LLB1100 Exam Full Notes

Part 1 Studying Law an Introduction

Nature and Sources of Law w2
Examination of Australia’s legal framework through the lens of McBain
The Case
Case name and citation: McBain v Victoria (2000) 99 FCR 116

Materia facts:
- Single woman wants a baby, doctor McBain can’t provide the service of IVF due to legislation s 8(1)
infertility treatment act 1995 (Vic). The section states that medical practitioners cannot provided to
women unless they are married or in a defector relationship with a man
- If he provides that service to someone who doesn’t meet the criteria he will be imposed with 480
units and or 4 years in prison.
- S 22 Sex Discrimination Act 1984 (Cth) that act says that in providing goods and services it is
discrimination if you discriminate against some on the grounds of their marital status
- McBain initiated the proceedings challenging that it was a confliction with commonwealth law, the
case was held in the federal court of Australia
Here we have a direct inconsistency, the commonwealth act is in opposite to a state act

Issue and Result:

whether or not under s 8(1) of the infertility treatment act 1995 (Vic) was directly inconsistent with s 22 of
the sex discrimination act 1984 (Cth). And weather commonwealth law should override state law in
conflict. S 109 of the Constitution says the commonwealth law prevails to the extent of the inconstancy.
Applying the law to the facts Sunberg J declared that s 8 of the infertility act was to be inoperative by
reason of s 109 of the Constitution.

Reasoning:
- The sex discrimination act was inconsistent with the infertility treatment act and that it was not
possible for McBain to obey both s 8 and s22
- The issue is governed by s 109 of the Australian constitution providing that when a commonwealth
and a state law are inconsistent the commonwealth law prevails, and the state law is invalid to the
extent of the inconsistency.
- states argument was bad the procedures of IVF to single women. The state remained neutral
- the minister also remained neutral
- The agency was the one in charge for providing the permissions of medical practitioners to develop
implement the treatment and they said they will do what the court decides
- Ms Meldrum said that she will do whatever Dr McBain does.
- The judge invited the church to provide arguments as a friend of the court- amicus curiae (a friend
of the court).
The case shows us
- Here we see the branches of law in the legislation one had criminal sanctions one had civil.
- Criminal law is not just in the classic areas of criminality, in an infertility treatment act we had a
criminal act.
- The way constitutional overarching all other areas of law. (this was an easy application)
- Shows us international law, (Human rights treaties) sex discrimination act is based on a human
rights thing that we have signed too
- We see commonwealth laws that is an act that has come out of FEDARAL parliament then we see
an act that was approved by the Victorian parliament.
- Introduces the ideas of law being a means or ordering society and resolving disputes, revealing why
these apparently simple statements are more complicated then they seem
 - Series of constructed narratives that reflect dominant discourse in society and enforce dominant
power relations (remember in Louth)
- We see standing in this case, so who Is able to bring an action to court.
- Mcbain provides a ‘microms of laws operation in Australia society’ pg 21 Ellis - the way we can see
in this one case the macro dynamics the big picture issues, we see laws interaction with social
values, politics, and power relations, leading to the big question of is law autonomism. Beyond the
big picture, it shows us the need for detailed analysis, e.g in the catholic church.
- So we see that law is a means of ordering society and resolving disputes because McBain cannot
treat women for infertility no matter their marital status. Is it a collection of rules different for
morality though? The fact that the catholic church is a part of this case taking a stand for their
position, the argument isn’t even about region, this case shows us that in law you must turn your
argument into a legal dispute. The church’s 4 arguments are very the technical, legal arguments,
that whilst reflects their position, that they don’t want single women to have IVF but that’s not
enough. They have to find a legal avenue to defeat MacBain’s claim. Also suggest that law is seen as
an expression of current government policy the legalisation suggest that.
- Look at the connections, after this case there was a political response to this case there was a 2002
amendment bill made to make the law that you can discriminate against un married women which
wasn’t passed. and legal response, the church did challenge the decision which was overturned.
- Is law theoretically autonomous – we can see law in one way that law has its own procedures and
language, legal conventions, as procedurally conceptuality distinct area In our society. But also,
there are barriers around the institution of are influence through politics social norms and values
seep in.

