Copyright Guy Harley 2004 Introductory & Contract Law Week 3.

Copyright Guy Harley 2004

Introductory & Contract Law

Week 3


Sources of Law

Parliament The Courts

Equity Common LawFederal State

Contract LawUnconscionable Conduct

Promissory estoppel

Trade Practices Act

Fair Trading Act


Pecking Order

1. Legislation

2. Regulation

3. Equity

4. Common Law


Courts The hierarchy of courts Role of the High Court

Original Jurisdiction Appellate jurisdiction Conferred jurisdiction

Federal Courts State Courts


Jurisdiction

Subject Matter Criminal Civil Administrative Appeal

Powers Length of jail sentences Monetary limits Injunctions & other remedies

Geographical limits Residence of parties Where claim arose


FEDERAL COURTS

High Court

Federal Court Family Court

Federal Magistrates Service

Court of Appeal

District Court

Magistrates Court

Supreme Court

STATE COURTS

Privy Council

Appeals Abolished

Often

Com

bined


Stare Decisis Where a court has decided a case in a particular way,

then subsequent cases involving similar facts should be decided in the same way

Precedent Binding - Courts must follow a decision of a higher court in

the same hierarchy Persuasive - Courts will consider decisions of other courts


Precedent Two types

Binding Persuasive

Binding Must be followed and applied

Persuasive Not binding. Considered by the Court and may be followed


Precedent (Cont.) Persuasiveness depends on

quality of decision jurisdiction of the court that gave the decision


Rules of Precedent Lower courts must follow decisions of higher courts in

the same hierarchy A judge does not have to follow decisions of Judges

at the same level. However, will be persuasive. Judge does not have to follow decisions of higher

court in a different hierarchy although they will be persuasive

Highest court in hierarchy can overrule its previous decisions


The Court’s Decision (Cont.) Ratio Decidendi

Consists of those parts of the decision that were necessary to decide that particular case

Obiter Dictum Statements made by Judge that are not necessary

to decide the case Remarks in passing


Applying Ratio Decidendi Can be difficult to discern Commentators often dispute what is decisions Ration

Decidendi Can be widened or narrowed by later decisions Facts are rarely exactly the same


Example - Donoghue v Stevenson A drink manufacturer has a duty to persons who might drink their

product to take care that the bottle does not contain dead snails A person has a duty to act in such a way that his or her conduct does

not cause harm to others. A manufacturer of food, drinks or medicines whose products are

packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.

People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.


Citing Cases – Volumes by Number Smith v Jones (2001) 145 CLR 203, 207

Name of parties Year of publication Volume number Report name First page of judgment Page on which specific passage appears


Citing Cases – Volumes by Year Smith v Jones [1945] 2 All ER 203, 207

Name of Parties Year of Volume Volume number if more than one volume in a year Report name Page on which specific passage appears


Citing Cases – Medium Neutral Smith v Jones (2001) HCA 203, [20]

Name of Parties Year of decision Court designator Judgment number Paragraph number


The English Legal System

Adversarial System Civil

Plaintiff Defendant

Criminal

The Crown The Accused


The English Legal System

Adversarial System (cont.) Decision makers

Jury Judge

Lawyers

Solicitors Barristers


Proving a Claim

Standard of Proof Civil Cases

Balance of Probabilities Criminal Cases

Beyond Reasonable Doubt

Burden of Proof Civil Cases - Plaintiff Criminal Cases - Prosecution Presumptions


Criminal Cases Minor

Complaint Summary trial by magistrate Conviction Sentence

Serious Information Committal hearing Indictment Trial by judge and jury Conviction Sentence


Civil Cases

Summons Pleadings Discovery of documents Pre-trial hearings Settlement conferences Trial Judgement Orders


Proving a Claim (cont.)

Affidavit Subpoena Witnesses

Oral evidence Documents

Official records


Appeals

A party who disputes a court’s decision can appeal to a “higher” court

Usually limited to legal arguments Adversarial

Appellant Respondent

Can keep appealing to the next higher court if there is one

Hierarchy of Courts


Problem

For each case: Give the citation for the case In what court was the case heard? Name the judge(s) and explain their titles Name the parties and give their role in the case Name the solicitors and who they represented Name a case cited in the judgement. Was it persuasive

or binding? What was the ratio decidendi of the case? Was there an obiter dicta? If so, what was it.

Date post:	16-Jan-2016
Category:	Documents
Upload:	adela-houston
View:	215 times
Download:	0 times