VCE Legal Studies Question Thread

[drmockingbird]

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).

Oh really? I thought Trigwell was binding. My bad.

And we've had Donoghue drilled into us the whole year as an example of persuasive precedent.

This is straight from our textbook.

"CASE STUDY

Grant v. Australian Knitting Mills (1936) AC 85
In the Australian case Grant v. Australian Knitting Mills, Grant was affected by dermatitis from wearing a pair of underpants he had purchased. The manufacturer of the underpants had negligently left a chemical, metal sulphite, in the material.
Grant had a contract with the seller, but did not have a contract with the manufacturer. He sued the manufacturer for negligence.
The court referred back to the case of Donoghue v. Stevenson. Although this was a persuasive precedent as it was in another hierarchy, the court chose to follow the decision in that case and decided that the manufacturer owed a duty of care to the ultimate consumer.
As with Donoghue v. Stevenson, it was not possible for the seller to see the defect on examination of the product and the manufacturer ought to have had the ultimate consumer in mind at the time of manufacture.
The injured party was successful, and the law of negligence was clearly established in Australia."


If that is wrong, then I'm going to have to restudy all of AOS3 again. wow. Thanks for highlighting this

[meganrobyn]

Oh really? I thought Trigwell was binding. My bad.

And we've had Donoghue drilled into us the whole year as an example of persuasive precedent.

This is straight from our textbook.

"CASE STUDY

Grant v. Australian Knitting Mills (1936) AC 85
In the Australian case Grant v. Australian Knitting Mills, Grant was affected by dermatitis from wearing a pair of underpants he had purchased. The manufacturer of the underpants had negligently left a chemical, metal sulphite, in the material.
Grant had a contract with the seller, but did not have a contract with the manufacturer. He sued the manufacturer for negligence.
The court referred back to the case of Donoghue v. Stevenson. Although this was a persuasive precedent as it was in another hierarchy, the court chose to follow the decision in that case and decided that the manufacturer owed a duty of care to the ultimate consumer.
As with Donoghue v. Stevenson, it was not possible for the seller to see the defect on examination of the product and the manufacturer ought to have had the ultimate consumer in mind at the time of manufacture.
The injured party was successful, and the law of negligence was clearly established in Australia."


If that is wrong, then I'm going to have to restudy all of AOS3 again. wow. Thanks for highlighting this

Don't stress too much - it's only a small point

Grant won in the Supreme Court; AKM appealed to the HCA, which distinguished the precedent; so Grant appealed to the UK Privy Council, which upheld the original verdict, applying DvS negligence. In 1931 the Statute of Westminster split the UK and Aus into separate hierarchies for the purposes of federal cases, but it wasn't until 1986 that the same happened for state law.

Really, it's not a massive biggie, though - all your theory is still fine

[M_BONG]

Don't stress too much - it's only a small point

Grant won in the Supreme Court; AKM appealed to the HCA, which distinguished the precedent; so Grant appealed to the UK Privy Council, which upheld the original verdict, applying DvS negligence. In 1931 the Statute of Westminster split the UK and Aus into separate hierarchies for the purposes of federal cases, but it wasn't until 1986 that the same happened for state law.

Really, it's not a massive biggie, though - all your theory is still fine

So to clarify this massive confusion is the following correct?

I figured, since D v S is considered binding on G v AKM, D v S must have been decided in a higher court than the Privy Council.

"D v S was heard, on appeal, and decided at the House of Lords (court of last resort of England). The ratio for the House of Lords' judgment in D v S (neighbour principle) was consulted by the judges in G v AKM (Privy Council). Thus, the ratio established in D v S became the binding part of the judgement reached in G v AKM, to find the defendants liable. This is because, according to the binding precedent set in D v S, the underwear manufacturer owed a duty of care as manufacturer and consumer were "neighbours" in law. "

Is the above correct? If so, I have finally found one good example of a binding precedent. !!

[drmockingbird]

So to clarify this massive confusion is the following correct?

I figured, since D v S is considered binding on G v AKM, D v S must have been decided in a higher court than the Privy Council.
D v S was heard, on appeal, and decided at the House of Lords (court of last resort of England) and its ratio (neighbour principle) was consulted by the judges in G v AKM (Privy Council) and the judges used the ratio from D v S to reach the outcome. Thus, the ratio established in D v S became the binding part of the judgement reached in G v AKM.

Is the above correct? If so, I have finally found one good example of a binding precedent. !!

I'd be careful using this as binding precedent. The only reason I'm saying this is because lots of students (I, until 5 minutes ago, was one of them) would consider D v S an example of persuasive precedent - lots of textbooks contain this error, and so maybe find another one which is clear cut.

Just my two cents

[M_BONG]

I'd be careful using this as binding precedent. The only reason I'm saying this is because lots of students (I, until 5 minutes ago, was one of them) would consider D v S an example of persuasive precedent - lots of textbooks contain this error, and so maybe find another one which is clear cut.

Just my two cents

I completely agree. I will not be using this example in the exam as an example of binding precedent simply because I might be marked incorrect since even the J&O textbook is wrong.. and most assessors would learn all their knowledge from the textbook, so even when we might be right, we might be marked wrong because they think we're wrong/
Plus, I don't think an example is even necessary. SD does not state that we have to know a case example for AOS 3 (RODD + binding/persuasive precedents).

