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Topic 1: Introduction to the Australian Legal System ==================================================== **The New Lawyer: Nicholas James, Rachael Field and Jackson Walkden-Brown** --------------------------------------------------------------------------- Chapter 1: The Life of a Lawyer --------...

Topic 1: Introduction to the Australian Legal System ==================================================== **The New Lawyer: Nicholas James, Rachael Field and Jackson Walkden-Brown** --------------------------------------------------------------------------- Chapter 1: The Life of a Lawyer ------------------------------- ### 1.2 A diversity of career options - New Law: any model, process or tool that is designed to provide legal services in a significantly different manner to the traditional means of delivery. - If there are separate admission requirements for barristers and solicitors, it is characterised as a split profession. - Moved from vocational to doctrinal approach to legal education. - Priestley 11:11 areas of law that must be covered before students are allowed to be admitted. Chapter 2: Fundamental Legal Concepts ------------------------------------- ### 2.1 Law - 'The law is a system of rules made by the state and enforceable by prosecution or litigation' - Distinguishing between a legal rule and non-legal rule = source of the rule - Legal rules are made by the state i.e., legislature (parliament) or judiciary (courts) - Prosecution: contravention of a rule of criminal law - Litigation: contravention of a rule of civil law #### 2.1.1 Categories of law ##### Substantive and procedural law - Substantive: system of legal rules setting out the rights and obligations of individuals and the state - Public law and private law - Procedural: system of legal rules that regulate legal process such as civil litigation or criminal prosecution - Civil procedure v criminal procedure ##### Public and private law - Public: relationship between individual and state. Set of legal rules establishing the rights and obligations of the individual when dealing with the state and the rights and obligations of the state when dealing with the individual. - [Constitutional law:] regulates the relationship between various arms of government and between the government and its citizens, and grants legal rights and civil liberties to citizens. - [Administrative law:] allows citizens to hold administrative bodies such as local governments and departments accountable, and gives citizens the right to seek judicial review of administrative decisions. - [Criminal law:] establishes criminal offences and the penalties for their infringement. - [Taxation law:] regulates the administration and collection of tax. - Private: relationship between people within the community. Set of legal rules establishing the rights and obligations of individuals when dealing with or otherwise interacting with other individuals. - [Tort law:] provides a remedy for those harmed by the acts or omissions of another. A tort is a civil wrong other than a breach of contract e.g., trespass, negligence, defamation, nuisance and passing off. - [Contract law:] regulates agreements and promises. A contract is a legally enforceable agreement. - [Property law:] regulates property rights in thing (personal property) and land (real property) which includes intellectual property. - [Company law:] regulates the establishment, management and dissolution of corporations. ##### Civil and criminal law - Criminal: dispute between the state, represented by prosecutor, and the individual. - Civil: dispute between two or more individuals. ##### Domestic and international law - Domestic: regulates persons within a particular jurisdiction - Public international law: regulates relationships between states - Private international law: set of rules that determine which state's laws should be applied to resolve a dispute between people in different states. ### 2.2 Law and extrinsic standards - Standards of law: certainty, flexibility, accessibility - Expected to be fair and good (consistent with moral values and for the common good) - Jurisprudence: branch of philosophy re nature of law and branch of legal theory re philosophy of law #### 2.2.1 Natural law theory - Theory: immediate and necessary relationship between the law and a set of objective standards external to the law e.g., God, nature justice, moral values, fundamental human rights and basic goods. - Arguments: - Some things are universally and objectively fair and good, unfair and bad, and laws should be consistent with these universal and unchanging standards - If law made by government (positive law) is inconsistent with extrinsic standards (natural law), the positive law does not have to be obeyed - Discoverable by human reason - Natural law theory of extrinsic standards: standards have objective standing i.e., objectively true or false. - Natural law theory of law: no clear division between law and standards. - Theories are logically independent i.e., an individual can support one without the other. Though, usually natural law theorists believe both. #### 2.2.2 Legal positivism - Theory: no necessary relationship between law and extrinsic standards and the law needs to comply