1
Q
Which court decided Attorney-General v Smith 2018?
A
Court of Appeal
2
Q
Why are parties called the respondent?
A
The respondent is the party who the party is bought against (responds to the appeal)
3
Q
Why is the party called the appellant?
A
The appellant is the party who disagrees with a prior decision and applies for an appeal (the appealer)
4
Q
What do the names appellant and respondent tell us?
A
That it is an appeal
5
Q
What are the key elements of Attorney-General v Smith 2018?
A
- Mr Smith is a prisoner who got permission to wear a wig
- After he escaped in 2014 his permission was revoked
- Mr Smith argues his freedom of expression was not taken into account
6
Q
A
7
Q
What is the legal issue of Attorney-General v Smith 2018?
A
Does a prisoners wish to wear a wig engage the freedom of expression?
8
Q
What did the court decide in Attorney-General v Smith 2018?
A
- Mr Smith’s wish to wear a wig did not engage section 14 of NZBORA
- To be expression they must have some expressive content
9
Q
What do courts do?
A
- Resolve disputes between individuals
- determine whether someone has committed an offence
- Enable individuals to hold the government and public decision-makers to account
10
Q
Which questions should you ask in a case?
A
- is it political, religious or cultural
- does it make a statement
11
Q
What does Parliament do?
A
- Sets down rules to guide social conduct at large
- apply law to particular actors or sectors across society
- forward looking
12
Q
How do courts differ from parliament in how they make law?
A
- apply the law to individual disputes
- must read a lot to get a secure feel of the area of law
13
Q
What does deciding cases according to law mean?
A
- Applying the same legal rules and principles to cases with sufficiently similar facts
- “like cases ought to be decided alike”
14
Q
How do courts decide cases?
A
By applying the law and ONLY the law -> not based on arbitrary factors
15
Q
What does deciding cases according to law allow the law to be?
A
Reliable and consistent
16
Q
What is the Ratio Decidendi?
A
- The “reason for the decision”
- It is the legal rule / standard / principle of law that emerges from the case
- some cases may not have a clear intro
17
Q
What is Obita Dicta?
A
- Observations made in passing
- They are observations not focused on the exact facts or the legal issue
- Future courts might find obiter dicta helpful but it is not binding on future courts
18
Q
Bridges v Hawkesworth 1851 facts?
A
- Plaintiff found backnotes on the floor of a shop owned by the defendant
- Customer gave the notes to the shopkeeper asking to be contacted if they were not claimed
- Gave money to advertise them
- Notes not claimed and shopkeeper refuses to give them back
19
Q
What is the general principle of Finders Law?
A
“The general right of the finder to any article which has been lost as against all the world except the true owner, was established in the case of Armory v Delamirie”
20
Q
What is the courts reasoning that the finder had the better claim in Bridges v Hawkesworth 1851?
A
- There is no real authority in the law to support the argument that an item found on a third party’s premisis alters the general principle
- Bad outcomes might result if the court were to find that the shopkeeper had the better right
21
Q
What sets a precedent?
A
A court’s decision
22
Q
What is the common law system based on?
A
The general principle that courts follow precedent
23
Q
What do courts look to to decise a case?
A
Previous decisions of similar cases / precedent
24
Q
What does precedent do?
A
“Provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules” - WLR
25
What is Stare Decisis?
- "Let it stand that which has been decided"
- Another word for the doctrine of precedent
- Two forms: vertacle and horizontal
26
Which values are promoted by following precedent?
- Justice
- Fairness
- Efficiency
- Predictability
- Stability
- Public confidence
27
Quote by former CoA judge Douglas White on precedent:
"Most busy judges like "precedents" because they assist in resolving issues raised in arguments and in the task of judgement writing... judges are likely to follow or apply the precedent, perhaps with real appreciation for the hard work of the author(s) of the precedent or at least a sigh of relief that the law on that point is settled..."
28
Do all judges like to follow precedent?
- No
- 'Activist Judges'
29
What is the doctrine of precedent?
