1. Case law, the courts and the legal profession
Main sources of law in Australia
Type Description
Case law (common law) Judge-made law (also known as
common law) and equity
Statute law and delegated
legislation
Laws passed by Commonwealth, state
and territory Parliaments (statutes), and
laws passed by subordinate authorities
(delegated legislation).
International law Not part of municipal or domestic law
until adopted by the Commonwealth
parliament.

2. The nature of judicial method
 The courts possess the critical double function of
interpreting and applying legislation and of
continuing the still important tradition of the
common law.
 A controversial aspect of the function of the High
Court, in particular, in recent years has been the
emergence of a degree of judicial activism
demonstrated most significantly in the Mabo case.

3. The common law
 After the Norman Conquest (1066), English
monarchs sent travelling judges around the country
to administer royal justice.
 The judges initially applied local customs, which
varied from place to place.
 Eventually the judges began to follow earlier
decisions and the rules gradually became
consistent.
 These rules came to be known as the common
law.

4. Equity
 Development of the common law was restricted by
procedural limitations.
 Petitions for relief from the inadequacies of the common
law were considered by the Lord Chancellor.
 Cases were initially decided according to the
Chancellor’s ideas of ‘equity and good conscience’.
 In time, a complex body of law developed,
supplementary to the common law, and known as
equity.

5. Fusion of common law and equity
 At the end of the 19th century, two separate judicial
systems and structures existed side by side in
England.
 The Judicature Acts of 1873 abolished the separate
court systems and established a High Court of
Justice, which administered both common law and
equity.

6. Some common terms from the
doctrine of precedent
 Stare decisis
 to stand by things decided
 Ratio decidendi
 the reasoning of the decision
 Obiter dicta
 things said in passing
 Res judicata
 a thing adjudicated

7. Stare decisis
 A court is bound to follow decisions of
courts higher than itself in the same
hierarchy of courts within the
particular jurisdiction.

8. Ratio decidendi
 That part of the decision which is
binding or persuasive.
 It is the reason for the decision, or the
principle underlying the decision, or
that legal proposition which the court
has applied to the material facts of the
case in order to arrive at its decision.

9. Obiter dicta
 Other legal argument and statements of
principle found in judgements but not forming
part of the ratio decidendi.
 The obiter are not binding on other courts,
but may be persuasive.
 They can only ever be of persuasive value as
they do not form part of the matters at issue.

10. Donoghue v Stevenson
[1932] AC 52
 A famous House of Lords case in the area of
the common law of tort.
 It is perhaps most well known for the
statement of Lord Atkin regarding the
existence of a duty of care in Anglo-
Australian law.
 The reasoning in this case has taken root in
many countries.

11. Donoghue v Stevenson
The Facts
 The appellant, May Donoghue,
claimed that on 26 August 1928 she
drank some of the contents of a bottle
of ginger -beer, manufactured by the
respondent, which a friend had bought
for her at a cafe in Paisley, Scotland.

12. Donoghue v Stevenson
 When her friend poured the remainder of the
bottle's contents into Mrs Donoghue's
tumbler, "a snail, which was in a state of
decomposition, floated out of the bottle".
 The bottle being opaque, the snail could not
have been detected until the greater part of
the contents of the bottle had been poured.

13. Donoghue v Stevenson
 As a result Mrs Donoghue alleged that
she suffered from shock and severe
gastroenteritis.
What could Mrs Donoghue do?
What remedies in law were available
to her?

14. Donoghue v Stevenson
Remedies in Contract or Tort Law?
 Given that her friend had bought the
drink, there was no contract between
Mrs Donoghue and the retailer.
 The friend who did have a contract
with the retailer was unaffected by the
event and could not seek damages on
her behalf.

15. Donoghue v Stevenson
 Donoghue instituted proceedings
against the manufacturer of the ginger-
beer (Stevenson).
 Liability arose because the
manufacturer (respondent) owed the
consumer (appellant) a duty to exercise
reasonable care (Lord Atkin’s
‘neighbour principle).

16. Donoghue v Stevenson
“A manufacturer of products, which he sells
in such a form as to show that he intends them
to reach the ultimate consumer in the form in
which they left him with no reasonable
possibility of intermediate examination, and
with the knowledge that the absence of
reasonable care in the preparation or putting
up of the products will result in an injury to the
consumer’s life or property, owes a duty to
the consumer to take that reasonable care”.

