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Preamble:
Welcome to Law131, and congratulations on defeating Law121.
No matter what your grade was you can still get into part 2. But
more than that, you should be proud of yourself just for
surviving. Around half the students who started this year wont
have made it this far.
Law131 usually has about 900-1000 students and of that about
300 are offered a place in Law part 2. This means that your
Law131 grade is crucial if you wish to succeed. Dont worry; if
you have bought this guide then you have already given yourself
a good head start.
Law131 is vastly different than law121 in that it is not focused
at all upon opinions or essays. What you learned in High School
English or social studies wont really help you here. On the
other hand, what you will learn in this course will help you all
through law school.
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Work hard during the term and play in the incredibly long
summer holidays. Also since law exams are typically near the
start of the exam schedule; I dont recommend choosing any
papers that dont have exams. They will almost always have a
huge assignment due in exam week. My friend fell into this and
had two 15,000 word assignments that were both worth 100% of
her grade, and no time to study for her early exam.
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Last time I said that this course is all about mastering a few key
skills. Today I am going to tell you basically everything you
need to know.
Print this off hang it on your wall and when you can confidently
do all of them then you can ace the exam.
Common Law
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Statute Law
Structure of Courts
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Besides this, remember that until 1980 the High Court was
called the Supreme Court. This is something you should always
keep in the back of your mind.
You should note that before 2004 New Zealands ultimate court
was the Privy Council which is located in England. They are no
longer used as we have established our own Supreme Court; but
the old decisions are still legal. The Privy Council was basically
a court that England provided for all the commonwealth nations
to use as final court of appeals.
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ensure that the law is applied correctly. It will also be the court
of first instance on more serious matters such as murder.
COURT OF APPEAL = has appellate jurisdiction only. This court
will review matters which have come from the lower courts and
give what is usually the final judgement.
SUPREME COURT = has appellate jurisdiction only. This court is
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Precedent
Overview
Now that you know the structure of the courts you need
understand stare decisis, or the doctrine of precedent. I am sure
you will have touched on the fundamentals of it in your 121
study, but now you need an actual understanding that you can
put to work.
For the sake of legacy we will start from the start.
Stare Decisis is the idea that a decision in a higher level court
will be binding on those in the lower level. This evolved from
the old English courts where the law was vastly different all
around the country. It is based on the idea that like cases should
be treated alike. So if the courts today say that a person in
situation A must pay damages; then any future people in
situation A should also be told to pay damages.
Precedent Power
The power of precedent is based on the hierarchy of the courts;
each level of the courts creates precedent that binds those below
it. So as you move up the hierarchy the decisions become very
powerful.
For instance, a decision made by the Supreme Court will be
binding on the Court of Appeal, the High Court, and the District
Court in any similar cases in the future. But a decision from the
High Court will not be binding on the Court of Appeal, and they
may choose to overrule it (correct it).
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These concepts (like many you will cover) may seem nebulous
but it is rather simple once you grasp it.
Every New Zealand court is bound by decisions of the
court above it. New Zealand courts are neither bound
by their own decisions, nor by overseas decisions.
Thus a previous decision by the Court of Appeal will bind the
High Court and District Court, but will not bind the Court of
Appeal.
In the same way; even a decision from the Highest Court of
Australia will not be binding on the family court of New
Zealand. But it is important to keep in mind that even though
they are not binding; decisions from supreme courts overseas
are considered very persuasive.
Ie) English House of Lords decisions are not easily ignored by
District Courts.
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Besides just the level, how the judgment was determined, when
it was determined and whether the judge spent time considering
it or solved it urgently etc; will all be sub-factors to determine
the persuasive value.
Exercise:
I will try to illustrate each of the points so far with an example.
**EACH OF THESE IS HYPOTHETICAL**
1)
IN COUNTRY X
Adam grows a big tree on his property. It falls and destroys his
neighbours house, the neighbour then sues him for the damage
to his house. In the end, the Supreme Court of the country
decided that he does not have to pay for the damages. This
creates a binding precedent.
Later John makes a really tall tower on his lawn. He takes all
proper precautions and the tower is legal, but it falls and
destroys his neighbours house. The case goes to the High
Court, what will the judge decide?
Likely, the Judge will decide that it is similar to the previous
case of Adam, and thus he must follow the decision. John may
also avoid paying for damages.
The Supreme Court decision was binding on the High Court.
