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Introduction to the Australian Legal System Pt 2 Common Law
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. Res judicata - only the immediate parties to the action are bound. Common Law
Courts in each jurisdiction are bound by the doctrine of precedent (stare decisis). A court's judgment may contain:
ratio decidendi; and obiter dicta Common Law
It may be difficult to extract the ratio of any decision, particularly if there is more than one judge, each giving different reasons for the (majority) decision. Only the ratio decidendi is binding. Obiter dicta has persuasive force only. Common Law
Doctrine of Precedent
Stare decisis stand by a decision
Rules of precedent Decisions of higher courts are binding on all lower courts in the same hierarchy Judges in same level not bound- try to follow boundOnly bound by courts in the same hierarchy Rules of precedent
Only the ratio decidendi from a court of record can create binding precedent.
Remember! `Courts of Record' are only the more important/superior courts in a hierarchy who formally record in writing their law reports Binding precedent only binds courts in the same level or higher than it in the same hierarchy (level) of Courts. 1 Common Law
Generally no two cases are exactly the same. Common Law
Higher courts can overrule or refuse to follow the ratio of a lower court of the same jurisdiction. Occasionally a court may disapprove of a decision and say that a previous case should be restricted to its facts (and not applied to the current case). May be over-ridden by legislation. The court may find the current case sufficiently similar to apply or affirm the ratio of the precedent to the current case. The court may distinguish a previous case from the current case based on material differences between the cases. Finding cases
A reference for a case is known as its citation. citation. It is the method used to locate a particular case. Different types of citations are used for traditional law reports and for electronic reports. reports. Common Law Others: CLR = Commonwealth Law Reports ALR = Australian Law Reports NSWLR = NSW Law Reports KB = Law Reports, Kings Bench (UK) AC = Law Reports, Appeal cases (UK) Finding cases Finding cases Square brackets mean that the law reports are numbered by year, rather than consecutive volumes. Some judgments are only available in electronic format (on-line). 2 Common Law
and full details of where the case was reported.
Case citations (references) include the case name Common Law
and full details of where the case was reported.
NSWCA 58 Case citations (references) include the case name Carlill v Carbolic Smoke Ball Co  1 QB 256
Bench reports of 1893 beginning at page 256. Shorten v Grafton District Golf Club Ltd 
This is a universal citation of a case, as used in case reports available on the Internet. Shorten's case was heard in the New South Wales Shorten' Court of Appeal in the year 2000. It was case number 58 decided by this court in that year. Carlill's case can be found in volume 1 of the Queen's Carlill' Waltons Stores (Interstate) Ltd v Maher (1988)
76 ALR 513
Australian Law Reports beginning at page 513. This case was heard in 1988. Waltons Stores' case can be found in volume 76 of the Stores' Common Law
Parties to cases
We refer to parties according to whether it is the first hearing or an appeal, and appeal, the jurisdiction. Civil cases: Common Law
First hearing: hearing:
Plaintiff is the party suing the defendant Criminal cases
The Crown prosecutes the defendant. Appeal: Appeal:
The Appellant is the person lodging the appeal against the other party (respondent). (respondent). Statutory law
Law made by Parliament
Also called Statutes, Legislation, or Acts of Parliament. Includes delegated legislation Interpreted and applied by courts Statutory law
Statute law is made by parliament and subordinate bodies to which it has delegated legislative power. Statute law can last for ever or until it is changed. Where statute law and common law conflict, statute law will prevail to the extent of the conflict. 3 Law making power of parliament
Key steps of law making
1. Bill introduced to the Lower House How statute law is made
(House of Reps or Legislative Assembly) 2. 3. 4. 5. 6. (Senate or Legislative Council) First reading Second reading speech Committee Stage Third reading Repeat steps 2-5 in the Upper House 2- 7. Governor General/Governor for Royal Assent 8. Law effective 28 days later Legislation
Proper reference to legislation includes
name of Act year Act passed jurisdiction of Act italics for name and year
Interpretation Act 1987 (NSW)
S. 34: Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account account its context in the Act or statutory rule and the purpose or object object underlying the Act or statutory rule and, in the case of a statutory statutory rule, the purpose or object underlying the Act under which the rule rule was made), or (b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking provision into account its context in the Act or statutory rule and the purpose or purpose object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was rule made) leads to a result that is manifestly absurd or is unreasonable. unreasonable. Sub-section Trade Practices Act 1974 (Cth) Cth) Acts Interpretation Act 1954 (Qld) Qld) Sale of Goods Act 1923 (NSW) Paragraph Sub-paragraph Statutory Interpretation
With the increasing complexity of legislation (Statute/Acts) sometimes the `real' meaning of a word or phrase real' requires clarification. clarification. Doubt arises because of ambiguities or even about the operation of the Act itself which create problems in applying any set of written rules. Statutory Interpretation
Approaches to interpretation
Court uses Statutory rules Common law rules Acts Interpretation Acts Acts Interpretation Act 1981 (Cth)
s15AA, s15AB Interpretation Act 1987 (NSW) s33, s34 Extrinsic materials: Inc Objects Clauses and definitions sections in Act Common law rules for statutory Interpretation: Literal approach Golden approach Purposive approach Precedent 4 Statutory Interpretation
1. The Purpose Approach
- what is the purpose or aim of the legislation? SEMINARS THIS WEEK
REMEMBER: Seminars this week are to be held in the Computer labs in Building 17 or the Library labs check the Subject Outline. This week's workshop will focus on week'
Researching techniques Start on referencing 2. The Literal Approach 3. The Golden Rule the words mean what they say if the literal approach produces an absurd result give the words a meaning that avoids the absurdity 4. The mischief approach what mischief is the legislation trying to remedy? The End 5 ...
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This note was uploaded on 06/16/2010 for the course LAW 121 taught by Professor Aresa during the Spring '08 term at Uni. West.
- Spring '08
- Common Law