The document discusses the Australian legal system, including the main sources of law and the role of courts. It focuses on case law (common law) and how precedent is developed through judicial decisions. A key case discussed is Donoghue v Stevenson, which established the neighbour principle of duty of care in tort law. The summary establishes that case law is developed through judicial precedent where higher courts can overrule and distinguish previous decisions of lower courts to develop legal principles over time.
The document discusses the doctrine of precedent in UK courts. It explains that originally, the House of Lords felt bound by its own past decisions for certainty in the law. In 1966, the Lord Chancellor issued a practice statement allowing the House of Lords more flexibility to depart from precedents if a prior decision was wrongly decided. This power transferred to the Supreme Court when it replaced the House of Lords. The Court of Appeal is generally bound by its own past decisions but can depart under certain exceptions. Proper law reporting is necessary for precedents to be established and followed.
The document discusses several justifications or exceptions for tort liability, including:
1. Volenti non fit injuria (consent), where harm is not legally actionable if consented to. Consent can be express or implied.
2. Act of God/vis major, which excuses liability for harm caused by natural events beyond human control, like storms or floods.
3. Rescue cases, where the defense of consent does not apply to rescuers facing risk to save others from imminent danger caused by the defendant's negligence.
This document discusses the concept of vicarious liability under tort law. It provides 3 potential bases for vicarious liability: 1) liability by ratification, where a principal ratifies an unauthorized act; 2) liability by relation, where certain relationships like master-servant or employer-independent contractor can create vicarious liability; 3) liability by abetment, where one aids or encourages a tort. The document then focuses on master-servant liability, explaining the rationale and conditions for holding a master liable for a servant's torts committed in the course of employment. It discusses factors to determine whether someone is a servant versus independent contractor and the scope of a master's liability.
This document discusses the concept of judicial precedent in India. It defines precedent as previously decided cases that judges are bound to follow, with the Supreme Court's decisions being binding on all courts. It outlines the hierarchy of courts and states that Supreme Court decisions bind all courts, while High Courts bind courts within their jurisdiction. The document also discusses the doctrines of stare decisis and precedent, distinguishing between authoritative and persuasive precedents. It notes the key parts of judicial decisions as ratio decidendi, the binding reasoning, and obiter dicta, non-binding observations.
This document summarizes key aspects of recognizing and enforcing foreign judgments under Indian law. It defines foreign judgments and courts, outlines the legal framework, and describes the criteria for recognition and enforceability under Section 13 of the Code of Civil Procedure. These include the foreign court having proper jurisdiction, the judgment being on the merits, and not violating natural justice or Indian law. The document also provides examples of case laws and enforcement processes, noting that foreign judgments can generally only be enforced against the parties involved, not third parties.
The document discusses various torts including negligence, trespass, nuisance, and defamation. It defines each tort, outlines their key elements, and discusses applicable defenses. Specifically, it notes that to prove negligence, four elements must be established including duty of care, breach of duty, causation of damages. For trespass, intentional interference with person or property must be shown. Nuisance differs from trespass in requiring proof of damages from indirect interference. Defamation involves making a false statement that damages reputation, and can be libel if published or slander if spoken.
“tortious liability in constituting negligenceThakur Pratap
This document provides an introduction and outline for a research paper on the tort of negligence. It begins with definitions of key concepts like tort, negligence, and duty of care. It then discusses the history and development of negligence as an independent tort since the 1932 Donoghue v Stevenson case.
The document outlines the key ingredients required to establish a prima facie case of negligence: duty of care, breach of duty, causation, and damages. It examines factors for determining the standard of care and when a duty is owed. It also discusses available defenses and provides examples of landmark cases that have shaped the law on each element.
The objective of the research is to analyze ingredients needed to constitute negligence as a tort through
The document discusses the doctrine of precedent in UK courts. It explains that originally, the House of Lords felt bound by its own past decisions for certainty in the law. In 1966, the Lord Chancellor issued a practice statement allowing the House of Lords more flexibility to depart from precedents if a prior decision was wrongly decided. This power transferred to the Supreme Court when it replaced the House of Lords. The Court of Appeal is generally bound by its own past decisions but can depart under certain exceptions. Proper law reporting is necessary for precedents to be established and followed.
The document discusses several justifications or exceptions for tort liability, including:
1. Volenti non fit injuria (consent), where harm is not legally actionable if consented to. Consent can be express or implied.
2. Act of God/vis major, which excuses liability for harm caused by natural events beyond human control, like storms or floods.
3. Rescue cases, where the defense of consent does not apply to rescuers facing risk to save others from imminent danger caused by the defendant's negligence.