Later again Max hears about those two cases and decides that he
doesnt like his neighbour. He builds a giant catapult on his land
and launches stones to destroy his neighbours house. The case
once again goes to the High Court; will he also not pay
damages?
The cases are completely different. Max is deliberately trying to
harm his neighbour and thus will be forced to pay (and maybe
go to Jail).
Only similar cases are treated the same.
2)
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IN COUNTRY Y
Later Bill gets Andy to take care of his dogs but once again they
escape. This time the decision goes to the High Court, what will
the judge decide?
The judge can decide whatever he likes. There is no binding
precedent.
District court decisions are of persuasive value only.
3)
IN COUNTRY Z
It has long been established by the House of Kings that it is an
invasion of privacy to take a photo of someone who is in the
hospital.
Sarah lives in Country X, and has snuck into a hospital to take a
photo of a famous celebrity. Will the many decisions from
Country Z be binding on the District Court of Country X? Does
it matter if the celebrity is from Country Z?
The decisions from country Z will not be binding precedent on
Country X, no matter the power of the court. It will also not
matter where the celebrity is from.
Decisions from other jurisdictions are of persuasive value only
4)
COUNTRY G
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Precedent Part 2
Today
I understand that it is hard to really understand the aims of the
course while we are still learning fundamentals. You may be
feeling a little lost right now. But just stick to it and try to
absorb everything we cover; when we put it all together you will
see how everything has its place, and how integral it all is.
Today we will look at more of the in depth aspects of precedent
and how it operates. Dont be tempted to gloss over this stuff, it
is absolutely necessary to have a complete handle on it for the
test and the exam.
Theory
First it is important to understand what the reason for precedent
is in law. The oft quoted reason is that it provides;
predictability certainty and stability to the law.
These are essential aspects, if the law is unstable and
unpredictable how can we know what it is or what is legal and
what isnt. These are key aspects as to the rule of law, stability
allows justice to be done.
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You already know that higher courts bind lower courts and
decisions from overseas are only of persuasive authority.
But are decisions from higher courts always binding on lower
courts?
The answer is that any decision from a higher court is binding
on a lower court and must be applied (used/followed) to the case
unless it can be distinguished.
Cases are distinguished if the judge can argue that they are not
sufficiently similar enough to need to follow the precedent
decision.
A case regarding airplane safety may be distinguished from one
which is concerned with ship safety. In that case the judge
would not have to follow the previous precedent.
Whether a case can or cannot be distinguished is largely up to
the individual facts and the perception of the judge.
Can a case about a rimu be distinguished from a case about an
oak tree? The answer will depend on the facts of the case.
We will cover distinguishing in more detail later in the course,
but for now it is important to understand that a decision which is
binding must be followed; unless it can be distinguished.
Exercises:
I will test your understanding of precedent.
1) What is the other name for the doctrine of precedent?
2) What reasons do you believe exist for the way precedent
treats foreign cases?
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Legal Logic
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4)
a) Would have persuasive authority only
b) Would be very persuasive but not binding.
c).Would be binding precedent (CoA binds DC)
d) Would have persuasive authority only (remember that in
1944, what is now the High Court was called Supreme Court)
e) Would be binding precedent (HC binds DC)
f) Would have persuasive authority only (and likely not much)
g) Would have persuasive authority only (CoA not bound by its
own decisions)
h) Would have persuasive authority only (likely very
persuasive)
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Caution:
As we approach reasoning and ratio there is something that I
wish to make very clear.
This course is not the same as Law121; you do not have to
remember anything at all about the cases themselves. The
purpose of this course is to understand judges reasoning
techniques and learn to use the same techniques yourself.
In this course, consider yourself a judge not a student.
Thus for all intents and purposes it makes absolutely no
difference if a case is real or hypothetical.
The reason I say this is to prevent you from trying to learn about
whatever area of law your lecturer is basing the cases on. It will
not help you in the exam at all.
For instance, in 2010; the entire course was based around
learning about the development of NZ privacy law. As a result,
many students went into the test/exam knowing as much about
privacy as they could only to be confronted with a test which
was about growing trees and an exam on shoplifting.
Focus on the skills and reasoning not on the substance of the
case itself. For this reason (and also because its more fun),
almost every case and every law I discuss will be completely
hypothetical.
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Today:
This decision or the rule of a case is called the ratio of the case.
