AoS3+Role+of+the+Courts

Background


 * Common Law** is the law that has evolved through the decision making of judges, where they look back at previous decisions in past cases to determine how they will come to the decisions on the case placed before them.

A **precedent** is a reported judgement that establishes a point of law and usually contains three elements: · The decision between the parties: a decision inter parties · The legal principle upon which the decision is made: ratio decidendi · A statement or opinion on an aspect of the application of the law but not the legal reasoning for the decision.

Features include: · The operation of precedent is based on the principle of stare decisis which means that a court will stand by what it has decided · A precedent can only be set by a superior court in the same hierarchy · For a decision to be considered ‘binding’ it must be made by a superior or higher court often in its appellate jurisdiction · All lower courts are bound by the decisions of higher courts in the same hierarchy · Decisions of courts at the same level are not binding

It is made by a superior court in the dame hierarchy exercising its appellate jurisdiction
 * Binding precedent**: a precedent will be considered binding if there is a ‘like’ fact situation

A precedent will be considered to be persuasive if it is the same ratio decided of a court at the same level or lower level in the hierarchy or if It is the ratio decidendi of a court from another hierarchy
 * Persuasive precedent** is a convincing argument and does not need to be followed.


 * Flexibility in precedent**
 * Reversing:** where a higher court hears a case on appeal and decides that the lower court has wrongly decided the case. It may reverse the decision.
 * Overruling:** where a case coming before a higher court relies on a legal principal that has been formed n an earlier case decided in a lower court, the higher court may determine that he legal principles relied on in the earlier case were wrongly decided.
 * Disapproving:** where a judge refuses I follow the decision oaf another judge at the same level
 * Distinguishing:** where a judge finds that the material factors of the a case are different from the facts in an earlier case and decides that the precedent in the earlier case should not be applied.

Using text p162-170 Complete the folio exercise and Explain how the tort of negligence developed as a result of the significant decisions in Donoghue and Stevenson, Grant V Australan Knitting Mills and Hedley Byrne v Heller

Read Sobering thoughts case file p170-172 and complete the activity Interpreting past decisions Read p173-174. Complete the activity on Judge Made Law

Consistency and fairness as the courts decide similar cases in a like way Certainty as the outcome of cases can be predicted on prior decisions Allows the law to adapt to new situations
 * Advantages**

Rigid and inflexible law may develop as judges refuse to depart from previous decisions Uncertainty may arise when there is more than one precedent that can be applied to a particular set of circumstances. Change is slow and inconsistent because it can only occur when a litigant has a significant case that is subject to an appeal. Not all litigants are in a financial position to pursue an appeal.
 * Disadvantages**

The law develops retrospectively: a problem must exist before the court can consider circumstances. It does not operate to avoid possible conflict.

It is inefficient as it provides only for ad hoc development of the law.

Read text p175-176 Draw a table – Evaluating Precedent: Strengths and Weaknesses

Is the process by which the courts determine the application of words, terms and phrases used in Acts of Parliament and delegated legislation.
 * Statutory Interpretation**

Read Chroming Case File p178-180. Undertake the folio exercise: Applying an interpretation How judges interpret statutes 1. Summarise 6.5 – C’W and state legislation outlines the guidelines 2. Distinguish between extrinsic and intrinsic 3. What are the common law principles of statutory interpretation? 4. What effect does statutory interpretation have? 5. Outline the 4 factors that aretaken into account before a new precedent is established? 6. Copy diagram 6.7: relationship between parliament and the courts 7. Evaluating law making through the courts. Complete 2 column table. one side strengths, the other weaknesses

Problems in drafting a bill Inaccurate directions or instructions Difficulty in predicting future circumstances Pressure of time may lead to errors Lengthy bills or numerous amendments may lead to inconsistencies Bill may relate to a technical area and the parliamentary counsel may not have the expertise required.
 * Reasons for Statutory Interpretation **

Disputes about the meaning of terms and phrases Words may have more than one meaning or terms used could be too broad A word may not encompass recent changes Possible conflicts with other Acts
 * Wording and definitions**

To avoid loopholes The avoid contradictions between acts Legislation may have become out of date and need to be revised.
 * Other reasons**