This document discusses the concept of vicarious liability under tort law. It provides 3 potential bases for vicarious liability: 1) liability by ratification, where a principal ratifies an unauthorized act; 2) liability by relation, where certain relationships like master-servant or employer-independent contractor can create vicarious liability; 3) liability by abetment, where one aids or encourages a tort. The document then focuses on master-servant liability, explaining the rationale and conditions for holding a master liable for a servant's torts committed in the course of employment. It discusses factors to determine whether someone is a servant versus independent contractor and the scope of a master's liability.
This document discusses the concept of judicial precedent in India. It defines precedent as previously decided cases that judges are bound to follow, with the Supreme Court's decisions being binding on all courts. It outlines the hierarchy of courts and states that Supreme Court decisions bind all courts, while High Courts bind courts within their jurisdiction. The document also discusses the doctrines of stare decisis and precedent, distinguishing between authoritative and persuasive precedents. It notes the key parts of judicial decisions as ratio decidendi, the binding reasoning, and obiter dicta, non-binding observations.
This document summarizes key aspects of recognizing and enforcing foreign judgments under Indian law. It defines foreign judgments and courts, outlines the legal framework, and describes the criteria for recognition and enforceability under Section 13 of the Code of Civil Procedure. These include the foreign court having proper jurisdiction, the judgment being on the merits, and not violating natural justice or Indian law. The document also provides examples of case laws and enforcement processes, noting that foreign judgments can generally only be enforced against the parties involved, not third parties.
The document discusses various torts including negligence, trespass, nuisance, and defamation. It defines each tort, outlines their key elements, and discusses applicable defenses. Specifically, it notes that to prove negligence, four elements must be established including duty of care, breach of duty, causation of damages. For trespass, intentional interference with person or property must be shown. Nuisance differs from trespass in requiring proof of damages from indirect interference. Defamation involves making a false statement that damages reputation, and can be libel if published or slander if spoken.
“tortious liability in constituting negligenceThakur Pratap
This document provides an introduction and outline for a research paper on the tort of negligence. It begins with definitions of key concepts like tort, negligence, and duty of care. It then discusses the history and development of negligence as an independent tort since the 1932 Donoghue v Stevenson case.
The document outlines the key ingredients required to establish a prima facie case of negligence: duty of care, breach of duty, causation, and damages. It examines factors for determining the standard of care and when a duty is owed. It also discusses available defenses and provides examples of landmark cases that have shaped the law on each element.
The objective of the research is to analyze ingredients needed to constitute negligence as a tort through
This document discusses the tort of trespass to land. It defines trespass to land as entry onto another's property without permission. Trespass can occur through direct entry, placing objects on the land, or allowing animals to enter. The plaintiff must prove possession of the land and interference with that possession to win a trespass case. Available remedies include injunctions and damages. Defenses include licenses, necessity, and authority of law. If a lawful entry later involves wrongful acts, the trespasser may be liable from the beginning in the doctrine of trespass ab initio.
Precedent refers to principles or rules established by higher courts that lower courts must follow when deciding similar cases. Binding precedents come from superior courts within the same hierarchy, while persuasive precedents from other hierarchies or courts of equal rank can be considered but are not obligatory. The Supreme Court's rulings are binding on all Indian courts, though it is not bound by its own precedents. Precedents promote predictability, stability, fairness and efficiency but also present challenges like distinguishing key ratios and tracking numerous rulings. Overall, precedents are an important source of law but require effective recording mechanisms.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
The document discusses legal reasoning and problem solving techniques for writing effective legal essays. It presents a 4-step method (CLEO) for legal analysis and writing: 1) Identify the claim, 2) Present the applicable law, 3) Evaluate the facts of the problem, and 4) Identify the outcome of the argument. Within each step, it provides guidance on how to structure arguments and effectively analyze problems using techniques like deductive, inductive, and analogical reasoning.
This document discusses different types of precedent that courts can apply, including:
- Binding precedent from higher courts that must be followed
- Persuasive precedent from various sources that can influence courts
- Original precedent where courts establish new principles through analogy
It provides examples of how precedents can be overruled, reversed, distinguished, or followed by higher courts. The key points are that binding precedent must be applied, while persuasive precedent and original thinking allow flexibility, within constraints of fairness and consistency.
Domicile is one of the important element in private international law. it is a decisive factor for choosing appropriate nations law which has more connection with the parties to the issue.
Ratio decidendi, Obiter Dicta and Stare DecisisShruti Jhanwar
The ratio decidendi refers to the legal principle or rule of law that is the basis for a court's decision in a case. It is the precedent that is binding on lower courts in future similar cases, rather than the actual decision itself. An obiter dictum refers to remarks or opinions expressed by a judge that are incidental to the case but not directly part of the ratio. The doctrine of stare decisis means that courts must adhere to precedents and apply the same legal principles established in past cases with similar material facts, bringing certainty and uniformity to the legal system.