17. Donoghue v Stevenson
Neighbour principle
“That rule that you are to love your neighbour
becomes, in law, you must not injure your neighbour,
and the lawyer’s question, ‘Who is my neighbour?’
receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour. Who, in law, is my neighbour? The answer
seems to be – persons who are so closely and directly
affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.”

18. Res judicata
 The decision reached by the court in
determining the case before it is,
subject to any appeal, a final
resolution of the issues raised in it,
insofar as the parties to the
proceedings are concerned.

19. The judicial hierarchy
 Decisions of courts outside the
particular hierarchy are not binding but
may be persuasive depending upon
the status of the court.
 A previous decision of a court on the
same level is generally not binding but
will not be departed from unless the
earlier decision was wrongly decided.

20. Precedent
 Precedent means that a question that was dealt with in
a certain way continues to be dealt with in that way in
similar later situations.
 In summary:
 only courts of record can create precedent
 every court is bound by the decisions of courts which
are superior to it in the same hierarchy
 superior courts are generally bound by their own
previous decision (an exception is the High Court)
 individual judges of courts of the same level in the
same hierarchy will usually follow their own earlier
decisions

21. Binding precedent
 Only the ratio decidendi from a court of record
can create binding precedent.
 Binding precedent only binds courts in the
same hierarchy.
 Note the position of the court of record in the
court hierarchy as this will determine whether
the ratio is binding or persuasive, e.g. Vic,
NSW, Qld Court of Appeal decisions bind their
Supreme Courts.

22. Persuasive precedent
 Statements of principle not strictly necessary
for a decision and not binding as such (obiter)
by a court of record are of persuasive value
only.
 Decisions of courts in other court hierarchies
are only of persuasive value.
 The persuasive value of obiter or a decision
from a court in another hierarchy will depend on
the status of the court (and perhaps the judge).

23. What can happen to a case?
 A case may be:
 adopted (i.e. follow or apply it)
 affirmed (i.e. agree with the earlier decision)
 overruled* (when an appellate court decides a
similar matter, in a later case, on the basis of a
different legal principle, the decision in the later
court is now to be followed)
 distinguished* (when a court finds some material
difference between the facts of the 2 cases)
 disapproved (if the court cannot overrule an earlier
case and considers the earlier case no longer to be
good law)
 reversed* (if it goes on appeal to an appellate court
and the order of the lower court is changed)

24. Distinguishing prior authority
 Involves the judge finding that the
material facts of the 2 cases differ so
significantly that the earlier decision is
not binding authority.
 Provides a mechanism by which earlier
legal doctrine can be so severely
restricted that it is virtually abolished.

25. Rejecting prior authority
 An appeal court may declare an
existing statement of common law to
be wrong by overruling or reversing
the prior authority.

26. The courts
 Original and appellate jurisdiction of a court:
 A court’s jurisdiction is established by its
enabling Act.
 Original jurisdiction is the authority to hear a
case when the case is first brought before a
court.
 Appellate jurisdiction is the authority of a court
to hear appeals from decisions of courts of a
lower level in the same court hierarchy.

27. The courts
 Features of the court hierarchy:
 It provides a system of appeals from
decisions of lower courts to higher courts.
 It allows for different forms of hearing
according to the gravity of the case.
 It is instrumental in building up precedent.

28. The court system
Appeals
Can be
Made to the
new
Magistrates
Court
High Court of Australia
Full Court of the
Federal Court
Federal Court of Australia
Federal Magistrates Court
Federal Tribunals
(eg National Native
Title Tribunal,)
Administrative Appeals
Tribunal etc.)
Court of Appeal of
Territory Supreme Courts
Territory Supreme Courts
Local Courts in
Territories
Full Court/Court of Appeal
State Supreme Courts
State Supreme Courts
State Intermediate Courts
(County or District Courts)
(except Tasmania)
State Minor Courts
(Local Courts, Magistrate’s
Courts or Courts of
Summary Jurisdiction)
State Tribunals
(eg Local Government
Courts, Workers’
Compensation Courts etc.)
Full Court of the
Federal Court

29. State court system
 Magistrates’ Courts:
 The lowest courts in the hierarchy, possessing original
jurisdiction only.
 Presided over by a Magistrate.
 Jurisdiction is established by its enabling Act:
• in criminal matters: summary and minor indictable
offences, committal proceedings;
• in civil matters: limited to claims below a certain
amount (in Victoria currently $100,000).

30. State court system
 Intermediate courts:
 Middle court in hierarchy (but do not exist in Tas, NT
or ACT) with original and limited appellate jurisdiction.
 Presided over by a judge, but not a court of record.
 Jurisdiction is established by its enabling Act:
• in criminal matters to all but most serious
indictable offences;
• in civil matters jurisdiction established by money
limit.

