Chapter 5 - Sac Study

Question 1

How can Courts make laws? (3)

Answer 1

• deciding on a new issue that is brought before them in a case
• when a previous principle of law requires expansion to apply to a new situation
• statutory interpretation

Question 2

How are judges ability to make law restricted?

Answer 2

Judges can only make laws in the following situations:

• if a case is brought before a superior court
• if there is no previous binding decision, if a court is bound they can’t make a precedent, however there may be opportunity to establish new principle of law if distinguishing differences can be shown

Question 3

what is the acronym for explaining how precedent operates?

Answer 3

PHROBS
P - persuasive precedent
H - hierarchy 
R - ratio decidendi 
O - obiter dictum
B - binding precedent
S - stare decisis

Question 4

When is a precedent persuasive? (4)

Answer 4

• precedent from courts in same hierarchy
• precedent from courts in another hierarchy
• precedent from inferior courts (lower courts in hierarchy)
• obiter dicta from another court

Question 5

When is a precedent binding?

Answer 5

precedents in superior court in same hierarchy dealing with the same legal principles and sufficiently similar facts

Question 6

What is an example of a persuasive precedent?

Answer 6

Donoghue v. Stevenson - this was not binding on Australian courts, but was used as persuasive precedent in Grant v. Aus Knitting Mills, which established the law of negligence in Aus

Question 7

What are the ways judges can develop precedent or avoid following an earlier decision?

Answer 7

RODD
R - reversing
O - overruling
D - distinguishing
D - disapproving

Question 8

What is an example of a judge distinguishing?

Answer 8

‘Davies v. Waldron’ case distinguished the case from a previous case because of the difference in material facts

Question 9

What is an example of a judge reversing?

Answer 9

Queen v. Klamo the court of appeal decided to uphold appeal against the conviction and ordered Klamo to be acquitted. This reversed decision of the supreme court

Question 10

What is an example of disapproving?

Answer 10

Trigwell case the judge expressed his disapproval, but did follow the old common law and urged parliament to change the legislation

Question 11

What are 2 reasons for interpretation of statutes by judges?

Answer 11

• The meaning of the words may be ambiguous
• Changing nature of words
• Mistakes in drafting the bill

Question 12

Why may the meaning of the words of an Act be ambiguous?

Answer 12

words and phrases in Act attempt to cover broad range of issues, as a result the meaning of some words might be ambiguous.
Courts need to interpret the words to decide on their meaning according to intention of the Act

Question 13

What is an example of the words in an Act being ambiguous?

Answer 13

Court needed to interpret the phrase ‘start to drive’ in the Road Safety Act to see whether is included attempting to turn on the ignition - the court held that it did

Question 14

What is changing nature of words in an Act?

Answer 14

meaning of words can change over time as society changes; legislation needs to be interpreted to clarify meaning of words

Question 15

What is an example of the nature of words in an Act changing?

Answer 15

‘de facto relationship’ was a man and a woman living in a domestic relationship. This changed to a couple living in a domestic relationship, regardless of gender.

Question 16

What are the methods used by judges to interpret acts? (plus 3 examples)

Answer 16

intrinsic materials - the actual words in the act, the long title, headings
extrinsic materials - reports from committees and law reform bodies, dictionaries, precedents

Question 17

what are 3 effects of statutory interpretation by judges?

Answer 17

• the interpretation becomes or is part of the ratio decidendi and can set a precedent
• the interpretation can narrow the application of the term or expression interpreted. (studded belt case narrowed definition of ‘regulated weapon’)
• ruling can broaden the application (mansfield v. kelly “public place” included private vehicle in public place)

Question 18

How final is a courts decision? (4)

Answer 18

is a final statement of law unless:

• one of parties decides to appeal against decision
• reversing, overruling or abrogating (cancelling) a decision
• extending a previous decision
• narrowing a precedent

Question 19

How can a court extend a previous decision and what is an example? (finality of courts decision)

Answer 19

courts can extend previous decisions to include wider meaning
eg. extending negligence by a manufacturer to cover all types of negligence

Question 20

How can a court narrow a precedent and what is an example of this? (finality of courts decision)