So it is more correct to say that; only the ratio of a case is of
precedent value to other cases. Dont worry too much about
what a ratio is; we will spend a lot of time working on that
before the test. But for now you have to comprehend that only
the ratio is binding.
I.E)
the Supreme Court has a case about a person who cut down 100
Pohutukawa trees. On page 1 they declare that cutting down
Pohutukawa is a crime, but then spend 99 pages talking about
how ice creams should never cost more than $2.
This extreme situation will not create any precedent regarding
ice cream. The case is only binding for what it decides, and that
was regarding native trees.
Logic:
So now we come to the question of how a judge comes to a
decision and what logic he uses. Broadly speaking there are two
relevant legal logics: Deductive reasoning and Analogical
reasoning (there is also Inductive reasoning, which is really
interesting. But I dont believe it is terribly relevant to your
study).
DEDUCTIVE REASONING: This is more common in statute law; it is
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Material Facts
Today we will get into the first part of defining a ratio. Simply
put, the first thing that you need to be able to do is read a case
and then determine which facts are material(important) and
which facts are immaterial.
These material facts are the criteria by which cases can be
compared against each other (same material facts=same
decision).
Material Facts:
Material facts are any facts that were necessary in order for the
judge to come to his decisions. So in a case about theft, the fact
that the suspect took an item is material. The fact that the
suspect was a man wearing a red jersey is most likely
immaterial.
What this means is that in a future decision regarding theft, the
next judge can notice that he took an item and can ignore the
gender or clothing as irrelevant details.
There is some degree of subjectivity in determining material
facts, and it slightly requires a degree of instinct. But more than
that you should use common sense, and always go back to: what
facts are necessary to make a decision on this case?
It is also important that when you describe material facts you do
some with a level of abstraction. What I mean is that you should
use them as CLASS FACTS and not CASE FACTS.
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Exercises:
1)
This is a case before the District Court.
Mr Pickle is being charged with the crime of theft. It seems that
on the night of December 3rd he had been drinking heavily and
was very drunk. At approximately 10pm; he forced open his
neighbours door, and in doing so caused the entire door to
collapse inside. It seems that he then picked up the collapsed
door and ran away. He was apprehended by the police while
buying tickets to Mexico, the door was found with his luggage.
I have underlined what I believe to be the material facts of the
current case. In order for the judge to determine the crime;
A person broke into a house, took an item and then
left without intending to return the item. He is
being charged with theft.
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Finding an Issue
Today
Today we will start the first really practical part of this course.
Finding an issue. You will need to delve into the facts of a case,
pick out what is necessary and then put down the main question
of the case into words.
In my opinion finding the issue is the most important part of this
section, once you have formulated your issue, you have 99% of
the ratio, and will be able to use the case as you like.
Learning to take the material facts and form an issue and a ratio
is literally the one key skill thing you will need to master in this
half of the course.
Issue Concept
Before we do anything else I believe that the best place to start
is by working out the issue of any case. Once the issue is
formulated; it is a much more simple process of getting to the
ratio.
An issue is simply, the question of law that concerns the case.
Every case will have at least one question that the judge will
need to answer in order to apply the law and resolve the case.
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For example:
I have taken your stereo without your knowledge or consent and
I intend to keep it. In this case the judge may ask:
Whether in law, if a person taken an item
without consent and intends to keep said
item, is that person guilty of the crime of theft
That would be the issue of the case, and the answer to that
question (that yes I would be guilty) would be the ratio.
So in other words, the case will turn on the answer to that
question. Thus it is the (Legal) Issue of the case-There can be
more than one issue though.
When you are trying to create an issue for a case you should
take all the material facts, and then ask yourself what question
does this case need to answer? This can also help you make
sure that you only have the necessary material details.
Also, note that the issue will use the same degree of abstraction
as the material facts do. Ensure that you maintain consistency
with your language.
Finally, when you are writing the issue I recommend using the
format I have used above. It is not mandatory that you do so; in
fact you can write it however you like. But if you use the
process of:
Whether in law(description of events)(question)
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It makes sure that your issue is a question, and for the most part
the ratio can be exactly the same just with the word Weather
removed.
Practical
Read the following (hypothetical) case and answer the
questions.
<To compel means to force/coerce someone to do something>
High Court of Country X
Peterson J
th
13 May 20XX
The following case comes to me from an appeal by the plaintiff.
I will begin with the facts of the case then outline my judgment.
