Doctrine of precedent

Question 1

How can judges make law? (other than statutory interpretation)

Answer 1

Judges can make law by establishing precedents when determining cases. This can occur when there is no existing applicable law.

Question 2

What is the doctrine of precedent?

Answer 2

A precedent is the reasoning behind a court’s decision.

It establishes a legal principle or legal rule which can be used by judges to provide guidance when deciding future cases. A precedent established by a superior court in the same court hierarchy must be followed by judges and magistrates in lower courts when they are deciding future cases with similar material facts.

Question 3

What courts are able to set precedents?

Answer 3

Only superior courts (such as the High Court and Supreme Court) are able to set precedents and make law.

Question 4

What are the reasons for precedents?

Answer 4

helps ensure common law (or law made by the courts) is consistent and predictable.

• like cases are decided in a like manner. This enables the parties in a dispute to look back to previous cases to gain some idea of how a court might determine their case
• legal representatives are able to give advice on the likely outcome of a case, as they will have some understanding as to how the court may decide the case
• judges have some guidance, as they can refer back to previous cases and decide accordingly
  decisions made by more experienced judges in higher courts are followed in lower courts
• the same point is not being decided over and over again, which would be a waste of resources.

Question 5

Different types of precedents?

Answer 5

• binding precedent
• persuasive precedent

Question 6

What are binding precedents?

Answer 6

• A binding precedent is a precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts.
• For a precedent to be binding, it must be set by a superior court within the same court hierarchy.

Question 7

What does ratio decidendi and stare decisis mean?

Answer 7

• The binding part of a court judgment is commonly referred to using the Latin phrase ratio decidendi, meaning ‘the reason for the decision’. (statement that outlines decision and legal reasoning)
• It describes the process of lower courts following the decisions of higher courts. Stare decisis is a Latin phrase meaning ‘to stand by what has been decided’.

Question 8

What are persuasive precedents?

Answer 8

Persuasive precedents are precedents that are not binding on a court but may still be considered by a judge and used to influence their decision.

Question 9

What can persuasive precedents be?

Answer 9

Persuasive precedents may be:
* set by courts in another court hierarchy
* set by lower courts in the same court hierarchy
* set by courts of the same standing (highly persuasive to maintain consistency except High Ct)

Question 10

What are obiter dictum statements?

Answer 10

a Latin term meaning ‘ a thing said by the way’; comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are
not binding)

Question 11

Developing and avoiding precedents

Answer 11

When deciding cases, judges will consider precedents established in earlier cases. If a judge is not bound to follow the earlier precedent, they may decide to:
* adopt the precedent (follow or apply the precedent, in which case the precedent will be affirmed or have been considered favourably)
* choose not to follow the existing precedent.

Question 12

What are the other ways judges can treat previous precedents?

Answer 12

• reversing the precedent
• overruling the precedent
• distinguishing the precedent
• disapproving the precedent

Question 13

What is reversing the precedent?

Answer 13

When hearing a case on appeal from a lower court, a judge in a superior court may disagree with and decide to change the previously established precedent set by the lower court and create new precedent.

Question 14

What is overruling the precedent?

Answer 14

• A judge in a superior court may decide not to follow a previously established precedent set by a lower court in a different and earlier case and creates new precedent and makes the earlier precedent inapplicable from then on.

(similar to reversing but it is not done on appeal of the same case but when deciding a different case)

Question 15

What is distinguishing a precedent?

Answer 15

Where a judge avoids following an existing binding precedent as they found a difference between the material facts of the case they are deciding and the material facts in the case in which the existing
precedent was set.

Question 16

What is disapproving a precedent?

Answer 16

Two cases:
* Judges and magistrates in lower courts who are bound to follow precedents set by superior courts in the same hierarchy may express their dissatisfaction with the precedent. While this statement of discontent does not allow the lower court to avoid following the precedent, it may be used during an appeal to indicate the original judge’s dissatisfaction with the precedent or encourage parliament to change the law.

• Judges in courts of the same standing (who by convention rarely overrule precedents set by their own court) and judges in superior courts may also express their disapproval of an existing precedent rather than overruling it, preferring a more superior court or the parliament to change the law.

Question 17

Can juries set precedents?

Answer 17

No, precedents can only be set by Judges when a court is hearing an appeal (no jury) or in a case without jury.