A moot court simulation provides students insight into legal proceedings and courtroom conduct. Participants must follow strict norms for attire, behavior, and addressing the judge. Oralists and researchers must be respectful and avoid interruptions. Researchers assist oralists by swiftly passing relevant notes and materials, without interrupting counsel. All participants must stand and bow when the judge enters or leaves to demonstrate proper courtroom manners and respect for judicial proceedings.
Transfer of movable property under Private international law is effected by the act of parties or by operation of law. And there are different theories governing transfer of tangible and intangible properties.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
Bill, an American citizen, wants to apply for asylum in the US on behalf of his niece Jane, a Canadian citizen. However, Jane's father John, a Canadian citizen, has custodial rights over Jane and could oppose the application. For Jane to be granted asylum, she would need to demonstrate a credible well-founded fear of persecution upon returning to Canada, but the facts provided so far do not clearly show this. It is recommended to gather more evidence of specific political persecution before proceeding with the application.
Donoghue v Stevenson was a 1932 case that established the tort of negligence in UK law. It involved a woman named Donoghue who became ill after drinking ginger beer that contained a decomposing snail, allegedly due to negligence by the manufacturer Stevenson. Donoghue sued Stevenson, arguing he breached his duty of care towards consumers. The judge ruled in favor of Donoghue, finding manufacturers responsible for ensuring consumer safety even without a direct contract, establishing the "neighbor principle" of duty of care in tort law.
This document discusses malicious prosecution and differentiates it from false imprisonment. Malicious prosecution involves intentionally and maliciously instituting legal action against someone without probable cause that is ultimately dismissed in favor of the victim. It requires proving that the prosecution was without reasonable cause, was motivated by malice, and ended with the plaintiff's acquittal or favor. False imprisonment involves unlawful confinement, while malicious prosecution unlawfully uses legal procedures to cause confinement.
This document discusses the various justifications and exceptions in tort law, including voluntary assumption of risk, act of God, necessity, private defense, statutory authority, and judicial acts. It provides definitions and examples for each of these. For voluntary assumption of risk, it explains that consent must be freely given and cannot be for an illegal act. For act of God, the occurrence must be extraordinary and not reasonably foreseeable. Private defense allows reasonable force in self-defense of person or property. Statutory authority and judicial acts provide immunity for actions carried out within official capacity. Contributory negligence can reduce damages if the plaintiff was also at fault.
The document discusses the law of defamation in India. It defines defamation as injury to a person's reputation and notes that defamation can be both a civil and criminal offense. There are three essential elements for defamation: 1) the statement must be defamatory and false, 2) the statement must refer to the plaintiff, and 3) the statement must be published or communicated to someone other than the person defamed. Defenses to defamation include justification (if the defamatory statement is proven to be true), fair comment (on a matter of public interest), and privilege (statements made in certain legally recognized occasions like parliamentary proceedings).
PRECEDENTS AS A SOURCE OF LAW
DIFFERENT DEFINITION OF PRECEDENTS
ARTICLE 141 OF THE CONSTITUTION OF INDIA
HIERARCHY OF COURTS IN INDIA THE APEX COURT AT THE TOP AND OTHER COURTS AS SUBORDINATE COURTS
NATURE AND CHARACTERISTICS OF PRECEDENTS
DIFFERENT KINDS OF PRECEDENTS
DOCTRINE OF STARE DECISIS
DECISION SUB SILENTIO
DOCTRINE OF PROSPECTIVE OVERRULING RATIO DECIDENI OF A CASE OBITER DICTUM OF THE CASE
MERITS OF PRECEDENTS
DEMERITS OF PRECEDENTS
This document discusses remedies for breach of contract. It defines key terms like contract, breach, and remedy. The main remedies for breach of contract are discussed in detail, including damages (compensatory, liquidated, punitive, and nominal), contract rescission, specific performance, contract reformation, and restitution. Compensatory damages aim to make the injured party whole by reimbursing expectation and consequential losses. Liquidated damages clauses must be reasonable. Punitive damages punish and deter wrongdoing. Nominal damages vindicate rights without compensation.
Vicarious liability of state and sovereign immunityReshma Suresh
This document discusses the vicarious liability of governments in India for torts committed by government employees. It begins by explaining the historical concept of sovereign immunity in England, whereby the government could not be sued for torts of its employees. This changed with the Crown Proceedings Act of 1947. In India as well, various acts allowed governments to be sued by naming them as bodies. The document then examines Indian case law both before and after the constitution, distinguishing between torts committed in sovereign functions like policing versus non-sovereign functions. It concludes by noting the Supreme Court has suggested guidelines but parliament has yet to codify them fully.