For the last 5 years the IRD has been tracking Mr Mole in
regards to allegations of tax evasion and income fraud.
It seems that there was little progress for the most part and not
enough to charge him at this point. As such, on January 3rd a
letter was sent to Ms Mole requiring her to go to the IRD office
and answer questions about her husbands finances.
Ms Mole consulted with her lawyer Mr Brown who brought the
case to court arguing that the common law protects a spouse
from compulsion in testifying against their partner.
Lawyers for the IRD argued that such law was out of date and in
regards to the necessity of her questioning that it was a matter of
great importance that I allow their questioning. Moulder J in the
District Court found in favour of Ms Brown, and now the case
comes to me.
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AvB 1906 is the strongest authority and comes from the Hall of
Kings. But local and more recent cases such as BvA 1994 from
the High Court and AB v C 1985 from the Court of Appeal
follow the same reasoning.
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All of these cases clearly state that the common law protects the
harmony and confidentiality of marriage, and does not allow a
spouse to be compelled to provide evidence against their
partner. Thus I too must follow this reasoning and I also find in
favour of Ms Mole....
Questions:
1. What court was this case in?
2. Of the cases mentioned, which are binding for Peterson J?
3. What are the Material Facts of this case?
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Discerning a Ratio
Today
Today we will work on the finding the ratio of the cases. This is
the most important part of the common law section of the
course, and I have seen many past exam papers where a correct
ratio was worth 30-40 marks.
Thus understandably we will be spending a fair bit of time on
this.
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Ratio Theory
You can see that the ratio is basically the same as the issue, but
as an answer to the question, it provides a rule of law which the
judge can base his decision on. Thus because the ratio says that
a spouse cannot be compelled; his decision is that Ms Brown is
protected.
I reccmoned thinking that the issue is the question which the
judge asks himself about the case-Can X happen? Then the
Ratio is the answer to that question, both now and in the futureNo X cannot happen.
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In your answers; every issue must have a ratio and every ratio
must have an issue. So if you find 1 issue then you must find
only 1 ratio. They must also both be using the same level of
abstraction
-If the Issue says media, the Ratio cant say book.
-If you find Issue A then you cant have ratio B and ratio C
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Finally, you will notice that I have italicised half of the above
ratio. That is the reason portion (the first half is the rule). I have
italicised it because it is not strictly necessary. For a ratio that a
real judge is concerned with, the reason is implied and only the
rule is important.
However, at your stage of study many teachers want you to
expressly state a reason. It shows that you didnt just grab a
random sentence and that you actually understand the rule. They
may teach that ratio=rule + reason.
When I was studying my teacher allocated half the marks of the
ratio to stating the reason. So in a 40point ratio, you could only
get 20points for a correct statement of law.
No matter what the perspective of your lecturer is about this I
would strongly recommend that you include a stated reason in
your ratio. It is very easy to do; as long as it makes sense
anything is fine. Just write one sentence which you think
explains why the previous the rule is like that.
At the very least you wont lose marks and I would bet dollars
to doughnuts that you would get some.
Example Ratio:
Just to try to make sure you understand the format I will copy in
some example ratio I wrote in the past. You can choose to
phrase your ratio vastly different so long as it is in line with
your issue and your material facts.
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Exercise
Write a ratio for the following issue
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Answers:
A possible ratio could be:
In law, if a person intentionally hits another person without
lawful justification, that person is liable for the tort of battery.
Because you must not attack other people lawlessly.
Today:
Today we will be continuing to look at the ratio of a case and
practice formulating one. One other thing I wish to cover today
is the issue of a broad or narrow ratio. Controlling the size of the
ratio will be important when you have to consider using
previous cases to answer future ones.
Then briefly we will discuss the concept of Obiter, it is a very
important concept but as far as I have seen it rarely tested or at
least not tested in very much depth. So a somewhat simple
understanding will suffice.
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Ratio Scope
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Advice:
This is why it is important to start with the material facts, what
you decide is material and what degree of abstraction you give
the facts will define the scope of your ratio. Person includes
more people than man/woman does etc.
Your lecturer may tell you that either a narrow or a broad ratio
is fine, but in general I believe that you should be at least
slightly broad. In the test/exam you will almost certainly have to
take a ratio from one case and apply it to another, if you make
your ratio too narrow this becomes more difficult than it should
be.