Notes:
What is the difference between substantive and procedural law?
- substantive law is concerned with those rules which make up the substance of the particular branch
of law that is the rules that govern directly the way in which a dispute will be determined by the
courts. By contrast criminal proceedings are initiated by the state because crime is considered an
offence against the whole of society.
- substantive laws are those that directly governed behaviour e.g. you should not kill
- procedural law is being referred to a judicator that is a decision of conflict making of law, changing
the law, mending the law. E.g. McBain was changed by the procedural law.
Why might government be reluctant to allow any person, including private citizens, to
enforce the law in public interest litigation?
- Waste of court resources, to ensure courts are most efficient
- Preventing injustices to be heard and spoken before the law.
What does rule of law mean?
- the restriction of the arbitrary exercise of power by subordinating it to well-defined and established
laws. Power should be exercised according to law not arbitrarily or on the basis of personal whim
and all persons are subject to the law and that before the law all persons are equal.
How does the focus on precedent reflect the idea of the rule of law as a central tenant of
our legal system?
- the restriction of the arbitrary exercise of power by subordinating it to well-defined and established
laws. Power should be exercised according to law not arbitrarily or on the basis of personal whim
and all persons are subject to the law and that before the law all persons are equal. Engrained in
the proceedings McBain illustrates this.
 Part 3 Thinking More Critically
Law in Practice: The Nature of Law Reconsidered w11
What is the basis of the distinction between criminal law and civil law?
Criminal law is used to punish conduct considered harmful to society as a whole, whereas civil law is
concerned with regulating relations between individuals and compensating those who suffer certain kinds
of harm when civil obligations re breached.

What are the differences between civil, criminal penalty and an administrative penalty?
Where conduct is viewed as inherently wrong or harmful, the aim of the stat is to deter and punish
(criminal law). It brings bear not only penal sanctions, such as fines and imprisoned but also the moral
condemnation and public shaming inherent in the criminal justice process. In other words, harder to prove.
The purpose of regulatory response to civil law is less concerned with retributive that with compliance. It is
usually invoked in response to commercial, industrial and other forms of business activity not to prevent
the core activity, but to minimise its harmful effects. In other words, a civil penalty is a sanction forunlaful
established to the satisfaction of a court applying civil court processes. Administrative penalties apply to
some beaches of the law. These entities can be imposed without resort to proceeding in tribunal or court
because they arise by. Operation of law and are predetermined by the relevant legislation.

What different kinds of agencies are responsible for law enforcement in Australia?
specialist statutory agencies some being federal bodies, e.g. Australian securities and investment
commission and the Australian competition and consumer commission. Others are state agencies, e.g.
WorkCover NSW and the environment protection authority in NSW.

Choices and Constraints

We know ...that judges face choices...’

‘Choice is integral to the interpretive process because the meaning of legal rules is not fixed but takes
colour and shape from context and perspective.’ (ellis 259) ‘...discretion or choice is a positive feature
because it allows the law to bend and adapt to difference. Yet this benefit is also problematic.’

How do we reconcile this with?

- Equality?
- Procedural justice?
- The Rule of Law? (in week 11 lecture slides) points 1,2,3,8 in joshep raz

‘We also know that there is a gap between law in practice and law in theory is the manner in which legal
actors/participants make legal decisions’ Hunter, Ingleby & Johnstone, Thinking About Law (Allen & Unwin,
1995) 157-8.

This question- Discretion v Fairness/ equality

So there are all the different types of legal actors, e.g the parties, lawyers, judges ministers, public
servants, all of them in the legal process at different stages, make decisions, interpretations and choice,
that is where we see the gap between fixed rules (statue, ratio, precedent) and how it is actually put into
practice
 Part 1 Studying Law an Introduction
Origins of the Australian Legal System w3
The development of the Australian legal system from Britain
- Looking at the tension between power authority and law
- in the 17th century in England we start to see a dispute emerge, of power authority, and law.
- Parliament and judges were at the will of the king, massive empower balance.
- Common law is superior because it is made up of custom and reason.
- Civil war, Charles the first loses his head so we lose the monarchy, and parliament assumes the
power. Bill of rights 1689 set out the powers for the monarch.
- Note just like in McBain, Mabo couldn’t bring the case to court and say this is my land, there had to
be a technical argument.
Mabo the Decision and its Consequences
The case
The Mabo decision altered the foundation of land law in Australia by overturning the doctrine of terra
nullius (land belonging to no-one) on which British claims to possession of Australia were based. This
recognition inserted the legal doctrine of native title into Australian law. The judgments of the High Court
in the Mabo case recognised the traditional rights of the Meriam people to their islands in the eastern
Torres Strait. The Court also held that native title existed for all Indigenous people in Australia prior to the
establishment of the British Colony of New South Wales in 1788. In recognising that Indigenous people in
Australia had a prior title to land taken by the Crown since Cook's declaration of possession in 1770, the
Court held that this title exists today in any portion of land where it has not legally been extinguished. The
decision of the High Court was swiftly followed by the Native Title Act 1993 (Cth) which attempted to
codify the implications of the decision and set out a legislative regime under which Australia’s Indigenous
people could seek recognition of their native title rights.