only with intrinsic legal standards. - Arguments: - Law is a social construction, made by human institutions. - The validity of the law depends upon its legal source rather than on its consistency with extrinsic standards. - Does not insist that extrinsic standards are non-existent or irrelevant but that it is not necessary for the law to be consistent with those standards to be valid. - Grundnorm: Ultimate norm from which every norm derives it validity. - Hart: - Law applies to everyone and to the authority making the demand. - The source of many common law rules is custom. - Sovereign is limited by the constitution and courts. ### 2.3 Law and liberal values - [Liberalism:] ideology emphasising the importance and freedom of the individual and views values such as liberty, reason, rights, equality and private property (fundamental liberal values) as of paramount importance. - [Harm principle:] the extent to which legal restrictions upon individual freedom are justified. A person's individual liberty should not be interfered with by the state unless it is to prevent the person from causing harm to others. - Classical liberalism favours a minimalist or non-interventionist government. #### 2.3.1 Liberty ##### Positive and negative liberty - Negative liberty: 'freedom from' - Positive liberty: 'freedom to' - Classical liberalism emphasises negative liberty rather than positive liberty. - Critics have challenged this emphasis, arguing that the state has a responsibility to do more than protect citizens from harm, it also has to provide assistance. - The state has an obligation to interfere in the lives of individuals to facilitate positive liberty. ##### Domestic liberty - Freedom to say and do as you please in your private life and home. - Feminist legal theorists criticise this distinction between public and private life as women are more likely to spend time in the private sphere and this disadvantages women. ##### Economic liberty - Free markets yield the most efficient production generating the greatest collective prosperity. - Criticism of trickle-down economics is that benefits are not passed down to other members of the community. #### 2.3.2 Reason ##### Utilitarianism - Form of rational moral reasoning: all acts can and should be judged according to their utility. - [Act utilitarianism]: quality of decision assessed in terms of direct impact of the decision on overall wellbeing. - Can lead to unrealistically high standards of behaviour. - [Rule utilitarianism]: Make decisions and choices according to morally correct rules, a rule is morally correct if the consequences of adopting that rule are more favourable than not. - Counteracts the consequences of act utilitarianism. - Criticisms: - Difficulty to quantify overall harm and benefit. - Assumes that human beings all seek to maximise their own pleasure and minimise pain but disregards the possibility of selflessness or altruism. #### 2.3.3 Rights - A right is an entitlement. - Rights are extrinsic standards with which laws should comply and against which law can be measured. Language of rights leads to the imposition of limits on the powers of the state. - Language of rights emphasises the entitlements of the individual over and above the authority of the state and wellbeing of the community. - *Contra:* Utilitarianism emphasises the importance of overall happiness or wellbeing. #### 2.3.4 Private Property - Property: Bundle of rights relating to the possession, use and distribution of a wide range of things. - Real property (land and fixtures) - Personal property (all property other than real property) - Changes in possession (tangible forms of personal property) - Choses in action (intangible forms of personal property) - Arises in relation to things that are scarce or because of the desire to create artificial scarcity by limiting availability. - Private v public property: owned by the individual or owned by the state on behalf of or for the benefit of the public. ##### Justifying private property 1. The first person to find something should be entitled to own it. - It only explains why the first possessor's entitlement to ownership is superior to that of subsequent possessors, but it does not justify property ownership in general. 2. A person should be entitled to own the result of their labour. 3. Private ownership of property is more efficient. 4. Private property is necessary for human fulfilment. #### 2.3.5 Equality - Formal / procedural equality: equal treatment before the law. - Substantive equality / equality of opportunity: considers differences in backgrounds, characteristics and circumstances. Chapter 3: A history of Australian law -------------------------------------- ### 3.1 First Nations Australians and the law - In 1992, the HCA overturned the doctrine of terra nullius in *Mabo v Queensland (No 21)*. ### 3.2 The development of British law #### Social Contract - [Parliamentary sovereignty]: Under the Westminster system, the parliament and not the monarch is the sovereign. - With the rejection of the notion of the divine right of kings it became necessary to identify a new, rational explanation of and justification for the authority of the sovereign over the people. - The notion of a social contract is that there is an implied promise to