Unit 4 AOS 1 Part 2

Question 1

Common Law

Common Law

Answer 1

• A court can make law when a new situation arises, when there is no legislation or previously made common law.
• When this new situation arises court must make a decision.
• Also known as precedent

Question 2

Ratio Decidendi

Common Law

Answer 2

• The reasoning behind the decision when a new situation arises.
• This is what forms precedent, a legal principle.

Question 3

Binding Precedent

Common Law

Answer 3

• Precedent will be binding on all lower courts in the same hierarchy.
• Ensures consistency, certainty, and predictability.
• Principle of “stare decisis” applies (a court is to stand by what has been decided).

Question 4

Persuasive Precedent

Common Law

Answer 4

• Precedent can be influencial on higher courts, courts of the same level, and courts of a different hierarchy.
• Can stem from a court’s “obiter dictum” a statement of the court made by the way.

Question 5

Donoghue v Stevenson

Common Law (Case)

Answer 5

• Case which established common law.
• Donoghue found a decomposed snail in a opaque bottle of ginger beer, and subsequently got very sick.
• Donoghue sued the manufacturer.
• This British case resulted in precedent that a manufacturer owes a duty of care to the ultimate consumer.

Question 6

Flexibility of Precedent

Flexibility of Precedent

Answer 6

• Can be argued there is a lack of flexibility with the doctrine of precedent due to its binding nature.
• However, courts can avoid precedent.
• Four Processes:
• Overruling
• Reversing
• Distinguish
• Disapprove

Question 7

Overruling

Flexibility of Precedent

Answer 7

• A superior court is not bound to follow a lower courts precedent.
• Can set a new precedent abolishing the existing one.

Question 8

Reversing

Flexibility of Precedent

Answer 8

• Will occur when an apellate court reverses the decision of the original court

Question 9

Distinguish

Flexibility of Precedent

Answer 9

• A court can distinguish the material facts of the current case from those of the precedent setting case, subsequently creating new law.

Question 10

Disapprove

Flexibility of Precedent

Answer 10

• If disapproval comes from a court on the same level as the precedent setting court, new precedent will be made.
• If disapproval comes from a lower court, the preceden must still be followed.

Question 11

Statutory Interpretation

Statutory Interpretation

Answer 11

• Besides when ruling on a new situation, courts can develop precedent when engaging in statutory interpretation.
• Required when a case arises before a court and legislation exists, but there is uncertainty in relation to certain words and terms within the statute.
• Court needs to give meaning to the words and terms which are unclear.
• Upon meaning being given, precedent will be created.

Question 12

Studded Belt Case

Statutory Interpretation (Case)

Answer 12

• One case in which involved S/I is the “Studded Belt Case”
• The terms “regulated weapon and “lawful excuse” required meaning.
• The SC (TD) ruled a studded belt being worn as a belt, with “innocent intent” was not a regulated weapon.

Question 13

Reasons for S/I
(Mistake during Drafting)

Reasons for S/I

Answer 13

• A mistake may have stemmed from a lack of communication between the responsible minister and the parliamentry counsel.
• A mistake may have stemmed from rushed drafting and the accompanying pressure.
• A mistake may have stemmed from parliamentry counsel’s lack of expertise in a technical case.

Question 14

Reasons for S/I
(Intention of Parliament Not Clear)

Reasons for S/I

Answer 14

• The court will be required to determin parliament’s rationale behind the law in order to give meaning to words within the law.
• The court might consider parliamentry debates when determining intention.

Question 15

Effects of S/I
(Meaning given)

Effects of S/I

Answer 15

• The court cannot change the written words within an Act.
• However, meaning will be provided.
• In future cases this interpretation will be read alongside the statute.

Question 16

Effects of S/I
(Precedent is Created)

Effects of S/I

Answer 16

• The interpretation given will be followed by all lower courts in the same court hierarchy in the future when similar cases arise.

Question 17

Effects of S/I
(Scope Broadened)

Effects of S/I

Answer 17

• Activist approach will see an interpretation which takes into account different situations or factors.
• Eg: Mansfield v Kelly, it was determined a “public place” included a “private car in a public place”.

Question 18

Effects of S/I
(Scope Narrowed)

Effects of S/I

Answer 18

• Conservative approach will see an interpretation restrict the applications of a piece of legislation.

Question 19

Factors Affecting the Ability of Courts to make law
(Doctrine of Precedent)

Factors Affecting the Ability of Courts to make law

Answer 19

• A court can establish law when a new situation arises or when a statute requires interpretation.
• Precedent will subsequently be binding on all lower courts in the same court hierarchy, and persuasive on other courts.
• Difficulties exist:
• Challenging to find a relevant case.
• Upon locating relevant case the ratio decidendi needs to be indenitfied.
• Outdated precedent may exist, application of it will likely result in injustice.
• Some judge or judges may not be willing to embrace the role of law-maker.