[akeergar]

can anybody post a response considered full marks for a 10 mark. I just want to get an idea of structure and the use of info, would be really helpful!

[drmockingbird]

Don't stress too much - it's only a small point

Grant won in the Supreme Court; AKM appealed to the HCA, which distinguished the precedent; so Grant appealed to the UK Privy Council, which upheld the original verdict, applying DvS negligence. In 1931 the Statute of Westminster split the UK and Aus into separate hierarchies for the purposes of federal cases, but it wasn't until 1986 that the same happened for state law.

Really, it's not a massive biggie, though - all your theory is still fine

Alright. Wikipedia confirms that D v S, was binding (it was decided in the House of Lords)

"Until 1963, the High Court regarded decisions of the House of Lords binding,and there was substantial uniformity between Australian and English common law. "

Thanks a heap Megan! CPAP ftw.

[drmockingbird]

Alright. Wikipedia confirms that D v S, was binding (it was decided in the House of Lords)

"Until 1963, the High Court regarded decisions of the House of Lords binding,and there was substantial uniformity between Australian and English common law. "

Thanks a heap Megan! CPAP ftw.

We have an update. We know that D v S was binding on the High Court. However, still unsure on whether the Privy Council (being one of the highest courts in the UK hierarchy) was bound to decisions made in the House of Lords. It's hard to find concrete evidence because the House of Lords no longer plays a judicial function, if the Privy Council was not BOUND to D v S then it is persuasive, otherwise Megan is right.

This is interesting.

[drmockingbird]

"The Supreme Court is the highest appeal court in almost all cases in England and Wales. Prior to the Constitutional Reform Act 2005 this role was held by the House of Lords."
Therefore, House of Lords WAS the highest court. It is equivalent to Uk's Supreme Crt atm. So yeah, Megan is right. But yeah, given the misconceptions around, I wouldnt use it as an example.

Oooh, but you see. (and I'm only replying for the sake of discussion now, this is very minor in relation to the actual exam), there are some ambiguities on whether the Privy Council is bound to decisions made in the English Hierarchy.

[meganrobyn]

....I'm sorry - did I miss the part of the discussion where me NOT being right even entered serious consideration?

 

[M_BONG]

Oooh, but you see. (and I'm only replying for the sake of discussion now, this is very minor in relation to the actual exam), there are some ambiguities on whether the Privy Council is bound to decisions made in the English Hierarchy.

Same haha. It's so easy to get distracted. But I did some googling, and for the sake of ending all this: "judges who sit on the Judicial Committee of the Privy Council are also the members of the Supreme Court and the Court of Appeal" implying that PC + House of Lords/Supreme Crt = same hierachy. Thus, same hierachy = precedents being binding.

[drmockingbird]

Same haha. It's so easy to get distracted. But I did some googling, and for the sake of ending all this: "judges who sit on the Judicial Committee of the Privy Council are also the members of the Supreme Court and the Court of Appeal" implying that PC + House of Lords/Supreme Crt = same hierachy. Thus, same hierachy = precedents being binding.

I'd beg to differ, but it's quite late right now haha. Some other time, after the exam, we can sit down and ascertain this once and for all

[meganrobyn]

I hate being this anal about things, but just because it IS law and that's what law is alllllll about...

The House of Lords technically was never part of the formal court hierarchy. It performed a judicial function, but from outside the official hierarchy. Therefore, TECHNICALLY it couldn't set precedent anyway.

But! Since membership of the Privy Council substantially overlapped that of the judicial function of the HoL, the Privy Council considered itself essentially bound by HoL principles. It was only practical.

In 1940 the Aus HCA said basically the same thing, but specifically in regards to Australian courts. The Chief Justice (Latham, at the time), said:

"It should now be formally decided that it will be a wise general rule of practice that in cases of clear conflict between a decision of the House of Lords and of the High Court, this court, and other courts in Australia, should follow a decision of the House of Lords upon matters of general legal principle."

And another justice in the same case said:

"It is the invariable practice for the Australian courts, including this court, to follow a decision of the House of Lords as of course, without attempting to examine its correctness, although the decision is not technically binding upon them."

Now, for the love of god, I have to stop using useless minutiae as a distraction from actual work...

[drmockingbird]

The House of Lords technically was never part of the formal court hierarchy. It performed a judicial function, but from outside the official hierarchy. Therefore, TECHNICALLY it couldn't set precedent anyway.

But! Since membership of the Privy Council substantially overlapped that of the judicial function of the HoL, the Privy Council considered itself essentially bound by HoL principles. It was only practical.

so, (now I'm being anal ), and correct me if I'm wrong TECHNICALLY since it was not part of a court hierarchy, the House of Lords, while practically being binding on the Privy Council, theoretically was not and hence D vs S on G vs AKM is a persuasive precedent in the strictest sense?

[meganrobyn]

so, (now I'm being anal ), and correct me if I'm wrong TECHNICALLY since it was not part of a court hierarchy, the House of Lords, while practically being binding on the Privy Council, theoretically was not and hence D vs S on G vs AKM is a persuasive precedent in the strictest sense?

Haha, nice

According to one line of argument, absolutely yes - but not according to any of the logic by which the persuasive statement is usually made!

According to an arguably more accepted line of legal argument, however, the doctrine of precedent is established through convention and precedent itself only: there's no legislation laying out the rules. Therefore, as soon as something is accepted as part of the rules by an authoritative body, it IS a rule.