Part 1 Study Law an Introduction

Introduction to the Constitution w4
The Constitution
What are the functions of the constitution?
- Sets out the constitutional arrangements by which nations or associations or other groups or bodies
are governed.
- The Australian Constitution establishes the composition of the Australian Parliament, and describes
how Parliament works, what powers it has, how federal and state Parliaments share power, and
the roles of the Executive Government and the High Court.
What kind of framework for government does the constitution create?
- specifying separate institutions for the exercise of Commonwealth legislative, executive and judicial
power (ss 1, 61 and 71 respectively);
- preserving, subject to the Constitution, the existing State constitutions and parliamentary powers
(ss 106-107);
- investing the Commonwealth with enumerated legislative powers (principally s 51);
- providing for the paramountcy of Commonwealth laws where state and commonwealth laws
conflict (s 109)
The federal system
- A federal system has two sets of laws and governs at two levels
- The commonwealth can only legislation (make statues legislations act) with respect to certain areas
specific powers outlined in section 51 of the constitution. They detailed specific powers for the
commonwealth government. Not many of the commonwealth powers are exclusive.
- They are concurrent, so the commonwealth and the state can legislate.
 - Anything left not in s 51 was left with the states – sounds like they got the leftovers but it’s not that
case, e.g. road, education, criminal law so many things were deliberately left for the states.
- any new things that come after the constitution if it’s not in s 51 it goes to the states e.g.
technology
- Today we have referral power, which allows the states to refer their powers to the commonwealth

Tasmanian Dam Case

Material facts:
- Tasmania appealing to the government to remove the river from the list, so they can bring electric,
to bring money jobs etc. to Tasmania
- federal government takes neutral position
- the environment is not a power given to the commonwealth, goes to the states
- hawk said if he was elected he would put legislation to prohibit the electric dam and he did
- our focus is how did the high court interpret the constitution in this case, if they commonwealth
doesn’t have a say how can hawk enact that legislation
Issue and result:
- if the commonwealth had the power to enact laws on the environment on the validity of the
commonwealth law
- the court decided that the commonwealth did have the power to do this.
- Was the validity of the commonwealth laws in form of both statue and delegated legislation which
enabled the federal government to prevent the construction of a dam in the fragile environment of
south west Tasmania.

Brandy Case
Case Name and Citation: brandy v human rights and equal opportunity commission (1995) 183
Material Facts:
- In 1990 John Bell lodged a complaint with the Human Rights and Equal Opportunity Commission
(the Commission) against Harry Brandy pursuant to s 22 of the Racial Discrimination Act 1975 (Cth)
(the Act)
- Mr Bell and Mr Brandy were both officers of the Aboriginal and Torres Strait Islander Commission
(ATSIC), against whom Mr Bell also lodged a complaint.
- Following an inquiry, the Commission found the complaint substantiated and ordered Mr Brandy to
apologise and pay damages of $2,500 to Mr Bell.
- ATSIC was also required to apologise for its handling of the complaint, to pay Mr Bell $10,000 and
to take disciplinary action against Mr Brandy.
- The Commission duly registered the determination with the Federal Court pursuant to s 25ZAA of
the Act.
- Subject to a period of 28 days, within which Mr Brandy could apply to the Federal Court for a
review, the Commission’s determination would take effect as if it were an order of the federal court
(s 25ZAB)
Issue and Result:
- Mr Brandy commenced proceedings in the High Court challenging the validity of the registration
and enforcement provisions of the Act. He argued that they conferred judicial power on the
Commission in contravention of Chapter III of the Constitution.
- Are any and which parts of ss 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 1975 (Cth)
invalid on the ground of inconsistency with Chapter III of the Constitution?”
- - “In consequence of the amendments embodied in the Sex Discrimination and other Legislation
Amendment Act 1992 and/or the Law and Justice Legislation Amendment Act 1993 as they affect
the Racial Discrimination Act 1975 are any, and if so which, of the provisions of Part III of the Racial
Discrimination Act 1975 invalid?”
- They were invalid because they were approaching on judicial power.
Reasoning:
- If there’s a controversy between two parties then an entirety has the power to make decision on
that conflict, its seems that if we have this, then we have judicial power and yet sometimes the
legislative power solves conflicts so the legal principles behind it does quit add up because they are
meant to be separate.
- So judicial power should be separate from the commissions power
- Trying to define what judicial power is by examining the commission,
- If there was a claim brought before the commission then the commission had the power to take
this inquiry to a court,
- There were 28 days the court had to review or not the determination during that time the
determination for the commission shouldn’t execute any of the determinations of the commission.
- Once the time has passed if there was no inquiry then it was binding
- On the basis of the description of this procedure the judges are trying to define the judicial power
- So there first attempt of deafening it- we are judicial power if we have a controversy and an organ
can make a decision over this controversy
- The description of the produce in the case is that judicial power, they say no.
- Then they explore another hypothesis they are can enforce punishments, that is something that
only a court should be able to do that is distinctive power of the judiciary. it was enforceable
 Part 2 Judge Made Law
The Adversarial System w5
The adversarial system