31. State court system
 Supreme Courts:
 The highest court in each State and Territory and a
court of record, presided over by a judge.
 Jurisdiction is established by its enabling Act:
• has an unlimited original jurisdiction in both civil
and criminal matters but hears only most serious
cases;
• has an appellate jurisdiction (Vic, NSW and Qld
have established a separate Court of Appeal).

32. Federal court system
 Family Court:
 Established by the Family Law Act 1975 (Cth), it is
presided over by a judge and is a court of record.
 Exercises both an original and appellate jurisdiction
over all matrimonial matters.
 Appeals only lie on questions of law to Full Court of
the Family Court.

33. Federal court system
 Federal Court:
 Jurisdiction established by Federal Court of Australia
Act 1976 (Cth), it is presided over by a judge and is a
court of record.
 In its original jurisdiction the court is divided into 2
divisions: a general division and an industrial division
extending to Commonwealth matters.
 Appellate jurisdiction, hearing appeals from single
judges of the Supreme Courts of the Territories, as well
as appeals from decisions of single judges of the
Federal Court.

34. Federal court system
 Magistrates’ Courts:
 Established in 2000 to ease the workload on other
Federal Courts and presided over by a Magistrate.
 Deals with:
• minor family law, bankruptcy and trade practices
matters;
• applications under the Judicial Review Act;
• appeals from the AAT;
• matters arising under HREOC.

35. Federal and State court system
 High Court:
 Established under s 71 of the Constitution, it is
presided over by a judge and is a court of record.
 Limited original jurisdiction in those cases authorised
by the Commonwealth Constitution.
 Appellate jurisdiction in both civil and criminal matters
from the state Supreme Courts and Federal Courts.
 Appeals do not lie ‘as of right’. Approval to hear an
appeal must first be granted by the High Court first.
 Final court of appeal within Australian legal system.

36. Alternatives to courts
 Alternative methods of dispute settlement have
grown in the last few years because of the
delays, costs, ignorance and intimidation of the
traditional court system.
 Some of the better-known alternatives include:
 commercial arbitration;
 negotiation;
 mediation;
 ADR; and
 quasi-judicial bodies or Tribunals, e.g., ACCC, AAT,
VCAT, Small Claims Tribunals

37. Legal profession
 Solicitors
Most of their work is of a non-litigious nature, e.g.,
conveyancing, preparation of wills, commercial and
family law matters, preparation of court documents.
 Barristers
Generally do not deal directly with the public, though in
most states they now can. Their main roles are
preparation of legal opinions, and court appearances.

38. Parties in a legal system
 The parties
 Plaintiff: the person starting a civil action.
 Defendant: the person defending a civil action.
 Appellant: a person appealing against a previous
decision and who can be either the
plaintiff or defendant from the first case.
 Respondent: the party who was successful in the first
action.
 Crown: represents the state in a criminal action
through a Crown Prosecutor against an
accused person.
 Accused: the person against whom a criminal
action is brought by the state.

39. Judges
 Appointed to all courts above the inferior courts. Usually
appointed from the Bar, although solicitors can be appointed
to the Bench.
 Their duties include:
 deciding questions of fact and law if sitting alone
 if there is a jury, instructing the jury on questions of
law, deciding questions of law and summing up
arguments impartially
 ensuring rules of evidence are followed
 passing sentence in criminal cases or determining
appropriate compensation in civil cases
 hearing appeals

40. Justices of the peace and
stipendiary magistrates
 Magistrates
 Trained, full-time salaried public servants
selected from among the clerks of the court
and the legal profession.
 They preside over inferior courts and are the
sole determiners of both fact and law.
 Justices of the Peace
 Honorary positions, with the bulk of their work
involved in witnessing of documents.
 Can still preside in Qld, SA and WA
Magistrates Courts.

41. Jury in criminal trials
 A jury of 12 is used in all cases in intermediate and
superior courts where the accused pleads ‘not guilty’ to
an indictable offence.
 There is no appeal from a finding of ‘not guilty’, on the
basis that the jury was wrong. An appeal can be made
on a point of law, introduction of new evidence or proof
that prosecution witnesses were not telling the truth.
 As in civil trials, the jurors are the sole determiners of
fact.

42. Jury in civil trials
 The jury only determines questions of fact.
 They sit only in intermediate and supreme courts.
 A majority verdict is all that is required.
 Because of cost, they are not used as much as they
once were.
 Appeals are rarely made from a civil jury decision