LEGAL TERMS

Some legal terms are pretty much common in any legal proceeding, I would say some precise principles followed in legal proceeding. Some legal terms established as common law precedents as a foundation.

Res Judicatae, Finality, Rule of Evidence, Natural justice, Miscarriage of justice, Anisminic presumption, Marbury principle, Chevron difference, Skidmore difference, Hickman principle, Wednesbury Unreasonableness, Want of Jurisdiction, Equity, Double Jeopardy .

On this page I have extracted some articles to read online only.

1. Res Judicatae [Issue Estoppel, abuse of process, functus officio, privity of interest, privity, exceptions, exceptional circumstance, as a defence/ second assessment, Theoretical and jurisprudential considerations, No Collateral Estoppel]. When a matter becomes subject to litigation, the parties are required to advance their whole case. Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error. This bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised reasonable diligence, and there may special circumstances to this rule, which the Court may take into consideration [Henderson v Henderson]. The doctrine of estoppel by res judicata has two principles: issue estoppel and cause of action estoppel. Each is defined below per the explanation in Arnold v National Westminster Bank plc: Issue estoppel – “…may arise when a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen the issues.” Cause of action estoppel – “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.” [The Yale Law Journal, Vol. 29, No. 4 (Feb., 1920)]; [Henderson v Henderson [1843] 3 Hare 100; Arnold v National Westminster Bank plc [1991] 2 AC 93; Johnson v Gore Wood & Co [2000] UKHL 65; Merrill Lynch Pierce and Fenner Inc v Raffa [2001] CP Rep 44; Ruttle Plant Hire Ltd v Secretary of State for the Environment, Food and Rural Afairs[2007] EWHC 1773 (TCC); Seele Austria GmbH Co v Tokio Marine Europe Insurance Limited [2009] EWHC 255; Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46; Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924; Gaydamak v Leviev [2014] EWHC 1167 (Ch); Olympic Airlines SA (in liquidation) v ACG Acquisition XX LLC [2014] EWCA Civ 821].
2. Rule Of Evidence.
3. Hepple, B., & B. A. H. (1969). Natural Justice. The Cambridge Law Journal, 27(1), 13-16. Retrieved from http://www.jstor.org/stable/4505268
4. Flick, G. (1978). The Opportunity to Controvert Adverse Testimony in Administrative Proceedings: A Search for Criteria. The University of Toronto Law Journal, 28(1), 1-24. doi:10.2307/825478
5. The Problematic Proviso: The Vice of Weiss Phillip Priest QC. [miscarriage of justice]
6. Deference by Stephen Gageler (2015) 22 AJ Admin L
7. Monaghan, H. (1983). "Marbury" and the Administrative State. Columbia Law Review, 83(1), 1-34. doi:10.2307/1122127
8. Anthony J Connolly and Daniel Stewart. (2015), Public Law in the Age of Statutes
9. Conscience and Unconscionability in English Equity By Richard Hedlund ;"Lord Walker in Pitt v Holt [2013] 2 WLR 1200 stated, in no uncertain terms, that the ‘evaluation of what is or would be unconscionable must be objective’. This underlines a clear recognition that equity’s conscience cannot be subjective. It cannot refer to either what the defendant personally might have thought, nor to what the judge in his absolute discretion might believe is right."

Journals about difference are aimed to know about principles derived from following case laws:

• Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, [1969] 2 WLR 163

• Marbury v. Madison, 5 U.S. 137 (1803)

• Chevron USA v. Natural Resources Defense Council, Inc; 467 U.S. 837

• Skidmore v. Swift & Co., 323 U.S. 134 (1944)

• R v Hickman [1945] HCA 53; (1945) 70 CLR 598. 

The three Hickman provisos : (a) That the decision was a bona fide attempt to exercise the power in question;

(b) the decision related to the subject matter of the legislation; and

(c) it was reasonably capable of reference to the power given to the body

• Whitmore v. Arkansas 495 U.S. 149 (1990)

Case law is a benchmark for the reason where court will not entertain the purpose of the proceeding.

• Associated Provincial Picture Houses Ltd v (Wednesbury Corporation) [1947] EWCA Civ 1; [1948] 1 KB 223

To have the right to intervene, the court would have to conclude that:

·       in making the decision, the defendant took into account factors that ought not to have been taken into account, or

·       the defendant failed to take into account factors that ought to have been taken into account, or

·       the decision was so unreasonable that no reasonable authority would ever consider imposing it.

The court held that the decision did not fall under any of these categories and the claim failed. As Lord Greene MR said (at 229),

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another." POLICE v ROGERS [2017] SASC 193. “The appellant raises only one ground of Appeal; a ground that is fundamental to any decision or ruling; INJUSTICE…. The appellant submits that the Magistrate erred on a point of law and that the appellant’s application for costs in the cause was appropriate in the circumstances. However, the Magistrate gave no weight to it at all and dismissed the application. The appellant felt that he was treated with contempt by the mere fact that such an application was made. Although the Magistrate’s decision was made in the exercise of discretion, his decision was “unreasonable” and “plainly unjust”, it created INJUSTICE. Principles of law have been established by the High Court of Australia concerning appeals against decisions made in the exercise of discretion. These principles are discussed in the case of House v The King 55CL409, at Page 505 by Justices Dixon, Evatt and McTiernan.“.... if upon the facts it is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong, has in fact occurred.”

• For Want of Jurisdictions court sometimes knowingly makes wrong judgment or dismisses a case for want of jurisdiction. It is also an established principles in court rules that court can "reconsider a matter" "renewing a claim" when there is no repetition of same subject matter.    
• [fiduciary relationship]; 'Fiduciary' includes a trustee under any trust, express, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public, or private, public officer, or any other person acting in a fiduciary capacity for any other person, trust, or estate."