sac1B

• precedent


  a reported judgement (court decision) that establishes a point of law that should be followed by courts in later cases where the material facts are similar
• types of precedent


  binding & persuasive
• precedents established through ...

  statutory interpretation & test cases
• judgements (written records outlining the case and decision made) contain the most important parts required to help judges apply precedent:

  • the facts of the case
  • reason for the decision (ratio decidendi)
• ratio decidendi


  reason for the decision
• doctrine of precedent

  • a system used by the courts to ensure similar cases with similar fact situations are dealt with consistently by law
  • ensures consistency, fairness, social cohesion and predictability, as parties can anticipate how courts will apply the law to their dispute by looking at how past cases of a similar nature were decided
  • this in turn ensures the community / public has faith in the legal system and it’s processes
• judges can only make law if

  
  

  • needs to be a test case
  • a case comes before them
  • heard by a superior court of record
  • judge prepared to be a law-maker
  • parties prepared for uncertain outcome
• how / when do courts make law

  • courts are not free to make laws where they see fit, but in resolving disputes that come before them, decisions must be made and new legal decisions form precedent / common law
  • sometimes a judge may refuse to make new law in order to encourage Plt to make a law
  • in accordance with the SoP, decisions made by courts are not influenced by the legislature and executive
  • however, should the legislature disagree with a decision, they have the power to write a law which abrogates / overrides the decision of the court
• stare decisis (rules)

  • “let the decision stand”, or to stand by what has been decided
  • precedent can only be set by a higher court (commonly using Appellate jurisdiction)- courts of superior record
  • lower courts are bound by decision in higher courts in the same hierarchy
  • decisions of courts at the same level are not binding
• obiter dictum

  • “things said by the way”
  • rather than parts of judgement relating to the reasons for deciding, judges can add extra comments for how they would rule if the material facts were different
  • obiter dictum can never be part of a binding precedent, but may be persuasive for courts in lower cases with different facts/scenarios or questions of law that need clarified
• reasons for precedent

  • like cases decided in the same manner - parties can predict how a court may decide their case
  • legal representatives can give advice on likely outcomes
  • judges have guidance and reference back to previous cases
  • when referring to previous judgements, the lower court judges are referring to experts
  • same legal points are not being decided over and over (saving court resources)
• statutory interpretation


  the process by which judges give meaning to the words or phrases in an Act of Parliament so it can be applied to resolve the case before them
• reasons for statutory interpretation

  resolving issues that occur during/arise from the drafting process & resolving issues that occur when applying the law to a case
• resolving issues that occur during/arise from the drafting process

  • mistakes can occur during drafting
  • the act may not have taken future circumstances into account
  • the intention of the act may not have been clearly expressed
• resolving issues that occur when applying the law to a case

  • most legislation is drafted in general terms
  • act may have become out of date and no longer reflects the views & values of the community
  • meaning of the words may be ambiguous
  • act may be silent on an issue, and the courts may need to fill the gaps in legislation
  • meaning of words can change over time
• effects of Statutory Interpretation

  • the word / phrases contained in the disputed legislation are given meaning
  • court’s decision on the meaning of the legislation is binding on the parties
  • a precedent may be set for future cases to follow
  • the meaning of the legislation (law) can be restrained / expanded
• statutory interpretation broadening/narrowing meaning

  narrowing - may limit the range of circumstances that the Act may apply to (eg. studded belt not considered a weapon)

  broadening - may extend the range of circumstances that the Act may apply to (eg. external affairs broadened law-making power to areas of international treaties)
• binding precedent


  a precedent / legal reasoning that must be followed by all lower courts in the same court hierarchy when presented with a case with similar material facts
• how binding precedent works

  • superior court decisions are binding on inferior courts
  • similar material facts
  • a decision of a superior court remains law until it is overruled by a higher court or the law is altered by an Act of Plt
• persuasive precedent


  if the facts are similar enough, the precedent may be considered influential, and once applied, becomes binding for that hierarchy
• where persuasive precedent comes from

  • another court hierarchy / jurisdiction
  • lower court
  • court of equal standing
  • after the fact decisions (obiter dictum)
  • EXCEPTION IN THE HIGH CRT : high court will not follow this precedent if they believe the precedent is outdated
• flexibility of precedents

  • courts are often required to consider precedents when deciding cases
  • as they may RODD or apply precedents, this allows common law to evolve over time
  • when courts apply precedents, this can involve broadening / narrowing the application of the precedent (over time, common law expands)
• RODD


  reversing, overruling, disapproving, distinguishing a precedent
• reversing a precedent


  when a decision is appealed, the superior court could change the original decision

  it relates to the same case in an appeal court, where a new precedent is created and the old decision is no longer valid
• overruling a precedent


  when a superior court does not follow a precedent created by a lower court in a different case, it can overrule the precedent

  this creates a new precedent and makes the earlier precedent inapplicable
• distinguishing a precedent


  a judge can avoid following a precedent where the material facts of their case are different to the case that created the precedent
• disapproving a precedent


  when a court expresses its dissatisfaction with an existing precedent

  if that precedent is binding, the court still has to follow it

  however, the disapproval could encourage Plt to review the relevant law, or encourage a party in the case to lodge an appeal
• strengths of DoP

  • like cases decided in a like manner, promoting consistency and predictability
  • judges can get guidance as to the decisions they ought to make
  • legal representatives can give advice to clients on the likely outcome of a case
  • decisions made by experienced judges in superior courts are followed in lower courts
• strengths of DoP

  • resources are not wasted arguing the same issues over and over again
  • there is flexibility in RODD, which can help keep law relevant and developing values
  • laws can be expanded and narrowed as appropriate through statutory interpretation, also keeping the law relevant and developing with community values
• weaknesses of DoP

  • identifying relevant precedents (can be hard to find a relevant precedent or to identify the ratio decidendi of a precedent
  • cost of finding relevant precedents (as legal reps do this, it costs time and money)
  • the existence of conflicting precedents also creates challenges (dissenting judges and multiple judgements in courts at the same level can be confusing to navigate, so judge may need to decide which precedent to follow which undermines predictability)
• weaknesses of DoP

  • where a court is faced with a binding precedent, it has no choice but to follow it (may lead to outdated / unfair outcomes)
  • judges can be reluctant to reverse or overrule earlier decisions or even disapprove of other decisions (may be conservative and prefer Plt to do their job and reflect community values)
• weaknesses of DoP

  • judges must be in a superior court of record and wait for a case to come before them from someone with standing and resources
  • plt can override court made law by legislating, to reflect their status as supreme law-maker
  • judges may law ex post facto or after the event (they cannot be proactive in changing or updating the law)
• judicial conservatism


  the idea that courts / judges can or should show restraint or caution when making decisions that could lead to significant changes in the law