In this scenario, a building collapsed in the Christchurch earthquake, injuring workers inside. Evidence shows the building was poorly constructed and would not have collapsed if it met building standards.
The role of the courts is to resolve legal disputes arising from this situation by applying the legal precedents established by previous similar cases. The role of Parliament is to enact legislation to regulate building standards and prevent such problems in the future.
Case law, or common law, is developed through a hierarchical system of courts. Higher courts set binding precedents that lower courts must follow to promote consistency and predictability in legal decisions.
The doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters".
This document discusses the tort of trespass to land. It defines trespass to land as entry onto another's property without permission. Trespass can occur through direct entry, placing objects on the land, or allowing animals to enter. The plaintiff must prove possession of the land and interference with that possession to win a trespass case. Available remedies include injunctions and damages. Defenses include licenses, necessity, and authority of law. If a lawful entry later involves wrongful acts, the trespasser may be liable from the beginning in the doctrine of trespass ab initio.
Precedent refers to principles or rules established by higher courts that lower courts must follow when deciding similar cases. Binding precedents come from superior courts within the same hierarchy, while persuasive precedents from other hierarchies or courts of equal rank can be considered but are not obligatory. The Supreme Court's rulings are binding on all Indian courts, though it is not bound by its own precedents. Precedents promote predictability, stability, fairness and efficiency but also present challenges like distinguishing key ratios and tracking numerous rulings. Overall, precedents are an important source of law but require effective recording mechanisms.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
The document discusses legal reasoning and problem solving techniques for writing effective legal essays. It presents a 4-step method (CLEO) for legal analysis and writing: 1) Identify the claim, 2) Present the applicable law, 3) Evaluate the facts of the problem, and 4) Identify the outcome of the argument. Within each step, it provides guidance on how to structure arguments and effectively analyze problems using techniques like deductive, inductive, and analogical reasoning.
This document discusses different types of precedent that courts can apply, including:
- Binding precedent from higher courts that must be followed
- Persuasive precedent from various sources that can influence courts
- Original precedent where courts establish new principles through analogy
It provides examples of how precedents can be overruled, reversed, distinguished, or followed by higher courts. The key points are that binding precedent must be applied, while persuasive precedent and original thinking allow flexibility, within constraints of fairness and consistency.
Domicile is one of the important element in private international law. it is a decisive factor for choosing appropriate nations law which has more connection with the parties to the issue.
Ratio decidendi, Obiter Dicta and Stare DecisisShruti Jhanwar
The ratio decidendi refers to the legal principle or rule of law that is the basis for a court's decision in a case. It is the precedent that is binding on lower courts in future similar cases, rather than the actual decision itself. An obiter dictum refers to remarks or opinions expressed by a judge that are incidental to the case but not directly part of the ratio. The doctrine of stare decisis means that courts must adhere to precedents and apply the same legal principles established in past cases with similar material facts, bringing certainty and uniformity to the legal system.
A moot court simulation provides students insight into legal proceedings and courtroom conduct. Participants must follow strict norms for attire, behavior, and addressing the judge. Oralists and researchers must be respectful and avoid interruptions. Researchers assist oralists by swiftly passing relevant notes and materials, without interrupting counsel. All participants must stand and bow when the judge enters or leaves to demonstrate proper courtroom manners and respect for judicial proceedings.
Transfer of movable property under Private international law is effected by the act of parties or by operation of law. And there are different theories governing transfer of tangible and intangible properties.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
Bill, an American citizen, wants to apply for asylum in the US on behalf of his niece Jane, a Canadian citizen. However, Jane's father John, a Canadian citizen, has custodial rights over Jane and could oppose the application. For Jane to be granted asylum, she would need to demonstrate a credible well-founded fear of persecution upon returning to Canada, but the facts provided so far do not clearly show this. It is recommended to gather more evidence of specific political persecution before proceeding with the application.
Donoghue v Stevenson was a 1932 case that established the tort of negligence in UK law. It involved a woman named Donoghue who became ill after drinking ginger beer that contained a decomposing snail, allegedly due to negligence by the manufacturer Stevenson. Donoghue sued Stevenson, arguing he breached his duty of care towards consumers. The judge ruled in favor of Donoghue, finding manufacturers responsible for ensuring consumer safety even without a direct contract, establishing the "neighbor principle" of duty of care in tort law.
This document discusses malicious prosecution and differentiates it from false imprisonment. Malicious prosecution involves intentionally and maliciously instituting legal action against someone without probable cause that is ultimately dismissed in favor of the victim. It requires proving that the prosecution was without reasonable cause, was motivated by malice, and ended with the plaintiff's acquittal or favor. False imprisonment involves unlawful confinement, while malicious prosecution unlawfully uses legal procedures to cause confinement.
