the way precedent affects law-making

Question 1

Main role of the courts

Answer 1

• the main role of the courts is to resolve disputes, but courts also have an important role to play in law-making because they are able to make case law (common law) when deciding cases.
• However, their ability to do so is limited.

Question 2

Consistency and predictability

Answer 2

• The doctrine of precedent promotes consistency and predictability in legal decisions.
• Parties can review past cases to anticipate how the law might apply to their situation.
• This provides an idea of the likely outcome since similar cases are usually decided in a similar way.
• Legal representatives can advise clients based on how courts have ruled in similar cases with comparable facts.

Question 3

While the doctrine of precedent helps ensure consistency and predictability, there are
limitations, including:

Answer 3

• the difficulty and cost involved in locating relevant precedents
• the difficulty in identifying the legal reasoning
  behind a decision
• the difficulty in predicting future developments

Question 4

the difficulty and cost involved in locating relevant precedents

Answer 4

• Locating relevant precedents can be challenging due to the large number of past cases.
• The volume of existing precedents makes finding relevant ones time-consuming and costly.
• Judgments are often written in technical language and can be lengthy.
• Judgments may lack sub-headings, making them harder to navigate.
• Judges may give multiple reasons for their decisions, adding to the complexity of understanding precedents.

Question 5

the difficulty in identifying the legal reasoning
behind a decision

Answer 5

• Identifying the legal reasoning (ratio decidendi) behind a decision can be difficult in appeal courts with multiple judges.
• Lawyers focus on the decisions of judges who formed the majority opinion.
• Judges who disagree with the majority are known as dissenting judges.
• There may be conflicting authorities, with more than one judgment on an issue, each offering different reasons.
• When faced with conflicting precedents, the judge must decide which one is most applicable to the current case.

Question 6

the difficulty in predicting future developments

Answer 6

• Precedents can be overruled by a higher court in a later case.
• Older precedents may be uncertain and difficult to rely on.
• It can be challenging to predict how higher courts like the High Court or Court of Appeal will approach or treat an existing precedent in a new case.

Question 7

Flexibility

Answer 7

• The doctrine of precedent allows courts to make laws by providing flexibility in legal decision-making.
• Precedents can be changed or developed through reversing, overruling, distinguishing, and disapproving.
• Superior courts can reverse or overrule precedents from earlier cases, especially on appeal.
• Judges can avoid following a precedent by distinguishing the material facts of the current case from those of the earlier case.
• Even when judges do not overturn or distinguish past decisions, they may need to interpret the language used in previous precedents, refining and clarifying the law.
• The doctrine of precedent allows the law to expand and evolve gradually over time.
• Despite this flexibility, the ability to develop common law is limited by several factors.

Question 8

the extent to which the doctrine of precedent allows for flexibility and the development of common
law can be achieved is limited due to a number of factors

Answer 8

• The doctrine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court
• Judges in superior courts may be reluctant to reverse or overrule existing precedents
• While not being technically bound by their own court’s
  previous decisions, judges in courts of the same standing
  consider these precedents to be highly persuasive and
  rarely overrule them

Question 9

The doctrine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court

Answer 9

• Courts being bound to follow outdated precedents may result in unjust outcomes.
• Affected parties might be unable to appeal due to financial constraints.
• Lower courts can express disapproval of binding precedents.
• Expressing disapproval can encourage a party to appeal to a higher court.
• Disapproval can signal to higher courts that a precedent may need reconsideration.

Question 10

Judges in superior courts may be reluctant to reverse or overrule existing precedents

Answer 10

• The Supreme Court of Appeal or High Court may be reluctant to reverse or overrule an existing precedent.
• Reasons for this hesitation include the belief that law-making should be left to parliament.
• Parliament is seen as better equipped to investigate the need for law reform.
• Parliament can more accurately reflect community views and values when making laws.

Question 11

While not being technically bound by their own court’s
previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them.

Answer 11

• The High Court may overrule its own decisions to allow the law to develop over time.
• Judges are not bound to follow precedents from other court hierarchies, such as interstate or overseas courts.
• Judges are also not bound to follow precedents set by lower courts within the same hierarchy.

Question 12

Other ways the doctrine of precedent limits the
ability of the courts to make law

Answer 12

• Judges must wait for a relevant case to be brought before them.
• Only superior courts (like the Victorian Supreme Court or higher) can make law.
• Courts rely on parties being aware of their rights, willing and able to afford legal action, and committed to pursuing cases through the appeals process.
• Judges in superior courts can only make law to clarify issues raised in the case before them.
• Any comments made “by the way” (obiter dictum) do not form part of binding precedent.
• Judges make law ex post facto (after the event), only when a dispute is brought before them.
• Courts can only clarify statutes or change precedent after a dispute arises.
• While judges can establish precedents and clarify or expand legislation through statutory interpretation, parliament can abrogate (cancel) common law, except for High Court constitutional decisions.
• Parliament, as the supreme law-making body, limits judges’ ability to make and change laws.

Question 13

define ex post facto

Answer 13

a Latin term meaning ‘out of the aftermath’. A legal term used to describe a law that is established in relation to an event that has already taken place

Question 14

Explanation points

Answer 14

• Judges can make law (common law) when deciding cases by interpreting existing statutes, addressing cases without applicable law, or dealing with situations not covered by the law.
• Judges establish precedents, which can be either binding or persuasive depending on their position within the court hierarchy.
• The principle of stare decisis ensures consistency in common law by requiring lower courts to follow precedents set by superior courts in cases with similar facts.
• Stare decisis promotes predictability because parties can anticipate how the law will be applied based on past cases.
• Common law remains flexible as superior courts can overrule or reverse precedents, and lower courts can avoid them by distinguishing material facts.
• Courts can express disapproval of a precedent, potentially leading to an appeal and a change in the law or drawing attention from parliament.
• Courts, through precedent-setting, can complement legislation by making law where gaps exist.

Question 15

Discussion points

Answer 15

• Lower courts must follow binding precedents even if they consider them outdated or inappropriate.
• Superior courts may be hesitant to change precedents, preferring that parliament, as the supreme law-making body, address the need for change.
• Courts of the same standing rarely overrule their own precedents, following a convention that discourages such actions.
• Judges can only interpret legislation and establish precedents when an appropriate case is brought before a superior court, often relying on parties to pursue disputes through the appeals process.
• Courts can only clarify the meaning of legislation after a dispute has arisen (ex post facto).
• Parliament can abrogate common law, except in matters of constitutional interpretation.