VCE Legal Studies Question Thread

[meganrobyn]

Pretty much. I've never seen a question like this, but if it surprised me in a SAC/exam and I wanted to have some solid points, then depending on the marks and which one I felt like I could quickly explain that that, I'd go with:

1. the precedent leads to an unjust outcome
2. the precedent does not reflect the values of the people
3. the precedent is outdated.

Kevin and Jennifer fits into 2, and something like that case with owners being responsible for their cattle would fit into 2

Howard certainly argued that the precedent (man and woman at the time of marriage) didn't reflect the values of the people (well, of HIM), but the overriding legislation got shelved because of public protest! So I'd probably go more with fitting into executive government policy for that one.

Trigwell, also, I'd put into #3, because the precedent was based on pre-motor vehicle society.

[meganrobyn]

Quick Question -
The courts can hear all types of cases, both criminal and civil. They are not limited by any legislation which specifies the types of disputes that can be heard.

That is directly from my textbook.
But arent there Acts to set out the jurisdiction of courts so isnt that statement above false ?

Yep, there are. Typo, or poor wording I reckon.

[The Brightest Witch]

Howard certainly argued that the precedent (man and woman at the time of marriage) didn't reflect the values of the people (well, of HIM), but the overriding legislation got shelved because of public protest! So I'd probably go more with fitting into executive government policy for that one.

True! I totally forgot the facts surrounding Kevin and Jennifer :')

[meganrobyn]

True! I totally forgot the facts surrounding Kevin and Jennifer :')

Well, the part of the proposed legislation that got shelved is harder to find details on anyway

[clarke54321]

Can someone please clearly explain to me what overruling is in regards to precedent.

Thanks

[Alter]

Can someone please clearly explain to me what overruling is in regards to precedent.

Thanks

Overruling is a concept that relates to the idea of the flexibility of precedent. Put simply, a judge can overrule a precedent established by a lower court in the same hierarchy if the cases involve similar facts. The judge in the higher court is not bound by the old precedent and therefore can set a new one. This involves two separate cases, not a single case on appeal.

The main trap people fall into is confusing this process with reversing. The way I remember it is that reversing only involves a single case and said case has two decisions. Upon reversing, a new precedent will be established by the appellant court. However, when you think about overruling, a new precedent is simply set by a higher court for a set of facts in a different case. Hopefully I've expressed this clearly enough, but if not, let me know and I'll try to clarify further.

[clarke54321]

Overruling is a concept that relates to the idea of the flexibility of precedent. Put simply, a judge can overrule a precedent established by a lower court in the same hierarchy if the cases involve similar facts. The judge in the higher court is not bound the old precedent and therefore can set a new one. This involves two separate cases, not a single case on appeal.

The main trap people fall into is confusing this process with reversing. The way I remember it is that reversing only involves a single case and said case has two decisions. Upon reversing, a new precedent will be established by the appellant court. However, when you think about overruling, a new precedent is simply set by a higher court for a set of facts in a different case. Hopefully I've expressed this clearly enough, but if not, let me know and I'll try to clarify further.

Thank you very much, that is much more clear and concise answer preferred to the textbook. Also, do you know what 'decision inter partes' means?

[Alter]

Thank you very much, that is much more clear and concise answer preferred to the textbook. Also, do you know what 'decision inter partes' means?

No problem. I'm glad I could clarify it for you.

I'd never heard of a 'decision inter partes' before as we never touched upon it in class and I don't think it's on the study design. However, it's always an awesome idea to sprinkle your responses with good legal terms, so I suppose this one could be pretty helpful. That being said, I've done some very quick research about it and I'll try to reproduce it in a clear manner for you as follows.

From what I can understand after doing some searching on the internet, what 'decision inter partes' means to me is that two disputing parties come together to reach an outcome and resolution to the problem themselves. In other words, they resolve the legal issue by reasoning with each other as opposed to leaving the outcome up to another individual or dispute resolution mechanism (such as judicial determination in the courts).

An example would be in VCAT cases of arbitration when the VCAT member leaves the room for a brief period to see if the parties can come to an understanding themselves without having the member hand down a legally-binding decision for them. Let's say you're my landlord and I'm a tenant, and I take an issue we have to the Magistrates' Court, but we end up thinking of a way to fix the situation ourselves without having the Magistrate make the decision for us.

The advantage of these decisions is that they can likely be more mutually beneficial for both parties and you avoid the high costs of legal action. I should clarify that I've never properly learned this term before, so take what I say with a grain of salt.

[clarke54321]

No problem. I'm glad I could clarify it for you.

I'd never heard of a 'decision inter partes' before as we never touched upon it in class and I don't think it's on the study design. However, it's always an awesome idea to sprinkle your responses with good legal terms, so I suppose this one could be pretty helpful. That being said, I've done some very quick research about it and I'll try to reproduce it in a clear manner for you as follows.

From what I can understand after doing some searching on the internet, what 'decision inter partes' means to me is that two disputing parties come together to reach an outcome and resolution to the problem themselves. In other words, they resolve the legal issue by reasoning with each other as opposed to leaving the outcome up to another individual or dispute resolution mechanism (such as judicial determination in the courts).

