Section 1
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How does common law work
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Last updated
6 years ago
Date created
Mar 1, 2020
Cards (58)
Section 1
(50 cards)
How does common law work
applies when no statute law applies or when no existing common law applies. Precedents create new common law.
statute law
legislation that has been passed through Parliament
neighbour
anyone who can be affected by your acts or omissions, even if there's no direct relationship
Types of Law in Australia
Statute , common law
overcoming precedent by:
overruling, reversing, distinguishing, disapproving
characteristics of effective laws
for laws to be effective, they must be accepted by the community. - known to public - easy to understand and necessary - reflect values of community - consistent in content and application - stable and capable of being enforced
persuasive precedent
those which are not binding, but to which respect is paid. - from lower court in same hierarchy, or other court hierarchies - eg Donoghue vs Stevenson's case influenced Aus. Grant vs AKM case
negligence
the failure of duty of care either through act or omission
damage
compensation for damage caused to plaintiff
warden's court
deals with proceedings relating to disputes over mining tenements in WA
doctrine of precedent
legal principle created by courts which allow judges to use past decisions to consider judgments for similar circumstances
duty of care
a moral or legal obligation to ensure the safety or well-being of others.
WA Court Hierarchy
High - Supreme - District - Magistrates - Family - Children's - Drug - Coroner's
Why do we need a court hierarchy
- EFFICIENCY: lower courts deal with less complicated matters - to provide right of APPEAL: higher courts review decisions of lower courts - PRECEDENTS: decisions of higher courts be used to bind/guide lower courts = consistency - allows for SPECIALISATION - giving administrative convenience
difference between common and statute law
common law are precedents set by previous cases and can be binding or persuasive. Statute law are laws created by parliament through legislation.
Important cases that inspired Aus negligence laws
Donoghue V Stevensons - decomposed snail Grant V Australian Knitting Mills - demerits Cole V South Tweed Heads Rugby Club - drunk, car hit Strong V Woolworths - fell on chip
political values
based on concept of democracy - in Australia - laws protecting us in work environment - laws protecting consumers from dangerous products
social values
our public lives and the way we conduct ourselves with others - respect for life - freedom of speech - anti-discrimination laws
Allows for specialisation
- courts develop expertise in jurisdiction - lower courts familiar with minor cases - higher courts expert in hearing complex cases
defendant
an individual, company, or institution sued or accused in a court of law.
coroners court
investigates reasons behind person's death
moral values
based on what society considers to be right - respect the freedom and dignity of the individual - freedom of religion
tort of negligence
a legal wrong where negligence is a failure of duty of care either through act or omission. It is a civil procedure
tort
a legal wrong
common law
law that is based on previous judgement of the courts and is also called Judge made law or Case law
4 types of torts
- negligence - defamation - nuisance - trespass
binding precedent
One which the court must follow. - decisions of higher courts in same hierarchy - not bound by decisions of court of equivalent standing
overcome precedent by disapproving:
expressing an unfavourable opinion of legal principle
civil procedures
cases between individual
Problems with a court hierarchy
- confusing as to which court the case should be heard - too many appeals - everyone should have access to best judges
good neighbour principle
precedent set by the DvS - established the tort of negligence
judges interpret legislation
Courts apply general laws to specific cases by interpreting the meaning of legislation in light of specific situations in cases
provides system of appeals
- if dissatisfied with decisions made in lower court, can be appealed in higher court - provides fairness, allows for mistakes to be corrected
influences on the law
should reflect community values - moral values - social values - political values - economic values
ratio decidendi
reason for the decision
3 things need to be established to prove negligence
1. Duty of care was owed by the defendant to the plaintiff 2. Duty of care was breached 3. Harm resulted because of the breach
precedents
* exclusively set by superior courts * all lower courts are bound by the decision of higher courts in same hierarchy * decisions by courts on the same level are not binding * judges decisions based on ratio decidendi (reasons) and obiter dictum (argument) of previous court decisions
stare decisis
to stand by what has been decided
major role of law
- identify rights and responsibilities of citizens - provides boundaries defining what's considered acceptable conduct - resolves disputes, maintain order and punish offenders - recognise moral, social, economic, cultural and political values - helps facilitate change
administrative convenience
- court hierarchy allows for distribution of cases according to seriousness - more serious and complex cases heard in higher courts - minor cases heard quickly and cheaply in lower courts
obiter dictum
statements made by judges said in passing that are more observations/arguments about law
how is common law made
- courts always look if they can apply existing law. - if not apply statute law - use this law as a precedent - use doctrine of precedents to make common law
overcome precedent by distinguishing:
involves looking at the facts of the case and finding material difference between them
family violence court
provide intervention to offenders with charges relating to domestic violence
plaintiff
a person who brings a case against another in a court of law.
process of statute law
pass bill in both houses. Law made by parliament called legislation, a statute or an Act.
functions of the law
1. maintain social cohesion and allow ppl to live together in harmony 2. Maintain order and provide punishment against those who break the law 3. allow change within society
overcome precedent by overruling:
when decision is binding on a lower court that decision must be followed
overcome precedent by reversing:
involves same case, firstly heard in lower court and the heard on appeal in higher court
cultural values
relate to people's way of life - freedom to practice cultural beliefs
Section 2
(8 cards)