obey the sovereign in return for the benefits of being a member of the community. ### 3.2 Common law and equity - [Common law:] Emergence of national consistent and authoritative set of rules and principles. - Initially, legal proceeding in common law courts could be commenced only by a writ from the king. - Rigidity of the common law courts led to development of more flexible body of rules and processes with a wider range of remedies known as equity. - Equity: When unable to obtain remedy from common law courts, citizens approached the king who delegated this to the Lord Chancellor (later, the Court of Chancery). - Judges had regard to previous decisions in accordance with the doctrine of precedent. - The two system of courts created practical and procedural difficulties which was resolved by the establishment of the High Court of Justice which could administer both common law and equity. - Note: the two branches of case law were not combined or fused. Common law and equity continue to exist separately, and most judges can choose to apply the appropriate rule or principle. - Equity does not apply to all civil disputes and does not apply to criminal law. ### 3.3 Development of Australian law - See slides Chapter 4: The Australian legal system -------------------------------------- ### 4.1 Key characteristics #### 4.1.1 Rule of law - Law is applied equally to everyone - Courts uphold the legal rights of citizens, including the right to personal freedom - No person may be punished other than for conduct expressly illegal. #### 4.1.2 Democracy - Democracy: citizen have a say in the proposal, development and passing of legislation. - Representative democracy: citizens vote for officials representing them in legislative and executive government. - Direct democracy: citizens participate directly in law making e.g., referenda - Liberal democracy: the will of the majority and decision-making power of elected representatives are constrained by the rule of law. #### 4.1.3 Common law legal system - Common law legal system: many of the recognised laws were established by judges while resolving disputes and issuing judgements. #### 4.1.4 Constitutional monarch - Constitutional monarchy: head of state of the Commonwealth and States is the king or queen of England represented by the Governor-General, State Governors and Territory Administrator. #### 4.1.5 Federation - Federation: In addition to the Federal / Constitutional Government, there are State governments which share power under the Constitution. - The Federal Government has exclusive and concurrent powers with residual powers vested in the States i.e., Federal and State governments shared powers are concurrent powers. #### 4.1.6 Separation of powers - [Separation of powers]: distinction between power to make, administer and interpret law i.e., the legislature, executive and judiciary. - Legislature: Federal Parliament and various State and Territory parliaments - Executive: Prime Minister and other Ministers within the Federal Government, a Premier and other Ministers within the State Governments and a Chief Minister and other Ministers within the Territory governments. - The Legislature and Executive are not strictly separate in Australia - Judicial: system of courts - The doctrine of separation of powers means that: - The same person should not form part of more than one of the three arms of government - One arm of government should not control or interfere with the functioning of another arm and - One arm should not exercise a function of another arm. - In Australia, members of the executive are also members of the legislature so there is no strict separation. - *Contra Division of powers:* refers to division of law making between Federal Government and State governments. #### 4.1.7 Responsible government - Executive is responsible to the Legislature rather than the monarch. - Ministers must report to parliament - Ministers are appointed by the monarch but must have the confidence of the lower house. - Monarch can only act through Ministers ### 4.2 Australian Constitution #### 4.2.1 Structure of the Constitution - Came into force on 1 January 1901. - Contained in s 9 of the *Commonwealth of Australia Constitution Act 1900,* an Act of the British Parliament that became law on 9 July 1900. - Cannot be amended because of the *Australia Acts* passed by both Australian and British parliaments in 1986. - Divided into 8 chapters and 128 sections: the Parliament, the Executive Government, the Judicature, Finance and Trade, the States, New States, Miscellaneous and Alteration of the Constitution. #### 4.2.2 Constitutional conventions - Unwritten rules about how the Constitution should be interpreted and operate. - Leader of political party with most seats in lower house becomes Prime Minister, head of Cabinet and the country's leader. - Obligates the Governor-General to act on the advice of the Prime Minister. #### 4.2.3 Federal and State relations ##### Exclusive powers - Exercised only by Federal Parliament, includes: - Establishment of seat of government of the Commonwealth and oversight of Commonwealth public service - Imposition of customs and excise duties - Raising and maintaining of any naval or military force - Coining of money - Government of the Territories ##### Concurrent powers - Exercised by both Federal and State parliaments - Section 51 sets out 40 concurrent heads of power, most significantly: - Interstate and international trade and commerce - Taxation - Corporations - External affairs - If the Federal Parliament has not legislated for these matters, they remain with the States. - Under s 109, Federal law overrides State law to the extent of any inconsistency - The High Court has steadily interpreted s 51 in the authority of the Federal Government at the expense of the States. - Federal Government also extended scope of power through s 96 which enables the Federal Government to make financial grants to the States conditional upon the States' cooperation. ##### Residual powers - Power to make laws with respect to education, health, criminal law, contract and torts, transport, property and land and local government. - Disputes about the interpretation of the Constitution are resolved by the High Court under s 76. ##### Rights and freedoms - No bill of rights because combined effect of the Westminster system and the doctrines of separation of powers and responsible government would be sufficient. - Some rights and freedoms are ncluded in the Constitution expressly or by implication. ### 4.3 State constitutions - Focus primarily upon the functioning of the legislature. ### 4.4 Executive government - Formally vested in the Crown representative, in practice the Executive Council and public service exercise executive power. - Usually intended to refer to the Ministers responsible for oversight of those departments of the public service or a subset of those Ministers (referred to as the Cabinet). #### 4.4.1 Governor-General and State Governors - Appointed and removed by the monarch on advice of the PM or relevant Premier - No fixed period -- usually serve for 5 years - Ceremonial role and legal role - Formal and reserve powers #### 4.4.2 Executive Council and Cabinet - Minister may be a member of either House of Parliament - Senior Ministers (more important portfolios) and Junior Ministers (less important) - Members of majority political party not allocated to ministerial position are backbenchers - Executive power is exercised by Senior Ministers (Cabinet) #### 4.4.3 Challenging the executive - Ombudsman, Freedom of Information (FOI) Act, Administrative Appeals Tribunal (AAT) ##### Judicial review - Judicial review: process of challenging an administrative decision in the courts - Relief by issue of prerogative / constitutional writ which are court orders requiring an administrative officer or tribunal to act or refrain from acting in a particular manner. - Mandamus: court orders someone to perform administrative duty - Certiorari: court orders an unlawful administrative decision be set aside - Prohibition: court order prohibits administrative officer or tribunal from exceeding powers Chapter 5: The sources of law in Australia ------------------------------------------ - Case law: Made by courts, also known as common law or precedent - Courts decide what statutory provisions mean and whether they have been contravened - Courts also decide whether legislation is constitutional ### 5.1 Legislation - Legislation: Made by parliaments, also known as statute law or Acts of Parliament - Case law is reactive - Legislation's applicability is much wider than that of case law - Legislation is the dominant source of law - Legislation overrides case law if there is an inconsistency between a statute and common law - Increasingly statutory rules rather than precedents regulate #### 5.1.1 Parliamentary sovereignty - - Not subject to any higher law such as principles of morality, international law or common law - Cannot bind future parliaments - No person can override, ignore or disobey a valid law - Must be exercised in accordance with the Constitution and State constitutions ### 5.2 Structure of parliament - - #### 5.2.1 Federal Parliament ##### House of Representatives - - - - ##### Senate - - - - - #### 5.2.2 State and Territory parliaments - - #### 5.2.3 Parliament in operation - - - #### 5.2.4 Types of legislation - - - May also be contained in other original Acts or in 'omnibus' amendment Acts that make variations to multiple Acts simultaneously. - [Repealing Acts:] An Act that abolishes an existing Act. All rights and liabilities created by the repealed Act are not necessarily abolished. - [Consolidating / reprinted Acts:] Act bringing all statute law in a particular area into a single Act or that consolidates an original Act with all subsequent amending Acts. - [Reviving Acts:] Act that revives or restores an Act no longer current. ##### Subordinate Legislation - [Delegated legislation:] Parliament passes 'parent legislation' setting out the overarching principles and objectives of a particular regulatory scheme and then delegates the authority to make delegated legislation or legislative instruments. - Delegated party must act within the bounds of the parent legislation - Regulations are required to be tabbed in parliament - Regulatory body also required to provide regulatory impact statement and public consultation - Automatic sunset clauses to prevent overregulation - Ultra vires: courts may determine the regulation overrides the parent act if it goes beyond the powers