Question 20

Factors Affecting the Ability of Courts to make law
(Judicial Conservatism)

Factors Affecting the Ability of Courts to make law

Answer 20

• A conservative judge is not willing to embrace the role of law-maker
• Such a judge will not move far beyond established law.
• Antiquated precedent may then be upheld.
• Acts of Parliament will be narrowly interpreted.
• According to conservative judges, law making is the responsibility of Parliament.
• A conservative approach was evident in the Trigwell case.

Question 21

Trigwell Case

Judicial Conservatism/Abrogation (Case)

Answer 21

• Matter stemmed from a driver proceeding along a rural SA road.
• Driver colided with roaming sheep and then hit an oncoming car containging the Trigwell family.
• The driver died, and the Trigwell family sued the drivers insurance company and the farmer.
• Case took place at both state level in the SC and then at HC level. The old British precedent that a livestock owner did not owe a duty of care for roaming livestock was upheld.
• Victorian Parliament made law which made the precedent no longer apply.

Question 22

Factors Affecting the Ability of Courts to make law
(Judicial Activism)

Factors Affecting the Ability of Courts to make law

Answer 22

• An activist judge is one willing to embrace the role of law-maker.
• In the 1940s this term was used to refer to the US Supreme Court broadly interpreting rights in the US Constitution.
• Activist judges portrayed a willingness to go beyond the traditional mainstream views and protect minority interests.
• In the early 1990s, the Hish Court of Australia made a number of progressive rullings including the Mabo case.
• Another case of judicial activism was of the case of Kevin and Jennifer.

Question 23

Mabo Case

Judicial Activism/Codification (Case)

Answer 23

• HC case of 1992
• Traditional Aboriginal ownership of land was recognised.
• The concept of “terra nullius” - land belonging to no one - was no longer applicable.
• After this ruling C/W parliament passed the Native Title Act 1993

Question 24

Kevin and Jennifer

Judicial Activism (Case)

Answer 24

• Family law case
• The terms “man” and “marraige” were defined for a new age.
• The marraige between Kevin, who had been born female and Jennifer was deemed valid.

Question 25

Factors Affecting the Ability of Courts to make law (Costs and Time) | Factors Affecting the Ability of Courts to make law

Answer 25

- Costs associated with legal action are extensive - A party will be required to pay for legal advice, suchas an initial meeting with a solictior. - Legal representation, specifically employing a barrister to present a case at trial. - Court fees, including administrative fees. - Optionally, expert witnesses (medical practitioners) and a civil jury will entail costs. - Time is also substantial. - Delays can stem from extensive pre-trial procedures, such as pleadings and discovery of documents, - Complex legal matters, - Workload of lawyers and courts, - Insufficient human and physical resources. - A party engaging in legal action might decide to abandon the matter because of the costs and delay. - If abandoned, it will not appear before court, and court will not have the opportunity to develop law.

Question 26

Factors Affecting the Ability of Courts to make law (Standing) | Factors Affecting the Ability of Courts to make law

Answer 26

- For a matter to proceed to court for resolution, the initiating party must possess standing or "locus standi". - Initiating party must establish it is more affected by the matter than an average person of the public. - Must have special or sufficient interest in the matter; if successful the party will be materially advantaged and, if unsuccessful, the party will be materially disadvantaged. - Case of ACF demonstrated a lack of standing - If a matter does not proceed to court due to a lack of standing the court will not have the capacity to develop law.

Question 27

ACF Case | Standing (Case)

Answer 27

- Australian Conservation Foundation. - Argued against the development of a resort in QLD, the ACF lacked standing. - Despite its investment in nature it was deemed the ACF was not substantially affected by the issue.

Question 28

Supremacy of Parliament | Supremacy of Parliament

Answer 28

- At both C/W and state level, parliamentry sovereignty exists. - As a result parliament is the ultimate or supreme law-making body. - No law of a court or a subordinate authority will override a law of parliament. - Parliament is not bound by the legislation passed by a previous parliament, new law which abolishes past law can be made. - A government's legislative agenda must be approved by parliament.

Question 29

Abrogation | Relationships

Answer 29

- Will occur when a parliament disagrees with law established by a court. - Legislation will be passed, addressing the courts law, and the common law or interpretation of statute will be abolished. - Seen in Trigwell case.

Question 30

Codification | Relationships

Answer 30

- Will occur when parliament is supportive of law established by a court. - Legislation will be passed, incorporating court made law into legislation, the common law or interpretation of statute will be affirmed. - Seen in Mabo case.

Question 31

Influence | Relationships

Answer 31

- A courts decision may influence parliament in making future legislation. - Seen in Thomas Towle case, 6 chrages of dangerous driving causing death, given 10 years imprisonment (minimum of 7) - Subsequently Victorian parliament increased the maximum sentence from 5-10 years.