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  1. 1. 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 as common law) and equity Statute law and delegated legislation Laws passed by Commonwealth, state and territory Parliaments (statutes), and laws passed by subordinate authorities (delegated legislation). International law Not part of municipal or domestic law until adopted by the Commonwealth parliament.
  2. 2. The nature of judicial method  The courts possess the critical double function of interpreting and applying legislation and of continuing the still important tradition of the common law.  A controversial aspect of the function of the High Court, in particular, in recent years has been the emergence of a degree of judicial activism demonstrated most significantly in the Mabo case.
  3. 3. The common law  After the Norman Conquest (1066), English monarchs sent travelling judges around the country to administer royal justice.  The judges initially applied local customs, which varied from place to place.  Eventually the judges began to follow earlier decisions and the rules gradually became consistent.  These rules came to be known as the common law.
  4. 4. Equity  Development of the common law was restricted by procedural limitations.  Petitions for relief from the inadequacies of the common law were considered by the Lord Chancellor.  Cases were initially decided according to the Chancellor’s ideas of ‘equity and good conscience’.  In time, a complex body of law developed, supplementary to the common law, and known as equity.
  5. 5. Fusion of common law and equity  At the end of the 19th century, two separate judicial systems and structures existed side by side in England.  The Judicature Acts of 1873 abolished the separate court systems and established a High Court of Justice, which administered both common law and equity.
  6. 6. 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
  7. 7. Stare decisis  A court is bound to follow decisions of courts higher than itself in the same hierarchy of courts within the particular jurisdiction.
  8. 8. Ratio decidendi  That part of the decision which is binding or persuasive.  It is the reason for the decision, or the principle underlying the decision, or that legal proposition which the court has applied to the material facts of the case in order to arrive at its decision.
  9. 9. Obiter dicta  Other legal argument and statements of principle 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 as they do not form part of the matters at issue.
  10. 10. Donoghue v Stevenson [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 the statement of Lord Atkin regarding the existence of a duty of care in Anglo- Australian law.  The reasoning in this case has taken root in many countries.
  11. 11. Donoghue v Stevenson The Facts  The appellant, May Donoghue, claimed that on 26 August 1928 she drank some of the contents of a bottle of ginger -beer, manufactured by the respondent, which a friend had bought for her at a cafe in Paisley, Scotland.
  12. 12. Donoghue v Stevenson  When her friend poured the remainder of the bottle's contents into Mrs Donoghue's tumbler, "a snail, which was in a state of decomposition, floated out of the bottle".  The bottle being opaque, the snail could not have been detected until the greater part of the contents of the bottle had been poured.
  13. 13. Donoghue v Stevenson  As a result Mrs Donoghue alleged that she suffered from shock and severe gastroenteritis. What could Mrs Donoghue do? What remedies in law were available to her?
  14. 14. Donoghue v Stevenson Remedies in Contract or Tort Law?  Given that her friend had bought the drink, there was no contract between Mrs Donoghue and the retailer.  The friend who did have a contract with the retailer was unaffected by the event and could not seek damages on her behalf.
  15. 15. Donoghue v Stevenson  Donoghue instituted proceedings against the manufacturer of the ginger- beer (Stevenson).  Liability arose because the manufacturer (respondent) owed the consumer (appellant) a duty to exercise reasonable care (Lord Atkin’s ‘neighbour principle).
  16. 16. Donoghue v Stevenson “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.
  17. 17. Donoghue v Stevenson Neighbour principle “That rule that you are to love your neighbour becomes, in law, you must not injure your neighbour, and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
  18. 18. Res judicata  The decision reached by the court in determining the case before it is, subject to any appeal, a final resolution of the issues raised in it, insofar as the parties to the proceedings are concerned.
  19. 19. The judicial hierarchy  Decisions of courts outside the particular hierarchy are not binding but may be persuasive depending upon the status of the court.  A previous decision of a court on the same level is generally not binding but will not be departed from unless the earlier decision was wrongly decided.
