VCE Legal Studies Question Thread

[meganrobyn]

And one more question! When asked which court will hear something, do we state the court only or whether it's a civil or criminal as well? My teacher said if I didn't state the division: civil/criminal I'd get no marks from vcaa...

If it just says "which court" just write the court. Doesn't even need to be a sentence

[AbominableMowman]

If we're talking about recent changes, how recent do they have to be?
thanks

[tcstudent]

If we're talking about recent changes, how recent do they have to be?
thanks

Read the previous page..

[TheWackyCheese]

For Civil Pre Trial Procedures and their purpose, do we need to go into detail about each part of the procedure or do we just need to know an overview of what occurs and why?
For example, for pleadings, do we need to know the writ, statement of claim, notice of appearance, statement of defense and counter claim? Or do we just have to know that it is the exchanging of documents between the plaintiff and defendant to set out the nature of the claim and inform the defendant of the claim against them?

[drmockingbird]

For Civil Pre Trial Procedures and their purpose, do we need to go into detail about each part of the procedure or do we just need to know an overview of what occurs and why?
For example, for pleadings, do we need to know the writ, statement of claim, notice of appearance, statement of defense and counter claim? Or do we just have to know that it is the exchanging of documents between the plaintiff and defendant to set out the nature of the claim and inform the defendant of the claim against them?

when the question is similar to something like "describe/evaluate a civil pre trial procedure and explain its purpose" then all you need to do is talk about pleadings as a collective thing, but they do have the ability to ask "explain two documents within pleadings" or of that nature. It's always good to know all the writ, s.o.c, s.o.d etc, just in case you need to put a bit of extra detail into your answer (I was doing a practice exam which asked to describe a civil pre-trial for 4. so I guess it wouldn't hurt to show the examiner you know what pleadings means there.

Good luck for Tuesday!

[TheWackyCheese]

when the question is similar to something like "describe/evaluate a civil pre trial procedure and explain its purpose" then all you need to do is talk about pleadings as a collective thing, but they do have the ability to ask "explain two documents within pleadings" or of that nature. It's always good to know all the writ, s.o.c, s.o.d etc, just in case you need to put a bit of extra detail into your answer (I was doing a practice exam which asked to describe a civil pre-trial for 4. so I guess it wouldn't hurt to show the examiner you know what pleadings means there.

Good luck for Tuesday!

Thanks you too! The documents are fairly self explanatory so I might just keep one or two up my sleeve.

[drmockingbird]

Also, I did a question: Explain the operation of the doctrine of precedent [8 marks] and this is what I talked about:
- Para 1: Define/explain what DoP actually means
- Para 2: Explain Stare decisis
- Para 3: Explain Binding precedent
- Para 4: Explain persuasive precedent
- Para 5: Judge can avoid or develop new precedent through methods including reversing, overruling, distinguishing or disapproving (RODD). Then go on to explain any one, e.g. reversing, in detail.

My teacher gave me a 7 and said to develop the 5th para more by talking about other aspects of RODD in detail, such as distinguishing.. What i wanted to know is whenever talking about RODD do we need to discuss every aspect in detail or is it ok to list them and then discuss only a few in detail? If we only discuss a few, how many? I'm talking about for questions such as this one where you don't only focus on RODD but still need to include it  in some detail, or if we discuss RODD as a weakness of the doctrine of precedent. Because talking about all 4 takes up too much space so I generally list them all and then talk about 1 in detail.

Thanks!

Our teacher made us do this question the other day. This was my response (she gave me 8, but might differ from examiner to examiner)

The doctrine of precedent is based on the principle of stare decisis, which means to stand by what has been decided. This means that the ratio decidendi, or the reasons for making a legal decision, of superior court must be followed by lower courts in the same hierarchy when deciding on similar cases (with similar material facts or when deciding on a similar principle of law). This forms the term "binding precedent" and as such this ensures consistency and flexibility within the legal system. Over time, this can lead to the development of a whole area of  common law - e.g negligence, which was developed through the doctrine of precedent over a timespan of 150 years.

Another way in which the doctrine of precedent operates is through persuasive precedent. Persuasive precedent refers to precedent that may influence a decision of a case but is not necessarily binding on the court. Persuasive precedent can include obiter dicta, which are legal statements that do not comprise part of the ratio decidendi but express a judge's opinion on the matter at hand. Further, decisions made in international courts, while not binding due to being made in a separate hierarchy, can still function as persuasive precedent. For example, the British case of Donoghue v Stevenson established in it's ratio decidendi that a manufacturer owed a duty of care to the ultimate customer, and this influenced the later Australian decision in Grant v. Australian Knitting Mills.