- An inquisitorial system is a legal system where the court or a part of the court is actively involved in
investigating the facts of the case, as opposed to an adversarial system where the role of the court
is primarily that of an impartial referee between the prosecution and the defence.
- Two opposing sides
- They are lawyers, they argue their case in a court, decided by a neutral third-party E.G a judge or
jury
- the judge, is not inquisitive the judge takes an objective, passive, impartial role, along with the jury
in classic adversarial theory, as a result of two sides putting forward their case, it is hoped that the
truth will emerge.
Have to balance public and private rights which means procedural protections are important e.g
technicalities or loop holes are there to protect us. They hope to ensure fairness in justice.

The courts
- The court system arranged in hierarchy to allow for a system of appeals from lower courts to higher
courts
- Crucial to the operation of the doctrine of precent
- It provides a system of appeals – important for the rule of law and precedent
- State laws heard and adjudicated on a state court and federal laws in federal court.

Part 3 Thinking More Critically

Access to Law: The Adversarial System Reconsidered w10 c w5
Essay ideas on justice – always talk about rule of law when talking about access point 8 in
joseph raz (slides)
- Justice – to equal before the law – to the rule of law – impartiality
- Justice- equality before the law – process – formal equality (so everyone’s treated the same – might
not be fair because of different peoples disadvantageous) this process leads to substantive equality.
Note: - “Substantive justice” is concerned with the merits of a situation and whether the actual law
and its outcome seem to be right. By contrast, “formal justice” is a narrower concept which focuses
on rules and procedure – that is, if a known law is applied by an impartial tribunal in the same way
to all people and according to agreed rules then it may be said to be just.
- Justice – rewards and punishments – judicial discretion on case by case basis – doctrine of
precedent (apply it) which may or may not be fair or (distinguish it) based on the facts of the cases.
Choice and constraint
- Justice – rewards and punishment – statutes – made in parliaments – elected by the people – so the
people determine what’s fair.
- Justice – human rights – globally shared morals – natural law (what law ought to be rather than
what it is)
- Justice – retribution (people get what they deserve) – similar to punishment.

Theories of justice
Procedural (formal) justice – process is fair – outcome is fair
Issue: access – e.g. disadvantage
Issue: corruption – technicalities
In the conext of the austrlaian legal system, the compelxtiy of proecudal justice cn be illustrated by
brandys case, which dealt with the operation of the separation of powers at commonwealth level. The case
affirmed the imrptoance of a separate impactial judical arm, but its practical result was to invalidate
amendments to the racial discirminatio act designed to icrease acess to statutory rights in the human
rights arena.
Substantive justice – outcome fair – the outcome determined on the merits of a case
Issue: discretion? who determines what is fair, relies on the doctrine of precedent
Distributive justice – people have rights and freedoms- to exercise them you need the fair
distribution of resources
we have legal aid, however doesn’t always happen
Retributive justice – just deserts- people get what they deserve
Issue: the punishment reflects the. Values of society which might not be fair
E.g. sentencing and punishing e.g. one punch
Restorative justice - rehabilitative, reconciling – win win
Issue: not always appropriate
e.g. circle sentencing.

No matter what theory you take in justice, for each individual justice is not objective or static, it evolves
over time and it changes depending on an individuals perspective. There is also context, so historical, social
and culture which we see in Louth.
The relationship between justice and the legal system, what does It mean? They’re may not be an objective
right answer (lecture sldies in cooks quote) when we talk about access to justice is that ever achievable
given its such. Subjective and personal idea, even expect judges and lawyers might not agree about what is
just.
And what is more, its not just about being able to access justice, its about if cant access it then there
disadvantage becomes worse and the elgal system acts as an oppressor (attorney general quote)
disucsessed further below.

