Unit 3 Area of Study 3. Key knowledge : The ability of judges and courts to make law The operation of the doctrine of precedent Reasons for interpretation of statutes by judges E ffects of statutory interpretation by judges Strengths and weaknesses of law-making through the courts
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Australia, as a colony of England, followed the principles of common law developed in England.
One of these principles is that reasons for decisions, made by Higher Courts, will be binding on lower courts in the same hierarchy.
In other words, lower courts, in the same hierarchy, must apply the same reasons for decisions, when dealing with similar cases, as those applied by higher courts , in earlier decisions.
This principle is called ‘Stare Decisis’ . This means literally ‘to stand by what has been decided’ and it is at the heart of the doctrine of precedent.
In order for the doctrine of precedent to work there needs to be a court hierarchy (an order of importance) from the most superior to inferior courts.
The High Court is a Federal Court and it’s the Highest Court in Australia.
The decisions of the High Court are binding on each of the state court hierarchies.
Court of Appeal
The High Court, The Supreme Court and the Court of Appeal are known as Superior Courts of record because the reasons for the decisions in the court cases that come before them are recorded for future reference.
It is these courts which create common law .
What is common Law?
Common law is law developed through the courts. It is also known as case law or judge-made law.
Restrictions on Judges’ ability to make law; Judges and courts can only make law if:
- a case is brought before them.
- If there is no previous binding decision already established by a higher court in the same hierarchy (novel case)
The judges look at past decisions to guide them; they look at the reasons behind the decision in past cases for guidance when deciding new cases.
When a new situation arises and is decided on a precedent is created.
What is a precedent?
A precedent is the reasoning behind a court decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar.
The main reasons for applying precedent is to create consistency and predictability within the legal system, as like cases are decided in a like manner.
This in turn gives us confidence in our legal system and we feel justice is being done.
Circuit judges began to record the reasons for their decisions, when resolving disputes, over time. These records of decisions were referred to again and again by the judges as they resolve disputes across the country and they formed the first common law.
As a colony of Britain Australia adopted the same common law
Stare Decisis- literally means to stand by what has been decided; the process of lower courts following the decision of higher courts
Precedent is the reasoning behind a judge’s decisionthat establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar
So decisions of the Higher (superior) courts in the hierarchy, can be followed by lower (inferior) courts.
Courts are reactive; they can only make common law when a case (a dispute to resolve) is brought before them.
Also they can only make common law if there is no previous binding decision already established by a higher court in the same hierarchy (novel case)
The High Court, Supreme Court and Court of Appeal only can make law.
These courts record the judgments of courts at the end of a case, and it is in the judgment that the ratio decidendi is stated.
It is NOT the decision, or the sanction or the remedy, but the reason for the decision, which is then regarded as a statement of law to be applied in the future.
2. What are ‘material facts’ p 194
3. Which parts of a decision are not part of the reason for the ratio?
4. How can the ratio decidendi of a case be found when there is more than one judge? P 194
Literally means ‘things said by the way’
A judge’s statement or comment, made in his/her judgment, that is not part of the ratio decidendi(precedent) but may be used as a persuasive argument in later cases.
EgHedley Burne v Heller (1964) p 198, the obiter comments were used as persuasive precedent in the Shaddock case (1981) p 193
Donoghue v Stevenson (1932) p196
Grant v Australian Knitting Mills (1936) p 197
The British case Donoghue v Stevenson was used as persuasive precedent for theAustralian case Grant v Australian Knitting Mills , which established the law of negligence in Australia.
Why was it persuasive precedent and not binding precedent?
Are the facts which affect the outcome of the case and are vital to the reason for the decision.
3. The Obiter dictum comments are not part of the reason for he decision.
4. Where there are more than one judges involved in the decision eg The High Court, where there can be 5-7 justces, then if a unanimous decision is not made then the precedent created is that of the majority.
Ratio Decidendi- Pinkstone v R (2004) p194
2. Development of the common law of negligence:
Read the two cases: Donoghue v Stevenson
(1932) and Grant v the Australian Knitting Mills
b. Explain why the Donoghue case was used as a
c. Read the two cases Hedley Byrne v Heller (UK)
(p 198) and Shaddock (Aust)(p 193).
d. How did these two cases develop the law of
e. Which obiter dictum comments did the Hedley
Byrne case follow?
Ways judges can develop precedent or avoid following an earlier decision (precedent).
Distinguishing a previous precedent
Where there is a binding precedent, a lower court may avoid using the precedent established by a higher court if it finds a significant difference in the material facts of the original case and the case currently being considered.
The precedent is not followed because the judge can distinguish the new case from the previous one.
In this way the lower court can avoid using the set precedent.
Involves one case.
When a case is heard on appeal, a higher court may disagree with the legal principle applied by the lower which first heard the case. The original decision is reversedand a new precedent is created by the superior court to apply to these material facts in future cases.
When a superior court decides not to follow an earlier precedent established by a lower court in a different case, but with similar material facts.
The superior court will overrule the previous precedent.
It can do this because it is not bound by precedents created in lower courts. When a precedent is overruled, the new ratio decidendi from the latest case becomes the precedent to follow in the
future. New precedent is set.
Two different cases.
When a court disapproves a precedent established by another court at the same level, then a new precedent is established. Both precedents remain in force until another case on the issue is taken to a higher court can overrule the previous decision and create a new precedent.
In the case of a lower court disapproving of a precedent established by a higher court in the same hierarchy, then the original precedent is followed, but reluctantly. All the judge can do is apply the old precedent, but in their obiter comments explain their disapproval of the precedent.
Distinguishing a previous precedent
Gillard v Wenbon
The judge in the Davies v. Waldron (1989) case was able to distinguish between the facts of the case from Gillard v. Wenborn
The High Court overruled its previous precedent set in 1997, (allowing a party to adjourn (delay) a trial in order to make a substantial amendment to its case, as long as it paid some of the other party’s costs).
In the Studded Belt Case (Deingv Tarola1992) a 20yr old man was apprehended by police at McDonalds. He was wearing a black leather belt. The belt had raised studs. He was charged with an offence under S6 of the Control of Weapons Act 1990 (Vic)
His case was heard in the Magistrates’ Court and he was found guilt , as it fitted the description of one of the weapons listed in the Control of Weapons Regulations 1990.
In Obiter statements the judge stated his disapproval of the old common law, but even so, was reluctant to change the law as he felt law- making should be left to Parliament.
Different areas of law often develop through a combination of common law and statute law. If parliament have yet to legislate in a particular area of law, the courts are left to decide such legal issues on a case by case basis (example: the rights of transgender people). In resolving such disputes in court, judges will make decisions (precedents) that will then be used to guide decisions in future cases. Also these precedents and obiter statements can guide parliament about future statute law.
Development of law of negligent advice