Example Answers to Exam on Courts and Case Law

The High Court is staffed mainly by High Court Judges, assisted as necessary by experienced barristers sitting temporarily as Deputy High Court Judges. [1] The High Court consists of two Chief Judges, one in Penisular Malaysia and one in Sabah and Sarawak. The High Court is split into three Divisions, which are Queen’s Bench Division, Family Division, and Chancery Division. Although High Court Judges are appointed to just one the three Divisions, any High Court Judge has the same powers. The jurisdiction of the High Court is original, appellate and supervisory. In the exercise of its original jurisdiction, it has unlimited criminal and civil powers. Any civil matter which cannot be determined in the subordinate court is heard before the High Court. [2]

The Court of Appeal constitutes the President of the Court of Appeal and up to ten Court of Appeal Judges. The Court of Appeal has jurisdiction to hear and determine any appeal against by High Court decision on criminal matters. Where an appeal has been heard and disposed of by the Court of Appeal, the Court of Appeal has no power to review the case. In the other words, Court of Appeal has no power to re-open, re-hear nor to re-examine its decision for whatever purpose. This principle found in Lye Thai Sang & Anor.v.Faber Merlin (M) Sdn.Bhd. & Ors.19A.

Judicial Precedent refers to a judgment of a court of law cited as an authority for deciding a similar set of facts. [3] A case which serves as authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent. A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.

As for Mr. Justice Peter’s case, it is involved under the judicial precedent. When Mr Justice Peter refers to cases, he must be able to differentiate between parts of the case that is binding and not binding. There are two cases whereby Mr. Justice Peter can choose to not apply precendents in his judgement. If the earlier precedent is arrived at per incuriam, meaning made in ignorance of a stature or a binding precedent. Besides, where the case can be distinguished when he finds there are material differences in facts between his case and the case that laying down the precedent. If Mr Justice Peter did not find any material differences in the case, it means he is bound to the original precedent. However, if the decision made by the judge in the court of appeal is made under ignorance then Mr Justice Peter may not be able to apply the original precedent.

There are two circumstances whereby he can choose to not apply precendents in his judgement. First, ,a stature or a binding precedent will be ignored if the earlier precedent is arrived at per incuriam. Second, Mr Justice Peter can distinguish the case when he able to find there are material differences in facts between the case before him and case the laying down the precedent. If he did not find any material differences in the case, then he will just bound to the original precedent. However, Mr Justice Peter may be able to ignore the original precedent if the decision made by the judges in the courts of appeal is made under ignorance.

According to the hierarchy of the court, Mr. Justice Peter is bound with the decision that has been made by the other judge like Federal Court and Court of Appeal. This is because Mr. Justice Peter is a high court judge. The decision made by Federal Court and Court of Appeal must be followed because Mr. Justice Peter is in the lower court. He will be bound with the decision that has been made by the judge in the Court of Appeal since both cases have similar material facts. If he applies the existing law, he is practising declaratory precedent.

Hierarchy of the Courts

Federal Court

Court of Appeal

Court of Appeal

Court of Appeal

High Court (Malaysia)

High Court (Sabah Sarawak)

Syariah Court

Syariah Court

Native Court

Sessions Court

Juvenile Court

Sessions Court

Magistrates’ court

Juvenile Court

Magistrates’ Court

Penghulu’s Court

Question 1(b)

Definition of Case Law:

Case law which means reported the decisions for selected appellate and other courts, which named courts of first impression. It can make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. [4] Courts decide the law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided in the tradition of common law. For example, the High Court and the Court of Appeal are each bound by their own previous decisions, but neither the County Courts nor the Supreme Court.Case law is most often created by judges in their rulings, when they write their decisions. It also give the reasoning behind them, as well as citing precedents in other cases and statutes that had a bearing on their decision. [5]

How to make case law?

