Victorian Courts in Law Making

Question 1

Define Precedent

Answer 1

Precedent is the reasoning for a courts decision on a new case that will establish a principle of law in the court system

Question 2

What are the 2 ways court can Make Law

Answer 2

1. The doctrine of precedent

2. Statutory Interpretation

Question 3

Define Common Law

Answer 3

Is law made through the establishment of precedent in a court.

Question 4

What are the 2 Roles of the Courts in the legal system

Answer 4

The courts main role is to interpret and adjudicate disputes regarding law. Their secondary role is to act as a law maker through the creation of common law.

Question 5

Define the Doctrine of Precedent

Answer 5

The doctrine of precedent is the process of judges following precedent (reasons for the decisions) created by courts in a higher position in the court hierarchy when deciding on similar cases

Question 6

Distinguish between precedent and the doctrine of precedent

Answer 6

Precedent is the establishment of a standard that will be followed by lower courts in the future, whereas the doctrine of precedent is a process of following the standard the has been established.

Question 7

What are the 2 different types of precedent

Answer 7

1. Binding precedent (must be followed by lower courts in the hierarchy)
2. Persuasive precedent (Successfully avoiding the precedent so they can just use it as a base)

Question 8

Define ‘Stare Decisis’

Answer 8

Means to stand by the previous decision made by the higher courts.

Question 9

Define ‘Ratio Decidendi’

Answer 9

Means the reason for the decision made and relates to the binding part of the judgement. It is the reason for the decision, not the decision itself.

Question 10

When is precedent binding

Answer 10

When a decision has been made by a court in a higher point in the same hierarchy, all courts below it with similar material facts must follow the precedent set.

Question 11

When is precedent persuasive (4 reasons)

Answer 11

1. Decision by a court in a different hierarchy
2. The court was in the same level of the hierarchy
3. When its from an inferior court
4. If there are obiter dicta statements from a court of the same level

Question 12

Define ‘Obiter Dicta’

Answer 12

Means things that are said by the way, and relates to the judges statements that were not part of the ratio decidendi.

Question 13

How can the courts avoid precedent set previously (4 different ways)

Answer 13

1. Reversing (On appeal)
2. Overruling (Inferior court’s decision)
3. Distinguishing (Separating a like case by a material fact)
4. Disapproving (Same level court’s decision)

Question 14

How does the doctrine of precedent hinder the courts ability to make law (3)

Answer 14

1. Courts cannot just make the precedent, they must have a case presented to them
2. If the court is lower in the hierarchy they are restricted in the precedent they can establish
3. Parliament is able to legislate over common law as they are the supreme law making body

Question 15

How does the high court’s precedent differ from state courts

Answer 15

If High Court hears a case on appeal from a state or territory, their decision is binding on all states and territories.

Question 16

Define Statutory Interpretation

Answer 16

The process by which laws are given and a judge examines the meaning of words and phrases to give meaning to them, before applying a decision

Question 17

What are the 4 main reasons for statutory interpretation

Answer 17

1. The meanings of words and phrases can change over time
2. Amendments to statute can lead to judges needing to interpret words
3. Legislation can be complex and legalistic
4. The intention of parliament may not always be clear within the wording of the law

Question 18

How does the doctrine of precedent promote the courts ability to make law (3)

Answer 18

1. Ensure cases are decided in a like manner with consistency
2. The precedent that is to be followed is by a more experienced and qualified judge
3. Judges can be guided to make the correct decision