The 2010 Test required you to consider a case about a tree that
caught fire and spread, one about thistles blown onto someones
property. So the ratio needed to be broad enough to include
natural nuisances rather than exploding trees.
Obiter:
Obiter Dictum is the next concept that you should be aware of.
An obiter is simply a rule of law that is unnecessary in
resolving the case. It is generally the opinion of the Judge, or
just some extra issues that he/she feels should be included for
some reason or another. Since it is a rule of law, it seems exactly
like a ratio except that it is irrelevant.
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Obiter are not binding, a case is only binding from its ratio.
Even an obiter statement of law coming from the Supreme Court
can be ignored by a District Court judge.
Exercise:
District Court of Country X
January 21st 19XX
Scott J
The case that comes before me is of somewhat strange origin. It
concerns two neighbors Ms Smith and Mr. Green. Mr. Green is
asking for a court injunction to prevent Ms Smith from
continuing to pile dirt onto her land.
It seems that Mr. Green is very fond of the harbor view that his
house has, and he argues that when he bought his house it was
solely because of the view it has onto the ocean. His house is
about halfway up the Kupahi hills, but since last October this
view has been obstructed by Ms Smith and her dirt.
Last March Ms Smith and her 3 sons moved into the house
directly in front and below of Mr. Green. Since her sons love
BMX biking so much Ms Smith had endeavored to make them
an interesting bike track on the lawn. So she has piled a few
mountains of dirt and shaped it into a track.
The argument put forward by Mr Green has been that the dirt
piles rob him of his rightful view which is his property. He cites
the case MvA 1991 from the Court of Appeal in which Burker J
stated
for houses on a hill, the view is as much the
property of the owner as is the house itself. In
country X a hilltop view is a sacred thing and must
be preserved. Thus there exists a duty not to build
buildings which will obstruct this.
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Questions:
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1.
2.
3.
4.
5.
6.
Distinguishing
Today:
Today we will look at the idea of distinguishing a ratio. This is
another exam ability that you will almost certainly need. There
is lots of information in the coursebook about how to argue
against the application of a ratio or to counter an analogy. You
wont really need to know this stuff, its more suited for the
actual arguments that the lawyers themselves make.
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Distinguishing:
Distinguishing a ratio is when a judge decides not to apply a
ratio from a previous case onto the current case. There are
various reasons for this and various ways to do it, but the most
common one is simply that the ratio does not fit.
Can a ratio describing proper engine maintenance
for a train be applied onto a case about a plane?
What you need to understand is that a ratio is either applied or it
is distinguished. If a judge looks at a previous case and decides
that the ratio is acceptable he applies it onto his current case and
uses it to make his decision. If he decides that it is unacceptable
then he will distinguish it, find a different ratio or create a new
one.
Advice:
In a test or exam you will most likely be given 2-3 conflicting
rationes from various levels in court hierarchy and a case which
you must solve yourself. At that point you have to choose which
ratio you believe should be distinguished and which should be
applied. Or if you feel none are valid you can distinguish all
three and create your own ratio.
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Distinguishing Methods
You will learn 8 reasons that a ratio may be distinguished and
therefore not applied. This is one of the few times you will ever
have to memorize something in this course, so make sure you
know these.
1. Differences in the facts = the previous case deals with
facts that are vastly different from the current case. Thus
the ratio is not relevant.
E.g. Ratio of a murder case being used in a shoplifting
case.
2. Differences in the issue = the question of law between the
two cases is significantly different so that the cases cannot
be compared. Consider Bowers v Hardwick and Texas v
Lawrence that you learnt in Law121.
3. The earlier statement of law is obiter not ratio= only a
ratio binds as precedent. If you read the earlier statement
ad decide that it was obiter then it can be ignored.
E.g. In the lesson 10 practice case there was an obiter
about trees as part of the judgement. If that was referenced
in another case the judge could declare it as obiter and
ignore it.
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Practice Case
Today we will try to put all the things we have done so far into
practice.
Just as a checklist, you should be able to:
figure out the position of the court and who it obeys
find the material facts of the case
write an issue that includes those material facts
write a ratio that answers the issue
distinguish a case and notice when judges do so
Remember that if a case/ratio is not distinguished it is applied.
Todays case is a much longer one, but it is important you start
learning to sift through cases quickly.
Practice case:
High Court of Country X
25th May 20XX
Anderson J
This case has arrived before us on appeal by the plaintiff.
