1. doctrine of precedent, characteristics of the common law, legal reasoning and artificial reasoning

what elements of Australian law originate in England

• system of representative democracy

  • parliament to make law

  • commonwealth, state and territory jurisdictions

  • people vote for representatives

  • governmental power limited

• a legal profession that is divided into solicitors and barristers

• a common law system

• adversarial trials and decision making in courts

• a system of courts for dispute resolution

the common law as a system of law

• using law derived from the English legal system

• exists in Australia, NZ, US and Canada (countries that have colonial links with Britain)

• contrasts with civil law systems which are inquisitorial

the common law as a way law is made

• made through judges by decisions made in cases, set precedents

• ratio decidendi - legal reason behind a judges decision which forms a precedent that later cases must follow if in the same court or lower

• distinguished from law made from legislation or statutes

the common law as a branch of law

• distinguished from other specialised areas of law such as a trade practices law, bankruptcy or private law

what features of Australian law are distinctive

• a federal system made up of a commonwealth and states and territories

  • way of separating the powers of different bodies of government

• some recognition of indigenous customary law

the classic formulation of precedent

• a court must apply or follow the ratio decidendi of a higher court where the facts are alike

• decisions are always subject to interpretation - the wider the ratio, the more room for interpretation

• a precedent is applied where there is some reasonable distinction between the two cases but it is regarded as one that should not be acted upon

• a precedent is followed when there is no reasonable distinction

the working of court hierarchies

• courts are bound by the decisions of higher courts within the same hierarchy

• each state has its own hierarchy, with the high court at the top

• courts from other jurisdictions can make decisions that may be persuasive

• the High court is not bound by its previous decisions, but does not depart lightly from these decisions (highly persuasive precedent)

early developments of precedent

• 14th and 15th centuries a complainant had to go to chancery and pay for a writ, which authorised proceedings

  • Kings would hear disputes directly

• secretaries were important as writing was not a skill known by everyone

  • chancery wrote out the writs, they tended to become fixed

• register of writs

• if a writ did not match the case, the case was thrown out

• trespass referred to any wrong

what is the paradox of precedent

like cases being treated alike can simultaneously give rise to change in the way those cases are decided

Dorset Yacht co ltd v Home Office (1970)

• House of Lords case

• group of juvenile detainees escaped an island and boarded a yacht, the boat collided and damaged another yacht owned by the plantiff

• case was difficult to determine as previous cases had not allowed a duty of care in negligence to arise when the defendant was a public authority

• found factors that influence precedent such as the position of deciding court in the hierarchy, the age of the precedent, the level of court where the precedent came and changes in community values

natural law theories

• the belief in a system of law that is common to all people that is derived from the supreme force in the universe or God

• recognises a relationship between law and morality

• theories held by Coke and Hale

positivism

• contrasted with natural law

• the belief in a system of law created by people

• argue that natural law is a barrier to legal reform

• do not believe in precedent, believe that it is messy

how did forms of action become causes of actions

• forms of action abolished by the judicature act 1873

  • some elements still present, such as nuisance requiring a proprietary right to the land and necessary elements for false imprisonment, assault and battery

• a cause of action is the sum of legal elements that a court will recognise as constituting a basis for liability

  • not as rigid as forms of action but do require all elements to be present

origins of the tort of negligence

19th century negligence was not a seperate tort but a way of doing a wrong

what cases contributed to the development of precedent in negligence

• Langridge v Levy (1837)

• Winterbottom v Wright (1842)

• George and Wife v Skivington (1869)

• Heaven v Pender (1883)

• Donoghue v Stevenson (1932)

Langridge v Levy (1837)

• father of plaintiff bought a gun from the defendant and told him that it was for the use of himself and his sons

• defendant said the gun was made by a reputable gun maker, was not true, the gun was defective and exploded on the son’s hand

• found the defendant to be fraudulent

Winterbottom v Wright (1842)

• defendant had a contract with the Postmaster General to provide a coach and to supply horses and coachmen

• Winterbottom was a coachman employed by Atkinson

• Winterbottom was lamed for life when a coach he was driving broke down

• found there was no privity of contract between the parties, no remedy served to the plaintiff

• “hard cases…are apt to introduce bad law”

George and Wife v Skivington (1869)

• plaintiff purchased a hair product from the defendant who was a chemist, wife was injured by the hair wash

