BLAW10001 Lecture Notes - Lecture 3: Ratio Decidendi, Judiciary Of Australia, Precedent
15 May 2018
School
Department
Course
Professor
Principles of Business Law
• Lecture 1
• Week 3
• Basic procedure in a civil case
• Resolving issues that have arisen between two parties
o A breach in contract
• Parties exchange written documents (pleadings) in order to define nature and extent
of the dispute
• Case come to trial in court, evidence led from witnesses or producing documents
o Facts established 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
• Court decides what facts are proved, and what the law is
o Case is decided according to the law and an appropriate order is made
• Judges poe to ake la
• Expectation that judges apply existing law to cases
o No direct authority (from constitution) to make law
• Judges indirectly make law when they decide cases
o Will have reasons
• Opportunities to make law when deciding cases
• Declare a rule as a rule of Australian law the first time
o Previously unwritten rule of law, deriving from natural law or custom
• Interpret an existing rule to establish meaning
• Extend an established rule of law to a new situation
• Face a novel fact or situations to which no binding rules supply
• Eglish Judges deeloped coo la
• Decision to unite all laws and customs throughout England
• Uniform body of law (common law) replaced local laws
o Areas still governed by common law
▪ Contract
▪ Tort
o Appeals would be heard by the Court of Chancery
• Clash between judge made law and legislation will see legislation prevail
• Deelopet of euity
• Decisions of Court of Chaey deeloped ito a ody of ules efeed to as euity
o Rules based on notions of justice and fairness
• Separate common laws courts and courts of equity have now been replaced by a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
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