Case Law

 The Castle
 https://www.youtube.com/watch?v=Gp6f1EMn1lo

 Firstly they apply existing laws.

 Doctrine of precedent.

◦ What happened in the past establishes a rule that

will be followed in the future.
 The rule the judge wants to apply to the case
may not have been stated or declared as part
of Australian law.
 Meaning of the existing law is unclear.
 When an existing law is found that can be

applied to the case.

 Unable to find existing law.
 Common Law

◦ Law which applies to everyone.

 Equity

◦ Paying attention to fairness

 Criminal – action brought by the state.

 Civil – person brings action against

another person.
 Original Hearing – case heard for the first
time.

 Appeal – based on guilt and sentence.

 Parties: plaintiff and defendant
applicant and
respondent
 Purpose of trial
 Exchange of pleadings
 Proving the facts
 Ascertaining certain law
 Deciding the case
• Written decision of the court recorded as a
law report.

• Structure
– Court and key dates
– Name of the case
– Catchwords
– Headnotes
– The Judges
– The Judgement
 Summary of material facts
 State the legal issue to be addressed
 Review relevant law
 Apply relevant rules
 Make an order
 Individual cases are referred to as Citations

 When writing about cases they should be

cited correctly

 Case name, year, volume, report and page

 Eg Watt v Rama (1972) VR353
 Courts deal with both case law an legislation

 Hierarchy of courts (refer notes)

 Deciding the outcome of a case in the same
way similar cases have been decided in the
past.
 Predictable and consistent.
 The facts of two cases cannot reasonably be

distinguished.
 The previous decision is in a higher court.
 Binding – bound by decision of higher court

 Persuasive – decision not made in a higher

court or previous decision not sufficiently
similar. The decision is not binding but a
judge may be influenced or persuaded by the
previous case.
 The reason for the decision.
◦ Consists of two parts
 Contains material facts
 Contains precise rule of law used to decide

 Obiter dicta
◦ Explanatory discussion, perspective and reasoning.
Matters “surrounding” or “by the way”
 Find out facts and legal issues arising
 Look for previously decided cases
 Check out new case and early cases and see if

material facts are similar

 In which court was the court decided
 Identify the ratio decidendi
 Then apply the ratio decidendi

 Eg: Balfour, Cohen and Merritt