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WEEK1- Introduction to Australian Legal System (doctrine of precedent:…
WEEK1- Introduction to Australian Legal System
define Law: a body of generally accepted rules and behaviours that a particular society, acting collectively, accepts as appropriate for its own self-governance. by sovereign bodies to subjects. and expect the subject to obey if not criminal punishment ot civil sanctions.
enacted:statute by parliament or legislative bodies under authorities
state
Local : Local Government Act (passed by federal or their state)
territory and federal
uneacted: courts and by judges no directly parliament involvement
Case Law or precedent
binding
Persuasive
Doctorine of Terra nullius: Empty land rule: by Arthur Phillip who settling AUS not conquringp.5-6
English Law recieved in 3 parts
equity: fairness
statute: parliament
Common Law: Judge
common law two meanings
law made by judges: doctorine of precedent; decision by a judge is authority, guide or bound by in subsequent case on similar facts
sources
parliament
Executive: federal: defence, customs and excise
concurrent:federal and sate Tax, banking and insurance (state subject to their territory) where incossitencies between Commonwealth parliament and State and territory legislateurs: Commonwealth Parliament prevails (s 109 Commonwealth Constitution) or ( for Territory s122 CC)
residual:state
judges
Case law(common law):
equity:14th cent. developed by directly due to rigidity----)specific performance such as injunction for tort(detinue)
types, availability and being discretionary are the difference from case law.
Equity Maxim p.11
remedy obtainable only when no law inappropriate or not available
all state and territory Supreme Courts exercise both common law and equitable jurisdictions in one court
injunction: mareva: dont permit to tkae out the propert out of the country to defeat anticipated judgment(even before it.
rescission
specific performance
not normally damages,exception specific cases
The entire legal system: as opposed to civil law legal system (Roman) in EU countries
Uniformity
certainty
fairness
Doctorine of Separation of Powers: gov devided into:
executive (the Crown, Ministry, public service): administer the law and conduct the affairs of state
Judicature (judges and courts), which interprets, applies and enforces the law. no exe or legis role at the same time. exception: Administrative tibunals specialised matter for admistration, part of execution, quasi-judicial powerbut bound by courts, less formal p.15
Legislature (Parliament), makes the law
in practice( delegation of some power ti exe by legis.by considering ultra vires beyond power principle) refer to p.15 Dignan v Australian Steamships Pty Ltd(1931)45 CLR 188
Paliamentary Sovereingty: sovereign law-making:
judge can not overrule or annul law made although other war around exists unless constitutionally invalid
therefore statute more flexible and rapid to change the law
can not destroy or fetter the sovreignty of future parliament
not bound by rules of morality and international law despite being limited in practice
how legis. is passed p.17
doctrine of precedent: stare decisis(abide by the precedent)every court in a particular hierarchy must follow the reasoning in decision by courts above it if facts identical or sufficiently similar so binding or authoritative APPLIED tO BOTH Common law and Equity
not following (per incuriam: want of care) if:
case distinguished on its facts
2 equally authoritative precedent on similar facts but with differing decision ( ex one by English court one by High court of Australia)
from the court which the judge is not bound by for example not in the same hierarchy)
Ratio Decidendi or rationes decidendi (pl): reason for deciding ( binding) based upon the material fact caused to judge to decide the case)
Multi judge : binding there may be no ratio decidendi so use the majorty reasons or per incuriam but same decision. dont go through minority or dissenting ratio decidendi
obitar dictum: statement of law which is peripheral relevance to the decision (persuasive) judge give examples or comparisons (see ex. p.19)
Obituar dictum of one case may become the ratio decidendi of subsequent Hedley Byrne & co v Hellen and Partners Ltd (1964)----) MLC Assurance Co v Evatt (1968)
persuasive precedent: case involving similar fact but by different hierarchy or lower court in the same hierarchy only due to its merits and regard, such as cases in English court in Australia factor p.20
Level of court in the other hierarchy: Supreme court in the UK
Status of particular judge
Date: recent better
decision was or was not reserved: if in case report mentioned curia advisari vault: the court took time to consider higher accuracy and persuasiveness
strong dissenting judgment
can be distinguished on its facts
Changing precedent: if the precedent is no longer in line with the needs and expectation of societ
overrulling by higher court
reversing the decision by higher court Nguyan v. Nguyan (1990)
Through legislation