The different ways that court render decisions made are created by the difference roles of case law in civil and common law traditions. The legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles will be explained in detail by common law courts. An analysis called ratio decidend, will then constitutes a precedent binding on other courts. However, decisions in civil law jurisdictions are generally very short and referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases.

Strengths and Weaknesses of Case Law

Strengths

Flexible

There are no two cases are exactly the same. If the difference between the instant case and the precedent are material, the court in the instant case can distinguish the previous case. Judges can develop law without waiting for parliament to enact legislation. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations. In the other words, it is flexible to change society. Due to the reason of the difference in facts, the ratio decidend that was applied in the previous case is inapplicable to the instant case. Therefore, lawyers can predict outcome of case and advice clients.

Save cost and time

Judges may proceed faster while waiting for the Parliament to remedy or enact law in that certain area. The old and established issues do not have to be re-argued. This is because if the Parliament were to remedy or enact a law it might take months or even years which will increase the cost. In addition, it also save the expenses of court and reduces the Parliament’s burden in dealing with all matters regarding law as most cases are argued on the facts but not the law.

Consistent

Case law is law developed through appellate courts’ decisions of how law applies to facts and whether a set of facts constitutes some kind of legal wrong. [6] Courts may try to follow the previous case or similar case, which called stasis decidend or precedent and will only change when they see the facts as different requiring different outcomes. Therefore, consistency will be provided in the legal system, so that if have one situation that is like others, it should be viewed by the courts the same way. The society is treated equally because when a case law is used, everyone that is involved in the same case but at different time will have the same treatment as long as the original precedent is not overruled. This is important to give the system a sense of justice and to make the system acceptable to the public. [7]

Weaknesses

Low effectiveness

As judges will have to deal with many different types of cases where the volume of cases is constantly increasing, there will be too many case laws which make this very bulky and complex. Therefore, the judges and lawyers are compelled to engage in greater research which makes things very slow and expensive.

Restriction of law development

A case law is binding to lower courts and courts of the same level. Judges are bound to the law once created by a higher court until it is overruled by a higher court. It will create rigidity. It can be difficult to get the law change once courts establish a precedent. For example, it took over 50 years for the courts to change the law and decide that the idea of “separate but equal” laws regarding the races was wrong because things were never really equal and therefore were discriminatory.

Injustice

Over-ruling is A higher court can overrule a decision made in an earlier case by a lower court e.g., the Court of Appeal can overrule an earlier High Court decision. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. However, the decision in the previous case is not actually changed itself. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

Unconstitionality

At most of the time, judiciary are making law but not applying it. This is because there are too many similar cases reported in each year, making it difficult to match the precedent case that should be followed. Judiciary are lack of innovation cause they must begin in common law at some point judges.

Question 2

This is a case about offer, acceptance, revocation, withdrawal and counter offer between Steven and Tanny.

In this case, there was mentioned about an owner of instrument shop who named Steven, he was the offeror when he advertised on newspaper. Above his action known as invitation to treat. The offeree, Tanny was decided to reject Steven’s invitation to treat and make a new offer to Steven. However Steven rejected the offer, at the same time he had give Tanny a new offer with a time frame, and this known as counter offer. Although Tanny wish to accept the offer from Steven but he was too late due to the time frame given by Steven. This is known as revocation. A letter of acceptance was made by Tanny to Steven to propose a new offer. After a few days, Steven had receive the offer letter from Tanny and he can decide whether accept or reject.

On the 29 October 2010, Steven advertised in the New Focus Paper, “Yamaha Piano latest model, excellent condition, RM 15,000, interested please call 016 1234567. An advertistisement is usually an invitation to treat but it can be an offer, depending on its wording and on the circumstances this can refer to case Majunder v. Attorney- General of sarawak [8] , the Federal Court held that and advertisement in the newspaper for the post of a doctor was an invitation to treat. The advertisement was an invitation to treat, not an offer to sell: with limited stock the advertiser could not reasonably intend to be bound to sell to all those who might accept. In detail, invitations to treat (ITT) [9] is not a proposal but could be regarded as mere communication passed at the stage of negotiation.