This document discusses the various justifications and exceptions in tort law, including voluntary assumption of risk, act of God, necessity, private defense, statutory authority, and judicial acts. It provides definitions and examples for each of these. For voluntary assumption of risk, it explains that consent must be freely given and cannot be for an illegal act. For act of God, the occurrence must be extraordinary and not reasonably foreseeable. Private defense allows reasonable force in self-defense of person or property. Statutory authority and judicial acts provide immunity for actions carried out within official capacity. Contributory negligence can reduce damages if the plaintiff was also at fault.
The document discusses the law of defamation in India. It defines defamation as injury to a person's reputation and notes that defamation can be both a civil and criminal offense. There are three essential elements for defamation: 1) the statement must be defamatory and false, 2) the statement must refer to the plaintiff, and 3) the statement must be published or communicated to someone other than the person defamed. Defenses to defamation include justification (if the defamatory statement is proven to be true), fair comment (on a matter of public interest), and privilege (statements made in certain legally recognized occasions like parliamentary proceedings).
PRECEDENTS AS A SOURCE OF LAW
DIFFERENT DEFINITION OF PRECEDENTS
ARTICLE 141 OF THE CONSTITUTION OF INDIA
HIERARCHY OF COURTS IN INDIA THE APEX COURT AT THE TOP AND OTHER COURTS AS SUBORDINATE COURTS
NATURE AND CHARACTERISTICS OF PRECEDENTS
DIFFERENT KINDS OF PRECEDENTS
DOCTRINE OF STARE DECISIS
DECISION SUB SILENTIO
DOCTRINE OF PROSPECTIVE OVERRULING RATIO DECIDENI OF A CASE OBITER DICTUM OF THE CASE
MERITS OF PRECEDENTS
DEMERITS OF PRECEDENTS
This document discusses remedies for breach of contract. It defines key terms like contract, breach, and remedy. The main remedies for breach of contract are discussed in detail, including damages (compensatory, liquidated, punitive, and nominal), contract rescission, specific performance, contract reformation, and restitution. Compensatory damages aim to make the injured party whole by reimbursing expectation and consequential losses. Liquidated damages clauses must be reasonable. Punitive damages punish and deter wrongdoing. Nominal damages vindicate rights without compensation.
Vicarious liability of state and sovereign immunityReshma Suresh
This document discusses the vicarious liability of governments in India for torts committed by government employees. It begins by explaining the historical concept of sovereign immunity in England, whereby the government could not be sued for torts of its employees. This changed with the Crown Proceedings Act of 1947. In India as well, various acts allowed governments to be sued by naming them as bodies. The document then examines Indian case law both before and after the constitution, distinguishing between torts committed in sovereign functions like policing versus non-sovereign functions. It concludes by noting the Supreme Court has suggested guidelines but parliament has yet to codify them fully.
In this scenario, a building collapsed in the Christchurch earthquake, injuring workers inside. Evidence shows the building was poorly constructed and would not have collapsed if it met building standards.
The role of the courts is to resolve legal disputes arising from this situation by applying the legal precedents established by previous similar cases. The role of Parliament is to enact legislation to regulate building standards and prevent such problems in the future.
Case law, or common law, is developed through a hierarchical system of courts. Higher courts set binding precedents that lower courts must follow to promote consistency and predictability in legal decisions.
The doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters".
2015 u303 the role of the courts in law making1Crystal Delosa
This document outlines the role of courts in law-making through judicial precedent and statutory interpretation. It discusses how common law is developed through court decisions and the doctrine of precedent binds lower courts to follow higher court decisions. It also examines how judges can interpret statutes and develop the law, as well as the flexibility within the doctrine of precedent that allows courts to distinguish, reverse or overrule precedents. Both the strengths and weaknesses of law-making by courts are evaluated.
This document discusses judicial precedent and how it operates in the UK legal system. It covers:
1. The Supreme Court has more flexibility than being strictly bound by its own precedents due to the 1966 Practice Statement. This allows overruling decisions if they were wrongly decided.
2. Lower courts must follow precedents set by higher courts. The Court of Appeal generally follows its own civil decisions but can depart from precedents if wrongly decided.
3. For precedents to be established and followed, past court judgments must be recorded in law reports to create an authoritative record of legal decisions.
