Chapter 12.4

Question 1

the way precedent effects law making

Answer 1

• consistency and predictability
• flexibility

Question 2

consistency and predictability

Answer 2

The doctrine of precedent creates consistency and predictability. A party that takes a case to court can look at past cases and anticipate how the law may apply to their situation. This gives them some idea of the outcome because similar cases are decided in a similar manner. This allows legal representatives to give advice to their clients on how a court may decide their case, as their may be similar cases with similar facts where a court has rule a particular way.

Question 3

limitation of the doctrine of precedent in relation to consistency and predictability

Answer 3

• the difficulty and cost involved in locating relevant precedents
• the difficulty in identifying the legal reasoning behind a decisions
• the difficulty in predicting future developments

Question 4

the difficulty and cost involved in locating relevant precedents

Answer 4

while parties and judges can refer to earlier precedents for guidance it can be difficult to locate precedents relevant to a particular case, due to the large number of cases that may have previously been decided in the particular area of law involved in the case. The large volume of existing precedents also means that finding a relevant precedent can be time consuming and costly. As well as this, judgements can be written in technical language, are long documents and their may be multiple reasons for their decisions, making it even more confusing

Question 5

the difficulty in identifying the legal reasoning behind a decision

Answer 5

identifying the legal reasoning behind a decision can be difficult when the precedent has been established in a court of appeal with 3 of more judges. In these cases, lawyers must look at the decisions from judges who decided in a similar way and formed the majority. Their may also be some conflicting authorities meaning there is more then one judgement on a particular issue, if this occurs the judge needs to decide which precedent is most appropriate.

Question 6

the difficulty in predicting future developments

Answer 6

precedents are able to be overruled later by a higher court. Particularly for older precedents it may be difficult to predict how the high court or court of appeal may treat the precedent in a new case.

Question 7

flexibility

Answer 7

The courts are able to make laws because of the doctrine of precedent allows for some flexibility. Through the process of reversing, overruling, distinguishing and disapproving, precedents change and develop over time to allow the gradual expansion of common law.

Question 8

factors that limit the doctrine of precedent in relation to flexability

Answer 8

• The doctrine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court
• Judges in superior courts may be reluctant to reverse or overrule existing precedents
• although superior courts aren’t bound to persausivr precedents they tend to not overrule them as they belive they are highly persausivr and accurate

Question 9

The doctrine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher courts

Answer 9

this may lead to an unjust outcome if courts are bound to follow an outdated precedent and the affected party cannot afford to pursue and appeal to a higher court.

Question 10

Judges in superior courts may be reluctant to reverse or overrule existing precedents

Answer 10

the supreme court of appeal or high court may be hesitant to reverse or override an existing precedent for many reasons which include a preference to leave the law making to parliament, which can investigate the need for law reform and reflect community views and values

Question 11

While not being technically bound by their own courts previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them

Answer 11

this is with the expectation of the high court, which may overrule its own decisions to allow the law to develop over time. Judges are not, however, bound to follow precedents from other court hierarchies or from lower courts in the same hierarchy.

Question 12

other ways the doctrine of precedent limits the ability of the courts to make law

Answer 12

• Judges must wait for a relevant case to be brought before them and only the superior courts can make law.
• Judges in superior courts are restricted to making law that is needed to clarify some issue or matter raised in the case before them.
• Judges make law ex post facto. As the doctrine of precedent only permits courts to make law when a dispute is brought before them, courts make and clarify the law after the event.
• parliament can always legislate to abrogate common law. This is because parliament is our supreme law-making body. This limits the ability of judges to make and change the law.

Question 13

ex post facto

Answer 13

a Latin term meaning ‘out of the aftermath’. A legal term used to describe a law that is established in relation to an event that has already taken place