topic a lecture 6 - case law, precedent and the courts

8/8/2019 Topic a Lecture 6 - Case Law, Precedent and the Courts

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Case law, the courts and the legal profession

Main sources of law in Australia

Type Description

Case law (common law) Judge-made law (also known ascommon law) and equity

Statute law and delegatedlegislation

Laws passed by Commonwealth, stateand territory Parliaments (statutes), andlaws passed by subordinate authorities(delegated legislation).

International law Not part of municipal or domestic lawuntil adopted by the Commonwealthparliament.


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The nature of judicial method

The courts possess the critical double function ofinterpreting and applying legislation and ofcontinuing the still important tradition of the

common law.

A controversial aspect of the function of the HighCourt, in particular, in recent years has been theemergence of a degree of judicial activism

demonstrated most significantly in the Mabo case.


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The common law

After the Norman Conquest (1066), Englishmonarchs sent travelling judges around the countryto administer royal justice.

The judges initially applied local customs, whichvaried from place to place.

Eventually the judges began to follow earlierdecisions and the rules gradually becameconsistent.

These rules came to be known as the common law.


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Equity

Development of the common law was restricted byprocedural limitations.

Petitions for relief from the inadequacies of the commonlaw were considered by the Lord Chancellor.

Cases were initially decided according to theChancellors ideas of equity and good conscience.

In time, a complex body of law developed,supplementary to the common law, and known asequity.


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Some common terms from the

doctrine of precedent Stare decisis

to stand by things decided

Ratio decidendi the reasoning of the decision

Obiter dicta

things said in passing

Res judicata

a thing adjudicated


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Stare decisis

A court is bound to follow decisions ofcourts higher than itself in the samehierarchy of courts within theparticular jurisdiction.


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Obiter dicta

Other legal argument and statements ofprinciple found in judgements but not forming

part of the ratio decidendi.

The obiter are not binding on other courts,but may be persuasive.

They can only ever be of persuasive value asthey do not form part of the matters at issue.


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Donoghue vStevenson

[1932] AC 52 A famous House of Lords case in the area of

the common law of tort.

It is perhaps most well known for thestatement of Lord Atkin regarding theexistence of a duty of care in Anglo-

Australian law.

The reasoning in this case has taken root inmany countries.


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Donoghue vStevenson

The Facts

The appellant, May Donoghue,

claimed that on 26 August 1928 shedrank some of the contents of a bottleof ginger -beer, manufactured by therespondent, which a friend had boughtfor her at a cafe in Paisley, Scotland.


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Donoghue vStevenson

When her friend poured the remainder of thebottle's contents into Mrs Donoghue's

tumbler, "a snail, which was in a state ofdecomposition, floated out of the bottle".

The bottle being opaque, the snail could not

have been detected until the greater part ofthe contents of the bottle had been poured.


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Donoghue vStevenson

As a result Mrs Donoghue alleged thatshe suffered from shock and severe

gastroenteritis.

What could Mrs Donoghue do?

What remediesin law were availableto her?


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Donoghue vStevenson

Remediesin Contract orTort Law?

Given that her friend had bought the

drink, there was no contract betweenMrs Donoghue and the retailer.

The friend who did have a contract

with the retailer was unaffected by theevent and could not seek damages onher behalf.


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Donoghue vStevenson

Donoghue instituted proceedingsagainst the manufacturer of the ginger-

beer (Stevenson).

Liability arose because themanufacturer (respondent) owed the

consumer (appellant) a duty to exercisereasonable care (Lord Atkinsneighbour principle).


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Donoghue vStevenson

Amanufacturer ofproducts, which he sellsin such a form as to show that he intendsthem to reach the ultimate consumer in the

form in which they left him with no reasonablepossibility of intermediate examination, andwith the knowledge that the absence ofreasonable care in the preparation or putting

up of the products will result in an injury to theconsumers life or property, owes a dutytothe consumerto takethat reasonable

care.