• identified there was a duty on the defendant to use care in creating the wash, and thus to the purchaser

• Landridge v Levy applied

Heaven v Pender (1883)

• defendant owned a drydock where ships were painted and repaired, plaintiff was employed by Gray to paint the ship

• Pender supplied and put up the necessary staging to do the work

• while the plaintiff was painting, one of the ropes broke, he fell and was injured

• judge found in favour of the plaintiff as the defendant had not taken reasonable care in using and supplying the ropes

Donoghue v Stevenson (1932)

• friend bought Ms Donoghue an ice cream soda, decomposed remains of a snail fell out of the bottle

• sued the manufacturer of the drink

• Landrige v Levy dismissed, Winterbottom v Wright applied

• case was remitted for trial, Stevenson died before the trial could take place so was settled

• established the principle of a general duty of care that was broader than contractual

how do courts attain their jurisdiction

• a statute that establishes a court defines its jurisdiction

  • NSW and Victoria define the jurisdiction of their supreme courts as ‘unlimited’ as they are courts of general jurisdiction

• many courts jurisdiction is defined by a statute

  • s60 of District Court of Queensland Act 1967 provides that the criminal jurisdiction of the district court is to hear and determine all indictable offences (unless a max penalty more than 20 years)

• courts can also be limited by its specialisation

  • family court

the state courts civil jurisdiction

1. High Court

2. court of appeal

3. supreme court

4. district court

5. local court

state courts criminal jurisdiction

1. High court

2. court of criminal appeal

3. supreme court

4. district court

5. local court

federal courts

• High Court used to be the only federal court in Australia

• in 1970s, two new federal courts were established

  • the federal court and the family court

• in 1999 the federal magistrates court was established

• in 2021, the federal circuit and family court of Australia was created by a merge

• there are also tribunals at the federal level that are specialist decision makers

the high court

• limited and defined jurisdiction

• deals with matters of federal importance

• section 76 of the commonwealth constitution allows parliament to make laws that confer further original jurisdiction on the high court

• appeals to the high court were abolished in 1984

  • need special leave to get one

supreme courts

• superior courts of record with general jurisdiction

• has inherent power to regulate its own procedure and grant bail

• decisions can not be void but can be set aside due to error or an appeal

• hears some of the most serious criminal matters

• appeals may be heard by a single judge

intermediate courts

• district and county courts

• jurisdiction of each is limited by its enabling act

  • normally has monetary limits

• criminal offences triable by a judge and jury

magistrates courts

• where most cases are heard

• jurisdiction is set out by statute, very similar in each court at this level

what do magistrates courts do for criminal offences

• carry out the committal process

  • deciding whether there is a case in relation to an indictable offence and what court it should go to

• deals summarily with lesser offences, coronial offences and children’s issues

what do magistrates courts do in civil matters

• small debts, small civil claims and residential tenancy matters

• may hear family law matters, mining applications, liquor licensing applications, mental health matters

• usually a monetary jurisdictional limit

state tribunals and specialist courts

• each state tribunal has its own legislation that specifies its jurisdiction and the process of appeal if allowed

• drug courts in NSW

• tribunals may review the merits as well as legal decisions, whereas a court is confined to the legal issues

what is the traditional classification of law

• public and private law

• law can also be classified according to its source

  • international, domestic, legislation, case law

• can be classified according to the people affected by it

• it is for the lawyer to decide which classifications fit, so then they can decide the process of legal reasoning and procedures

what is involved in public law

constitutional law, administrative law and criminal law

what is involved in private law

tort law, contract law, property law, family law, commercial law

procedural differences between adversarial and inquisitorial classifications of law

• some areas of the Australian law system are inquisitorial, like coronial jurisdiction

• in adversarial systems, the parties are in charge of the action, whereas in civil law systems the state takes the place of the plaintiff and defendant

  • evidence for criminal matters is collected by police officers

role of the judge in adversarial and inquisitorial systems

• in adversarial systems the judge does not interfere with the running of the case

• in most civil trials, the judge also decides on the facts

• in inquisitorial systems, the judge takes an active role in cases and may direct parties to present witnesses or collect evidence

