BLAW10001 Study Guide - Final Guide: Obiter Dictum, Commonwealth Law Reports, Precedent
BLAW CH 3 – SOURCES OF LAW: CASE LAW
BASIC PROCEDURE IN A CIVIL CASE:
• Civil litigation begins with an exchange of written documents (pleadings – drafted by the
plaintiff) in order to define the nature and extent of the dispute
• 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
• Each side then presents an 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
A JUDGES POWE‘ TO MAKE LAW:
• Sometimes, the judge may not be able to find an established rule of law to apply
• In such cases, judges have various alternatives:
o Declare a rule (an intl. one) as a rule of Australian law the first time
▪ E.g. a previously unwritten rule of law, or one deriving from natural law
or custom
o Interpret an existing rule of law, to establish its meaning (if there is ambiguity)
o Extend an established rule of law to a new situation
▪ E.g. copyright laws extending to new technology
• Areas still governed by the common law (subject to some statutory intervention):
o Contract
o Tort
THE DEVELOPMENT OF EQUITY:
• The decisions of the Court of Chancery developed into a body of rules referred to as
euity
• these rules are 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• The separate common law courts and courts of equity have now been replaced by a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 and all courts draw on both common law and equity to resolve
new cases
• Common law and equity can e efeed to joitly as ase-law o the geeal law, as
distinct from legislation
• Areas of law still governed by equity:
o Trusts (putting money in trust funds – holdig soeoe elses oey)
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Document Summary
The case is decided according to the law and an appropriate order is made. A judge(cid:859)s powe to make law: sometimes, the judge may not be able to find an established rule of law to apply. In such cases, judges have various alternatives: declare a rule (an intl. one) as a rule of australian law the first time, e. g. a previously unwritten rule of law, or one deriving from natural law or custom. Blaw ch 3 sources of law: case law: courts are never bound by precedents set in the same court. Blaw ch 3 sources of law: case law. If two decisions in the same court are made, the lower courts are not bound by precedent, but the decisions become persuasive. Identifying (cid:858)o(cid:271)iter di(cid:272)ta(cid:859): the explanatory discussion that suppo(cid:396)ts a judge(cid:859)s ratio decidendi, distinguishes from the facts & law in the ratio decidendi.
