Wk 6, 7

Question 1

Binding Precedent

Answer 1

A decision made by a superior court which all lower courts in the same hierarchy follow

Question 2

Persuasive Precedent

Answer 2

A legal principle which does not have to be followed because it was created by a court of lessor or equal authority, or by a superior court in a different

Question 3

Original Jurisdiction

Answer 3

A court where a case is heard for the first time

Question 4

Appellate jurisdiction

Answer 4

A court which hears an appeal

Question 5

Courts of general jurisdiction

Answer 5

-These courts hear a wide range civil and criminal cases
-The main court hierarchies are examples of this

Question 6

Names of different names for law made by judges

Answer 6

• Case law
• Common law
• judge made law
• Precedent
• Unenacted laws
• Legal principles

Question 7

Primary role of the judiciary

Answer 7

The primary role of the judiciary is to bring just outcomes to legal disputes

Question 8

How are Civil and Criminal courts categorised

Answer 8

• Civil and Criminal courts are categorised by the type of dispute it hears.
• Depending on the severity and the complexity of the case
-Less complex magistrate, more complex supreme

Question 9

Case management

Answer 9

-Bring about Quicker resolution to legal disputes
-Save both time and money of bith parties
- reduce reliance on an overburdened court system

Question 10

The Appeal Process

Answer 10

•The court is arranged into a hireachy to allow for appeals, so people can appeal their cases to a higher court if they are unhappy with the decision and there is legal reasons, this allows a greater sense of justice fulfilled.

Question 11

b. Specialisation of Courts.

Answer 11

• Arranging courts into a hierarchy allows for judges and magistrates to specialise in their particular areas of law
• Promoting faster and more efficient resolutions of disputes.

Question 12

c. Doctrine of Precedent.

Answer 12

• Arranging courts into a hierarchy allows for the practical application of the doctrine of precedent.
• It states all decisions in a superior court must be followed by all inferior courts in the same hierarchy, allowing consistency and predictability in the legal system.

Question 13

d. Administrative Efficiency.

Answer 13

• The court hierarchy allows for administrative efficiency through its structure.
• Less complex issues are heard by the numerous Magistrates courts, ensuring a high level of cases are resolved at a minimal cost and quickly
• More complex issues are heard by the fewer Superior courts, these courts are more expensive to run.

Question 14

2. What is Judicial Independence?

Answer 14

• Judicial independence means judges must be free from any interference, intimidation and pressure from external sources when deciding cases.

Question 15

3. Why is it so important?

Answer 15

• It is necessary for democracy as people need to feel assured disputes are being resolved fairly, without bias and without government interference.
• Important for the separation of powers, as the judicial is the only separate one

Question 16

4. Explain how Judicial Independence works.

Answer 16

• Judges cannot hold a position in the legislative or executive government.
• judges must only consider the evidence before them presented by both parties to the dispute.

• Judges can not consider the opinions of outsiders, regardless of their position in society, or the persuasiveness of external arguments.

Question 17

1) Specific rules around appointment and dismissal

Answer 17

• Federal judges are appointed by the executive but can only be dismissed by the parliament as a whole
• Protection for judges, as they cant be fired from their job because of a politicians or public disgrace with their decisions.
• Section 72(ii) of the constitution states judges can only be dismissed for proven misbehaviour or incapacity

Question 18

2) Permanency of tenure

Answer 18

• All judges have permanent tenure but must retire at age of 70.

Question 19

3) Fixed remuneration

Answer 19

• Prevents the parliament from lowering a judge’s salary in order to penalise them for a unpopular decision, on bench
• Parliament can raise the salaries of judges in order to attract the best lawyers to positions in the judiciary.

Question 20

4) Judicial privilege

Answer 20

• Judges have freedom of speech when undertaking their role in order to deliver judgements without fear of being sued for defamation, or criminal prosecution.
• Judges still follow professional standards, when considering the way they behave in the role.

Question 21

6. When can judges make law?

Answer 21

• Judges can only make law to help resolve an issue before them in a matter under consideration

Question 22

Judicial Pronouncement // Creation or Extension of common law principles

Answer 22

• Judges create a new principle where there is no current statute or common law in place to address and resolve the legal dispute.
• In these situations, judges will use a past precedent to guide them in their decision making
• If there are no relevant precedent cases a judge will create brand new case law to resolve the disbute before them

Question 23

2) Stautory interpretation

Answer 23

• This is a process in which Judges give meaning to the words or phrases in legislation in order to resolve a legal dispute
• The meaning given to words or phrases can create new legal principles

Question 24

a. Ratio Decidendi

Answer 24

a. Ratio Decidendi – Reasoning for the decision – the reasoning for a decision forms new case law.

Question 25

. Obiter dictum

Answer 25

Remarks said in passing or ‘examples’ used to provide context to the decision. Not written in case law.

Question 26

Issues and questions of fact:

Answer 26

• These are the questions to help determine ‘what happened?” in the context of the case before the court • Answered through the evidence given by witnesses

Question 27

Issues and questions of law

Answer 27

• They refer to the interpretation of statures, and the application of case law • A question of law is decided by a judge through their application of a precedent, or through creating a new one.