conferred to it by the parent - Parent Act ss 18, 19, 20 - Child Regulation R or Rr - [Regulations:] Usually required to be tabled in parliament so the legislature retains some control over the creation of delegated legislation. - Undemocratic as laws are made by unelected officials, frequently without consultation with the public. - Clauses permitting the delegated authority to amend the parent legislation itself are inconsistent with the doctrines of the separation of powers and responsible government in that legislative power is being allocated to the executive. - May result in over regulation. **Lon Fuller (1949), \'The Speluncean Explorers\' Harvard Law Review 69(4)** ---------------------------------------------------------------------------- #### Facts - Group of explorers became stuck in a cave following a landslide and were rescued after 32 days - Whetmore (representative of defendants) - No physician, judge / government official or religious person was willing to advise Whetmore - Who was to be eaten was based on the cast of dice - Whetmore wanted to wait an extra week - Defendants charged him with "breach of faith" - Whetmore was eaten #### Findings - Prosecutor and counsel for defendants accepted a special verdict by the jury which leaves it to the court to say whether on the facts the defendants were guilty - Trial judge ruled guilty, and sentence was death by hanging as the law permitted no discretion for the penalty - Jury and trial judge wrote to the Chief Executive for the sentence to be commuted to 6 months #### Truepenny, C.J. - Principle of executive clemency seems admirably suited to mitigate the rigors of the law - If done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law #### Foster, J. - If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error - Believes that the law compels the defendants to be innocent for the following reasons: Argument 1: - Enacted or positive law is inapplicable and instead governed by the law of nature - Proposition that positive law is predicated on the possibility of men's coexistence in society. When a condition arises in which the coexistence of men becomes impossible, then the condition that underlies all precedents and statues ceased to exist. Hence, positive law disappears with it. - A case may be removed morally from the force of legal order, as well as geographically. - The defendants were not in a state of civil society but in a state of nature - The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing a new some order to make their life in common possible. Argument 2: - A man may break the letter of the law without breaking the law itself. - Centuries ago it was established that a killing in self-defence is excused. There is nothing in the wording of the statute that suggests this exception. - The exception in favour of self-defence cannot be reconciled with the words of the statue, but only with its purpose. #### Tatting, J. - *Contra to "not in a state of civil society but in a state of nature"* - At what moment does this passing of jurisdictions occur? These uncertainties produce real difficulties. - If the men were indeed under the law of nature, when comes our authority to expound and apply the law? - *Contra to "not breaking the statute"* - Other purposes are also ascribed to the law of crimes e.g., to provide an orderly outlet for the instinctive human demand for retribution or the rehabilitation of the wrongdoer - Statute concerning murder requires a wilful act -- a man acting in self-defence does not act wilfully but in response to a impulse deeply ingrained in human nature - Stealing food -- if hunger cannot justify the theft of food, how can it justify the killing and eating of a man? It would compel the court to overrule many other precedents - What is the scope of exception? What if Whitemore never agreed? Is it by majority? By the weakest link? By any other distinguishing characteristic? #### Keen, J. - The only question is "did the defendants wilfully take the life of Whitmore? - From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. - The purpose of the criminal law may not be known at all - Deterrence -- perhaps the ancestors were tempted by cannibalism - The act does not fall within the scope of self-defence as Whetmore made no threat against the lives of the defendants #### Handy, J. - I believe that all government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result. - Permits efficiency and common sense - Public interest - Preservation between the judiciary and public opinion a reasonable and decent accord Topic 2: Case Law & Precedent I =============================== **The New Lawyer: Nicholas James, Rachael Field and Jackson Walkden-Brown** --------------------------------------------------------------------------- Pages 155 -- 177: Chapter 5 --------------------------- 5.3 Case law ------------ - - - ### 5.3.1 Court systems - #### Jurisdiction - - Described as a court of first instance - [Appellate jurisdiction]: hears and decides an appeal from a lower court within the hierarchy - Criminal law covers crimes ranging from summary offences (minor) to indictable offences (serious) which involve the right to a jury trial. Commenced by the Crown against a defendant. - In civil trials, a plaintiff takes a defendant