Critically analysis access to justice

SAY THIS IN A SENENCE then talk about the implications of them > access to justice should be - Fair, simple,
affordable and accessible
Fair:
- Adversarial system doesn’t strive for fairness it’s about your party winning
- One issue effecting fairness is that formal equality and complex processes effects different people
in different ways so might not be fair. This matter because different people deserve different
treatment
- Stats show aboriginals are affected most in the criminal justice system, unfair because they are
socially disadvantaged
- We do have fair because everyone follows the same process but there’s problems in that process.
- So, start with a statement of theory.
- In theory are system is fair because everyone has to follow the same process. Then use evidence
above... however, it doesn’t always turn out fair as can be seen by aboriginals. It is then fair
because of precedent, ..
- The conclude.
Simple:
- Lots of different precedents rules then it’s not simple, the implication of that is being able to
navigate them, that people can’t understand them – if you can’t understand you won’t bring it to
court- only the people who bring it to court will be people that understand it. Then the precedents
only developed based on rich and legally educated.
Affordable:
- Implication of affordability is self-representation – due to unaffordability, this slows the process
down, the judge then has to give advice and there supposed to be impartial under the rule of law
and adversarial system.
 - Only people with money bring money so precedent is based on rich people
Accessible:
- Information –need to be able to work a library aces to it and the internet
- Education, Technology, Geography, Age, Disability, Access to justice discriminates against minorities
when justice is supposed to have equability against the rule of law, In theory legal aid fixes these
problems but there’s barriers, No win no fee bid dodgy , ALS has been defunded massively

The legal Australia – wide survey

Most Common Legal Problems
Some types of legal problems occurred far more frequently than others. The legal problem groups with
the highest prevalence rates in Australia were the consumer (20.6% of all respondents), crime (14.3%),
housing (11.8%) and government (10.7%) problem groups. Government problems are fines, welfare,
zoning, government decision making (administrative law). The data says these are big legal problems.
Under the theory the government has created tribunals to fix this problem, but tribunals have problems
Respondents seeking legal advice
51% sought advice from non-legal professionals like family and friends. 18% of people took no action,
because lack of legal knowledge, stress 30% to improve this the courts have introduced the tribunals (why
is it less stressful?) and cost, we know what’s been done about cost.
Legal Aid
Help over the phone, factsheets and resources online, free face to face advice on most legal issues and
lawyers to assist people at courts and tribunals. The test that apply to the grant of legal aid include income
test, asset test, applicant’s ability to pay legal cost test, and the successfulness of their claim. A net
assessable income of more than 400$ per week is too much.
Tribunals strengths and weakness
In general, tribunals tend to be less formal and adversarial than courts and determine disputes more
quickly and cheaply. Another advantage is that the decision-maker may have relevant specialist
knowledge. Tribunals are also more likely to use mediation and other alternative processes to resolve
disputes (see [5.32]), although courts are also increasingly incorporating such methods into their
management of cases.
Alternative Dispute Resolution Strengths and Weakness
A less formal and confrontational approach to the resolution of disputes. lead to a quicker, cheaper
outcome, as well as providing each of the parties with a measure of satisfaction. less alienating and the
parties may feel more committed to an outcome that they “own”. As in litigation, some equality between
the parties is assumed – a win/ win outcome is unlikely where one of the parties is relatively powerless.
ADR may be inappropriate. E.g in family law matters where there is a history of violence. Nor is a win/win
outcome always appropriate; in some cases, justice may demand an outcome that vindicates the rights of
one party at the expense of another. ADR processes are usually carried out in private. There is a risk that
processes like mediation afford a kind of second-hand justice with fewer procedural safeguards for the
poor while those with greater resources continue to have recourse to the courts and the protections
afforded by participation in the public domain. E.g heroic In brandy and native title tribunal in mabo.
Law been an instrument of hardship even oppression in relation to indigenous Australians

