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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 ascommon law) and equity

Statute law and delegated legislation

Laws passed by Commonwealth, stateand territory Parliaments (statutes), andlaws passed by subordinate authorities(delegated legislation).

International law Not part of municipal or domestic lawuntil adopted by the Commonwealthparliament.

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.

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.

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.

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.

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

Stare decisis

A court is bound to follow decisions of courts higher than itself in the same hierarchy of courts within the particular jurisdiction.

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.

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.

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.

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.


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.


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?


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.


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).


“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”.


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.”

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.

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.

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

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.

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).

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)

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.

Rejecting prior authority

An appeal court may declare an existing statement of common law to be wrong by overruling or reversing the prior authority.

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.

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.

The court system

AppealsCan be

Made to the new

MagistratesCourt

High Court of Australia

Full Court of theFederal Court

Federal Court of Australia

Federal Magistrates Court

Federal Tribunals(eg National Native

Title Tribunal,)Administrative Appeals

Tribunal etc.)

Court of Appeal ofTerritory Supreme Courts

Territory Supreme Courts

Local Courts inTerritories

Full Court/Court of AppealState 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 theFederal Court

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).

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.


• in criminal matters to all but most serious

indictable offences;

• in civil matters jurisdiction established by money

limit.

State court system

Supreme Courts: The highest court in each State and Territory and a

court of record, presided over by a judge.


• 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).

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.


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.


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.

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.

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

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.

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.

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

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.

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.

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

Documents

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