Doctrine of Precedent

Question 1

What are the 3 meanings of ‘common law?’

Answer 1

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)

Question 2

What are some characteristics of equity in common law?

Answer 2

• supplement for common law
• based on moral and good consciousness where common law did not provide a remedy
• separate doctrine and legal principles

Question 3

What is the rule of law?

Answer 3

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)

Question 4

How do judges decide on cases?

Answer 4

1) identify they material facts presented
2) Consider the relevant law - precedents
3) apply law to facts and provide reasons for decision

Question 5

What is precedent based on?

Answer 5

Stare decisis - let the decision stand

Question 6

What does precedent support? (advantages/the rule of law)

Answer 6

certainty, equality, efficiency and appearance of justice (upholds rule of law/procedural fairness)

Question 7

How does precedent support certainty?

Answer 7

helps arrange affairs with confidence knowing that it will be decided on a similar case in the past

Question 8

How does precedent support equality?

Answer 8

like cases are treated alike

Question 9

How does precedent support efficiency?

Answer 9

lower courts don’t have to spend time/resources in coming up with new reasonings

Question 10

How does precedent support the appearance of justice?

Answer 10

By creating impartial rules not dependant on arbitrary or biased views creates impartiality, logical, reasoned judgements

Question 11

What are the disadvantages of precedent?

Answer 11

retrospective rather than prospective;
passive nature of court can only produce new laws when litigated to high appellant levels;
undemocratic because of judicial tenure

Question 12

The: ratio…

Answer 12

of decisions of higher courts in the same hierarchy are binding on all lower courts in that hierarchy

Question 13

Is a decision from a different hierarchy binding?

Answer 13

No, it can be persuasive - as obiter dicta

Question 14

Why is generalisation of ratio important?

Answer 14

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

Question 15

Generalisation levels of DvS: agent of harm

Answer 15

dead snail / any organic matter / any foreign element

Question 16

Generalisation of DvS: vehicle of harm

Answer 16

Opaque bottle of ginger beer / opaque bottle of drink / any bottle of drink / any container of food or drink / any product

Question 17

Generalisation of DvS: defendant

Answer 17

Manufacturer of goods distributed in coffee shops / any manufacturer / any person working with the object

Question 18

Judicial techniques in avoiding precedent

Answer 18

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

Question 19

DvS: Atkin on winterbottom, george, heaven and macpherson

Answer 19

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)

Question 20

DvS Buckmaster on winterbottom, george, heaven and macpherson

Answer 20

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

Question 21

Atkin’s policy reasoning?

Answer 21

moral/religious policy consideration: clear wrongdoing, moral violation

Question 22

Buckemaster’s policy reasoning?

Answer 22

economic policy consideration: effect on the economy and production, a floodgate of litigation

Question 23

What is the order of developing precedent in the equitable doctrine of unconscionable conduct?

Answer 23

Clark v Malpas, Blomley v Ryan, CBA v Amadio, Louth v Diprose

Question 24

What does judicial conservatism mean?

Answer 24

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

Question 25

What does judicial activism mean?

Answer 25

Judicial role with choice and flexibility, there are constraints but not purely mechanical/strict, a creative element to developing common law

Question 26

When there are no precedents/settled principle, what are some of the judicial techniques?

Answer 26

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)

Question 27

How does deciding a case create constraints?

Answer 27

bound to follow a higher ratio in a case with similar facts

Question 28

How does deciding a case create choice?

Answer 28

distinguishing the facts, obiter, change in society, wrongly decided

Question 29

What circumstances are required for unconscionable conduct in clark v malpas?

Answer 29

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

Question 30

How did Blomley v Ryan develop unconscionable conduct principles?

Answer 30

applying existing rules to a new set of facts = rule develops; used clark as obiter, included intoxication as a circumstance of serious disadvantage

Question 31

How did Amadio develop unconscionable conduct principles?

Answer 31

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

Question 32

Benefits of judicial activism

Answer 32

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

Question 33

Cons of judicial activism

Answer 33

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

Question 34

Material facts of Clark v Malpas

Answer 34

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

Question 35

Material facts of Blomley v Ryan

Answer 35

old, failing intellect, drunk
grossly inadequate consideration
transaction executed quickly
lawyer was present but unaware of circumstances

Question 36

Material facts of Amadio

Answer 36

elderly, poor english, illiterate
a belief induced by misrepresentation
wilful ignorance of stronger party knowing their misunderstanding

Question 37

How did Louth v Diprose develop unconscionable conduct principles?

Answer 37

included emotional dependence as a special disadvantage which must be sufficiently evident to the stronger party

Question 38

What is the paradox of precedent in terms of legitimacy and authority?

Answer 38

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

Question 39

What are the perspectives of judgements in Louth v Diprose?

Answer 39

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