Australian Legal System: Common Law, Statutes, and Court Hierarchies

Common law

The legal tradition on which the Australian legal system is based.

Statute law

Written law made by Parliament (House of Representatives and Senate).

Case law

Law established by previous court decisions (precedents).

Plaintiff

The party that initiates the case in litigation.

Defendant

The party that responds in litigation.

Crown/State

The party involved in criminal cases.

'R' in cases involving the Crown

'R' stands for 'Rex' or 'Regina' (Latin for King or Queen).

Office of the Director of Public Prosecutions

It prosecutes criminal matters on behalf of the state.

Solicitor

A legal professional who prepares cases and may appear in court.

Barrister

A specialist advocate who presents cases in court.

Court hierarchy in NSW

Local Court → District Court → Supreme Court.

Court hierarchy in the Federal system

Federal Circuit & Family Court → Federal Court → High Court of Australia.

Precedent

A legal decision that guides future similar cases.

Binding precedent

Precedents that must be followed by lower courts.

Persuasive precedent

Precedents that may be considered but are not mandatory.

Constitution's division of powers

It grants exclusive powers to the Commonwealth and leaves residual powers to the states; federal law prevails in conflict.

Doctrine of the separation of powers

It separates powers into Legislative, Executive, and Judicial to prevent concentration of power.

Elements in a negligence claim

Duty of care; Breach of duty; Damage caused by the breach.

Test for breach of duty in negligence

Would a reasonable person have foreseen the risk and taken steps to avoid it?

Proving causation in negligence

Damage must not have occurred 'but for' the breach and must not be too remote.

Key elements to form a valid contract

Agreement (Offer + Acceptance); Intention; Consideration.

Offer

A proposal that ends when revoked, rejected, or after a reasonable time.

Exceptions to communicated acceptance

Ongoing business relationships; unilateral contracts; postal rule.

Carlill v Carbolic Smoke Ball Co.

The case that established that advertisements are invitations to treat.

Intention to create legal relations

Determined by social/domestic = no intent; commercial = presumed intent.

Consideration in contract law

The price paid for a promise—money, goods, services, or forbearance.

Insufficient consideration examples

Vague promise; past consideration (Roscorla); prior legal duty (Stilk); part payment of a debt (Foakes v Beer).

Chappell v Nestle

Confirms that consideration need not be adequate, but it must be sufficient.

Steps in answering legal problem questions

Identify issue; Identify rules; Apply rules to facts; Reach conclusion.

Contract law's importance

It provides predictability, enforceable rights, and the framework for business transactions.

Silence as acceptance in contracts

No, unless exceptions apply (Carlill, ongoing relations, postal rule).

Contract void or voidable

Mistake; misrepresentation; duress; undue influence; unconscionable dealing.

Unconscionable conduct

Taking unfair advantage of someone's special disadvantage (Commercial Bank of Australia v Amadio).

Proving unconscionable conduct

Plaintiff had a special disadvantage; it impaired their decision-making; defendant knew or should have known; defendant exploited the disadvantage.

Protecting against unconscionability claims

Ensure independent legal advice, full disclosure, fair and reasonable terms.