Answer 20

courts can narrow previous decisions by interpreting a previous precedent more narrowly
eg. general duty of care for negligent advice was narrowed in a later case to only include advice given by someone with special skill

Question 21

What are 5 strengths of law making through the courts? (DERP-Q)

Answer 21

DEVELOP - courts can develop areas of law not covered by legislation by making a decision on a matter when it arises (law of negligence established then further developed)
EXPERT - judges are expert and experienced in the law and see the effects of laws and how they are applied in everyday cases. Makes laws relevant & statutory interp.
RIGID - courts can keep law from becoming too rigid by dist, overr, or rev previous decisions
POLITICAL INFLUENCE - courts are not subject to political influence when making a decision which allows them to make more objective assessments
QUICK - courts can change a law quickly if a relevant case is brought before them eg. Marriage Act ACT

Question 22

What are 5 weaknesses of law making through the courts?

SCEBR

Answer 22

BOUND - doctrine of precedent may mean they are bound and cannot make a new law when case is brought before it
RELEVANT CASE - Must wait for relevant case before they can change/make the law, person must also have standing. e.g. McBain case
ELECTED - judges are appointed not elected so may not rep. values of maj. of people & aren’t answerable and acc. to people
CONSULTATION - Unable to partake in community consultation or engage experts to provide advice about change to law (par can investigate whole areas)
SLOW - changes in a particular area of law through the courts can be slow to develop, such as the law of negligence

Question 23

What is the relationship between courts and parliament in law-making? (5)

Answer 23

• parliament creates courts & their jurisdictions
• parliament can override decisions made by courts
• parliament can be influenced by decisions made by courts
• courts can interpret the law
• parliament and the courts work together

Question 24

what is ‘parliament creates courts and their jurisdictions”? plus example (relationship between par and courts)

Answer 24

• with exception of HC, all courts were created by an act of parliament and could be disbanded by an Act. Par. creates special divisions of courts to make the court system more effective
  eg. Vic par passed an Act to create a division of the county court

Question 25

What is 'parliament can override decisions made by courts'? plus example (relationship between par and courts)

Answer 25

- where a court upholds law that is outdated & no longer reflective of community views, par. can legislate to change the law or avoid such decisions & previous precedent is no longer applicable eg. Vic par. passed an Act, making rape of a wife by husband a crime, as previous legislation that allows this was outdated and no longer reflected community views

Question 26

what is 'parliament can be influenced by decisions made by courts' plus example (relationship between par and courts)

Answer 26

- court decision cannot overrule a decision of parliament if act is within jurisdiction of parliament. However, par. can be influenced by decisions made by courts eg. in trig well case court was bound by a common law. The HC suggested this law was outdated and par. should change it, so vic. parliament overrode the common law

Question 27

what is 'courts can interpret the law'? (relationship between par and courts)

Answer 27

- many statues have errors or are ambiguous and require interpretation. - It is role of the court to determine meaning of the word or phrase in question and create new precedent - courts fill gaps or correct errors in leg. made by par.

Question 28

what is 'parliament and the courts work together'? (relationship between par and courts)

Answer 28

- par. is supreme law making body and its main function is to pass laws. Courts have responsibility of resolving disputes that arise form breaches of those laws

Question 29

What is 'if a case is brought before a superior court'? restriction on judges ability to make law

Answer 29

- judges can only make/change law when a case is brought before them. - person must have standing, taking case to higher court is expensive & the court can only make law on relevant issues in question in that case

Question 30

What is an example of an obiter dictum?

Answer 30

The obiter dictum in Heaven v. Pender was to be used as a persuasive precedent in later cases to establish a general duty of care

Question 31

What are two reasons why precedent provides for effective law making?

Answer 31

- IMPROVES EFFICIENCY - provides for an element of predictability and certainty, parties can anticipate what will happen in their case. Improves efficient - CONSISTENCY & FAIRNESS - all parties can be assured they are treated in the same way

Question 32

What does precedent depend on?

Answer 32

precedent depends on the courts being organised in a hierarchy. Courts high in the hierarchy, are the courts involved in making law