Precedent in International Courts: A Network Analysis of ...
Topic a Lecture 6 - Case Law, Precedent and the Courts
Transcript of Topic a Lecture 6 - Case Law, Precedent and the Courts
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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 delegatedlegislation
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.
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The nature of judicial method
The courts possess the critical double function ofinterpreting and applying legislation and ofcontinuing the still important tradition of the
common law.
A controversial aspect of the function of the HighCourt, in particular, in recent years has been theemergence of a degree of judicial activism
demonstrated most significantly in the Mabo case.
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The common law
After the Norman Conquest (1066), Englishmonarchs sent travelling judges around the countryto administer royal justice.
The judges initially applied local customs, whichvaried from place to place.
Eventually the judges began to follow earlierdecisions and the rules gradually becameconsistent.
These rules came to be known as the common law.
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Equity
Development of the common law was restricted byprocedural limitations.
Petitions for relief from the inadequacies of the commonlaw were considered by the Lord Chancellor.
Cases were initially decided according to theChancellors ideas of equity and good conscience.
In time, a complex body of law developed,supplementary to the common law, and known asequity.
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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
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Stare decisis
A court is bound to follow decisions ofcourts higher than itself in the samehierarchy of courts within theparticular jurisdiction.
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Obiter dicta
Other legal argument and statements ofprinciple 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 asthey do not form part of the matters at issue.
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Donoghue vStevenson
[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 thestatement of Lord Atkin regarding theexistence of a duty of care in Anglo-
Australian law.
The reasoning in this case has taken root inmany countries.
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Donoghue vStevenson
The Facts
The appellant, May Donoghue,
claimed that on 26 August 1928 shedrank some of the contents of a bottleof ginger -beer, manufactured by therespondent, which a friend had boughtfor her at a cafe in Paisley, Scotland.
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Donoghue vStevenson
When her friend poured the remainder of thebottle's contents into Mrs Donoghue's
tumbler, "a snail, which was in a state ofdecomposition, floated out of the bottle".
The bottle being opaque, the snail could not
have been detected until the greater part ofthe contents of the bottle had been poured.
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Donoghue vStevenson
As a result Mrs Donoghue alleged thatshe suffered from shock and severe
gastroenteritis.
What could Mrs Donoghue do?
What remediesin law were availableto her?
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Donoghue vStevenson
Remediesin Contract orTort Law?
Given that her friend had bought the
drink, there was no contract betweenMrs Donoghue and the retailer.
The friend who did have a contract
with the retailer was unaffected by theevent and could not seek damages onher behalf.
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Donoghue vStevenson
Donoghue instituted proceedingsagainst the manufacturer of the ginger-
beer (Stevenson).
Liability arose because themanufacturer (respondent) owed the
consumer (appellant) a duty to exercisereasonable care (Lord Atkinsneighbour principle).
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Donoghue vStevenson
Amanufacturer ofproducts, which he sellsin such a form as to show that he intendsthem to reach the ultimate consumer in the
form in which they left him with no reasonablepossibility of intermediate examination, andwith the knowledge that the absence ofreasonable care in the preparation or putting
up of the products will result in an injury to theconsumers life or property, owes a dutytothe consumerto takethat reasonable
care.
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Donoghue vStevenson
Neighbour principle
That rule that you are to love your neighbourbecomes, in law, you must not injure your neighbour,
and the lawyers question, Who is my neighbour?receives a restricted reply. You must take reasonablecare to avoid acts or omissions which you canreasonably foresee would be likely to injure yourneighbour. Who, in law, is my neighbour? The answer
seems to be persons who are so closely anddirectly affected by my act that I ought reasonably tohave them in contemplation as being so affectedwhen I am directing my mind to the acts or omissionswhich are called in question.
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Res judicata
The decision reached by the court indetermining the case before it is,
subject to any appeal, a finalresolution of the issues raised in it,insofar as the parties to theproceedings are concerned.
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The judicial hierarchy
Decisions of courts outside theparticular hierarchy are not binding but
may be persuasive depending uponthe status of the court.
A previous decision of a court on thesame level is generally not binding butwill not be departed from unless theearlier decision was wrongly decided.
