1. Common Law
Legal Studies 3C

2. Sources of law in Australia
Statute law or Acts of Parliament
Parliament
Common law
Judge-made law
Statutory interpretation
Courts

3. Independence of the judiciary
Doctrine of Separation of Powers
Executive
Legislative
Judiciary

4. Court Hierarchy – Tasmania
High Court of Australia
(Original or appellate jurisdiction)
Full Court of the Supreme Court
(Appellate jurisdiction)
Court of Criminal Appeal
(Appellate jurisdiction)
Criminal law
Civil law
Supreme Court
(Original jurisdiction)
Court of Petty Sessions
Magistrates Court
Civil division
Youth Justice Division
Coronial Division

5. Appeals in Tasmania Appeals
Matters heard in the Magistrates Courts and Tribunals can be appealed to the Supreme Court where they will be heard by a single judge. These are called Lower Court Appeals. Lower Court Appeal decisions can be appealed to the Full Court of the Supreme Court of Tasmania (for civil cases) and the Court of Criminal Appeal (for criminal cases). These appeals are heard by three judges of the Supreme Court.
Appeal cases from both the Court of Criminal Appeal and the Full Court can then be appealed to the High Court. The High Court's decision is final and no further appeal can be made.

6. Federal Courts Federal Courts High Court Appeal to High Court
High Court (1 Justice)
Original jurisdiction Federal Law matters
Full Court of the High Court (no less than 2 Justices)
Original jurisdiction
Appellate jurisdiction (Federal, Family, High Courts)
Full Bench of the High Court (5 – 7 Justices).
Original jurisdiction - Interpretation of the Constitution
Appellate jurisdiction
Family Court (original jurisdiction)
Divorce
Marriage
Bankruptcy
Children (parenting disputes)
Property
Full Court of Family Court (appellate jurisdiction)
Federal Court (original jurisdiction)
Trade Practices
Corporate Law
Taxation
Immigration
Native Title
Full Court of Federal Court (appellate jurisdiction)
Appeal to High Court

7. Independence of the judiciary
Why is this important?
Ensures fair and impartial trial for all citizens (judge is an impartial umpire) - natural justice
Ensures governments do not exceed their power and that governments are subject to the rule of law (check on executive power).
Interpret the Constitution and legislation (statutory interpretation)
Create legal principles to resolve disputes (when the issue has not been legislated on)

8. Role of the courts
Settle disputes that arise in the community, therefore apply existing laws to the facts in cases that come before them.
Common law – when a legal principle is established by a court due to limited statute law from parliament in an area of law. This includes when a new issue is brought before the court in a case or when a previous principle of law requires expansion to apply to a new situation.
Statutory Interpretation – interpreting the meaning of the words in an act of parliament when applying them to a case the court is hearing.

9. When can judges make law
If a case is brought before a superior court
If there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts.

10. Doctrine of Precedent
When a court makes a decision in a case that is the first of its kind, the court is said to be setting a precedent.
A precedent is the reasoning behind a court decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar.
This creates consistency and predictability
The process of judges following the reasons for the decisions of higher courts is at the heart of the doctrine of precedent.
Precedent example - handout

11. Doctrine of Precedent
Stare decisis – another way of describing the process of lower courts following the reasons for the decisions of higher courts.
Means – ‘to stand by what has been decided’.