The picture presented by the report was one of “deliberate and systematic disempowerment of Aboriginal
people starting with dispossession from their land and proceeding to almost every aspect of their life”. In
this process, the law, at least until recently, has not always been a protector of Aboriginal people, but
rather an instrument of hardship and even oppression. This can be demonstrated as aboriginal people
where disposed of their land accompanied by brutality and bloodshed enforcing legal rights of non-
aboriginal people exclusively recognising under the law. Aborigine people were also forced to become
dependent on governments and employers for their food and shelter, deprived of their fundamental
human rights of marriage n raising their children.
 Part 2 Judge Made Law
Judicial Decision Making: The Doctrine of Precedent w7
Common law- based on the rule of law
Three meanings of common law
- Type of legal system - common law e.g. Australia - in common law legal system there is parliament
and common law. We inherited this legal system from Britain
- Main sources of law in Australia – parliament (statue) and courts (common law)
- Court made law in Australia can be either common law or equity
Equity
What gave rise to equity
- The Chancellor used his discretion to decide disputes according to the requirements of conscience
and the merits of the individual case known as “equity”
- It developed through discretionary power of the chancery – supplementing common law where it
could not provide a remedy
- Equity itself was very flexible to relieve the common law system to provide justice based on morals,
can’t come to court with dirty hands to seek equitable relief.
- equity has developed its own precedent, still provides that relief but no longer provides what it did
before
- no longer has its own court system, but still exists as its own separate area of law, injunction and
specific performance are equity.
Relationship between common law and equity
- Unlike the common law, however, equity is not a self-contained body of law but one that assumes
the common law’s existence. In other words, equity serves to mitigate the rigours of the common
law, not to replace it. Where there is a conflict between common law and equitable principles,
however, the latter will

Precedent
What is the doctrine of precedent
- It is a principle that requires judges to follow the rulings and determinations of judges in higher
courts, where a case involves similar facts and issues.
- the doctrine of precedent binds each court to the decisions of higher courts within the appellate
structure of the same hierarchy
When is precent binding in court
- there is sufficient similarity between the two cases; and the earlier decision is made by someone
with authority in relation to the latter case.
- The decision of an earlier case is only binding on a later court where the former has authority in
relation to it.
Essay idea
The rationale for the doctrine of precedent is that it can be grouped into 4 distinct categories, certainty
equality, efficiency, appearance of justice. State decsiies promotes certainty because the law is able to
furnish a clear guide for the conduct of individuals, citizens are able to arrange their affairs knowing that
the law that will be applied to them in the same way as it was it the past finally it promotes the appearance
of justice it creates impartial rules of law not depend on the personal views or biases of a particular judge
and it achieves this result through impersonal and reasoned judgment Telstra Corp v Treloar.

Ratio
What is ratio
The ratio of decision of the higher courts in the same hierarchy are binding on all lower court in that
hierarchy. Ratio applies to cases that are sufficiently similar.
How do courts decide cases?
- First, the facts must be authoritatively ascertained, either by the court at first instance or, less
frequently, at the appellate level.
- Next, the legal rule(s) relevant to the issues raised by the facts must be identified and expounded.
- Finally, the legal rule(s) must be applied to the facts as found.
- Only the ratio binds a later court as a determination on a question of fact creates no precedent
because the facts are peculiar to the particular dispute.
How does the process of deciding cases provide judges with choices and constraints?
- While the existing rules in cases act as a constraint, they also allow considerable latitude in some
cases when applying it to a new set of facts. In turn, this provides scope for the judge’s or
magistrate’s values and life experience to find expression. this is one reason why a lack of diversity
in judicial appointments may give cause for concern
- Everything that is not the ratio is the obiter it means by the way, the reasoning around the ratio is
obiter, and is not binding, only persuasive.

Donoghue v Stevenson Case

Case name and citation: Donoghue v Stevenson [1932] AC 562
Material facts:
- Friend purchased the drink
- Opaque bottle
- He got sick
Issue and result:
- Was there a duty of care?
Ratio:
- Wider ratio was neighbour principle: if its reasonably foreseeable that I will harm you I have a duty
of care
- Narrow ratio: if a manufacture makes a product that the consumer can’t inspect then there’s a duty
of care
- Ratio is in ellis

What does this case tell us about precent and ratio?

- How you generalise the key facts, changes precedent and future ratio.
- Could categories the agent of harm as either the dead snail, any organic matter or any foreign
element. How you categorisers will change the ratio and therefore the precedent. Also note the
vehicle of harm, the bottle, and the manufacture.
- Its not just the legal principle that devolves but how we generalise the facts.
- It matters because a really easy example you can hear the ratio, with this one ratio it was able to be
applied to someone with itchy skin from itchy undies, in Australian knitting mills. How these cases
are linked – the ratio.

