Lecture 1 BFA601 Semester 1 2018.pptx

A court may apply existing precedent but disapprove

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A court may apply existing precedent but disapprove of the decision to be made because it is outmoded or unfair (opening the way for a new precedent in the future) COMMON LAW Reversing, overruling, disapproving and distinguishing COMMON LAW Reversing, overruling, disapproving and distinguishing
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A court may distinguish a precedent: where it finds differences with the original precedent so it does not have to follow the precedent COMMON LAW Reversing, overruling, disapproving and distinguishing cont. COMMON LAW Reversing, overruling, disapproving and distinguishing cont.
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Law reports are the published and authorised statements of decisions made in the courts, (noting that some reports may not be authorised and less persuasive in court) A law report has a citation which states: The name of the law report The year, the volume and the page at which it can be found. Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49 Where would we find this report? COMMON LAW Law reports COMMON LAW Law reports
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A law report usually has a headnote outlining the case, the arguments, the court and the findings. The parties are listed along with all those involved in the case. The headnote will list different cases referred to, the summing up of different judges COMMON LAW Law reports cont. COMMON LAW Law reports cont.
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Common law courts became a bit inflexible in historical times. Litigants could call upon the King’s mercy when unfairness occurred, (who passed such requests to his Chancellor) The Chancellor’s court developed its own rules called equity (decisions based on fairness) In 1873, common law and equity rules were merged COMMON LAW Equity COMMON LAW Equity
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In the merged legal system, equity will prevail over common law Note equitable remedies, eg injunction. Trust law is equitable law Note the maxims of equity: ‘he who seeks equity must do equity’ COMMON LAW Equity cont. COMMON LAW Equity cont.
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Non adversarial The judge plays a key role and asks questions and controls the case Rules of evidence less complex Lawyers assist the court, not determine proceedings Different presumptions as to proof and innocence may exist COMMON LAW Civil law systems COMMON LAW Civil law systems
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A combative or argumentative style of contest in order to bring out the points of contention between the parties. The judge keeps order and ensures rules of court are met Note the move towards a more inquisitorial system in Australia (eg within the tribunals) COMMON LAW The adversarial system COMMON LAW The adversarial system
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Public law Criminal law, administrative law, corporate law Private law Tort law and contract law (civil law) The difference is that public law is often a prosecution of action by the state, private law requires the affected party to take action.
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