It is difficult to overemphasise the importance of cases in your preparation for the exam. Certainly answering practice exams and questions will highlight what areas of content knowledge you are lacking in. But my question to students is, ‘how many cases do you really know?’
Knowing a case well will enable you to apply it to the questions which require a detailed description or explanation. Knowing a case well can help to explain how judge made law operates in our legal system. Cases are often precedent.
Whilst knowing a case for statutory interpretation type questions is useful, it rarely is worth more than 2-4 marks. Be careful with this. Case law is best left to appeal or landmark cases where 6-10 marks are on the table. And you need to not only know the case well, but be able to show how it was made to stand out from others in that area of the law.
The Beazer text works well with this type of content. There are many cases used and they are in context. You should start your case list now and make sure these are the cases you will use in the exam.
Whilst we have no idea what is on the exam, we can look to past exams and examiner comments for a guide as what to expect. Be prepared for a High Court case because it is in the study design. Check the tab above for some information on the Commonwealth v State of Tasmania 1983. To use this case requires a deep understanding of both the Commonwealth Constitution and how the High Court interprets it. Why was the Tasmanian Dam case such a landmark case in our history?
Often an 8-10 mark question will require a couple of examples to help complete your argument or discussion. It is better to really know a couple of cases well than to merely cite 4 cases and not gain any marks for their usage. An example of this could be in the way that courts use flexibility in their application of the doctrine of precedent. Lets use a case to explain that flexibility and add this as a strength of the courts in law making:
Whilst courts are bound to follow precedent from superior courts in the same hierarchy, there are cases that can distinguish differences from that existing rule. Judges look for differences in the material facts of the case that is before them. If there are distinguishing differences, they have the ability to create new precedent in that area of the law.
This ability to distinguish a case is a powerful tool of our courts and allows for changes in society, technology or other factors to be realised. Davies v Waldron 1989 was such an example. Lawyers for the accused argued the previous precedent of Gillard v Wenburn related to their case and should be followed. The precedent from Gillard established a person asleep in a motor vehicle with the engine running was not guilty of trying to drive the vehicle. The Justice however, distinguished this new case as the accused was found trying to start the vehicle and was thus capable therefore of driving it.
Here I have used one case to illustrate flexibility and at the time, this slight distinguishing of facts meant many potential offenders of driving under the influence of alcohol had a defence taken away from them. It was a landmark case. It came from a court lower in the court hierarchy.
Good luck with your revision. I hope my small piece of advice prompts you to get into case law. I myself personally love it and love reading student’s responses with it in SACs. It shows a deeper understanding and application of our legal principles. After all, isn’t that what you enrolled to do?
Peter F Hughes
Woomelang, Vic 17/10/2017