1. Copyright Guy Harley 2004 Introductory & Contract Law Week 3

2. Copyright Guy Harley 2004 Sources of Law ParliamentThe Courts EquityCommon Law FederalState Contract LawUnconscionable Conduct Promissory estoppel Trade Practices Act Fair Trading Act

3. Copyright Guy Harley 2004 Pecking Order 1.Legislation 2.Regulation 3.Equity 4.Common Law

4. Copyright Guy Harley 2004 Courts  The hierarchy of courts  Role of the High Court  Original Jurisdiction  Appellate jurisdiction  Conferred jurisdiction  Federal Courts  State Courts

5. Copyright Guy Harley 2004 Jurisdiction  Subject Matter  Criminal  Civil  Administrative  Appeal  Powers  Length of jail sentences  Monetary limits  Injunctions & other remedies  Geographical limits  Residence of parties  Where claim arose

6. Copyright Guy Harley 2004 FEDERAL COURTS High Court Federal CourtFamily Court Federal Magistrates Service Court of Appeal District Court Magistrates Court Supreme Court STATE COURTS Privy Council Appeals Abolished Often Combined

7. Copyright Guy Harley 2004 Stare Decisis  Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way  Precedent  Binding - Courts must follow a decision of a higher court in the same hierarchy  Persuasive - Courts will consider decisions of other courts

8. Copyright Guy Harley 2004 Precedent  Two types  Binding  Persuasive  Binding  Must be followed and applied  Persuasive  Not binding.  Considered by the Court and may be followed

9. Copyright Guy Harley 2004 Precedent (Cont.)  Persuasiveness depends on  quality of decision  jurisdiction of the court that gave the decision

10. Copyright Guy Harley 2004 Rules of Precedent  Lower courts must follow decisions of higher courts in the same hierarchy  A judge does not have to follow decisions of Judges at the same level. However, will be persuasive.  Judge does not have to follow decisions of higher court in a different hierarchy although they will be persuasive  Highest court in hierarchy can overrule its previous decisions

11. Copyright Guy Harley 2004 The Court’s Decision (Cont.)  Ratio Decidendi  Consists of those parts of the decision that were necessary to decide that particular case  Obiter Dictum  Statements made by Judge that are not necessary to decide the case  Remarks in passing

12. Copyright Guy Harley 2004 Applying Ratio Decidendi  Can be difficult to discern  Commentators often dispute what is decisions Ration Decidendi  Can be widened or narrowed by later decisions  Facts are rarely exactly the same

13. Copyright Guy Harley 2004 Example - Donoghue v Stevenson  A drink manufacturer has a duty to persons who might drink their product to take care that the bottle does not contain dead snails  A person has a duty to act in such a way that his or her conduct does not cause harm to others.  A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.  People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.

14. Copyright Guy Harley 2004 Citing Cases – Volumes by Number  Smith v Jones (2001) 145 CLR 203, 207  Name of parties  Year of publication  Volume number  Report name  First page of judgment  Page on which specific passage appears

15. Copyright Guy Harley 2004 Citing Cases – Volumes by Year  Smith v Jones [1945] 2 All ER 203, 207  Name of Parties  Year of Volume  Volume number if more than one volume in a year  Report name  Page on which specific passage appears

16. Copyright Guy Harley 2004 Citing Cases – Medium Neutral  Smith v Jones (2001) HCA 203, [20]  Name of Parties  Year of decision  Court designator  Judgment number  Paragraph number

17. Copyright Guy Harley 2004 The English Legal System  Adversarial System  Civil  Plaintiff  Defendant  Criminal  The Crown  The Accused

18. Copyright Guy Harley 2004 The English Legal System  Adversarial System (cont.)  Decision makers  Jury  Judge  Lawyers  Solicitors  Barristers

19. Copyright Guy Harley 2004 Proving a Claim Standard of Proof  Civil Cases  Balance of Probabilities  Criminal Cases  Beyond Reasonable Doubt Burden of Proof  Civil Cases - Plaintiff  Criminal Cases - Prosecution  Presumptions

20. Copyright Guy Harley 2004 Criminal Cases  Minor  Complaint  Summary trial by magistrate  Conviction  Sentence  Serious  Information  Committal hearing  Indictment  Trial by judge and jury  Conviction  Sentence

21. Copyright Guy Harley 2004 Civil Cases  Summons  Pleadings  Discovery of documents  Pre-trial hearings  Settlement conferences  Trial  Judgement  Orders

22. Copyright Guy Harley 2004 Proving a Claim (cont.)  Affidavit  Subpoena  Witnesses  Oral evidence  Documents  Official records

23. Copyright Guy Harley 2004 Appeals  A party who disputes a court’s decision can appeal to a “higher” court  Usually limited to legal arguments  Adversarial  Appellant  Respondent  Can keep appealing to the next higher court if there is one  Hierarchy of Courts

24. Copyright Guy Harley 2004 Problem For each case:  Give the citation for the case  In what court was the case heard?  Name the judge(s) and explain their titles  Name the parties and give their role in the case  Name the solicitors and who they represented  Name a case cited in the judgement. Was it persuasive or binding?  What was the ratio decidendi of the case?  Was there an obiter dicta? If so, what was it.