ACC 150THE LEGAL ENVIRONMENT OF BUSINESSWith Doreen .docxbartholomeocoombs
ACC 150
THE LEGAL ENVIRONMENT OF BUSINESS
With Doreen Smith, Esquire
Chapter 2
*
THE COURT SYSTEM AND DISPUTE RESOLUTION OVERVIEWThe Court SystemFederal and state courtsThe Court ProcedureThe procedural steps for a lawsuit when the case goes to trial.Alternative Dispute ResolutionWhen parties resolve a dispute using alternative methods of resolution (don’t go to trial).
THE COURT SYSTEM
What is a court? Tribunal established by law to:
Hear and decide matters brought before it,
Provide remedies (this would include monetary damages and equitable relief) when wrongs have been committed, and
Prevent possible future wrongs.
Courts award money damages and provide equitable relief.
*
THE COURT SYSTEMJurisdictionCourt’s power to hear a court case; the power to act over a particular defendant. Subject matter jurisdiction Jurisdiction over the subject matter of a case. For example, the Federal Bankruptcy Court cannot hear a divorce case.General jurisdictionCourt that can hear most controversiesLimited jurisdictionCourt that can hear only a particular type of case. Such as the Federal Bankruptcy Court can only hear bankruptcy cases.
Chapter Two
THE COURT SYSTEMPersonal jurisdiction (not covered in textbook but should be covered)This is the power of a court over a particular person (second part of jurisdiction definition).Example: You had a car accident with a Mr. Jones who lives in California. The car accident happened in Pennsylvania and you are a resident of Pennsylvania. You have never been to California. Mr. Jones sues you in California. The California court would lack personal jurisdiction over you.
COURT SYSTEMThe courts in the United States are organized into the state and federal court systems, each (generally) with three levels: trial courts (has original jurisdiction).appellate courts.a supreme court.Supreme and appellate courts review the decisions of trial courts and either affirm, reverse or remand the lower court’s decision.Appellate jurisdiction reviews the work of a lower court. No trials occur in an appellate court. This court determines whether the judgment of a lower court was correct.
Chapter Two
*
THE FEDERAL COURTS
Chapter Two
United States
Supreme Court
United States Court
Of Appeals
United States
District Court
The U.S. District Court is the trial court in Pennsylvania we have 3 Courts.—the local one is the U.S. District Ct. for the Eastern District of PA
The U.S. Ct. of Appeals is the first appellate court. Pennsylvania is in the 3rd Circuit.
The U.S. Supreme Court is the final appellate court.
PENNSYLVANIA COURTS
Chapter Two
*The Commonwealth Court only hears appeals relating to local or
state government. The Superior Court hears all other appeals.
**De Novo –means over again. In this situation, you can appeal a district justice case and have the entire case tried over again.
Supreme Court of Pennsylvania
Commonwealth Court*
Superior Court
Court of Common Pleas–
Tria.
The court system serves three main functions: trial, judgement, and appeal. In a trial, evidence is presented and facts are determined. The court then issues a judgement regarding guilt/liability and consequences. Losing parties can appeal judgements to higher courts that review decisions and ensure proper legal procedures were followed. The trial court is where cases first begin based on the subject and individuals involved. Judgements explain the court's rationale and rulings. Appeals courts have power to overturn prior rulings if needed to uphold justice.
The system of precedent is a key feature of common law, whereby judges must resolve disputes based on decisions made in similar past cases. This ensures consistent and coherent development of the law over time. Precedent is established primarily in two ways - when there is no existing law on a matter, and when legislation needs to be interpreted. Binding precedent means lower courts must follow the decisions of higher courts in similar cases. Persuasive precedent from other jurisdictions or courts may also influence rulings but courts are not bound by them.
Doctrine of Precedent - India, U.S and U.KIshaan Dang
The document discusses the doctrine of precedent, or stare decisis, in the Indian legal system and how it is similar to the British common law system. It outlines some key principles:
a) Lower courts are bound by decisions of higher courts in their jurisdiction, but decisions of other higher courts are only persuasive.
b) In cases of conflict between decisions of equal benches of the same high court, the later decision should be followed, though the rationale is also considered.
c) Larger benches of a high court are binding on smaller benches and coordinate benches.
Getting Your Foot in the Door - The Petition for Certiorari by Public CitizenUmesh Heendeniya
The document provides an introduction to filing a petition for a writ of certiorari with the Supreme Court. It discusses that the Supreme Court has discretionary jurisdiction and only hears a small fraction of cases through certiorari petitions. It outlines factors the Court considers important in deciding whether to grant certiorari, including whether a federal court of appeals or state supreme court ruling conflicts with a decision from another on an important question of federal law. The Court seeks to resolve such conflicts to promote uniformity in federal law.
