Onur369's Legal Question thread :):(:/

[onur369]

Hi guys, I don't have much expectations in Legal Studies this year, but then again I just want to the best I can. So prior anything, these questions may be the most noob questions you may have ever seen.

Q1: Explain what is meant by the doctrine of precedent. Include in your response a discussion of both binding and persuasive precedent.
Q2: CASE STUDY: In the case of Hedley Bryne v Heller, a creditor asked a bank for advice about another person. The bank gave the wrong advice. The creditor was not awarded any compensation because the court said that the bank provoied a disclaimer. The court also said that if the bank did not provide the disclaimer it would have been liable to pay compensation.  Distinguish between ratio decidendi and obiter dictum. Your answer should refer to the above case.   <-- I know what they mean, its just the referring part of the question.
Q3: CASE STUDY: In the Mabo judgement, Justice Brennan questioned whether outdated or inappropriate common law rules should be maintained and applied. Discuss two methods by which judges might avoid the limitations of following a precedent and develop the law further. Explain the impact of each of these methods.
Q4: 'Parliament makes the law, Courts apply the law'. Explain the role of courts in law making with respect to the statement. How was this relationship demonstrated in Trigwells Case?

Thanks

[eeps]

1. The Doctrine of Precedent is based on the legal principle of stare decisis; to stand by one's decision - where the decision made in higher courts is binding on courts lower in the same hierarchy (binding precedent). This provides for consistency as parties are able to predict the likely outcome of their current case by looking at previous similar cases. The ratio decidendi or the reason behind the decision forms the binding precedent. The obiter dictum is the comment(s) made in passing in judgments - it can have persuasive value in determining the outcome of case in another hierarchy or in higher courts in the same hierarchy (persuasive precedent).

[Liuy]

3. Overruling, Distinguishing, Reversing, Dissaproving
4. Relationship between Courts and Parliament

^ Which textbook do you use? (refer to those areas of your text)

[selim31]

Q4: 'Parliament makes the law, Courts apply the law'. Explain the role of courts in law making with respect to the statement. How was this relationship demonstrated in Trigwells Case?

The principle role of the Courts to apply the law. However, it is accepted that the Courts have also assumed a role in the law making process. Often, parliament writes statutes in general, everyday terms. The role of the Courts is to make a judgement based on the law as passed by parliament. When, in an Act of Parliament a word or phrases are not particular clear, then the Courts need to interpret the meaning of that word or phrase that is unclear. The Courts generally try to interpret these sections so as to uphold the original intent of Parliament. However, there are situations where the Courts interpret these particular sections that unclear to give it extended meaning.  This means that a word or phrase of an Act has a more broader meaning, thus paving the for that sections to be applied to different legal situations. The course can do this when there is a case brought before them.