Doctrine of Precedent Flashcards
What are the 3 meanings of ‘common law?’
1) a type of legal system (vs civil law)
2) a source of law in Aus (with parliament/statute)
3) law developed by courts (alongside equity)
What are some characteristics of equity in common law?
- supplement for common law
- based on moral and good consciousness where common law did not provide a remedy
- separate doctrine and legal principles
What is the rule of law?
1) power should be exercised according to law, not based on arbitrariness or personal whim
2) all persons are subject to the law and that, before the law, all persons are equal
3) Emphasis on natural justice (eg, fair hearing, based upon evidence)
How do judges decide on cases?
1) identify they material facts presented
2) Consider the relevant law - precedents
3) apply law to facts and provide reasons for decision
What is precedent based on?
Stare decisis - let the decision stand
What does precedent support? (advantages/the rule of law)
certainty, equality, efficiency and appearance of justice (upholds rule of law/procedural fairness)
How does precedent support certainty?
helps arrange affairs with confidence knowing that it will be decided on a similar case in the past
How does precedent support equality?
like cases are treated alike
How does precedent support efficiency?
lower courts don’t have to spend time/resources in coming up with new reasonings
How does precedent support the appearance of justice?
By creating impartial rules not dependant on arbitrary or biased views creates impartiality, logical, reasoned judgements
What are the disadvantages of precedent?
retrospective rather than prospective;
passive nature of court can only produce new laws when litigated to high appellant levels;
undemocratic because of judicial tenure
The: ratio…
of decisions of higher courts in the same hierarchy are binding on all lower courts in that hierarchy
Is a decision from a different hierarchy binding?
No, it can be persuasive - as obiter dicta
Why is generalisation of ratio important?
it’s important in shaping precedent & common law because narrow vs wide generalisation of facts will change how many future cases will be applicable to this ratio
Generalisation levels of DvS: agent of harm
dead snail / any organic matter / any foreign element
Generalisation of DvS: vehicle of harm
Opaque bottle of ginger beer / opaque bottle of drink / any bottle of drink / any container of food or drink / any product
Generalisation of DvS: defendant
Manufacturer of goods distributed in coffee shops / any manufacturer / any person working with the object
Judicial techniques in avoiding precedent
distinguishing the facts; obiter dictum; previous case too wide; change in society/shouldn’t apply; wrongly decided/unsatisfactory; new legal question; use of rhetoric; appeal to common sense; policy consideration
DvS: Atkin on winterbottom, george, heaven and macpherson
w: distinguished as a matter of law (ginger beer is not a dangerous article)
g: facts are not directly similar but principles are (introduced 3rd party liability)
h: distinguished proximity -neighbour logic of more than physical proximity
m: used as obiter (US; common sense)
DvS Buckmaster on winterbottom, george, heaven and macpherson
w: applied, manufacturer not liable to 3rd party
g: disapproved, fraud cannot be substituted with negligence
h: distinguished, the case does not concern manufacture and sale
m: obiter, not ratio
Atkin’s policy reasoning?
moral/religious policy consideration: clear wrongdoing, moral violation
Buckemaster’s policy reasoning?
economic policy consideration: effect on the economy and production, a floodgate of litigation
What is the order of developing precedent in the equitable doctrine of unconscionable conduct?
Clark v Malpas, Blomley v Ryan, CBA v Amadio, Louth v Diprose
What does judicial conservatism mean?
Judicial role as a constrained role, to apply the law, not make the law, for the sake of uniformity, consistency and certainty even when inconvenient or unreasonable - Heydon J
What does judicial activism mean?
Judicial role with choice and flexibility, there are constraints but not purely mechanical/strict, a creative element to developing common law
When there are no precedents/settled principle, what are some of the judicial techniques?
1) refer to any legal authority and apply analogy to new circumstances
2) any applicable considerations of relevant legal principle
3) any considerations of legal policy
(also helps keep judicial activism/restraint in check)
How does deciding a case create constraints?
bound to follow a higher ratio in a case with similar facts
How does deciding a case create choice?
distinguishing the facts, obiter, change in society, wrongly decided
What circumstances are required for unconscionable conduct in clark v malpas?
one party is a serious disadvantage over the other, and the other party has taken advantage of that - poverty, sickness, age, lack of education/assistance
How did Blomley v Ryan develop unconscionable conduct principles?
applying existing rules to a new set of facts = rule develops; used clark as obiter, included intoxication as a circumstance of serious disadvantage
How did Amadio develop unconscionable conduct principles?
disability includes lack of understanding of terms (illiteracy and poor english), wilful ignorance from advantageous party. onus on the stronger party to prove fair transaction
Benefits of judicial activism
1) allows for a judge’s personal voice when statute law fails
2) allows the law to develop alongside society
3) keeps other branches of government in check
Cons of judicial activism
1) not consistent with the rule of law - arbitrary choice, inequality
2) lack of certainty
3) limits functioning of government
4) can be harmful if judgement is influenced by personal or selfish motives
5) repeated interventions can diminish trust in the system
Material facts of Clark v Malpas
old, sick, illiterate man
insanely low value sold for property vs its actual price, (grossly inadequate consideration)
circumstance of the transaction - vendor knew he was dying, conducted quickly and without advice
Material facts of Blomley v Ryan
old, failing intellect, drunk
grossly inadequate consideration
transaction executed quickly
lawyer was present but unaware of circumstances
Material facts of Amadio
elderly, poor english, illiterate
a belief induced by misrepresentation
wilful ignorance of stronger party knowing their misunderstanding
How did Louth v Diprose develop unconscionable conduct principles?
included emotional dependence as a special disadvantage which must be sufficiently evident to the stronger party
What is the paradox of precedent in terms of legitimacy and authority?
judicial constraint provides legitimacy and authority through continuity and stability of precedent
yet, juridical activism is needed for law to reflect society, otherwise courts lose legitimacy and authority; activism also provides legitimacy and authority
What are the perspectives of judgements in Louth v Diprose?
1) a hopeless romantic fool under manipulation from a calculating ‘damned whore’
2) a victimised single mother who stood equal to the hopeless romantic fool
3) unspoken perspective: sexual harassment and victim, takes account of social class, gender and power structure between the two
