NSW Does Local Court Create Common Law?

Discussion in 'Criminal Law Forum' started by Precedent2, 6 May 2018.

  1. Precedent2

    Precedent2 Active Member

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    Hi guys,

    Does the Local Court create common law, or is it that a precedent-setting decision is always made through an appeal to the Supreme Court?
     
  2. Tim W

    Tim W Lawyer
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    What is the background to your question?
     
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  3. Precedent2

    Precedent2 Active Member

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    G'day Tim, there is no background per se, I've just never come across a case where a precedent of law was set in the local court, not even the district court. I've only come across such cases in the supreme court, where a thorough argument has taken place to set the principle which might have originated at first instance in the local court.

    Do you know, though?
     
  4. Precedent2

    Precedent2 Active Member

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    ...if you mean some background thought then:

    Let's say that in a hypothetical case against the government, a summary case, originating in the local court, it is all one way for the defendant, so the government would need to change the law or rectify the loophole by addressing the failure which caused the defendant to win.

    So, they do that, easy enough, they have the statutory power, but they do that instead of arguing a case which will be all one way in an appeal to a higher jurisdiction.

    ...That means the precedent was set in the local court, but because the government change the law or close the loophole in some other way, the precedent is mortus est?

    I would be interested to learn how many summary cases have been like that, to observe how weak if not negligent the government have been in enacting such laws.
     
  5. Tim W

    Tim W Lawyer
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    Really?
    Nobody ever sits there and idly thinks, "I wonder if precedent can be set in the Local Court...?"

    Further, while I am happy to talk in generalities about any aspect of law
    (well, those I know a bit about, anyway...),
    I do try avoid speculating about hypotheticals - especially when they are
    • vague, over-general, and implausible; and/or
    • are written in the language of the Sovereign Citizens and Flat Earthers; and/or
    • quite likely to have an actual matter lurking in their back story.
    Ask us an actual question, and let's see how we go.
     
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  6. Precedent2

    Precedent2 Active Member

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    Yes, really, I actually just sat down and wondered how often government law drafters get it wrong. Consider how often you identify the government getting something wrong, whether it be in planning, or overlooking such a simple thing as population growth in Eastern cities — then as someone with an interest in the law, you wonder how often they’re getting the legislation wrong in drafting, which would show up in the local court because that would be its first interaction in summary cases.

    I appreciate your input, but understand that a hypothetical situation does not make it the easiest to discuss. Local court decisions are not published, are they?
     
  7. Tim W

    Tim W Lawyer
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    Well for one thing, if you're using the word "summary",
    then you're talking about the criminal jurisdiction.

    The outcomes of criminal trials (and certainly not summary proceedings)
    do not accrue into a body of precedent
    in the same way that civil matters can.
    Which is not to say that there are not technical aids such as guideline judgements,
    nor does it preclude outcomes for offences of similar character and gravity attracting similar penalties.
    Thing is, imposing a correct and appropriate criminal penalty, even in the summary jurisdiction,
    involves careful judicial consideration of the facts and circumstances of the offence,
    and of the offender.

    How often do "they" get it wrong? Almost never.
    And certainly not as often as the shock jocks and Liberal MPs would have you believe.
     
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  8. Precedent2

    Precedent2 Active Member

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    Okay Tim, thanks for all that, but I would have also accepted the following:

    Jump over to the CaseLaw website and in the search function simply check the 'Local Court' box for a list of recent local court decisions -- justice must be seen to be done!
     
  9. Tim W

    Tim W Lawyer
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    Except that would not have been an answer to the question that you asked....
     
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  10. Precedent2

    Precedent2 Active Member

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    You had answered my original question very well, I think. I was referring to the most recent:
    One more thing: Do you know who represents the RMS in court for actions to recover speeding, parking fines, etc?
     
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