An example would be in VCAT cases of arbitration when the VCAT member leaves the room for a brief period to see if the parties can come to an understanding themselves without having the member hand down a legally-binding decision for them. Let's say you're my landlord and I'm a tenant, and I take an issue we have to the Magistrates' Court, but we end up thinking of a way to fix the situation ourselves without having the Magistrate make the decision for us.

The advantage of these decisions is that they can likely be more mutually beneficial for both parties and you avoid the high costs of legal action. I should clarify that I've never properly learned this term before, so take what I say with a grain of salt.

Thank-you once again. This is very helpful! 

[meganrobyn]

Overruling is a concept that relates to the idea of the flexibility of precedent. Put simply, a judge can overrule a precedent established by a lower court in the same hierarchy if the cases involve similar facts. The judge in the higher court is not bound by the old precedent and therefore can set a new one. This involves two separate cases, not a single case on appeal.

The main trap people fall into is confusing this process with reversing. The way I remember it is that reversing only involves a single case and said case has two decisions. Upon reversing, a new precedent will be established by the appellant court. However, when you think about overruling, a new precedent is simply set by a higher court for a set of facts in a different case. Hopefully I've expressed this clearly enough, but if not, let me know and I'll try to clarify further.

And, just with overruling, keep in mind the impact: that the original principle of law used to decide the first case is considered by the new judge to have been flawed *from the beginning*. So, overruling a legal principle actually erases it from the time it was made - not from the time of the second case.

For example, when terra nullius was overruled, they decided the new case (Mabo) as though the precedent/principle/ratio of terra nullis *never existed in the first place*. That's why overruling is so rare.

[clarke54321]

Are decisions from the House of Lords, England, binding on Victorian courts?

[Alter]

Nope, they're not binding. Persuasive precedent may still apply, however.

[meganrobyn]

Technically the House of Lords isn't a court (even when performing a judicial function), so technically it can't set precedent at all. BUT! Prior to Australia separating from the UK hierarchy (1931 for federal cases and 1986 for state ones) the High Court said that it considered principles established by the House of Lords to be binding precedent (I have the case reference somewhere). So, in that indirect way, through the High Court, it kinda was in the past. I say this because there's a fair chance you're talking about Donoghue v Stevenson, and it's relevant in that context!

Can we just agree that I seem to be giving exclusively extension content today...??!

Edit: Sorry - I say "isn't" a court, but technically past tense would be more correct, as its judicial functions were transferred to the UK Supreme Court in about 2009. Decisions made prior to then will still be of legal relevance, though!

[thaaanyan]

Hi guys!
If I got a question asking:
"Evaluate the way courts and VCAT operate to resolve disputes" (8 marks)
this is comparative right? at the end would i have to make a statement over which one i think is more effective in resolving disputes?
i'm also really confused with structure:
so if this was a comparative evaluate question and i thought that vcat was better, would i structure it like,
"strength of vcat as linking to corresponding weakness of the courts"

like for example:

Firstly, VCAT is much cheaper alternative of dispute resolution. This is because legal representation is not necessary and parties are instead able to represent themselves. Furthermore, in many cases parties are only required to pay a nominal amount for filing their claim. Conversely, in the courts legal representation significantly increases the costs faced by both parties as court fees are far more expensive in comparison to tribunals.

so yeah, basically, is this question comparative? should i be choosing an objective side (like vcat better or courts better)? and how am i structuring it, is this the right way, could someone please critique what i've written? thank you guys!

[meganrobyn]

Hi guys!
If I got a question asking:
"Evaluate the way courts and VCAT operate to resolve disputes" (8 marks)
this is comparative right? at the end would i have to make a statement over which one i think is more effective in resolving disputes?
i'm also really confused with structure:
so if this was a comparative evaluate question and i thought that vcat was better, would i structure it like,
"strength of vcat as linking to corresponding weakness of the courts"

like for example:

Firstly, VCAT is much cheaper alternative of dispute resolution. This is because legal representation is not necessary and parties are instead able to represent themselves. Furthermore, in many cases parties are only required to pay a nominal amount for filing their claim. Conversely, in the courts legal representation significantly increases the costs faced by both parties as court fees are far more expensive in comparison to tribunals.

so yeah, basically, is this question comparative? should i be choosing an objective side (like vcat better or courts better)? and how am i structuring it, is this the right way, could someone please critique what i've written? thank you guys!

Hey - In its strictest sense it isn't comparative, because it doesn't have any comparative words in it and it doesn't explicitly say anything like 'evaluate which of courts and VCAT is more effective' - BUT, I think you'd have a far better response and a better chance of getting full marks if you had that comparative component. I'd definitely have it in there (and it also makes the answer hang together better).

Why are you confused over structure? Every opinion-based question just has the same basic structure: opinion, reasons for and against, opinion. Integrating the opinion the whole way through is obviously more flow-y and efficient, but you can just paint-by-numbers, too. With your reasons for and against, remember to include even just a little of the other side, to ensure you've covered the different aspects of the argument - even if you prefer VCAT overall, it won't be better in every single way. And you can phrase some of these as concessions: eg "Even though VCAT weakness blah blah..."

Re your content, it's fine. It's a very standard, popular point to make. You don't have as much evidentiary detail as you could have (eg the actual amount of popular or average fees for filing at specific VCAT lists versus specific courts), and there are some nuances you could include (eg why it is easier to be self-represented at VCAT), but the basic point is solid.