Though there were numerous issues which required resolution
this appeal is only on the charge of assault.
Before issuing my judgment I will briefly cover the outline of
this case and then the relevant law which supports such a
decision.
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Questions:
1. What is the procedural history?
2. What cases are referenced?
3. What does Anderson J do with each case?
4. What are the material facts?
5. What is an issue?
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6. What is a ratio?
Extending
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Today
Extending:
Extending is the process where a judge takes a rule from a
previous case and widens it, increasing the scope of the ratio.
This is the main development tool of the common law and
allows specific rules to eventually become guiding principles.
Consider this progressive development of law.
1.
2.
3.
4.
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As far as the aims of this part of the course you dont need to
worry about large extensions to the law and the development of
legal principles (worry about that when you become a judge).
What you will need to do by the test is; be able to take a ratio
from 1-2 provided cases and decide if they need to be enlarged
to fit onto a provided fact situation.
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For example, if you have been supplied with three cases that say
we believe it is okay to drink water, but is illegal
to drink Pepsi.
You may be able to argue that the rule can be extended so that it
is also illegal to drink cola. But you should be careful if you are
considering arguing that it should cover all non water drinks.
Practical:
The best way is to see how the pros do it and to try your own
hand. This section will almost certainly be a very similar format
to your incoming test. Read each case and then answer the
questions.
All in all you should be able to do this whole exercise within
60mins.
--------------------------------------------------------------------ROBSON v. HALLETT
QUEEN'S BENCH DIVISION 1967
LORD PARKER, C.J.: On Jan. 7, 1966, at a magistrates' court
sitting at Gateshead, the appellant Dennis Robson was convicted
of assaulting a Sergeant McCaffrey in the execution of his duty,
also a Police Constable Paxton, and thirdly a Police Constable
Jobson. The appellant Thomas Robson was also convicted on
one charge, namely, of assaulting P.C. Paxton in the execution
of his duty. Both the appellants appealed to quarter sessions for
the county of Durham, who upheld the conviction of the
appellant Dennis Robson
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Questions (1):
1.
2.
3.
4.
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In relation to the first visit, the Judge concluded that any implied
licence for the police to visit the property was of dubious benefit
having regard to the lateness of the hour, the lack of urgency,
and his conclusion that they had exceeded the geographic
limitations of the licence in walking around the side of the house
and knocking on the window. Referring to Robson v Hallett the
Judge held that the police had no greater licence than to enter
the front gate of a private residence, proceed directly to the front
door and there to make one's presence known by knocking or
ringing the bell.
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Applying A Ratio
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Now we are going to work on the final skill for the common
law section of the course. After this is it just a matter of putting
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Today:
the skills that you have gained from the previous lessons to
work in the problem situations provided.
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Example:
This is a long decision, but it isnt especially complex and is
worth reading a few times to properly understand.
Read through the judgement, and then look at how the Judge
treats Wilkinson v Downtown- a case which clearly has similar
facts and a ratio that the judge believes can fit the case.
Then compare that to his discussion of Victorian Railway
Commissioners v Coultas and the reasons and logic that allow
him to distinguish the ratio. Especially against its precedent
strength.
----------------------------------------------------------------------Stevenson v Basham [1922] NZLR 225
Supreme Court, Auckland
7 October; 17 October 1921
Herdman J
The facts upon which the respondents relied in the Court below
are simple.
During the evening of the 3rd December, 1920, about 8.15, the
appellant visited a dwelling-house which was occupied by
respondents and demanded that possession of the premises be
given to him.
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Mr Basham said that when he saw his wife after his interview
with appellant she was sitting on her bed and was hysterical. It
would appear that she was genuinely afraid that appellant would
carry his threat into execution. That Mrs Basham was in a state
of distress bordering on hysteria about something that had
happened is made plain by the evidence of Mr Carr, who was in
the house that night, and by Mrs Hepburn, a neighbour who was
called in to look after Mrs Basham.
On the following day Mrs Basham was unwell and had a
temperature, so Dr Pettitt was called in. The doctor found that
she was threatened with a miscarriage, and ordered her removal
to a hospital, where, in due course, a miscarriage took place. It is
contended that the appellant's conduct was responsible for this
misadventure, and the learned Magistrate found that the
miscarriage was caused by the fright which appellant's threat to
destroy the house had given her.
