features of the doctrine of precedent

Question 1

Statutory Interpretation

Answer 1

Judges make law by interpreting statutes to clarify the meaning of ambiguous terms.

Question 2

Establishing Precedents

Answer 2

• Judges also make law by setting precedents when resolving cases without existing applicable law.

This can occur:
- When a case involves a completely new issue not previously addressed by the courts.
- When expanding on an existing legal principle to apply it to a new situation.

Question 3

Introduction to the doctrine of precedent

Answer 3

• Courts or judges make law by establishing precedents.
• A precedent is the reasoning behind a court’s decision, which establishes a legal principle or rule.
• This principle or rule provides guidance for deciding future cases with similar material facts.
• Judges in lower courts must follow precedents set by superior courts within the same hierarchy.
• The doctrine of precedent relies on the court hierarchy, where only superior courts can set precedents.
• Superior courts in Victoria include:
  
  • Supreme Court (Trial Division)
  • Supreme Court (Court of Appeal)
  • High Court
• The High Court is the highest-ranked court in Australia.
• Decisions made by the High Court are binding on all courts in states and territories.

Question 4

define material facts

Answer 4

the key facts or details in a legal case that were critical to the court’s decision

Question 5

Reasons for precedent

Answer 5

• The application of precedents to current cases helps ensure common law (or law made by the courts)
  is consistent and predictable.
• It is one of the ways in which the rule of law is upheld, providing some certainty in the way that laws are applied

Question 6

Having lower courts follow the legal principles established by higher courts in the same hierarchy, in cases where the material facts are similar, ensures that

Answer 6

• 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 7

Key features of the doctrine of precedent

Answer 7

• binding precedents
• persuasive precedents
• ways to develop and avoid precedents such as the reversing, overruling, distinguishing, and
  disapproving of precedent.

Question 8

Binding precedents

Answer 8

• A binding precedent is established by superior courts and must be followed by lower courts in the same hierarchy for similar material facts.
• Judges or magistrates are obliged to follow binding precedents, even if they disagree with the legal reasoning of the superior court.
• For a precedent to be binding, it must come from a superior court within the same court hierarchy.

Question 9

define binding precedent

Answer 9

the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction (i.e. court hierarchy) in cases where the material facts are similar

Question 10

define court judgment

Answer 10

a statement by the judge that outlines the decision of the court and the legal reasoning behind the decision

Question 11

define ratio decidendi

Answer 11

a Latin term meaning ‘the reason’; the legal reasoning behind a judge’s decision. Ratio decidendi forms the binding part of a precedent

Question 12

define stare decisis

Answer 12

a Latin term meaning ‘let the decision stand’. The basic principle underlying the doctrine of precedent

Question 13

For example, with reference to the Victorian court hierarchy, in cases where the facts are similar

Answer 13

• the Magistrates’ Court and County Court are bound to follow precedents set by the Supreme Court
  of Victoria (Trial Division or Court of Appeal) or the High Court of Australia
• the Supreme Court (Trial Division) is bound to follow precedents set by the Supreme Court of
  Appeal or the High Court of Australia
• as it is the highest court in Australia, the High Court is not bound by precedents set by any
  Australian state or territory court.

Question 14

Ratio decidendi

Answer 14

• The binding part of a court judgment is known as the ratio decidendi, which means ‘the reason for the decision’ in Latin.
• The court judgment includes the decision and the legal reasoning behind it.
• Ratio decidendi is the legal reasoning or principle established, not the decision itself or the sanction/remedy given.
• It serves as the guidance for future cases.

Question 15

The principle of stare decisis

Answer 15

• Stare decisis: A principle describing the process of lower courts following the reasons for decisions made by higher courts.
• The term means ‘to stand by what has been decided’ in Latin.
• Judges should adhere to previous decisions where appropriate to ensure consistency and predictability in common law.

Question 16

Persuasive precedents

Answer 16

• 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.
• It may be an important legal principle which is relevant to the case before the court, highly regarded by the judge and used to guide or sway their decision.

Question 17

Persuasive precedents may be

Answer 17

• Precedents set by courts in other court hierarchies: Courts in different states, territories, or countries may provide persuasive precedents, though they are not binding.
• Precedents set by lower courts in the same hierarchy: For example, the Victorian Supreme Court of Appeal or High Court of Australia may consider precedents set by the Trial Division of the Supreme Court of Victoria to be persuasive.
• Precedents set by courts of the same standing: Courts on the same level within the same hierarchy may provide persuasive precedents, though not binding.
• High Court Exception: The High Court usually follows its previous decisions for consistency but may deviate if it considers the precedent outdated or no longer good law due to changes in community attitudes, technologies, or other factors.

