1. The Doctrine of Precedent
Common Law
The Doctrine of Precedent

2. The Court Hierarchy High Court Supreme Court (Court of Appeal)
Australian Courts are organised into a hierarchy of importance . Courts lower in the hierarchy hear the less serious cases (and the majority of cases) and as the hierarchy progresses upwards , the courts become more superior as a reflection of the cases that they hear
High Court
Supreme Court
(Court of Appeal)
(Trial Division)
County Court
Magistrates’ Court
At this stage you need to be familiar with the notion of a court hierarchy, we will look at it in greater depth in Unit 4

3. Common Law We already know that law can be made via three methods:
Parliament
Courts
Subordinate Authorities
During A0S1 we looked at the role of Parliament in making laws (statute law/acts/legislation) now we will look at court made law, also known as common law.

4. Common law
Common law was developed in Britain in an attempt to consolidate judge’s decisions and make uniform laws across the various counties.
As a former British colony, Australia has adopted the common law approach within its own court system.

5. Common law
Judges’ primary role is to adjudicate cases and settle disputes --- making law is considered to be their secondary role (ancillary).
When judges make decisions the reason for their decision can set a precedent for subsequent cases. This is known as common law

6. Remember!!
Parliament is the Supreme Law Maker---- whilst the courts can (and do) make laws, it is not their primary function!

7. The ability of judges to make laws
Judges can make laws by:
Deciding on a new issue brought before them (or expanding on an existing precedent)
Statutory interpretation (interpreting the words of acts that are relevant to the case)

8. Judge’s ability to make laws--- limitations
• There are a number of restrictions on the law-making abilities of courts, including:
‣ Judges can only make law if there is a test case before them
‣ The position of the court in the hierarchy (only superior courts, or courts of record, where judgements are reported, can create precedent)
‣ The type of legal case and the mode of trial (only in cases on appeal or when hearing a civil case (i.e. cases with no jury))
‣ The personality of the judges (conservative judges = adjudicator, not law-maker; progressive judges = adjudicator and law-maker
‣ Judges may be bound by existing precedent

9. The operation of the doctrine of precedent
When a judge decides a case, they must give a reason for their decision.
This reason is called the ratio decidendi, or reason for the decision which becomes a statement of court-made law.

10. The operation of the doctrine of precedent
The doctrine of precedent refers to the process by which judges follow the reasons for the decisions given by courts higher in the court hierarchy when deciding on similar future cases.
This is also known as stare decisis which literally means ‘to stand by what has been decided’.

11. The Doctrine of Precedent
• There are two types of precedent:
1. Binding precedent
• Precedent that MUST be followed by a court when making a decision on a similar case. It is the ratio decidendi that forms the binding part of the precedent.
• Binding precedents are those that have been set by a decision of a higher court, which is binding on lower courts in the same hierarchy.

12. The doctrine of precedent
2. Persuasive precedent • Precedent that courts do not have to follow, but they may choose to do so for consistency. It is often highly influential in a court’s decision. • Might include a decision of a lower court in the same hierarchy, a decision from a court in a different hierarchy (another state or country), or obiter dictum statements

13. The Latin Stare decisis To stand by what has previously been decided
This is the underlying principle of the doctrine of precedent
Ratio Decidendi
Reason for the decision
It IS NOT the sentence or verdict
This is the binding part of the judgement in other case where the material facts are similar
All courts lower in the hierarchy must follow the precedent set
The ratio decidendi may be difficult to identify and may need to be inferred by other judges at a later date
Obiter dictum
Things said by the way
It is not binding
It can be persuasive on other cases

14. The doctrine of precedent
• When a case comes before a court, the judge must: ‣ investigate previous principles of law established in earlier cases that should be considered - these may be presented by trial lawyers or found by the judge. If there is no existing precedent, the judge may create a new precedent. ‣ determine whether existing precedent is binding or persuasive ‣ analyse the ratio decidendi and obiter dictumof relevant judgements ‣ decide which principles of law to follow

15. Consistency
The doctrine of precedent allows for consistency. This means that:
Lower courts simply apply relevant precedents
Consistency ensures equality
Legal representation can advise clients of probable outcomes

16. Flexibility
The doctrine of precedent may give the impression that once precedent is set by a court, it can never be changed or modified. This is not true. There are a number of approaches judges can use to ensure the common law avoids injustices and keeps pace with changing needs and values of society.

17. Reversing Overruling Distinguishing Disapproving
A judge in a higher court deciding a case on appeal may rule that the lower court wrongly decided the case, thus reversing the previous decision.
‣ RESULT: This creates a new precedent that is binding on lower courts.
Overruling
A judge deciding a case in a higher court may disagree with a precedent set in another case in a lower court. The superior court may then decide not to follow the existing persuasive precedent, and thus overrule it.
‣ RESULT: This creates a new precedent that is binding on lower courts
Distinguishing
‣ A judge may find that there are different material facts existing in a case being currently decided and a case in which an earlier binding precedent was set. If these differences are substantial enough, the latter court can distinguish its case from the previous one, creating a new precedent for the new, particular set of facts.
‣ RESULT: This creates two different precedents - one for each fact situation.
Disapproving
A judge may refuse to follow an earlier decision of another judge of the same court, expressing their disapproval and lack of agreement with the earlier decision.
Judges in a lower court can also (and often) express disapproval about a higher court’s precedent but they are bound to follow it.
‣ RESULT: Both precedents remain in force until the issue is taken to a higher court, overruling the previous decision and creating a new precedent.

18. OBITER DICTUM BINDING PRECEDENT STARE DECISIS REVERSING OVERRULING
PERSUSIVE PRECEDENT
RATIO DECIDENDI
OBITER DICTUM
BINDING PRECEDENT
STARE DECISIS
REVERSING
OVERRULING
DISTINGUISHING
DISAPPROVING

19. Evaluating Precedent Strengths
Consistency and fairness- all cases are treated equally and fairly by the courts as they are bound to adhere to the same principles. This should reduce the amount of appeals that need to be heard Certainty- by referring to previous court decisions, the legal profession can advise their clients of their legal standing and possible outcomes of a case

20. Evaluating Precedent Strengths
Growth in law- judges can make new laws in new areas of the legal system. ( eg Donoghue v. Stevenson) Flexibility- Judges can change the law in areas that have become outdated or make new laws in areas where there is no existing law. Efficiency of operation- Judges and lawyers can refer to previous cases in reaching their decisions. This ensures that judges are protected from professional criticism (if they had to consider each case afresh it would take longer to reach a decision)

21. Evaluating Precedent Weaknesses
Rigidity and inflexibility- the system of precedent binds courts to previous decisions. Judges tend to be reluctant to depart from outdated or inappropriate precedents. Lack of certainty- as no two cases are the same, a judge may distinguish a case from an existing precedent. Also, a judge may overrule, reverse or disapprove of an existing precedent– this may lead to uncertainty.

22. Evaluating Precedent Weaknesses
A change in the law is slow and irregular- the system is based on litigants bringing their case to the courts. Litigation is time consuming and expensive and therefore setting a precedent can be time consuming. In contrast, legislation can be enacted relatively quickly and inexpensively. Inefficiency- Since it relies on individuals bringing an action before the court, precedent can be accused of being an inefficient means of making or changing law. A great deal of time is required to find a relevant case and then extract the precedent. Further time is spent debating their applicability and relevance to the case before the court

23. Evaluating Precedent Weaknesses
Departing from long established precedents- Judges may be reluctant to alter a well-established precedent. This means outdated or unjust precedents may remain in place.