The doctrine of precedent also allows for flexibility through the processes of reversing, overruling, distinguishing and disapproving. This ensures that precedent does not become too constraining and outdated. Reversal, for example, refers to the ability of superior courts to bypass a decision made in a lower court if the same case is appealed. Deing v.Tarola was an example of a case that was reversed. The Supreme Court, in this case, reversed the Magistrates' Court's interpretation of the phrase "regulated weapon" in the crime act, and as such 'reversed' the original precedent and established a new one.


Hope that helps!

[drmockingbird]

Does anyone have a quality binding precedent up their sleeve?

I'm too scared to use Grant v. AKM / Donoghue v. Stevenson given how contentious the whole thing is with the privy council, UK and AUS court hierarchy being united (in some circumstances) and what not.

What I was thinking of saying (if the question requires me to) is that Grant v. AKM is binding on inferior courts in the Victorian hierarchy (where the material facts are similar)  ever since 1986 (passing of the Australia Act)...

Any ideas? Any input will be much appreciated (Megan preferably)

You could use the Trigwell case, where the common law maxim that owners did not owe a duty of care for their stray animals was binding on the decision made. Wasn't Donoghue persuasive precedent?

[unfamila]

 Wasn't Donoghue persuasive precedent?

Aus and UK were part of the same hierarchy for state cases until 1986... but I know what you mean that there are some misunderstandings floating around out there.

[M_BONG]

Wait.. is that saying Donoghue v Stevenson is binding on Grant v AKM?

Argh this is confusing. The textbook that I have specifically says they are only persuasive on each other (ie. they actually said Donoghue v Stevenson was part of a separate hierrachy as the Gratn v AKM case); would it be wrong if you used it as an example of a persuasive precedent then?

EDIT: re-read Megan's origin post; so it is OK to use Donoghue v Stevenson and Grant v AKM as examples of binding precedent?

[tcstudent]

Wait.. is that saying Donoghue v Stevenson is binding on Grant v AKM?

Argh this is confusing. The textbook that I have specifically says they are only persuasive on each other; would it be wrong if you used it as an example of a persuasive precedent then?

The persuasive precedent from the snail is a bottle case was adopted in the grant vs australian knitting mills case, Justice Atkin applied the neighbour principle LOL? maybe it was justice beach

[tcstudent]

anyone know how the VLRC educate the community?? is it through their website and providing brochures to the public??

this is one of their roles and i'd like to expand on it in the exam if its there.

[meganrobyn]

You could use the Trigwell case, where the common law maxim that owners did not owe a duty of care for their stray animals was binding on the decision made. Wasn't Donoghue persuasive precedent?

Nah, I'm going to say 99.99% sure Trigwell was just persuasive, sorry The High Court isn't bound, but they chose to follow it. Different judges had slightly different reasons, but one strong thing that came through was not wanting to overhaul an entire area of law - preferring to leave it to the elected parliament.

And Donoghue was binding precedent. The UK and Australia were part of the same court hierarchy for state cases until 1986 when the Australia Acts were passed; Grant won in the Supreme Court on the new negligence principle, but then the High Court reversed that and distinguished the precedent (based on the fact that he could have checked the garment, washed it, etc) - but then Grant appealed to the UK and they confirmed that negligence applied in a binding way (basically, reversing the HCA).

[meganrobyn]

The persuasive precedent from the snail is a bottle case was adopted in the grant vs australian knitting mills case, Justice Atkin applied the neighbour principle LOL? maybe it was justice beach

The Privy Council (UK) found that the material facts of the cases (Donoghue and Grant) were similar enough that the negligence precedent was binding.

I mean, if we think about it logically, the fact that Grant *could* appeal to the UK shows they were part of the same court hierarchy, yeah...?

[meganrobyn]

Nah, I'm going to say 99.99% sure Trigwell was just persuasive, sorry The High Court isn't bound, but they chose to follow it. Different judges had slightly different reasons, but one strong thing that came through was not wanting to overhaul an entire area of law - preferring to leave it to the elected parliament.

And Donoghue was binding precedent. The UK and Australia were part of the same court hierarchy for state cases until 1986 when the Australia Acts were passed; Grant won in the Supreme Court on the new negligence principle, but then the High Court reversed that and distinguished the precedent (based on the fact that he could have checked the garment, washed it, etc) - but then Grant appealed to the UK and they confirmed that negligence applied in a binding way (basically, reversing the HCA).

Specifically, Justice Mason said:

"These considerations must deter a court from departing too readily from a settled rule of the common law and from replacing it with a new rule. Certainly, in this case they lead to the conclusion that the desirabiilty of departing from the rule in Searle v. Wallbank is a matter which should be left to Parliament. It is beyond question that the conditions which brought the rule into existence have changed markedly. But it seems to me that in the division between the legislative and the judicial functions it is appropriately the responsibility of Parliament to decide whether the rule should be replaced and, if so, by what it should be replaced."