Precedent and Statutory Interpretation

Question 1

Statutory Interpretation

Answer 1

When a judge clarifies or interprets the law written by parliament. Will form precedent for future cases

Question 2

Statute

Answer 2

An Act of parliament is written in general terms to apply to all types of situations.

Question 3

Precedent

Answer 3

A process whereby previous decisions are followed

Question 4

The Doctrine of Precedent

Answer 4

Based on the principle of Stare Decisis (stand by what has been decided). It is the process whereby Judges follow previous decisions
• Of higher courts
• In the same hierarchy
• Where the facts are similar

Question 5

Binding Precedent

Answer 5

If a case is similar, decided by a higher court in the same hierarchy, then the judge is bound by precedent and it is referred to as binding where the judge has no choice but to follow the previous decision set.

Question 6

Persuasive Precedent

Answer 6

decisions from previous cases that the judge does not have to follow but is highly influential in their decision. These can be decisions from courts in other hierarchies, from courts lower (or on the same level) in the same hierarchy.

Question 7

EG Persuasive or binding

Answer 7

A precedent set in the Supreme Court of Victoria is binding to the Victorian Magistrates and County Courts, but is only persuasive to the Victorian Supreme and High Courts, as well as courts in other states

Question 8

Why statutes need interpreting:

Answer 8

Mistakes, new situation may have arisen (e.g. technology), words may not be defined in the Act, meaning of the word may be ambiguous, meaning can change over time

Question 9

Obiter Dictum

Answer 9

Parts of the report that records all matters the judge has considered

Question 10

Ways to avoid precedent:

Answer 10

Reversing, overruling, distinguishing, disapproving

Question 11

Reversing:

Answer 11

Same case is heard on appeal in a higher court in the hierarchy

Question 12

Overruling

Answer 12

Different case with similar material facts, overruled by a higher court in the same hierarchy

Question 13

Distinguishing:

Answer 13

Ruled as being too different with different material facts

Question 14

Disapproving

Answer 14

Similar material case in court at same level disapproving of precedent

Question 15

Advantages of precedent:

Answer 15

• Consistency and certainty
• Encourages efficiency
• Flexible (DORD) so the law is not too rigid.

Question 16

Disadvantages of precedent:

Answer 16

• Inflexible
• Uncertain as no two cases are the same
• Complicates the judicial law making process – TIME
• Laws may only be made when a case comes to court.

Question 17

Donaghue vs Stevenson

Answer 17

• Facts: Plaintiff (Donoghue) received a ginger-beer bottle made by defendant (Stevenson), and drank some, finding remains of a decomposed snail in it. Suffered mental shock and severe gastro.
• Decided in 1932 in Paisley, Scotland
• Why it is relevant to Australia: It established the legal concept of ‘duty of care’ as part of negligence, which was the foundation for the Australian law, and was used as a binding precedent in Grant v. Australian Knitting Mills, which created Australia’s own precedent.

Question 18

Grant vs Australian Knitting Mill

Answer 18

Decided in 1933, John Martin sued retailer and manufacturer for underwear which caused him severe irritation and dermatitis. Successful in supreme court of South Australia - overturned in High Court