Part 2 Judge Made Law

 Judicial Decision Making: Analysing Cases w8
How equity itself develops its own precedent
Clark v Malpas Case
Case name and citation: Clarke v Malpas (1862) 45 ER 1238
Material facts:
- An old sick illiterate man, property worth about 380$
- Consideration 12s per week and rent-free accommodation for the rest of his life as well as 100$ to
the man’s appointed heir. Shortly after the properties are sold the man dies
- There was a contract and no independent advice
Issue and result:
- is it fair the stronger party to retain the benefit of the transaction in these circumstances when the
stronger party knew? No.
Ratio:
- in these circumstances the burden is on the stronger party to prove that the transaction is just fair
and reasonable -if they know about the special disability it Is not just fair or reasonable

Blomley v Ryan Case

Case name and citation: Blomley v Ryan (1956) CLR 32
Material facts:
- Ryan was 78 failing intellect and drunk
- Blomley father and stock agent was there and knew he was in no state to transact
- There was a contract and no independent advice
Issue and result:
- Can equity intervene where on part is adversely affected by alcohol and another party takes unfair
advantage of intoxicated state to produce bargain? Yes.
- is being drunk a special disadvantage? Yes.
Ratio:
- Where circumstances including intoxication, place one party at a series disadvantage in relation to
another and the stronger party that’s unfair unconscientious advantage of weaker party’s position,
equity may intervene.
- rules the same in Clarke we’ve just added that it includes drunk

Commercial Bank of Australia v Amadio Case

Case name and citation: Commercial Bank of Australia Ltd v Amadio (1983)
Material facts:
- The elderly migrants were unfamiliar with written English
- The son told parents mortgage was limited to 50000 and to be for 6bmonth but it was in fact
unlimited.
- The bank was aware that they had been misinformed about the contract.
- There was a contract and no independent advice
Issue and result:
- was special disability sufficiently evident to stronger party. Yes.
Ratio:
- Special disability sufficiently evident to the other party
- wilfully blind (to something that should have put them on notice) (which was that the emaidogs
said it was for 6 months and he knew it wasn’t)
- onus will shift to the stronger party to prove its fair - not satisfied if the other party had knowledge
of the special disability
- Bank has to prove in spite of that that it was still reasonable.

Louth v Diprose Case

Case name and citation: Louth v Diprose (1992) 175 CLR 621.
Material facts:
- Diprose bought Louth a house
- It was a gift
- Diprose was educated while Louth poor, emotionally unstable
- Diprose was infatuated with louse
- here apparently stronger party is claiming to be weaker party
Issue and result:
- weather emotional dependence is a special disability? Yes.
- does the rule extend to gifts? Yes.
Ratio:
- gifts and emotional manipulations is a special disability.

The role of the judiciary- essay ideas

- Debate about whether judiciary should be able to make law, judicial activism and judicial
conservatism.
- Judicial conservatism is about – what they see the role of the judiciary is not to just say he believes
the role of judges is just to interpret and apply he is also showing us why, they aren’t elected like
representive politicians. He is talking about legitimacy, if it’s not it will lose its authority. The best
way to achieve, consistency certainty and uniform it is for the judiciary to not make the law. ‘we
can’t just change the rules if we don’t like them’. Justice heydon quoting sir owen Dixon.
- Judicial activists argue – see a judge saying its dishonest to pretend that its purely mechanical
application of ratio. There should be other considerations such as policy. It’s okay to think of things
outside a purely mechanical doctrine of precedent he’s not saying there should be not constraints,
he’s still saying ‘rules must there be’ he still wants constraints, but also wants us to be honest that
there are other elements at play. We can see that in Donoghue, because Buck master and Akin
analysed the previous recent because they came to such different decisions using the same case
law. Justice Kirby said
- So, are judges making law, and should they? Look to slides
-
Part 3 Thinking More Critically
Law and Narrative: Judicial Decision Making Reconsidered w9 c w7,8
Louth and Diprose Case
Majority Minority
who are they? Louth: calculating whore Louth: Damsel in distress
Diprose: romantic fool Diprose: kindly gentleman
Poetry Romantic poetry Sexual harassment
Marriage The women have the power, It was a contract that he wanted her to
proposal vulnerability to the man sign where she would agree to live as a
man and wife and he would in return buy
her things
Quarrel Minor disagreement There was verbal and physical abuse
Witnesses Describe Louth as calculating witness
they didn’t believe her
They bring in Louth’s brother in law
They believed Dispose to an extent