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Precedent
Precedent means that a question that was dealt with ina certain way continues to be dealt with in that way insimilar later situations.
In summary: only courts of record can create precedent
every court is bound by the decisions of courts whichare superior to it in the same hierarchy
superior courts are generally bound by their ownprevious decision (an exception is the High Court)
individual judges of courts of the same level in thesame hierarchy will usually follow their own earlierdecisions
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Binding precedent
Only the ratio decidendifrom a court of recordcan create binding precedent.
Binding precedent only binds courts in thesame hierarchy.
Note the position of the court of record in the
court hierarchy as this will determine whetherthe ratio is binding or persuasive, e.g. Vic,NSW, Qld Court of Appeal decisions bind theirSupreme Courts.
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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 asimilar matter, in a later case, on the basis of adifferent legal principle, the decision in the latercourt is now to be followed)
distinguished* (when a court finds some materialdifference between the facts of the 2 cases)
disapproved (if the court cannot overrule an earliercase and considers the earlier case no longer to begood law)
reversed* (if it goes on appeal to an appellate courtand the order of the lower court is changed)
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Distinguishing prior authority
Involves the judge finding that thematerial facts of the 2 cases differ so
significantly that the earlier decision isnot binding authority.
Provides a mechanism by whichearlier legal doctrine can be soseverely restricted that it is virtuallyabolished.
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Rejecting prior authority
An appeal court may declare anexisting statement of common law tobe wrong by overruling or reversingthe prior authority.
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The courts
Original and appellate jurisdiction of a court: A courts jurisdiction is established by its
enabling Act.
Original jurisdiction is the authority to hear acase when the case is first brought before acourt.
Appellate jurisdiction is the authority of a courtto hear appeals from decisions of courts of alower level in the same court hierarchy.
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The courts
Features of the court hierarchy:
It provides a system of appeals fromdecisions 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.
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The court system
Appeals
Can be
Madeto the
new
Magistrates
Court
High
Court ofAustralia
Full Court ofthe
Federal Court
Federal Court ofAustralia
Federal Magistrates Court
Federal Tribunals
(eg National Native
TitleTribunal,)
AdministrativeAppeals
Tribunal etc.)
Court ofAppeal of
Territory Supreme Courts
Territory Supreme Courts
Local Courtsin
Territories
Full Court/Court ofAppeal
State Supreme Courts
State Supreme Courts
State Intermediate Courts
(County or District Courts)
(exceptTasmania)
State Minor Courts
(Local Courts, MagistratesCourts or Courts of
Summary Jurisdiction)
StateTribunals
(eg Local Government
Courts,Workers
Compensation Courtsetc.)
Full Court ofthe
Federal Court
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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 indictableoffences, committal proceedings;
in civil matters: limited to claims below a certain
amount (in Victoria currently $100,000).
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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.
Jurisdiction is established by its enabling Act:
in criminal matters to all but most serious
indictable offences;
in civil matters jurisdiction established by money
limit.
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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.
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Federal court system
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.
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Federal court system
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 JudicialReview Act;
appeals from the AAT;
matters arising under HREOC.
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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.
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Alternatives to courts
Alternative methods of dispute settlement havegrown in the last few years because of thedelays, 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
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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.
BarristersGenerally 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.
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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 previousdecision and who can be either theplaintiff or defendant from the first case.
Respondent: the party who was successful in the firstaction.
Crown: represents the state in a criminal actionthrough a Crown Prosecutor against anaccused person.
Accused: the person against whom a criminalaction is brought by the state.
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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
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Justices of the peace and
stipendiary magistrates Magistrates
Trained, full-time salaried public servantsselected 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 WAMagistrates Courts.
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Jury in criminal trials
A jury of 12 is used in all cases in intermediate andsuperior courts where the accused pleads not guilty toan indictable offence.
There is no appeal from a finding of not guilty, on thebasis that the jury was wrong. An appeal can be madeon a point of law, introduction of new evidence or proofthat prosecution witnesses were not telling the truth.
As in civil trials, the jurors are the sole determiners offact.
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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 theyonce were.
Appeals are rarely made from a civil jury decision