Question 18

define persuasive precedent

Answer 18

the legal reasoning behind a decision of a lower (or equal) court within the same jurisdiction, or a court in a different jurisdiction, that may be considered relevant (and therefore used as a source of influence or followed) even though it is not binding (see binding precedent)

Question 19

Obiter dictum

Answer 19

• Obiter dictum: Latin for ‘a thing said by the way’.
• Refers to statements or comments made by a judge that are not part of the binding reason for the decision.
• These comments are not essential to the decision but can be persuasive.
• Obiter dictum may be considered by courts in the same or different hierarchies.
• Reflects the judge’s contemplation and opinion beyond the core reasoning of the case.

Question 20

define obiter dictum

Answer 20

a Latin term meaning ‘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 21

Developing and avoiding precedents

Answer 21

• Judges consider precedents established in earlier cases when deciding new cases.
• If not bound by an existing precedent, a judge may choose to:
  
  • Adopt the precedent (follow or apply it, affirming or considering it favorably).
  • Decide not to follow the existing precedent.
• Judges may create new precedents when not bound by existing ones.
• This flexibility allows the common law to change and develop over time.

Question 22

Apart from following a precedent (whether binding or persuasive), there are four other ways that
judges can treat previous precedents

Answer 22

• reversing
• overruling
• distinguishing
• disapproving

Question 23

define reversing a precedent

Answer 23

when a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent

Question 24

define overruling a precedent

Answer 24

when a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent

Question 25

define distinguishing a
precedent

Answer 25

the process by which a lower court decides that the material facts of a case are sufficiently different from those of a case in which a precedent was established by a superior court so that they are not bound to follow it

Question 26

define disapproving a
precedent

Answer 26

when a court expresses dissatisfaction with an existing precedent but is still bound to follow it

Question 27

Reversing a precedent (in
the same case on appeal)

Answer 27

• 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. This is called reversing
  a precedent.
• When a court reverses an earlier decision or precedent, in the same
  case on appeal, a new precedent is created by the superior court’s
  decision. This new precedent becomes the one to follow in future cases.

Question 28

Overruling a precedent (in a different and later case)

Answer 28

• 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. This is called overruling a precedent. When a court overrules a
  precedent, a new precedent is created by the superior court that makes the earlier precedent inapplicable.
• Overruling a precedent is similar to reversing a precedent, except that
  reversing applies when a judge changes an existing precedent set in a lower court in the same case on appeal, whereas overruling applies to changing a precedent in a different and later case. So, for example, a
  precedent set by the Victorian Supreme Court (Trial Division) in ‘Case A’
  can be overruled by the Victorian Supreme Court of Appeal in ‘Case B’

Question 29

Distinguishing a precedent

Answer 29

• A judge may be able to avoid following an existing binding precedent if they can find 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. This is known as distinguishing a precedent.
• A court can decide to distinguish a precedent, and not follow it, because a precedent set by a superior court in the same hierarchy is only binding on a lower court in cases where the material facts are similar.

Question 30

Disapproving a precedent

Answer 30

• 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. This is called disapproving a 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 31

The following scenario illustrates two ways the Victorian courts can treat a precedent. It shows

Answer 31

• a lower court (i.e. the County Court) disapproving a precedent set by a higher court (i.e. the Supreme Court of Appeal)
• the subsequent overruling of that precedent by a court of the same standing because it was no longer considered to be good law.

Question 32

define mitigating factors

Answer 32

facts or circumstances about the offender or the offence that can lead to a less-severe sentence

Question 33

Applying earlier precedents

Answer 33

• Courts often need to consider and apply precedents set in previous cases.
• Even if not distinguishing, overruling, reversing, or disapproving past decisions, courts may refine and clarify the law as they apply precedents to new cases.
• This process allows the law to expand and develop over time.
• Courts may interpret the meaning of words and phrases in past precedents, broadening or narrowing their scope.
• Precedents are not final statements of the law because circumstances change over time.
• Through reversing, overruling, distinguishing, and disapproving, precedents have been adjusted, leading to the gradual expansion of common law.
• Some areas of law, like negligence, have developed incrementally through this process.

Question 34

Courts making law and juries

Answer 34

• Precedents are established by judges, not juries.
• Law-making through the courts typically occurs when hearing an appeal (without a jury) or in cases without a jury.
• Verdicts given by juries cannot create precedents as they determine only the facts, not points of law.
• Juries do not provide reasons for their decisions.
• Judges must give reasons for their decisions, and this legal reasoning forms the precedent.