12. Doctrine of Precedent Reason for the decision = ratio decidendi
Ratio decidendi is the binding part of the judgement – the reason for the decision which is then regarded as a statement of law to be followed in the future.
Read page 230 – 233 (blue), Page 221 – 223 (red)
Read the following cases:
Shaddock v Parramatta
Pinkstone v R
Q1: What were the ratio decidendi in both cases (what was the precedent set)?
Q2: What was the decision and penalty in both cases?
Handout – How judges make law

13. Doctrine of Precedent Binding precedent
For the precedent to be binding, it must be:
From the same hierarchy of courts
From a superior court (higher in the hierarchy)
To be considered binding on a new case:
The main facts of the precedent are similar to the main facts of the new case
The precedent was set in a higher court in the same hierarchy as the new case.
Example: Pinkstone v R (2004) – binding precedent on similar case
Example: precedent set in the High Court – the ratio decidendi is binding on lower courts in the court hierarchy

14. Doctrine of Precedent Persuasive precedent
A precedent that is not binding on the courts however as they are seen to be noteworthy and highly regarded propositions of law they may be considered by some courts as influential on their decisions.
Includes:
From courts in another hierarchy (other state or country)
From courts on the same level of hierarchy (which are not binding)
From inferior courts (courts lower in the court hierarchy)

15. Doctrine of Precedent Read page 233 -236 (blue), Page 223 – 226 (red)
Read the following cases:
Example: Donoghue v Stevenson
Example: Grant v Australia Knitting Mills
Q1: What aspect of Donoghue v Stevenson (UK 1932) was used as persuasive precedent in Grant v Australian Knitting Mills (1936)?

16. Persuasive precedent comparison
Donoghue v Stevenson
Grant v Australia Knitting Mills
A consumer purchased goods
Mrs Donoghue did not have a contract with the manufacturer
Mr Grant did not have a contract with the manufacturer
There was a snail in the bottle
Underwear contained chemical residues
The bottle of ginger beer had been carelessly prepared
The underwear had been carelessly prepared
The ginger beer manufacturer could have reasonably foreseen that damage would result from the carelessness
The underwear manufacturer could have reasonably foreseen that damage would result from the carelessness.
Mrs Donoghue was closely and directly affected by the actions of the manufacturer
Mr Grant was closely and directly affected by the actions of the manufacturer
Mrs Donoghue suffered gastroenteritis and shock
Mr Grant suffered dermatitis

17. Doctrine of Precedent Obiter dictum “Things said by the way”
Sometimes a judge will make a statement that is not part of the reason (ratio decidendi) for the decision, but is an important statement relating to the main issue of the case. This statement is known as obiter dictum, and can influence decisions in the future (persuasive precedent)
Example: Hedley Byrne & Co Ltd (B=P236, R=P227)

18. Precedent - activities
Read page 230 – 237 (Blue edition)
Read page 221 – 227 (Red edition)
Activity – You be the judge (precedent of Grant v Knitting Mills)

19. Precedents
Ways judges can develop precedent or avoid following an earlier decision
Distinguishing a precedent – court decides the main facts of new case are sufficiently different to previous case (where precedent was set) therefore precedent is not binding.
Case: Davies v Waldron (1989) (B=P238, R=P229)

20. Precedents
Reversing a precedent (in the same case) – on appeal, the higher court makes a different decision than a lower court in the same case therefore precedent set by superior court is binding.
Case: Queen v Tomas Klamo (2008) (Blue = P240, Red = P231)

21. Precedents
Overruling a precedent – higher court decides not to follow an earlier precedent of a lower court in a different case. The higher court decision creates a new precedent.
Case: Aon Risk Services Aust v Australian National University (2009) – (Blue p241, Red p231)
Disapproving a precedent – court expresses disapproval of previous precedent but is bound by it if in an inferior court. If previous decision has been made in a court at the same level in the court hierarchy, and the court disapproves of the earlier decision, present court is not bound to follow precedent.
Case: State Government Insurance Co v Trigwell & Ors (1978)

22. Activity https://www.youtube.com/watch?v=QSA1Q422r-8
Read page 238 – 247 (blue edition)
Read page
Handout – Learning Activity 1 (match the terms)
Handout – Activity 11.5 (Essential VCE Legal Studies Units 1&2)
Textbook activities -
Learning Activity 5.3 Q9
Q10

23. Statutory Interpretation
Tas Dams case
Deing v Tarola (the studded belt case)

24.
Final clip to watch