In the light of the statement made by the doctor who was called
in that "undoubtedly the fright did prejudice her chances to a
serious extent" and of the other facts proved, I am not prepared
to hold there was not sufficient evidence to justify the
Magistrate in coming to the conclusion that appellant's conduct
was responsible for the mischief.
...
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It is true that she had not been feeling well before appellant's
conduct disturbed her, but I have not been able to discover any
evidence which proves that she had gone to bed because
symptoms of a miscarriage had appeared, or because she had
any reason before Stevenson made his threat to suspect that a
miscarriage was imminent. But even if a miscarriage was
threatened before Stevenson frightened her, there is, I think,
evidence which would entitle a jury to infer, if they thought fit,
that Stevenson's conduct accelerated the trouble.
The foregoing being the facts upon which respondents base their
claim, what are the principles of law applicable in such
circumstances?
...
A case which illustrates the principle that physical injury which
is the consequence of a shock deliberately caused by a statement
made by the defendant is that of Wilkinson v Downton, the
headnote of which reads as follows: "The defendant, by way of a
practical joke, falsely represented to the plaintiff, a married
woman, that her husband had met with a serious accident
whereby both his legs were broken. The defendant made the
statement with intent that it should be believed to be true. The
plaintiff believed it to be true, and in consequence suffered a
violent nervous shock which rendered her ill. Held, that these
facts constituted a good cause of action."
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Today:
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Today we are going to take the final step forward and combine
all the individual skills that you have learned so far into one
judgment.
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The issue will act as a heading and the subsequent sections will
find an answer and conclusion for that question. The important
thing then is, IF YOU HAVE A CASE WITH TWO ISSUES; YOU WILL RUN
THROUGH THE ENTIRE IRAC PROCESS TWO TIMES . Dont try to
combine issues or answer more than one at once. Remember
each issue has one ratio.
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State the legal issue of the case. Exactly the same as you have
been doing since lesson 8. (Whether in law...etc)
At this point you have stated the issue. Now you need to find the
legal rules that can answer that question.
What this means in a practical sense for you is to list the
provided cases and explain their ratio. In the test you will be
provided with 2-3 cases that cover a somewhat similar fact
situation. List each of them and explain what the rule of each
case was (ratio).
Dont discuss the precedent value or anything yet just state the
case name, a few of the material facts and then explain its ratio
(including reason).
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will tell them that the case is hopeless rather than try to persuade
an illogical answer.
CONCLUSION: <Skill=summarizing all the previous info>
This is the final point and the one that every B Level student
forgets to include. If you dont spend a paragraph or two
concluding then you havent answered the question and will lose
easy and valuable marks.
Just say something like:
As such, I am prepared to conclude that X will be
guilty of Y. The law on point is clear and is
binding/of such persuasive value that I do not feel I
can or should depart from it...
Come down on one side or the other. Do not sit on the fence and
be wishy washy, if the point is finely balanced then say
something like:
It seems that this point could be properly argued for
either side, on balance however I believe that X is
the stronger argument because...(rational policy
reason or idea)
FINAL SUMMARY:
If there is more than one issue then you will have gone
through the IRAC process for each separate issue and then
will give a final conclusion of the argument as a whole.
At the very end, you may pick up bonus marks for
including the following:
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If you can do this successfully then you will get an A+ for this
part of the course, it is really just a combination of everything
we have been working on.
Example of IRAC Structure:
So your answer to a problem question should look like this:
--------------------------------Issue 1
Whether in law....
Relevant Law:
The first relevant case is A v B which was about...the rule that
the judge decided was XYZ.
However ns the recent House of Lords decision in C v D, the
judgment was that ZYX in such circumstances. This case was
concerning a situation where...
Application to the facts of this case
A v B is clearly on point and is dealing with very similar facts. I
am not convinced that the fact that the colour of the hat was
green can distinguish it from the present case. A v B is only of
HC authority however and as such is only of persuasive.
But with regard to judicial comity and not wanting to upset the
law without reason, I believe that the principal is good law and
can be applied to the current facts.
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Conclusion
Copyright 2011 www.GetIntoLaw.com
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Today:
From now the best thing you can do is hone your skills and keep
practicing on finding and using a ratio on any case/examples
provided. The most important thing is that you can find and
write a ratio from a given case. If you can do that then the very
worst grade I can imagine you getting is a B.
I will provide some advice and some more practical examples,
then next lesson I will discuss test prep.