• juries are rare in inquisitorial and rules of evidence are minimal

aspects of the adversarial system

• judge is unfamiliar with the matter before the trial

• judge plays a passive role

• advocates call and question witnesses

• complex rules of evidence

• an accused guilt is determined, then they are sentenced

• defendant has the right to silence

• balance of probabilities or beyond reasonable doubt

• limited rights of appeal

• an acquittal is final

• lay juries

• may plea bargain

aspects of the inquisitorial system

• the judge directs the pre-trial inquiry

• judge actively directs the evidence

• judge calls and questions witnesses

• few rules of evidence

• defendant’s guilt and sentence are determined together

• defendant is thoroughly questioned throughout a trial

• ‘full proof’

• broad rights of appeal on law and fact

• acquittals may be appealed

• new evidence may be admitted on appeal

• no lay juries

• no plea bargaining

aspects of public law

• at least one of the parties is a state entity

• includes relationships between governments

• some assumptions are not relevant

• considers the broader public interest

  • remedies are different - compensation rarely given

aspects of private law

• an individual having a dispute with another individual person

• state is not involved in the same way

• typical areas are torts, contract, property

• compensatory damages are common

R v Wright (2001)

• Wright and his friend were 17 years old when they persuaded a friend to buy them a 700ml bottle of rum

• drank one quarter of the bottle and stole a van, Wright lost control of the van and crashed into trees, Watson died

• Wright appealed his conviction, believed the trial judge erred in his direction to the jury of negligence

• “the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state"

  • highlighted the importance of clear and precise jury instructions and clarity on gross negligence - a higher degree of carelessness that constitutes a criminal offence

R v Wacker (2003)

• Wacker drove a lorry on which 60 Chinese people had hidden in a container behind European tomatoes

• when the lorry disembarked, a customs officer opened the container and discovered the bodies of 58 immigrants who had suffocated

• Wacker appealed his conviction of manslaughter as the immigrants were engaged in illegal activity so a duty of care would not arise

• appeal dismissed, found that as soon as the container closed a duty did arise

what is legal reasoning used for

• to argue, persuade, predict and validate decisions and to come to a judgment

• complex mixture of precedent, logic and persuasion

• judges must give reasons for their decisions to prevent them from being arbitrary

what does boyle say about purposive and formalist arguments

• they are grouped by purposive or formalist

• formalist: explaining the meaning of the word by taking it out of context and without considering the purpose behind the rule

• purposive: imagining the purpose which lies behind the rule and define the words in light of this purpose

what does boyle say about the broad rule and narrow rule

• the narrow rule ties the rule to the facts of the particular case so that it would not be capable of deciding a case in which the facts were marginally different

• the broad rule takes each of the phenomena in the case and makes them as abstract as one can

what does boyle say about the general manipulation of precedent

• lawyers normally combine the methods described with a factual and legal re-categorisation of what has happened in the case to make other cases seem more or less relevant

how does boyle group presidential, rule based and interpretive arguments

• purposive v formalist

• broad rule v narrow rule

• general manipulation of precedent

what does boyle say about nonprecedential arguments

• there are five types of policy argument

• firm rule: if a court adopts a rule, it will be laying down a firm standard which can be easily administered by judges, enabling citizens to order their affairs in the knowledge of what the law is

• flexible standard: the rule adopted is a harsh, rigid standard which is unfair and would force the courts to be unfair in many other cases

what does boyle say about arguments about institutional competence

• courts are the competent institutions: objective and responsive

• courts are not the competent institutions: must be left to the legislature as it would bring an outside expertise. courts should not apply and make the law

what does boyle say about moral arguments

• morality as form: people should keep their bargains, their choices are their own autonomy

• morality as substance: making moral decisions on the basis of a right to freedom of action vs making moral decisions on the basis of a right to security

• morality as freedom: we should not be required to do anything

• morality as security: a person can expect something of other people

what does boyle say about deterrence or social utility arguments

• flexibility: not imposing a rigid standard

• stability: certainty and expectations are needed

what does boyle say about formal deterrence vs substantive deterrence

• different degrees of ‘knowing’, one person knew more than the other

what is artificial reasoning

• Bonham’s case was the proprietor (doctor)

• giving rise to the idea that judges may invalidate statutes because of their ability to comprehend the law better as they base decisions on past cases

• Hobbes wrote that Coke’s conception of artificial reason was untrue, Hale rebutted him

case of prohibitions (1607)

• judges had issued a writ of prohibition to the court of High Commission

• archbishop referred the matter to the king, arguing that the King had the power to judge all cases since his power was God given

• Coke responded and renounced natural reason

  • “law is an act which requires long study and experience”