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Donoghue vStevenson

Neighbour principle

That rule that you are to love your neighbourbecomes, in law, you must not injure your neighbour,

and the lawyers question, Who is my neighbour?receives a restricted reply. You must take reasonablecare to avoid acts or omissions which you canreasonably foresee would be likely to injure yourneighbour. Who, in law, is my neighbour? The answer

seems to be persons who are so closely anddirectly affected by my act that I ought reasonably tohave them in contemplation as being so affectedwhen I am directing my mind to the acts or omissionswhich are called in question.


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Res judicata

The decision reached by the court indetermining the case before it is,

subject to any appeal, a finalresolution of the issues raised in it,insofar as the parties to theproceedings are concerned.


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The judicial hierarchy

Decisions of courts outside theparticular hierarchy are not binding but

may be persuasive depending uponthe status of the court.

A previous decision of a court on thesame level is generally not binding butwill not be departed from unless theearlier decision was wrongly decided.


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Precedent

Precedent means that a question that was dealt with ina certain way continues to be dealt with in that way insimilar later situations.

In summary: only courts of record can create precedent

every court is bound by the decisions of courts whichare superior to it in the same hierarchy

superior courts are generally bound by their ownprevious decision (an exception is the High Court)

individual judges of courts of the same level in thesame hierarchy will usually follow their own earlierdecisions


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Binding precedent

Only the ratio decidendifrom a court of recordcan create binding precedent.

Binding precedent only binds courts in thesame hierarchy.

Note the position of the court of record in the

court hierarchy as this will determine whetherthe ratio is binding or persuasive, e.g. Vic,NSW, Qld Court of Appeal decisions bind theirSupreme Courts.


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What can happen to a case?

A case may be: adopted (i.e. follow or apply it)

affirmed (i.e. agree with the earlier decision)

overruled* (when an appellate court decides asimilar matter, in a later case, on the basis of adifferent legal principle, the decision in the latercourt is now to be followed)

distinguished* (when a court finds some materialdifference between the facts of the 2 cases)

disapproved (if the court cannot overrule an earliercase and considers the earlier case no longer to begood law)

reversed* (if it goes on appeal to an appellate courtand the order of the lower court is changed)


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Distinguishing prior authority

Involves the judge finding that thematerial facts of the 2 cases differ so

significantly that the earlier decision isnot binding authority.

Provides a mechanism by whichearlier legal doctrine can be soseverely restricted that it is virtuallyabolished.


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Rejecting prior authority

An appeal court may declare anexisting statement of common law tobe wrong by overruling or reversingthe prior authority.


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The courts

Original and appellate jurisdiction of a court: A courts jurisdiction is established by its

enabling Act.

Original jurisdiction is the authority to hear acase when the case is first brought before acourt.

Appellate jurisdiction is the authority of a courtto hear appeals from decisions of courts of alower level in the same court hierarchy.


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The courts

Features of the court hierarchy:

It provides a system of appeals fromdecisions of lower courts to higher courts.

It allows for different forms of hearing

according to the gravity of the case.

It is instrumental in building up precedent.


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The court system

Appeals

Can be

Madeto the

new

Magistrates

Court

High

Court ofAustralia

Full Court ofthe

Federal Court

Federal Court ofAustralia

Federal Magistrates Court

Federal Tribunals

(eg National Native

TitleTribunal,)

AdministrativeAppeals

Tribunal etc.)

Court ofAppeal of

Territory Supreme Courts

Territory Supreme Courts

Local Courtsin

Territories

Full Court/Court ofAppeal

State Supreme Courts

State Supreme Courts

State Intermediate Courts

(County or District Courts)

(exceptTasmania)

State Minor Courts

(Local Courts, MagistratesCourts or Courts of

Summary Jurisdiction)

StateTribunals

(eg Local Government

Courts,Workers

Compensation Courtsetc.)

Full Court ofthe

Federal Court


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State court system

Magistrates Courts:

The lowest courts in the hierarchy, possessing original

jurisdiction only.

Presided over by a Magistrate.

Jurisdiction is established by its enabling Act:

in criminal matters: summary and minor indictableoffences, committal proceedings;

in civil matters: limited to claims below a certain

amount (in Victoria currently $100,000).


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State court system

Intermediate courts:

Middle court in hierarchy (but do not exist in Tas, NT

or ACT) with original and limited appellate jurisdiction.

