Podcast
Questions and Answers
What is the primary responsibility of the Attorney-General's Department in Australia?
What is the primary responsibility of the Attorney-General's Department in Australia?
Which of the following branches of government is responsible for interpreting and applying laws?
Which of the following branches of government is responsible for interpreting and applying laws?
What happens when there is a conflict between Commonwealth law and state law?
What happens when there is a conflict between Commonwealth law and state law?
What is one of the main elements of negligence in tort law?
What is one of the main elements of negligence in tort law?
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What does the term 'Separation of Powers' refer to in the Australian political system?
What does the term 'Separation of Powers' refer to in the Australian political system?
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What is the highest authority in the executive branch of the Australian government?
What is the highest authority in the executive branch of the Australian government?
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Which section of the Constitution allows for amendments through a referendum?
Which section of the Constitution allows for amendments through a referendum?
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Who must carry out the laws passed by parliament in Australia?
Who must carry out the laws passed by parliament in Australia?
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What is the primary role of a solicitor in a legal case?
What is the primary role of a solicitor in a legal case?
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Which type of litigation requires proof 'beyond reasonable doubt'?
Which type of litigation requires proof 'beyond reasonable doubt'?
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What does a barrister primarily do in the legal system?
What does a barrister primarily do in the legal system?
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What was one of the significant changes introduced by the Australian Constitution?
What was one of the significant changes introduced by the Australian Constitution?
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What is a primary outcome sought in civil litigation?
What is a primary outcome sought in civil litigation?
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Who serves as the representative of the King in Australia?
Who serves as the representative of the King in Australia?
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How are members of parliament chosen in Australia?
How are members of parliament chosen in Australia?
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What is the primary purpose of the concept of equity in the legal system?
What is the primary purpose of the concept of equity in the legal system?
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Which characteristic distinguishes criminal litigation from civil litigation?
Which characteristic distinguishes criminal litigation from civil litigation?
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In the legal hierarchy, which court is considered the highest court in Australia?
In the legal hierarchy, which court is considered the highest court in Australia?
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What does the term 'ratio decidendi' refer to in a legal context?
What does the term 'ratio decidendi' refer to in a legal context?
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What steps follow after a 'Bill' is introduced in parliament?
What steps follow after a 'Bill' is introduced in parliament?
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Which of the following statements is true regarding case law?
Which of the following statements is true regarding case law?
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How are cases decided when there is a conflict between the statute and common law?
How are cases decided when there is a conflict between the statute and common law?
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What role does the prosecution play in a criminal case?
What role does the prosecution play in a criminal case?
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What is meant by 'obiter dicta' in legal terminology?
What is meant by 'obiter dicta' in legal terminology?
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What must be established to prove a breach of duty in tort law?
What must be established to prove a breach of duty in tort law?
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In the context of tort law, what does vicarious liability refer to?
In the context of tort law, what does vicarious liability refer to?
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What does contributory negligence imply in a tort case?
What does contributory negligence imply in a tort case?
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Which of the following cases established a duty of care based on foreseeability?
Which of the following cases established a duty of care based on foreseeability?
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What is the primary aim of awarding damages in tort law?
What is the primary aim of awarding damages in tort law?
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Which of the following factors is NOT considered when assessing breach of duty?
Which of the following factors is NOT considered when assessing breach of duty?
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Under the Civil Liability Act in NSW, which condition affects the ability to recover damages?
Under the Civil Liability Act in NSW, which condition affects the ability to recover damages?
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What is the primary obligation imposed on a plaintiff regarding loss mitigation?
What is the primary obligation imposed on a plaintiff regarding loss mitigation?
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Study Notes
Legal Framework Overview
- Australia operates under a common law system, derived from England, established post-Norman conquest in 1066.
- The Australian legal system focuses on uniformity, equity, and the need to address injustices.
- Case law, developed by judges, is essential for maintaining consistency through precedent.
Legal System Components
- Ratio decidendi refers to binding legal principles while obiter dicta are persuasive but not binding.
- Statute law, or legislation, is created by Parliament, and the Constitution establishes the Federal Parliament.
- Bills go through a parliamentary process, requiring debate and assent to become Acts, which courts interpret using a literal and purpose-based approach.
Court Hierarchy
- Courts are structured hierarchically, with lower courts adhering to decisions made by higher courts.
- Appeals can be made to higher courts if a party disagrees with a lower court's decision, with the High Court as the apex court.
- The Supreme Court is the highest state court in New South Wales, supported by various tribunals and alternative dispute resolution (ADR) methods.
Key Parties in the Legal System
- The Plaintiff initiates proceedings; in criminal cases, it is the State (Prosecution/Crown).
- Defendants contest the claims made against them.
- Solicitors prepare cases and may engage barristers for representation in complex matters.
- Judges/Magistrates preside over cases, while juries are utilized in specific criminal and civil defamation cases.
Litigation Characteristics
- Civil litigation focuses on compensatory outcomes, with a balance of probabilities as the standard of proof.
- Criminal litigation prioritizes punishment and deterrence, applying the beyond reasonable doubt standard.
Political System Fundamentals
- The Australian Constitution formed a federation, recognized the six colonies as states, and established federal/state powers.
- Section 51 allocates specific powers to federal parliaments, with residual powers belonging to states.
- Section 109 ensures Commonwealth law prevails in the event of conflict with state law.
Structure of Government
- Government operates under the separation of powers between legislative (Parliament), executive (Governor-General, Ministers), and judicial (courts) branches.
- The Westminster system facilitates parliamentary democracy within Australia.
Understanding Torts
- Torts can range from assault to defamation, with negligence as the most significant category.
- Key elements of negligence include duty of care, breach of duty, and resulting damage—establishing a causal link is crucial.
Landmark Cases in Negligence
- Donoghue v Stevenson established duty of care based on foreseeability and proximity.
- Shaddock v Parramatta Council emphasizes the reliance on accurate advice leading to a duty of care.
- Esanda v Peat Marwick concerns reliance by auditors.
Assessing Breach of Duty
- Determining breach involves evaluating risk probability, potential harm severity, burden of risk elimination, and utility of the defendant's actions.
- Overseas Tankship v Morts Dock addresses causation of damage in negligence claims.
Vicarious Liability
- Employers can be held liable for employees' negligence if it occurs within the scope of their employment, differentiating between contracts of service and contracts for services.
Defenses in Negligence
- Contributory negligence attributes partial fault to the plaintiff, adjusting damages awarded.
- Voluntary assumption of risk acknowledges the plaintiff's acceptance of risk, potentially reducing or eliminating damages.
- Mitigation obligates plaintiffs to minimize their losses.
Damages Philosophy
- The goal of tort damages is to restore the injured party to their pre-tort position, encompassing pain and suffering, economic loss, and future medical needs.
Statutory Modifications
- The Civil Liability Act in New South Wales modifies aspects of negligence, particularly concerning recreational activities and liability related to professionals and public authorities.
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