- Sets down the requirements for when courts must follow precedent
- "like cases ought to be decided alike"
- lower courts are bound to follow the decisions of the higher courts
30
What is vertacle stare decisis?
- Lower courts MUST follow the precedent of higher courts
- Higher courts are not required to follow the precedents established by lower courts
31
What did the House of Lords say about Cassel v Broome
"it is not open to the Court of Appeal ... to ignore the decisions of the House of Lords."
32
What did the court of appeal do in Cassell v Broome?
Declined to follow Rookes v Barnard saying it was unworkable and wrongly decided
33
What did the trial judge say in Elliot v C?
Even though the standard is a reasonable person, it would not have been obvious to the 14 y/o girl
34
What did Rookes v Barnard establish?
Narrowed down the categories for when damages can be awarded in civil proceedings
35
What did the appeal judge say in Elliot v C?
Expressed discomfort to follow precedent but still overruled the trial judge's decision
36
How does the doctrine of precedent allow for development in the law?
- Higher courts can depart from established rules
- Lower courts can manoever within the doctrine of precedent by distinguishing their cases or interpreting the previous cases' ratio in a narrow way
37
What is the judgement of the court when there are conflicting judgements?
- The decision of the majority becomes the decision of the whole
- Where there is no clear majority look for what the judges agreed on as a minimum
- if this is not clear lawyers have more scope to make arguments about what the case stands for
- case will have low precidential value
38
When can a disagreement between judges arise?
When you have more than one judge deciding a case
39
Are judges allowed to disagree with each other?
Yes, both as to the outcome and the reasoning
40
Facts of Parker v British Airways Board 1982?
- Plaintiff found a gold bracelet in BA lounge
- Gave bracelet to an employee and requested to be contacted if true owner was not found
- The defendant sold the bracelet and kept the proceeds
41
What is the issue of Parker v BAB?
Who has the better claim to the bracelet?
42
Ratio of Parker v BAB?
Must manifest an intention to control all items found in the lounge
43
Trespassing finders:
Aquire a limited right
- law wants someone to have a right but limit this
44
Attached items:
Occupier of the building has the better claim
45
Items found in the corse of employment:
Employer has the better claim as the employee is acting as their agent / servant
46
What is the case that does not "really bear upon the instant problem" in Finders Law?
I re Cohen; money was hidden, not lost
- "this was not a finding case at all"
47
What must you do to case names?
UNDERLINE AND HIGHLIGHT THEM!!!
48
What is the standard for departing from precedent in the HC and DC?
May be considered as persuasive
- low standard
49
What is the standard for departing from precedent in the CoA?
- Take a "cautious approach" towards departing
- Will only depart in rare cases
50
How does persuasiveness increase in precedents?
The more times a precedent is applied the more persuasive it becomes
51
What is the standard for departing from precedent in the SC?
Only in compelling circumstances
52
What justifies departure in the SC and CoA?
- Decision is per incuriam
- Significant social change
- Significant legal change
53
Example of decision overtaken by significant legal change:
- Foreshore and seabed act
- Ngāti Apa v Attorney-General
54
Example of decision overtaken by significant social change:
Bliss and Brookes
55
Example of decision overtaken by per incuriam:
- Ninety mile + Ngāti Apa
56
What factors may the court consider about precedents and their importance?
- Age of earlier precedent
- Number of judges who decided it
- Limited availability of Appeals if they get it wrong
57
Are privy council decision binding on the Supreme Court?
No, but they may be considered persuasive
58
What are the relevance of overseas precedents?
- Never binding
- May be helpful or persuasive
59
What questions need to be asked of overseas precedant?
- Is the law "like" the law of NZ
- Do we share common cultural traditions
- Which court decided it
- How convincing is its reasoning
60
Why do the SC and CoA need to be more cautious when departing from precedant?
Lack of appeals left, need to be more careful their precedent is "right"
61
Why did we move from the Privy Council to the Supreme Court?
English courts did not know our societal conditions as well as we do as our own country
62
When did we change from PC to SC?
2004
LAWS101 B
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