Business Law and Ethics

Original and Appellate Jurisdiction

is the authority to hear a case when the case is first brought before a court. For all courts other than the High Court this will consist of original criminal and civil jurisdictions

is the authority of a court to hear appeals from decisions of courts of a lower level in the same court hierarchy.

Established under s 71 of the Australian Constitution. Limited original jurisdiction in those cases authorised by the Commonwealth Constitution. Appellate jurisdiction in both civil and criminal matters arising from the State Supreme Courts and Federal Courts. Appeals do not lie “as of right”. Approval to hear an appeal must first be granted by the High Court. The High Court is the final court of appeal within the Australian legal system.

The three functions of the High Court are:

A decision that must be followed

A decision that may be, but need not be, followed.

The reason for deciding; that part of a judgment that is binding on later cases of similar fact

Sayings by the way

Adopted:  followed or applied. Affirmed: agree with the earlier decision.

When a case is heard on appeal and the appellate court finds for the party who lost in the original hearing, the decision is said to be reversed. 

A court over-rules a decision when it considers an earlier decision of a lower court and declares it to be no longer good law. 

if the court cannot overrule a case it may state (by way of obiter) that the earlier case is no longer good law.

Distinguishing occurs where material differences between the facts of two cases are argued in order to avoid the application of a binding precedent.

The role of the courts in interpreting legislation Principles of law developed through the interpretation of legislation, viz: When the legislation is unclear, or capable of more than one meaning, or could produce different, inconsistent results given different fact situations, the courts interpret its meaning in such as way as to resolve the difficulty. [NB: you are NOT required to know about rules of statutory interpretation ( pp.102-110) for assessment purposes.]

Statute Law

Case Law (sometimes referred to as Common Law)

The doctrine of separation of powers seeks to confine the exercise of the legislative, executive and judicial branches of government exclusively to their respective institutions (Parliament, Cabinet and the courts).

Where legislative authority has been delegated by the parliaments to government departments and authorities, and local councils Delegated legislation may include: Orders Regulations By-laws Local laws

Exclusive powers Concurrent powers Residual powers

High Court interpretation of the Constitution Change to the Constitution Referral of Sate power to the Commonwealth

Approved by an absolute majority of both Houses of Parliament or passed twice in one house. Referendum (vote) approved by majority of the voters in at least four states.

The Governor-General gives Royal Assent

Law developed through court hearings of disputes Includes principles: development prior to legislation governing matters not covered by legislation developed through statutory interpretation

Common law is the law created by the reported decisions of judges. Common law is also known as: case law; precedent; unenacted law. The typical common law remedy is damages (monetary compensation)

Equity developed as a result of the growing inflexibility and rigidity of the common law. Equity implies fairness and justice in the law. There are two types of equitable remedies sought: Injunction – a court order directing a person to stop doing something; and Specific performance – a court order directing a person to carry out an obligation.

The doctrine of precedent refers to the application of original decisions in deciding later cases of similar fact 

– the principle that courts follow established precedents; literally means ‘to stand by a decision’.

the principle that only the immediate parties to the action are bound.

The doctrine of precedent presupposes the existence of a court hierarchy. Underlying the doctrine of precedent is the principle that lower courts in the hierarchy stand by decisions of superior courts.