Mooting - Distinguishing cases

[Angel45]

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Hey guys,

Just a quick question. Say you can only find a case which seriously doesn’t help ur side, and in fact supports the other side’s case…even if you can distinguish it from the facts, or say the Crt isn’t bound etc, do u have to offer an alternative? Coz I can just say "we submit blah blah" to suit my case, but it’s not based on any authority coz I can't find anything else on it! What to do, what to do…thought maybe someone knows what happens then

Thank you all!!

[MoonlightSonata]

1. Definitely distinguish it on its facts.
2. Check to see if it has been followed (How many times? Has it been applied in the court you are in? Has it been overruled?)
3. If it is not an Australian case, point out that it is not binding.
4. If it is really old, say so (unless it is from the High Court).
5. If you want to challenge it, raise any dissenting judgments in the case.

Ideally you want to argue that the case is not applicable at all. As to whether you raise the case or let your opponents raise it, I suggest raising it so as to prevent them framing the issue. Better to disarm them before they even get off the ground.

[Rorix]

Originally Posted by Angel45

Hey guys,

Just a quick question. Say you can only find a case which seriously doesn’t help ur side, and in fact supports the other side’s case…even if you can distinguish it from the facts, or say the Crt isn’t bound etc, do u have to offer an alternative?

No, you don't have to, although if it is close enough to the facts that you are this worried about it it sounds like it would be quite persuasive. I'd be quite suprised that in the multitude of cases out there, you cannot find any authority to support your argument given that moot questions usually arent written to be too one-sided.

As Moonlight pointed out, the extent to which a decision has been followed within the juristiction can greatly strengthen or weaken an argument that the said case was wrongly decided.

[Angel45]

Thanks guys!! I understand betta now.. u've made it clearer!!

It's just the case i've found is about negligence under the encroachment of buildings act and it helps the appellant in saying it is negligence....but I need to say it's not negligent... so I can distinguish the case...well it's really only obiter on what negligence means under this Act..but in terms of saying "no it's not negligence" pretty much it'd just be me saying what I think/why I think it isn't negligence coz nothing holds or suggests that it isn't negligence...therefore nothing's in the respondant's favour...only like common sense...

not sure if that makes sense :S any more gr8 insight would be tops

thank heaps

[MoonlightSonata]

I'm not sure of the specific details of your problem question, but you should consider whether the authority should be confined to matters dealing with that statute.

That is, the statute may alter the context of the court's findings on negligence, so that in situations where the act does not apply that authority may not be relevant or applicable.

[Rorix]

I am presuming you mean 'negligent' in the sense of a failure to take reasonable care, and not all the elements of the tort of negligence...

if so, as Moonlight has said the finding may be restricted to that statute alone...interpretation of the statute can alter what the court holds reasonable care in the circumstances to be. I'm not familiar with the act so I can't say much more.

secondly, as in all negligence cases whether or not reasonable care was taken is a factual issue determined in all the circumstances. See, e.g. Vairy v Wyong Shire Council where the HCA made it clear that Nagle v Rottnest Island Authority, although factually similar to Vairy, was not authority that in all cases similar to Nagle there was a duty to warn, but rather that it was a decision on the facts of the case. However, the common sense view would suggest that you should identify why your case is different to the case you're referring to and why that makes what would otherwise be a failure to take reasonable care, as found in the case, into something which is taking reasonable care in the circumstances...

[Angel45]

Thank you all for your help.