to court claiming some loss or harm has been suffered. ### 5.3.2 Federal Court System - - - #### High Court of Australia - - - - - - #### Federal Court of Australia - - #### Federal Circuit and Family Court of Australia - - 35 specialist law family judges hearing both trials and appeals - All appeals from Division 1 will be heard by a Full Court - Division 2 is a continuation of Federal Circuit Court of Australia and deals with family law, migration and general federal law matters - 76 judges, 55 specialists in family law and remainder are experts in various areas of general federal law and migration - All appeals from Division 2 are heard by a single judge unless the Chief Justice considers it appropriate to be heard by a Full Court - Led by 1 Chief Justice and 1 Deputy Chief Justice holding dual commission to both Divisions - Second Deputy Chief Justice assists in management of federal law and Fair Work jurisdictions of Division 2 ### 5.3.3 State and Territory court systems - - - - - #### High Court of Australia - - #### Supreme Courts - - - - - Points of law from lower courts and all issues from intermediate courts #### Intermediate Courts - - Presided over by a judge with optional jury in certain civil matters, and compulsory jury of 12 in certain criminal natters - In original jurisdiction, hears matters up to relevant financial limit. Hears criminal matters involving indictable offences other than the most serious crimes such as murder which are dealt with by the Supreme Court - In appellate jurisdiction, hears appeals from lower courts in criminal matters on issues relating to the sentence and question of fact - Appeals on questions of law go directly to the Supreme Court - Supreme and Intermediate Courts are courts of record meaning decisions are recorded and published #### Lower courts - - - - #### Cross-vesting - Vest State courts with jurisdiction over Federal matters and Federal courts with jurisdiction over State matters to address the jurisdictional problems arising when a legal dispute involves both Federal and State law. - Instead of 2 separate legal actions in 2 separate courts, litigants have the matter heard by a single court. #### Specialised courts, tribunals and decision-making bodies - - - - - Involving the application of the legislation but not the validity of the legislation #### Small claims courts and tribunals - - ### 5.3.4 Court processes #### Adversarial Dispute Resolution (ADR) - - Common law countries - Judge is impartial referee and decide the case - *Contra inquisitorial system in civil law countries:* inquiry into the truth - Used in non-judicial inquiries such as Royal Commissions and the Coroners Court in Australia #### Trial by jury - Peremptory challenges: parties in jury selection from jury pool have challenges without reasons and unlimited challenges for causes which are acceptable to the judge - Charging the jury: judge explains to the jury the nature of their role #### Commencing proceedings - Statement of claim: civil proceedings commence by filing a document in which the plaintiff sets out the substance of their claim - [Service]: formal process of delivering a copy of the document to the defendant in a way that it can be proven to the court - [Defence]: defendant's response to the statement of claim which is delivered to the plaintiff and lodged with the court - [Counterclaim]: defendant may also claim some wrongdoing on the plaintiff's part - [Default judgement]: if the defendant fails to file a defence, the plaintiff automatically wins by default - A person accused of criminal offences will plead either guilty or not guilty to each offence. - If they plead not guilty, trial determines whether they are and the appropriate sentencing - If they plead guilty, trial determines sentencing - Prosecutor: lawyer of behalf of Director of Public Prosecutions which represents the crown #### Pre-trial - Civil matters - [Interrogatories]: each party is entitled to ask questions of the other party which they must answer under oath - [Discovery]: each party is entitled to be given copies of relevant documents in the possession of the other party - [Interlocutory orders]: each party is entitled to seek these if the other party is not cooperating - [Interim injunction]: granted by court to restrain one of the parties from acting a particular way until the trial concludes - [Certificate of readiness] informs the court they are ready to present their case, a hearing date is set - Most civil disputes are settled during the pre-trial process - A pre-hearing conference is held to encourage settlement before trial - [Plea bargaining]: in a criminal dispute, prosecutor may seek to persuade defendant to plead guilty to lesser offence to resolve the matter quickly - [Committal hearing]: held before trial for indictable offences - [T]akes place in Magistrates/Local Court - Determines whether case is strong enough to proceed to full trial #### Trial - Summary offence: Magistrates/Local Court - Indictable offence: Judge and jury in District/County Court (Supreme Court for serious offences such as murder) - [Facts in issue:] where the parties to a dispute do not agree on certain facts - [Burden of proof:] for the plaintiff or Crown to bring successful action against a defendant, they must