in the interpretation of the Act.
-Hansard (where a record of parliamentary debates are)


Literal Meaning

When the meaning of the words or phrase is clear the court interprets the word literally according to other sections of the act.


Purposive Approach

It the judge feels that using a literal approach will not achieve the purpose of Parliament. The judge will look at Parliament's purpose and what the act intended to achieve when it was originally passed.


Strengths of courts as a law-making body Certainity etc

-The doctrine of precedent creates certainty, consistency and predictability. Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how court will decide a particular case.


Strengths of courts as a law-making body: Change the law quickly

-Courts can change the law quickly, if a relevant case is brought before them. Courts can make a quick decision that can resolve a dispute for the parties in the case before the courts, and create precedent to be followed by the courts and others in the community.