Mental health Louth’s mental health was no She did have mental health issues, learnt
believable she was calculating only about her past
saying it to get something
if we can see certain stories in that judgment what does that tell us? What do judgments reinforce in our
society? How do they reflect and perpetuate dominant discourse? In Louth dominant discourses in gender
and class. What does this mean about the relationship between law and society.
Ellis in w 12 slides pg 259 ‘ choice is integral to the interpretive process because the meaning of legal rules
is not fixed but takes colour and shape from context and perspective’ ‘discretion or choice is a positive
feature because allows the law to bend and adopt to difference, yet this benefit is also problematic’
Essay ideas
The doctrine of precedent is an important feature of judge made law. This doctrine means that similar
disputes should be decided by reference to the same legal principles, and that lower courts are bound to
follow the decisions of higher courts within the same court hierarchy.

Advantages and disadvantages to judicial precedent

A) Consistency and predictability – the system provides fairness and justice as similar cases will be
treated and decided in the same way as a past case. This allows lawyers to advise their clients with
some certainty as to their position and whether to take a case t court. This then promotes justice
and fairness as the courts will decided like cases in the same way. There is also some degree of
certainty as the outcome of cases can be predicated based on previous decisions.
D) Ridged- a rule can remain in place for a long time, even if it is outdated, as changes requires a case
to come to a higher appeal courts before new rule can come abot.so judge made law is slow to
evolve.

A) Flexibly – judges in the higher courts are able to develop and update the law to take account of
changing social conditions. Their decision may influence parliament to introduce or update new
statoruty rules.

A) New precedent – new situations may arise which are not covered by any statuary rule or previous
precedent. Judges will be able to consider past similar cases or perhaps cases from other countries
and make rules for the case before them which can operate as a precedent for future cases.
Advantages and disadvantages of the doctrine of judicial precedent

Convenient and timesaving If a problem has already answer and been solved it is natural to reach the same conclusion.

Can become thoughtless The convenience of following precedent should not be allowed to degenerate into a mere
mechanical exercise performed without any thought.

Too many precedents The citation of authority in court should be kept within reasonable bounds because it can be
costly in terms of time and money. Lord Diplock has warned of the 'danger of so blinding the
court with case law that it has difficulty in seeing the wood of legal principle for the trees of
paraphrase'
The House of Lords has decided that it will not allow transcripts of unreported judgments of
the Court of Appeal, civil division, to be cited before the House except with its leave.

Greater certainty in the Is perhaps the most important advantage claimed for the doctrine of judicial precedent.
law It may also allow persons generally to order their affairs and come to settlements with a
certain amount of confidence.

Avoids mistakes The existence of a precedent may prevent a judge making a mistake that he might have made
if he had been left on his own without any guidance.

Mistakes perpetuated Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the
House of Lords for reconsideration. In any event, flexibility and certainty are incompatible
features of judge-made law. A system that was truly flexible could not at the same time be
certain because no one can predict when and how legal development will take place.

Too confusing However, the advantage of certainty is lost where there are too many cases or they are too
confusing.

Prevents injustice The doctrine of precedent may serve the interests of justice. It would be unjust to reach a
different decision in a following case.

Causes injustice The overruling of an earlier case may cause injustice to those who have ordered their affairs in
reliance on it. Precedent may produce justice in the individual case but injustice in the
generality of cases. It would be undesirable to treat a number of claimants unjustly simply
because one binding case had laid down an unjust rule.

Ensures impartiality of The interests of justice also demand impartiality from the judge. This may be assured by the
judge existence of a binding precedent, which he must follow unless it is distinguishable. If he tries
to distinguish an indistinguishable case his attempt will be obvious.

Practical character Case law is practical in character. It is based on the experience of actual cases brought before
the courts rather than on logic or theory.

Limits development of the The doctrine of stare decisis is a limiting factor in the development of judge-made law.
law Practical law is founded on experience but the scope for further experience is restricted if the
first case is binding.

Offers opportunity to The making of law in decided cases offers opportunities for growth and legal development,
develop the law which could not be provided by Parliament. The courts can more quickly lay down new
principles, or extend old principles, to meet novel circumstances. There has built up over the
centuries a wealth of cases illustrative of a vast number of the principles of English law. The
cases exemplify the law in the sort of detail that could not be achieved in a long code of the
Continental type. However, therein lies another weakness of case law. Its very bulk and
complexity make it increasingly difficult to find the law.

Flexible The case-law method is sometimes said to be flexible. A judge is not so free where there is a
binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it
or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law
becomes rigidity.