Majority/minority judgements (1 Viewer)

[-pari-]

i'm slightly confused...about the concept of majority/minority judgments...and was hoping someone could explain it?

i know its a very broad and vague question, which is only a reflection just how little i understand it...

how are u meant to use the different judgments in a problem question where you are given a scenario and asked to assess a certain person's liability...?

any help n glarification would be appreciated.

 

[Marmalade.]

The majority judgments are the ones that you can use. The ones that are identified as "dissents" aren't really useful in a problem question because it's not precedent, but can be brought up in essays.

When there are 5 judgments not identified as majority/minority, determine it by whether they accept/dismiss the appeal.

Be aware that in some cases, although there are multiple majority judgments, the focus may be on one of them because they formulate the test or are otherwise more useful.

 

[hYperTrOphY]

Just to add to Marmalade's comments:

Even in a case where all 5 judges agree as to the outcome, you could still have majority and minority judgments. Just because they have all arrived at the same conclusion, does not mean that they all took the same path. The majority will be the the application of a specific test / approach which was adopted by a majority of judges.

Sometimes there will be no majority or minority: they all decide the case differently.

I would be careful in asserting that dissenting judgments are not useful. First, they can provide handy submissions for arguing the alternative view in a problem question; and second, many dissenting judgments have since been adopted as good law.

 

[Lazarus]

I'm inclined to agree with hYperTrOphY.

In a problem question, if there is a minority judgment which is directly on point, you should always refer to it after you've dealt with the position of the majority. You don't need much, just a sentence or two to show you're aware of it - otherwise the marker doesn't have any evidence that you know about it.

If the judgment is of a state or federal court lower than the High Court, you can also point out that it would be open to X to take his or her case to the High Court (or other appellate court) and argue that the majority should be overruled.

If it's a judgment where there's really no clear majority at all, or they're all saying slightly different things - e.g. estoppel in Cth v Verwayen - then you should very briefly state what each judge or justice held and express a 'preferred view' at the end.

 

[Marmalade.]

I don't disagree with any of what you've said, but in an exam, you hardly have time to discuss every single judges slightly different viewpoint. You can't say that you should ALWAYS do something. It really depends on what's most relevant, taking into account time contraints.

 

[circusmind]

I don't disagree with any of what you've said, but in an exam, you hardly have time to discuss every single judges slightly different viewpoint. You can't say that you should ALWAYS do something. It really depends on what's most relevant, taking into account time contraints.

I've found that often, where there is a crucial case in which the majority judgment is splintered into several different approaches, the lecturer or tutor will clarify what is expected in an exam. Often there is one judgment which is the most compelling, or commentators have found a way in which the differing approaches can be reconciled, etc. In one of the crim cases we did, we were told to quite literally apply each of three different tests in an exam context if necessary. (Royale?)

I think it's a good idea to take note of dissenting judgments. Great for essays, and sometimes in problems as well. Especially if there is a line of dissents in a particular area, the lecturer might write a problem in which the facts seem to fit more reasonably with an approach taken in a dissenting judgment. You get mad kudos for first applying the law as it is, and secondly suggesting that were this matter to go to the HCA, they may well decide to take the dissenting approach.

 

[Strawbaby]

Yes, dissents can be great in both essays and hypotheticals. If a particular concept/test/rule has been heavily criticised in lower/other courts and maybe was only hesistantly accepted in the first place, if the courts' approach to the problem has changed since then, and especially if there are conceptual or practical problems with it, you have a good case to put forward for the idea that the law might be changed to be in line with the dissent if it goes to the HCA. It's not unusual for a dissent to become good law eventually. Just remember to apply the accepted law first.

 

[Marmalade.]

Can someone tell me, for Magistrates, they're not referred to as "Surname J" are they? What are they called instead?

 

[amaccas]

Can someone tell me, for Magistrates, they're not referred to as "Surname J" are they? What are they called instead?

Guidance on addressing and corresponding with Magistrates of the Local Court of New South Wales

The following information is provided as assistance to solicitors, barristers and members of the public.

<table width="100%" border="1"> <tbody><tr valign="top"><td width="50%">In Court</td><td width="50%">In Correspondence or outside court</td></tr> <tr valign="top"><td width="50%">'Your Honour'</td><td width="50%">In written correspondence "Dear Magistrate....." or outside Court 'Magistrate.......'
</td></tr> </tbody></table>
Correspondence to the Chief Magistrate would normally be addressed as "Dear Chief Magistrate".

 

[Xytech]

lol, i think Marmalade means more for quoting them for exams, not writing to them

 

[Lazarus]

You can use "Magistrate Smith" or for a federal magistrate you can abbreviate it to "Smith FM".