Advice:
I said it at the start but it bears repeating, the cases you study in
class are of no value except for showing you how real judges
find and use a ratio.
Dont waste time trying to remember any of the cases or any
rule that may have developed over a series of cases. The actual
test and exam case should almost certainly cover a different area
of law.
Also dont be concerned if you dont understand the nuances of
certain rules, for example the Donoghue v Stevenson negligence
rule if you cover it. You will learn what it means next year when
you study torts, for now all you need to be able to do is find how
the judge explains it and repeat his logic onto new facts.
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As a rule of thumb, if you have been given 2-3 cases that cover
the same general principle, then the easiest way to work out the
ratio of the main case is to see how it is understood and used in
the following cases.
Ie) if the main cases references boats but you are not sure
if they make up part of the issue or are immaterial then
you can get a good hint if two similar cases dont cover
boats at all.
Take your time working out the issue, write down all the
material facts, think again if each is really necessary, and then
draft a few issues that cover all of those facts. I always would
spend the first 5-10mins drafting and making sure my issue (and
ratio) were watertight. Once you have both of those sorted then
there is very little to do but just write all the filler stuff for an
answer.
When you think you have the issue, ask yourself; does the result
of the case turn on the answer to this question? If yes, then
great! If not then you are covering obiter or there are more
issues.
I doubt you will be given a case that contains much (or any)
obiter, but remember; any discussion that doesnt solve the case
is obiter and not binding.
Practice:
<Note: Assault in tort (civil law) is a threat of violence; it
doesnt require harm>
-----------------------------------------------------Police v Greaves - [1964] NZLR 295
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The facts were these -- a Mrs Tolley who occupied with her
children a State house situate in Kowhai Street, Naenae, called
on the police for help after she had been attacked by the
respondent who also resided in the house.
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Questions:
Apply the law from above onto the following situations:
A)
I go into a bank waving a machine gun around and while
pointing it at the teller I say if you give me all the money and
dont call the police, I promise I wont harm you.
I then ride off into the sunset safe in the knowledge that I wont
be liable for Assault within the definition of s2 of the Crimes
Act 1961.
Am I correct?
B)
X and Z are brothers sitting in a park talking and making jokes.
As this is going on X makes a joke that really hurts Zs feelings.
In his anger Z balls his hands into a fist and looks X right in the
eyes. Z says If we were not family, I would kill you for saying
that.
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X is really scared and has gone to you for legal advice, advise
X.
Test Prep:
Today:
This is the last lesson in the common law section of the course.
The goal is to give you some advice for how to approach the
questions in a practical sense.
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Good luck, so long as you have been following along until now
then I am sure you will do fine.
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Advice:
I.
II.
But despite the above point, take it slow and draft your
issue and ratio. This is beyond important, read the exam
question carefully and really ask yourself what matters are
material.
III.
Then once the test starts, turn your answer book over and
draft your issue, keep doing this until you have one that
includes all of the material facts and will solve the case. I
would usually do about 3 drafts before I was happy and be
adding/removing material facts each time.
IV.
VI.
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V.
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Once your issue is sorted then you can begin the actual
test, be fast but logical. Spell out your thought process at
each stage to show logical connections. If the examiner
can follow your reasoning and sympathise with it you will
generally be fine.
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c)
In law, a person who goes into another persons property with
hostile or competitive intent can be considered a trespasser.
Because they are entering not as invited guests but as invaders.
In law, a person who is psychologically compelled to be
detained without criminal charge can claim for false
imprisonment even without physical restraint. Because a person
cannot have their freedom arbitrarily removed even without
force.
d)
Issue:
It was bluebell time in Auckland, and cricket at Eden Park was
the delight of all when this incident happened. The relevant
issue today is whether the tort of false imprisonment can be
claimed on a person compelled to go into detention at a store
office.
Relevant Law
The law on point here is Chaytor and Bird v Jones. I will
consider each in turn.
Chaytor comes from the supreme court of Newfoundland and is
thus not binding on any New Zealand court. However, given its
position I believe it is highly persuasive as an authority.
It could also be distinguished for being an older judgment.
However, if anything I believe that the rights to freedom that
Chaytor expresses have gotten stronger not weaker, it is this still
relevant.
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Besides this, the material facts are very similar. There is in this
case a reasonable suspicion of shoplifting, which was not
present in Chaytor but because nothing was charged or alleged
during the detention, I do not regard that as materially
significant enough that I should deviate.
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