Case law, the courts and the legal profession

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Case law, the courts and the legal profession
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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.

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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.

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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
  Chancellors ideas of equity and good
  conscience.
• In time, a complex body of law developed,
  supplementary to the common law, and known as
  equity.

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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.

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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 of courts
  higher than itself in the same hierarchy of
  courts within the particular jurisdiction.

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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.

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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.

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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.

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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.

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Donoghue v Stevenson

• 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.

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Donoghue v Stevenson

• 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?

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Donoghue v Stevenson

• 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.

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Donoghue v Stevenson

• 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 Atkins
  neighbour principle).

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Donoghue v Stevenson
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 consumers life or
property, owes a duty to the consumer to take
that reasonable care.
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Donoghue v Stevenson
Neighbour principle That rule that you are to
love your neighbour becomes, in law, you must not
injure your neighbour, and the lawyers 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.
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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.

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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.

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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

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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.

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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).

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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 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)

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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.

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Rejecting prior authority

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

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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.

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The court system
Full Court of the Federal Court
Appeals Can be Made to the new Magistrates 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 indictable
  offences, 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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State court system

• Supreme Courts
• The highest court in each State and Territory and
  a court of record, presided over by a judge.
• Jurisdiction is established by its enabling Act
• 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).

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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 Judicial Review 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 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

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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.
• 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.

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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 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.

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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 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.

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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.

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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
  they once were.
• Appeals are rarely made from a civil jury
  decision