The document discusses the role of courts in law-making through judicial precedent. It explains that common law has developed from past court decisions dating back to King Henry II of England. Under the doctrine of precedent, higher court decisions become binding on lower courts in the same legal hierarchy. This creates consistency and predictability. The document also discusses how judges can make law through statutory interpretation and by creating new legal rules in cases where no precedent applies. It likens the doctrine of precedent to a recipe that must be followed to create judge-made law, just as a recipe must be followed to make jam.
This document discusses the concept of judicial precedent in Bangladeshi law. It begins by defining judicial precedent as judges following principles from similar past cases. It then outlines key elements like ratio decidendi and obiter dicta. Ratio decidendi refers to the legally binding reasoning behind a past decision, while obiter dicta is non-binding commentary. The document also examines precedent in different courts, exceptions like distinguishing cases, and how precedent relates to Article 111 of the Bangladeshi constitution regarding binding Supreme Court opinions.
Common law originated in England and has spread to other countries like Australia. It is law developed by judges through precedents set in past cases, rather than law made by parliament. Judges must follow statutes but can interpret them and fill gaps using common law principles. Over time, as more cases were decided, a system of precedent developed where judges are bound by past decisions of higher courts. Equity later developed to provide remedies where common law was deficient, using moral principles of fairness. Both legal systems now coexist in Australia with precedent and equity considered together. The adversarial system used in common law involves opposing sides arguing their case before a neutral decision maker.
The document discusses traditional and online dispute resolution. It defines judicial review as established by the US Supreme Court in Marbury v. Madison, giving courts the power to interpret the law. It also discusses jurisdiction, which is a court's power to hear a case, and the differences between trial courts of original jurisdiction and appellate courts. Finally, it summarizes alternative dispute resolution methods like negotiation, mediation, and arbitration that provide alternatives to costly and lengthy litigation.
Jurisdiction Under Private International Law.pdfnipasakter1
This document provides an overview of foreign judgments and jurisdiction under private international law. It discusses key concepts like jurisdiction, choice of law, and recognition of foreign judgments. Regarding jurisdiction, it explains the differences between civil and common law approaches. Choice of law examines traditional rules like lex loci celebrationis and lex fori. The document also outlines procedures for notifying parties and enforcing foreign judgments. Overall, it covers the major considerations and rules regarding international legal cases that involve multiple countries or jurisdictions.
This document summarizes key aspects of criminal trial procedures in the United States, including common pretrial motions, Sixth Amendment rights of defendants, the right to a jury or bench trial, jury selection processes, rules of evidence, order of trial procedures such as opening statements and presenting the prosecution and defense cases, jury instructions, closing arguments, jury deliberations, and potential outcomes such as jury verdicts, hung juries, and jury nullification.
The document discusses the relationship between judicial precedent and statutory law in England. It argues that the doctrine of judicial precedent is not becoming an illusion, despite the increasing importance of legislation. It examines the concept of ratio decidendi and how precedents are applied and distinguished in subsequent cases. While locating ratio decidendi can be difficult, exceptions allow judges to depart from precedents under certain conditions. Furthermore, statutes and precedents operate complementarily in the English legal system, with vast areas of law still governed solely by case law, and statutes regularly requiring judicial interpretation. Ultimately, the flexibility of the common law system ensures that precedent remains a living and continually developing feature of English law.
This document discusses the concept and principles of precedent in the Indian legal system. It defines key terms like ratio decidendi, obiter dicta, and precedential value. It outlines how the doctrine of precedent evolved historically in India from ancient tribal courts to the modern hierarchy established under British rule and in the Indian Constitution. It also examines the different types of precedents, principles for when precedents are binding or persuasive, and how precedents can be treated or distinguished in subsequent cases.
Introduction to legal analysis sources law dictakdouat
The document provides an introduction to legal concepts including stare decisis, precedents, primary and secondary sources of law, and the difference between holdings and dicta in judicial opinions. It explains that stare decisis, or precedent, refers to following past decisions and that precedents can be either mandatory/binding or persuasive/non-binding depending on factors like the court of origin. It also outlines the hierarchical relationships between different sources of law and how to analyze statutes.
The role of judges differs depending on the court. Magistrates court judges focus on determining facts by weighing witness testimony, applying established law to the facts. They have little ability to develop or change law. Higher courts like the High Court focus more on questions of law, developing legal principles, and have more freedom to change law. While lower courts focus on facts, higher courts rely on lower courts' fact findings and focus on applying law.
The document discusses the establishment of the Court for Children in Malaysia to protect the welfare of children. Key points include:
- The Court for Children was established to replace the Juvenile Court and ensure protection and assistance for all children without discrimination.
- A child is defined as someone under 18, or under 10 for criminal proceedings.
- The Court for Children aims to protect child offenders through restrictions on who can be present in hearings and media reporting of cases.
