Blb1114 Legal Research Methods For Assessment Answer

Answer:

Introduction

The constitution of Australia provides for a judicial system which is independent from the control of the parliament. However in order to maintain the balance of power the judges are limited to apply the law as it has been enacted by the parliament. They can only interpret a statue so that they are able to bring out the meaning which the parliament intended to provide[1]. The judges are also bound by the doctrine of precedents according to which they have to apply the decision provided by a judge of a higher court in cases having similar facts. In case the judges have a different belief as compared to statue or the precedent, they are bound to follow the provisions provided by a precedent or the statue ignoring personal belief. The doctrine of precedent and interpretation of statues not only ensures consistency, efficiency and apprehension of justice but also allows speedy trail of any case.

Discussion

The purpose of this paper is to discuss the preceding statement. In modern times the courts have to address several trials on a day to day basis. The fact that litigation is a lengthy and time consuming process cannot be denied. When a person opts for the process of litigation he has to go through several process before the actual trial takes place.  Even when the actual trail process takes place the application of available law to the facts takes a large a amount of time. The judges have the responsibility of ensuring justice[2]. They have the duty to apply the law enacted by the parliament to the facts of a case in order to provide justice to the parties. However the judges belong to different backgrounds and may have a different cultural or social belief from one another. Their perspective in relation to a case may thus differ from the existing legal statue or precedent. In case the judges are allowed to apply their personal  belief to the cases before them it would not only lead to inconsistency but also would result in delay of justice.

In cases where the judges ignore the applicable statue or a precedent which is binding on them through a higher court the decision off the judges are in most of the cases overturned in the process of appeal. The appellate courts also than has to spend extra time in order to prove that the law was not correctly applied by the lower court and apply the existing consistent law to the case. This process becomes all the more time consuming and acts as a hindrance in the speedy resolution of disputes. An effective legal system has to be consistent. An inconsistence system would create confusion among the public and make legal compliance all the more difficult for them.   It would not allow for any kind of predictability as similar cases would also be subjected to be treated in a different way. It will also not allow the legal practitioners to advice their clients about the outcomes of their cases as they might not get treated in the same way as another similar case. Only in situation which have not arised before and has come to existence because of the changing social and economical values and have no relevant law which could be applied to come to an appropriate solution or the existing law is not enough to decide the case properly can judges use their own knowledge and wisdom to decide a case and further lay a precedent for similar cases in the future.

Detriments of application

According to Branting the precedents provided by the judges of higher court are very long and it becomes very difficult for the judges to find the correct obiter and the ratio[3]. For example in the case of Ellis v GAM Steel (Ruling) [2017][4] taking place in the County court of Victoria Common Law Division Serious Injury list it was very difficult for the Justice O’Neill to interpret the long decision provided in the case of Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) which had similar facts as compared to the present case[5]. The case was related to an accident compensation claim and the judge had the duty to interpret the provision of Section 134AB of the Accident Compensation Act 1985 (Vic). Although the judge opted to follow a literal approach of statutory interpretation and the precedent provided by the higher court the conclusion made by the judge was not clear and it had a few hints of inequality to it.

Benefits of application

However, not all the time the judges face difficulties in applying the present law to cases having similar facts. In most of the cases an application of the precedent and literal meaning of a statue rather than that of the judges own knowledge have proved to provide just and speedy resolution of dispute. For example in the case of Maitre D Marketing Pty Ltd v. Patties Food Ltd [2016]  which took place in the County Court of Victoria Commercial Division General List[6]. In this case Justice Anderson had to determine the question relating to security for cost with respect to the misuse of trade secrets. In this case the judge successfully used the literal meaning of the civil procedure act and a decision provided b y the higher court in order to provide justice to the aggrieved party.

Conclusion

Thus it can be concluded through the above discussion that in most of the cases the application of the existing law provides a just resolution of the dispute as well as ensures that the case is solved quickly. There are also circumstances where it is not easy for the judges to apply the existing law as the application provides scope for inequality. At time it is difficult for the judges to ensure certainty, apprehension of justice, coherency and apprehension of justice together in a case. However the application of existing law keeps the legal system free from any Mala Fide intentions and corruption ensuring certainty and efficiency in justice. 

References

Branting, Luther. Reasoning with rules and precedents: a computational model of legal analysis. Springer Science & Business Media, 2013.

Ellis v GAM Steel (Ruling) [2017] VCC 16

Kronmüller, Edmundo, and Dale J. Barr. "Referential precedents in spoken language comprehension: a review and meta-analysis." Journal of Memory and Language 83 (2015): 1-19.

Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27

MacCormick, D. Neil, Robert S. Summers, and Arthur L. Goodhart, eds. Interpreting precedents: a comparative study. Routledge, 2016.

Maitre D Marketing Pty Ltd v. Patties Food Ltd [2016] VCC 1782 

[1] MacCormick, D. Neil, Robert S. Summers, and Arthur L. Goodhart, eds. Interpreting precedents: a comparative study. Routledge, 2016

[2] Kronmüller, Edmundo, and Dale J. Barr. "Referential precedents in spoken language comprehension: a review and meta-analysis." Journal of Memory and Language 83 (2015): 1-19. 

[3] Branting, Luther. Reasoning with rules and precedents: a computational model of legal analysis. Springer Science & Business Media, 2013.

[4] [2017] VCC 16

[5]  (2009) 42 VR 27

[6] [2016] VCC 1782