prove their version of the main facts in issue - [Standard of proof:] the minimum degree to which the truth of facts must be proven to satisfy the legal burden of proof - Commencing party (plaintiff or Crown) have the burden of proof - [Balance of probabilities:] in civil trials, court must find that it is more likely than not that the truth of the plaintiff's version of the facts is proven - [Beyond a reasonable doubt:] in criminal trials, court must find there is a very high probability that the true of the Crown's version of the facts is proven and there is virtually no reasonable explanation of events consistent with the accused being innocent #### Evidence - [Testimony:] verbal statements of a witness in court - Generally, testimony must be about the actual physical perceptions or observations of a witness - Limited circumstances where witness is permitted to state an opinion or draw an inference from basic facts - [Documents:] received into evidence as the words of a person who signed the document or adopted it as being correct in some other way. - Usually incorporated in the testimony of a witness. - [Real evidence:] objects the court is asked to examine. - Usually after it has been identified in the testimony of a witness - [Direct evidence:] eyewitness account of any fact in issue. Limited circumstances where an opinion is allowed. - [Circumstantial evidence:] not evidence of the facts in issue but other facts from which the court may infer the evidence of a fact in issue - [Relevance:] All evidence that is relevant to a fact in issue is to be received and all evidence that is not relevant cannot be received - Most of the law of evidence comprises exceptions to the relevant rule i.e., some evidence that is relevant is not received for one reason or another but no exceptions to the second aspect; if evidence is not relevant, it cannot be received - [Admissibility:] admissible only if it does not infringe any of the technical rules - [Weight:] extent that the evidence, once received, should be considered in deciding the facts in issue - [Credibility:] requires an assessment of the likelihood that the witness has some motive to be dishonest, is lying for no reason or is simply mistaken - [Probative value:] extent to which evidence is helpful in deciding which of the facts in issue is the best version - [Subpoena:] If a particular witness is unwilling to come to court, their attendance can be compelled. Failure to comply is punishment for contempt of court - The parties and their lawyers decide the order in which each party's witnesses will be called. Plaintiff's/Crown's witnesses are called first - [Examination in chief:] witness is questioned by plaintiff's lawyer/prosecutor. Lawyer is not permitted to ask leading questions. - [Cross-examination:] defendant's lawyer challenges the witness, questioning their claims and often seeking to undermine their credibility as a reliable witness - [Re-examination:] plaintiff's lawyer/prosecutor clarifies the witness's evidence following cross-examination. This is optional and may not be necessary - Each of the defendant's witnesses are then called. Each goes through the same three stage process with the examination in chief conducted by the defendant's lawyer, cross-examined by the plaintiff's lawyer/prosecutor and re-examined by the defendant's lawyer - Trial concludes with closing statement by the plaintiff's lawyer/prosecutor and by the defendant's lawyer #### Decision - If before a jury, the judge summarises the evidence for the jury. The judge also explains the jury's role in the case, any relevant legal issues and standard of proof. - If no jury, the judge decides, usually at a later time following deliberation. - In a civil trial, if the plaintiff is successful, the remedies include: - Damages - Injunction - Specific performance - In a criminal trial, if the Crown is successful, the court decides the sentence - Fine - Community service order - Confiscation of property - Imprisonment, or other form of punishment - [Order of costs:] in a civil case, the losing party is ordered to make the legal costs of both parties #### Appeal - Appeal court is restricted to re-examining questions of law rather than fact and witnesses are not called - Appellant: party bringing the appeal - Respondent: other party - Upheld: Higher court agrees with lower court decision - Reversed: High court disagrees with lower court decision - Usually heard by more than one judge with each judge delivering their own judgement - Joint judgement: two or more judges may deliver a single judgement - Unanimous judgement: all judges arrive at the same decision by similar reasoning - Majority and minority judgements: judges are divided ### 5.3.5 Doctrine of precedent (stare decisis) - [Precedent:] the decision by an earlier judge about a question of law - Rationales: coherency, certainty, equality, efficiency, the appearance of justice - Criticisms: body of case law resistant to sudden change, an inappropriate principle of law established by the highest court can only be overturned by the court or parliament, reluctancy to overturn well-established principles, identification of precedents is time consuming and increase litigation expenses, does not ensure predictability and certainty in the law. #### Binding