In the medical negligence case Harriton v Stephens1 there appears to be two very different views on how the law should be applied to come to a decision.
I would decide the case incomplete on policy grounds, the common law or any(prenominal) adaptation of it, the law of former(a) jurisdictions, nor on the basis of other cases in Australian jurisdictions so far decided, none of which atomic number 18 sufficiently similar to this case to assist in resolve it, but on logic”. 2
“The life of level-headed systems derived from the common law of England has not been fashioned by logic alone. It is the product of experience, judgment and opinion offered by the judges…………. To prevail logic alone would be to defy the wisdom of the law in responding to a novel problem.”3
To decide who is go under in their approach to how the law should be decided. A apprise look at the purpose of the Judiciary is needed as well as consideration given to Justice McHughs recommendations for discriminatory method. The issue of Precedence is also applicable to this argument.
It is by feel at these four issues that it becomes apparent, that both judges, judicial method or “style” are not so much typeset or incorrect, but in fact acceptable methods of applying law.
The role of the Judiciary can be outlined by the statement “A judicial decision must be a reasoned decision arrived at by finding the relevant facts and by applying the relevant legal rule or article of belief”.4 This statement should be remembered when considering the role of Judges and the Court and the mind as to whether the judicial method of Justices Callinan and Kirby are correct.
In his wrangle given at the 1998 Australian Bar Association Conference, The goodish Justice M H McHugh had this to say on judicial method. Judicial method must serve...If you want to get a full essay, order it on our website: Orderessay
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