- Sentencing options for the Court for Children focus on rehabilitation rather than punishment, and children cannot be sentenced to death or imprisoned with adults.
Eddie Mabo was a Murray Islander who took his land rights case to the Australian High Court in 1982, arguing that Indigenous people had owned their lands for thousands of years. In 1993, the High Court overturned the doctrine of terra nullius and recognized native title. This recognized that Aboriginal people held rights and interests to their traditional lands prior to European settlement, even if the government had not formally recognized this. The 1996 Wik decision further established that native title could coexist with pastoral leases, allowing Indigenous groups to negotiate land usage with commercial interests like mining and pastoral companies.
The Sessions Court found both defendants equally liable for the deaths and injuries caused by a fire at a hostel for school children. The High Court overturned this on appeal, finding that the second defendant (the local authority that owned the building) owed no duty of care as a matter of law, either as a landlord or in its capacity as a local authority. It held that under the applicable common law as of 1956, a landlord is not liable for dangers existing on leased premises. The plaintiffs now appeal to the Federal Court seeking to reinstate the Sessions Court's finding of liability against both defendants.
The document summarizes the key findings and lessons from a court case regarding the 1993 collapse of Block 1 of Highland Towers apartments in Malaysia.
The High Court found the developer, architect, engineer, and local authority partly liable for negligence related to inadequate drainage and slope stability. It ruled that the architect and engineer owed a duty of care to properly design and oversee drainage, retaining walls, and ensure slope stability. Both were found to have breached their duties, though the engineer was also at fault for falsely claiming drainage works were completed. The document examines the roles and legal responsibilities of various professionals to draw lessons on safely developing hilly sites.
This document provides a summary of Quranic ayah and hadith related to laws. It was presented by Ustaz Asmadi to a group consisting of Aishah Zulkifli, Fatimah Az-Zahra, Fawdatuzzihan Suandi, and Izrynda Izman. The document outlines several Quranic verses and sayings of Muhammad that are related to legal and lawful matters in Islam.
Este documento não continha nenhum conteúdo para resumir, já que consistia apenas em símbolos como traços e quebras de linha. Um resumo precisa incluir as informações essenciais do documento, mas nenhuma informação foi fornecida neste caso.
This document contains a summary of Quranic verses and hadiths related to Islamic law. It lists the group members of A H M A D I B R A H I M K U L L I Y Y A H O F L A W, including WAN NURHIDAYAH IZNI BT WAN IBRAHIM, WAN NURHAZWANI BT WAN ISMAIL, SITI ATIKAH BT MOHD ZULKIFLI, and AINA SYAFIQAH BT RAZALI. It includes two Quranic verses from Surah Al-A'raf that discuss proper attire and conduct during prayer and around the Kaaba, as well as
Ayat menjelaskan bahwa minuman keras dan judi memiliki dosa besar meskipun ada manfaat, tapi dosanya lebih besar. Ketika ditanya soal pengeluaran, harus lebih dari kebutuhan. Ayat ini diajarkan agar manusia berfikir dan memilih yang terbaik.
This document discusses the course "Quranic Ayat and Hadith in Law I" with the course code SHA 1550A. The course aims to examine the role of Quranic verses and prophetic traditions in shaping Islamic legal theory and rulings. It will cover foundational topics including sources of Islamic law, principles of jurisprudence, and the role of reasoning in deriving rulings.
Surat Al-Baqarah ayat 172-173 mengajak umat Islam untuk hanya memakan makanan yang halal yang telah diberikan Allah dan bersyukur kepada-Nya. Allah hanya mengharamkan memakan bangkai, darah, dan daging binatang yang disembelih selain atas nama Allah. Jika seseorang memakan makanan haram karena terpaksa, maka tidak akan berdosa asalkan tidak melampaui batas.
This document discusses and analyzes the legal defense of necessity in response to the quote "Necessity is never a defence to murder." It summarizes the leading case of Dudley and Stephens (1884) where necessity was not accepted as a defense for murder. It argues that the word "never" is too absolute given that future circumstances may warrant allowing necessity as a defense. It provides a hypothetical example where necessity would be a valid defense to save many lives at the cost of one. The document concludes that judges should consider necessity defenses on a case-by-case basis rather than having an absolute rule.
The document discusses insanity as a defense in criminal law. It provides definitions and explanations of insanity from legal and medical perspectives. The key points are:
1) Insanity in criminal law refers to a mental disorder that impairs reasoning such that the person did not understand the nature of their act or that it was wrong. Medically, insanity refers more broadly to any mental abnormality.
2) English law on insanity is based on the M'Naghten Rules, which provide a cognitive test focusing on whether the person knew the nature and quality of their act and that it was wrong.
3) To claim the insanity defense, the law requires proof of a disease of the
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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