and persuasive precedents - Binding: a previous decision about a question of law that the judge must follow - Obliged to follow only the decisions made by judges in superior courts within the same court hierarchy - Courts are generally not obliged to follow their own earlier decisions unless it was made by a Full Court and the case is being heard by a single judge (in practice, courts generally follow earlier decisions made) - Persuasive: a previous decision about a question of law that a judge may follow but does not have to follow - Persuasiveness depends on the status of the court and extent of similarities between legal systems - Joint judgement \> individual judgement - Majority \> dissenting - Unanimous is most persuasive #### Distinguishing and rejecting precedent - - During trial, each party presents arguments as to which precedents -- binding or persuasive -- are most appropriately followed and argues that the precedents advocated by the other party should be distinguished - Overrule / reject: judges can overrule or reject a previous decision about a question of law if the precedent was established by a court at the same level or lower within the court hierarchy - The earlier decision is still binding on the parties to that particular dispute but is no longer precedent that must be followed by other courts Topic 3: Case Law & Precedent II ================================ **The New Lawyer: Nicholas James, Rachael Field and Jackson Walkden-Brown** --------------------------------------------------------------------------- Pages 264 -- 272: Chapter 8: Interpretation & Application Skills ---------------------------------------------------------------- ### 8.1 Case reports - Case reports usually contain the following elements prior to the judgement: - Court including the judges - Title: names of the parties - Date: judgement is handed down - Legal representatives: solicitors and barristers representing each party - Headnote: summary of facts, issues and decision (not an official part of the case) - Catchwords: reference area of law, relevant facts and legal issues - Law cited: list of legislation and cases cited in judgement - Procedural history: if appeal, noted prior to the judgement. If not, included in the body of the judgement. #### Ratio decidendi - The only part of a decision that becomes binding precedent is the actual reason for the decision reached on the issue between the parties i.e., the legal principle upon which the court's final decision was based. - Starting point: identify the legal issues examined by the court and the facts that were relevant to the resolution of the issue. - Multiple issues will mean that there will be multiple rations - Restatement of a ratio at a high level of generality necessarily gives the rule broad application - A restatement of a ratio at a low level of generality gives the rule narrow application - IF/THEN statements - The legal consequence "THEN" has not changed across the expressions. The breadth of the rule is affected by the generality at which the factual component of the rule is expressed. When a ratio application to a legal issue is open to manipulation, lawyers must convince the judge that the rule should be applied at a level of generality that benefits their client. #### Obiter dicta - Statements of law that are not relevant to the case at hand. *Obiter* is not binding on other judges, but may be persuasive. - *Obiter* by eminent judges in superior courts are likely to be considered highly persuasive and may become binding precedent at a later stage when adopted in subsequent cases. - Examples: hypothetical scenarios distinguishable from the matter in dispute i.e., a judge's opinion on point of law that is not being contested in the present case. #### Preparing a case note - Written summary of a case, including: - Citation - Court and judges - Procedural history - Material facts - Legal issues (or ground of appeal) - Reasoning and decision of judge(s) - *Ratio* (and any notable *obiter*) and - Analysis (highlighting the impact of the case on the relevant area of law) Library Workshop 1: Cases ========================= - Unreported judgement: published on the internet or never published - Available after judgement on free websites - Most superior court judgements are available unless restricted - Medium neutral citation e - Parties, year, court, sequential judgement number e.g., *Tabet v Gett* \[2010\] HCA 12 - If not selected for reporting -- unreported judgements - No reference to volumes, issues or pagination - Reported judgement: legal publisher/s decide to publish judgement in a law report series - Available within few months - Selected by qualified lawyers for inclusion in an electronic law report - Subject based report series e.g., IP law, property reports, criminal reports - General report series e.g., Australian law reports and Federal law reports - Parties, year, volume, law report series abbreviation, page number e.g., *DPP (Vic) v Finn* (2008) 186 A Crim R 235. - Authorised law report series: case published in a law report, and which have the official approval of the judiciary - May take up to 18 months after judgement - Published in print and electronic authorised law report - Must use this version - Use Authorised Law Reports Table