Presided over by a judge, but not a court of record.

Jurisdiction is established by its enabling Act:

in criminal matters to all but most serious

indictable offences;

in civil matters jurisdiction established by money

limit.


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Federal court system

Family Court:

Established by the Family Law Act 1975(Cth), it is

presided over by a judge and is a court of record.

Exercises both an original and appellate jurisdiction

over all matrimonial matters.

Appeals only lie on questions of law to Full Court of

the Family Court.


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Federal Court:

Jurisdiction established by Federal Court of Australia

Act 1976(Cth), it is presided over by a judge and is a

court of record.

In its original jurisdiction the court is divided into 2

divisions: a general division and an industrial division

extending to Commonwealth matters.

Appellate jurisdiction, hearing appeals from single

judges of the Supreme Courts of the Territories, as well

as appeals from decisions of single judges of the

Federal Court.


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Magistrates Courts: Established in 2000 to ease the workload on other

Federal Courts and presided over by a Magistrate.

Deals with:

minor family law, bankruptcy and trade practices

matters;

applications under the JudicialReview Act;

appeals from the AAT;

matters arising under HREOC.


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Federal and State court system

High Court:

Established under s 71 of the Constitution, it is presided

over by a judge and is a court of record.

Limited original jurisdiction in those cases authorised by

the Commonwealth Constitution.

Appellate jurisdiction in both civil and criminal matters

from the state Supreme Courts and Federal Courts.

Appeals do not lie as of right. Approval to hear an

appeal must first be granted by the High Court first.

Final court of appeal within Australian legal system.


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Alternatives to courts

Alternative methods of dispute settlement havegrown in the last few years because of thedelays, costs, ignorance and intimidation of the

traditional court system.

Some of the better-known alternatives include:

commercial arbitration;

negotiation;

mediation;

ADR; and

quasi-judicial bodies or Tribunals, e.g., ACCC, AAT,

VCAT, Small Claims Tribunals


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Legal profession

Solicitors

Most of their work is of a non-litigious nature, e.g.,

conveyancing, preparation of wills, commercial and

family law matters, preparation of court documents.

BarristersGenerally do not deal directly with the public, though in

most states they now can. Their main roles are

preparation of legal opinions, and court appearances.


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Parties in a legal system

The parties

Plaintiff: the person starting a civil action.

Defendant: the person defending a civil action.

Appellant: a person appealing against a previousdecision and who can be either theplaintiff or defendant from the first case.

Respondent: the party who was successful in the firstaction.

Crown: represents the state in a criminal actionthrough a Crown Prosecutor against anaccused person.

Accused: the person against whom a criminalaction is brought by the state.


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Judges

Appointed to all courts above the inferior courts. Usually

appointed from the Bar, although solicitors can be appointed

to the Bench.

Their duties include:

deciding questions of fact and law if sitting alone

if there is a jury, instructing the jury on questions of

law, deciding questions of law and summing up

arguments impartially ensuring rules of evidence are followed

passing sentence in criminal cases or determining

appropriate compensation in civil cases

hearing appeals


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Justices of the peace and

stipendiary magistrates Magistrates

Trained, full-time salaried public servantsselected from among the clerks of the court

and the legal profession. They preside over inferior courts and are the

sole determiners of both fact and law.

Justices of the Peace Honorary positions, with the bulk of their work

involved in witnessing of documents.

Can still preside in Qld, SA and WAMagistrates Courts.


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Jury in criminal trials

A jury of 12 is used in all cases in intermediate andsuperior courts where the accused pleads not guilty toan indictable offence.

There is no appeal from a finding of not guilty, on thebasis that the jury was wrong. An appeal can be madeon a point of law, introduction of new evidence or proofthat prosecution witnesses were not telling the truth.

As in civil trials, the jurors are the sole determiners offact.


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Jury in civil trials

The jury only determines questions of fact.

They sit only in intermediate and supreme courts.

A majority verdict is all that is required.

Because of cost, they are not used as much as theyonce were.

Appeals are rarely made from a civil jury decision

topic a lecture 6 - case law, precedent and the courts

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