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Questions and Answers

What is the primary responsibility of the Attorney-General's Department in Australia?

  • To protect and promote the rule of law (correct)
  • To draft new legislation for parliament
  • To oversee the electoral process
  • To collect taxes for the federal government
  • Which of the following branches of government is responsible for interpreting and applying laws?

  • Legislative
  • Electorate
  • Executive
  • Judicial (correct)
  • What happens when there is a conflict between Commonwealth law and state law?

  • State law prevails in all circumstances
  • The conflict requires a referendum to resolve
  • Both laws are applied simultaneously
  • Commonwealth law prevails to the extent of the inconsistency (correct)
  • What is one of the main elements of negligence in tort law?

    <p>Duty of care owed to someone</p> Signup and view all the answers

    What does the term 'Separation of Powers' refer to in the Australian political system?

    <p>The division of government responsibilities into three branches</p> Signup and view all the answers

    What is the highest authority in the executive branch of the Australian government?

    <p>The Governor-General</p> Signup and view all the answers

    Which section of the Constitution allows for amendments through a referendum?

    <p>Section 128</p> Signup and view all the answers

    Who must carry out the laws passed by parliament in Australia?

    <p>The public service administrators</p> Signup and view all the answers

    What is the primary role of a solicitor in a legal case?

    <p>To arrange and prepare the case before it goes to court</p> Signup and view all the answers

    Which type of litigation requires proof 'beyond reasonable doubt'?

    <p>Criminal litigation</p> Signup and view all the answers

    What does a barrister primarily do in the legal system?

    <p>Presents the case for a client in court</p> Signup and view all the answers

    What was one of the significant changes introduced by the Australian Constitution?

    <p>Establishing new federal authorities</p> Signup and view all the answers

    What is a primary outcome sought in civil litigation?

    <p>Remedy such as damages or an injunction</p> Signup and view all the answers

    Who serves as the representative of the King in Australia?

    <p>The Governor-General</p> Signup and view all the answers

    How are members of parliament chosen in Australia?

    <p>Elected by the public in elections</p> Signup and view all the answers

    What is the primary purpose of the concept of equity in the legal system?

    <p>To supplement common law and prevent injustice</p> Signup and view all the answers

    Which characteristic distinguishes criminal litigation from civil litigation?

    <p>Statute-based philosophy of punishment</p> Signup and view all the answers

    In the legal hierarchy, which court is considered the highest court in Australia?

    <p>High Court</p> Signup and view all the answers

    What does the term 'ratio decidendi' refer to in a legal context?

    <p>The reason for a decision that is legally binding</p> Signup and view all the answers

    What steps follow after a 'Bill' is introduced in parliament?

    <p>It is debated, voted on, and if approved, assented to become an 'Act'</p> Signup and view all the answers

    Which of the following statements is true regarding case law?

    <p>It is judge-made law that establishes precedents</p> Signup and view all the answers

    How are cases decided when there is a conflict between the statute and common law?

    <p>Statute law always overrides common law</p> Signup and view all the answers

    What role does the prosecution play in a criminal case?

    <p>The prosecution brings proceedings on behalf of the state</p> Signup and view all the answers

    What is meant by 'obiter dicta' in legal terminology?

    <p>Statements made by a judge that are not binding</p> Signup and view all the answers

    What must be established to prove a breach of duty in tort law?

    <p>The damage must be directly caused by the breach.</p> Signup and view all the answers

    In the context of tort law, what does vicarious liability refer to?

    <p>An employer being liable for the negligence of an employee during work.</p> Signup and view all the answers

    What does contributory negligence imply in a tort case?

    <p>The plaintiff's damages will be reduced based on their own fault.</p> Signup and view all the answers

    Which of the following cases established a duty of care based on foreseeability?

    <p>Donoghue v Stevenson</p> Signup and view all the answers

    What is the primary aim of awarding damages in tort law?

    <p>To restore the injured party to the position they would have been in if the tort had not occurred.</p> Signup and view all the answers

    Which of the following factors is NOT considered when assessing breach of duty?

    <p>Age of the plaintiff</p> Signup and view all the answers

    Under the Civil Liability Act in NSW, which condition affects the ability to recover damages?

    <p>The level of the plaintiff's consent to risk.</p> Signup and view all the answers

    What is the primary obligation imposed on a plaintiff regarding loss mitigation?

    <p>The plaintiff must take reasonable steps to limit their loss sustained.</p> Signup and view all the answers

    Study Notes

    • 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.
    • 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.
    • 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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