  20. 20. Precedent  Precedent means that a question that was dealt with in a certain way continues to be dealt with in that way in similar later situations.  In summary:  only courts of record can create precedent  every court is bound by the decisions of courts which are superior to it in the same hierarchy  superior courts are generally bound by their own previous decision (an exception is the High Court)  individual judges of courts of the same level in the same hierarchy will usually follow their own earlier decisions
  21. 21. Binding precedent  Only the ratio decidendi from a court of record can create binding precedent.  Binding precedent only binds courts in the same hierarchy.  Note the position of the court of record in the court hierarchy as this will determine whether the ratio is binding or persuasive, e.g. Vic, NSW, Qld Court of Appeal decisions bind their Supreme Courts.
  22. 22. Persuasive precedent  Statements of principle not strictly necessary for a decision and not binding as such (obiter) by a court of record are of persuasive value only.  Decisions of courts in other court hierarchies are only of persuasive value.  The persuasive value of obiter or a decision from a court in another hierarchy will depend on the status of the court (and perhaps the judge).
  23. 23. 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 a similar matter, in a later case, on the basis of a different legal principle, the decision in the later court is now to be followed)  distinguished* (when a court finds some material difference between the facts of the 2 cases)  disapproved (if the court cannot overrule an earlier case and considers the earlier case no longer to be good law)  reversed* (if it goes on appeal to an appellate court and the order of the lower court is changed)
  24. 24. Distinguishing prior authority  Involves the judge finding that the material facts of the 2 cases differ so significantly that the earlier decision is not binding authority.  Provides a mechanism by which earlier legal doctrine can be so severely restricted that it is virtually abolished.
  25. 25. Rejecting prior authority  An appeal court may declare an existing statement of common law to be wrong by overruling or reversing the prior authority.
  26. 26. The courts  Original and appellate jurisdiction of a court:  A court’s jurisdiction is established by its enabling Act.  Original jurisdiction is the authority to hear a case when the case is first brought before a court.  Appellate jurisdiction is the authority of a court to hear appeals from decisions of courts of a lower level in the same court hierarchy.
  27. 27. The courts  Features of the court hierarchy:  It provides a system of appeals from decisions 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.
  28. 28. The court system Appeals Can be Made to the new Magistrates Court High Court of Australia Full Court of the Federal Court Federal Court of Australia Federal Magistrates Court Federal Tribunals (eg National Native Title Tribunal,) Administrative Appeals Tribunal etc.) Court of Appeal of Territory Supreme Courts Territory Supreme Courts Local Courts in Territories Full Court/Court of Appeal State Supreme Courts State Supreme Courts State Intermediate Courts (County or District Courts) (except Tasmania) State Minor Courts (Local Courts, Magistrate’s Courts or Courts of Summary Jurisdiction) State Tribunals (eg Local Government Courts, Workers’ Compensation Courts etc.) Full Court of the Federal Court
  29. 29. 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 indictable offences, committal proceedings; • in civil matters: limited to claims below a certain amount (in Victoria currently $100,000).
  30. 30. 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.
  31. 31. State court system  Supreme Courts:  The highest court in each State and Territory and a court of record, presided over by a judge.  Jurisdiction is established by its enabling Act: • has an unlimited original jurisdiction in both civil and criminal matters but hears only most serious cases; • has an appellate jurisdiction (Vic, NSW and Qld have established a separate Court of Appeal).
  32. 32. 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.
  33. 33. Federal court system  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.
  34. 34. Federal court system  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 Judicial Review Act; • appeals from the AAT; • matters arising under HREOC.
  35. 35. 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.
  36. 36. Alternatives to courts  Alternative methods of dispute settlement have grown in the last few years because of the delays, 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
  37. 37. 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.  Barristers Generally 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.
  38. 38. 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 previous decision and who can be either the plaintiff or defendant from the first case.  Respondent: the party who was successful in the first action.  Crown: represents the state in a criminal action through a Crown Prosecutor against an accused person.  Accused: the person against whom a criminal action is brought by the state.
  39. 39. 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
  40. 40. Justices of the peace and stipendiary magistrates  Magistrates  Trained, full-time salaried public servants selected 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 WA Magistrates Courts.
  41. 41. Jury in criminal trials  A jury of 12 is used in all cases in intermediate and superior courts where the accused pleads ‘not guilty’ to an indictable offence.  There is no appeal from a finding of ‘not guilty’, on the basis that the jury was wrong. An appeal can be made on a point of law, introduction of new evidence or proof that prosecution witnesses were not telling the truth.  As in civil trials, the jurors are the sole determiners of fact.
  42. 42. 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 they once were.  Appeals are rarely made from a civil jury decision