The court can held that advertisement of bilateral and unilateral contracts. Bilateral contract is defined as offer something directly to a particular person such as cases like Boulton v. Jones [10] ,Partridge v Crittenden [11] and Rooke v. Dawson [12] . Whereas the unilateral contract is known as offer to anybody who are interested and the case of Carlil v. Carbolic Smoke Ball Company [13] is example unilateral contract. By refer to case of Carlil v. Carbolic Smoke Ball Company [14] , our case is clasify as an unilateral contract because it offer to anybody who are interested. Under Malaysia law, the price tag on an item displayed in a shop window (or advertised over public media) is an invitation-to-treat and not an offer of sale (the acceptance of which constitutes a contract). Moreover, it means an invitation to receive offers and the crucial factor to determine whether it is an offer or an ITT is the intention of the parties. An offer is an undertaking by the offeror to be contractually bound in the event of a proper acceptance by the offeree. Based on section 2 (a) of the Contract Act 1950 states that “when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or acceptance [15] , he is said to make a proposal.

On the 1st November 2010, after Tanny test the piano, he offered RM 10,000 to buy the piano. Based on section 4(1) of the Contracts Act 1950, it stated that an offer must be communicated. The offer is made by Tanny when it is clear by words or actions, which he is prepared to be bound as soon as the offer is accepted by the person to whom it is made. An offer is quite different from invitation to treat, thought it is not always easy to distinguish the two. This can refer to case Taylor v Laird [16] . Based on section 2(c), the person who making the proposal is called promisor or offeror which is refer to Tanny and the other party Steven which involved is an offeree. Then Steven said “I will not sell it below RM 14,000″, counter-offers occurs. Counter offer [17] is an offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract. Base on case study of Hyde v Wrench [18] . A counter offer is not an acceptance and actually kills the original offer RM10,000 which offered by Tanny. Hence, the offer for piano with RM 10,000 no more exists and replaced by RM 14,000.

Steven spoke out that “I will not sell it to anyone else before 7th November 2010 but Tanny remains silence because of exception that are mean silence cannot assume as acceptance and Steven is giving time frame. After 7th November 2010, Steven can sell the piano to his potential customers. In this situation, postal rule occurred, this is a postal rule and can refer to Adams v. Lindsell [19] case. In addition, postal rule is defined as a rule of contract law that makes an exception to the general rule that an acceptance is only created when communicated directly to the offeror. Therefore, the deal of piano will be considered close if Tanny did not reply to the Steven before 7th November 2010.

Tanny went to Australia for a few days and came back to Malaysia on the 7th of November 2010. The offer for RM 14,000 to purchase the piano was lapse upon expiration of the time prescribed in the proposal for its acceptance. Thus, this offer has been revoked as basically revocation [20] can occur by communication of notice, lapse of time, mental disorder/death of either parties, and failure of the acceptor to fulfill a condition precedent to acceptance. This can refer to case study of Daulia v Four Millbank Norminees [21] On the 8th November 2010, Tanny decided to post a letter accepting to buy the piano for RM 14,000. The offer of Steven had been withdrawn because it is over the time frame that Steven gave, and any purported acceptance after withdrawal is ineffective. This case is Routledge v Grant [22] .

On the 11th November 2010, Steven received the letter of acceptance from Tanny. In this case, Tanny makes the new offer to Steven because the previous offer from Steven has been expired. In this issue, Tanny is making new offer and he is the offeror and Steven is an offeree [23] . Hence, Steven can decide to accept or reject Tanny’s offer. In other words, a simple contract (that is, the contract made not under seal) requires an offer made by one party and accepted by the other, valuable consideration given by either side, and a common intention that the agreement should be legally binding. If Steven accepted the offer means that is an acceptance, no contract comes into existence until an offer is accepted and, in most cases, that acceptance is communicated to the offeror. For instance, refer to case study of Compagnie de Commerce v Parkinson Stove [24]