BLAW10001 Chapter Notes - Chapter 3: Judiciary Of Australia, Law Reports, Obiter Dictum
15 May 2018
School
Department
Course
Professor
Principles of Business Law
• Tutorial 3
• Week 3
• Sources of law: Case Law
• When judges decide new cases, they refer to decisions that courts have made in the
past as a guide
o Teatig the as peedets
• When a previous decision is treated as precedent, it provides the rule of law for the
new case
o Therefore a source of law, known as case law
• Common law and equity
• Eglish outs ee diided ito oo la outs ad outs of euit
o Common law courts applied the common law, which displaced earlier local
laws and customs
o Courts of equity consists of the rules of law that were developed by the Court
of Chancery, established to hear and decide certain particular types of cases
ad appeals fo the Kigs oo la outs
• Decisions of both courts make up case law
o All Australian courts draw on the established principles and rules of both
common law and equity to decide new cases
• Appeals from a lower court generally proceed to a higher court within the same
jurisdiction
• Distinguishing different kinds of hearing
• Civil and criminal cases
• Civil
o One person brings a private action against another to establish or enforce a
legal right
▪ Ie- a breach in contract
• Criminal
o A person is charged with a breach of the criminal law
▪ If found guilty, the accused person is likely to be sentenced to a
penalty such as imprisonment or payment of a fine
• Original hearings and appeals
o When a case comes to the court for the first time→ ko as oigial o
fist istae
o Plaintiff vs defendant
o Applicant vs respondent
• Prosecutor vs accused
• I appeal ases, geeall ko as epellet s espodet
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• Basic procedure in a civil trial
• Exchange of pleadings
o First stage of ligitiation
▪ Exchange of written documents (pleadings) in roder to define the
nature and extent of the dispute
▪ Plaintiff→sends a statement of claim to defendant
▪ Defendant→replies with a written plea, intention to defend the
claim
• Proving the facts
o When case comes to trial in court, court will first ascertain the facts on
which the plaintiff and the defendant rely
▪ Comes from leading evidence from witnesses, producing
documents or artefacts
o in jury trials, jury rather than judge has responsibility of deciding what
facts are proved
• Ascertaining the law
o Once evidence has been heard, necessary to ascertain the relevant law
▪ Each side has opportunity to address the court and suggest what
rules are relevant, what they mean and how they should be
applied
• Deciding the case
o Having heard argument, court then decides what facts have been proved
and can be relied upon
o Case is decided by applying the law to the proved facts in a logical way, to
decide the case in favour of either the plaintiff or defendant
• The Purpose of the Doctrine
• When deciding new cases, judges do not have complete freedom to decide whether
to follow precedents set by previously decided cases
o ‘ules eist that liit feedo, ko as dotie of peedet
• Requires a judge who is deciding a new case should decide it in the same way that
substantially similar cases have been decided in the past
• Courts should decide new cases in the same way as previously decided cases in roder
to ensure that the law remains certain, predictable and consistent
• Cases that are potentially relevant as precedents
• The importance of similarity
• Important factors in determining relevance is the extent to which the facts of a
previous case are similar to the facts of the new case
o Law is concerned to deliver outcomes that are seen as fair and just
• The jurisdiction and seniority of courts
• The relevance of court hierarchies to the doctrine of precedent
• More powerful courts are described as superior (senior) to the less powerful courts
i hat is alled a hieah of outs
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