BLAW10001 Lecture Notes - Lecture 3: Law Report, Precedent, Abbreviation
14 May 2018
School
Department
Course
Professor
Sources of Law: Case Law
1. Basic procedure in a civil case
•Civil litigation begins with an exchange of written documents (pleadings) in order to define the
nature and extent of the dispute
-Hope in this is that issues arise, see other side rebuttals
-Narrow dispute down (saves time and money)
-Solicitor prepares document and lodges with the court
-Judge asks for information before trial at specified deadlines
-Judge hopes during this period some pleadings are abandoned
-Dispute may be settled out of court (negotiated)
•When the case comes to trial in court, evidence is led from witnesses, or by producing
documents, to establish the facts relied on by plaintiff and defendant
-Barrister hired - expert in court room
-Gives opening statement - intention of argument
-Defendant’s barrister does the same
-Witnesses questioned by plaintiff’s, then defendants barrister
-Defendant’s barrister tries to attack/undermine witness credibility/evidence
-Repeats for other witnesses
-Closing arguments presented
•Each side then presents and argument as to what the relevant law is and how it should be
applied
•The court decides what facts are proved, and what the law is. The case is decided according to
the law and an appropriate order is made.
-Judge goes away for a few months/weeks and writes report with legislation/case law applied
-Judge provides conclusion and an order for plaintiff/defendant
-When judgement is ready to published, judge goes to court and states this
-Most judgements get made public in Australia
2. A judge’s power to make law
•Judges make law indirectly when they decide cases
•Sometimes judges are not able to find an established rule of law to apply. Judges can:
-Declare a rule as a rule of Australian law for the first time
-Interpret an existing rule of law, to establish its meaning
-Extend an established rule of law to a new situation
3. Development of the ‘common law’
•The body of case law is known as “common law”
•Characteristically, the common law is applied in a strict, legalistic way
•In England, system developed where judges wrote down judgements and soon judges started
making similar decisions
•Common law sometimes resulted in unfair judgements due to its rigid nature
•Courts of Chancery developed
-A court of appeal
-Not made up of legally trained judges - they had religious training
-Hope was they would look at ‘morally wrong’ outcomes and alter the result for fairness
4. Development of ’equity’
•The decisions of the Court of Chancery developed a body of rules referred to as ‘equity’
•Rules based on notions of justice and fairness
•The separate common law courts and courts of equity have now been replaced by a single
system of courts - all courts draw on both common law and equity to resolve new cases
•Common law and equity can be referred to jointly as ‘case-law’ or ‘the general law’ as distinct
from legislation
Document Summary
Sources of law: case law: basic procedure in a civil case, civil litigation begins with an exchange of written documents (pleadings) in order to de ne the nature and extent of the dispute. Hope in this is that issues arise, see other side rebuttals. Narrow dispute down (saves time and money) Solicitor prepares document and lodges with the court. Judge asks for information before trial at speci ed deadlines. Judge hopes during this period some pleadings are abandoned. Dispute may be settled out of court (negotiated: when the case comes to trial in court, evidence is led from witnesses, or by producing documents, to establish the facts relied on by plaintiff and defendant. Barrister hired - expert in court room. Gives opening statement - intention of argument. Witnesses questioned by plaintiff"s, then defendants barrister. Defendant"s barrister tries to attack/undermine witness credibility/evidence.
