Unit 3: AOS 3-The Doctrine of Precedent

Question 1

Explain the Victorian Court Heirachy

Answer 1

• High Court
• Federal Court/Family Court (equal status)
• Supreme Court of Appeal
• Supreme Court of Trial Division
• County Court
• Magistrates Court

Question 2

What is common law/case-law/judge-made law?

Answer 2

Law that has been developed through the courts

Question 3

How can courts make law?

Answer 3

• Deciding on a new issue that is brought before them in a case or when a previous principle of law requires expansion to apply to a new situation.
• Statutory Interpretation-Interpreting the meaning of the words in an Act of Parliament when applying them to a case the court is hearing.

Question 4

What are the restrictions on the judges ability to make law?

Answer 4

• If a case is brought before a superior court: Judges can only develop or change the law when a relevant case is brought before the courts. A person bringing a case must have “standing”that is, be directly affected by the case.
• If there is no previous binding decision in a higher court in the same heirachy that must be followed by the lower courtsL Principles of law established in a higher court are binding on lower court in the same heirachy.

Question 5

Explain the doctrine of precedent

Answer 5

The doctrine of precedent, relates to stare decisis in other words, to stand by what has already been decided, refers to the process by which lower courts in the same heirachy follow decisions of higher courts in similar cases with similar circumstances.

Question 6

What is statutory interpretation?

Answer 6

Interpreting the words in an act of Parliament.

Question 7

What does stare decisis mean?

Answer 7

To stand what has been decided

Question 8

What is ratio decideni?

Answer 8

The reasoning for a decision and forms the binding part of the judgement made by the judge.

Question 9

What is obiter dictum?

Answer 9

An accompanying statement that is not binding but can guide future judges in making decisions, it will act as persuasive precedent.

Question 10

When is precedent considered to be binding?

Answer 10

When a decision has been set by a superior court to the one it is being heard in, in the same court heirachy and when faced with a similar fact situation. The precedent must be followed.

Question 11

When is precedent considered to be persuasive?

Answer 11

Precedent is persuasive when it is set by courts of a lower level, different hierachy or courts of equal status in the same court heirachy.

Question 12

How can persuasive precedent be used?

Answer 12

It can be looked upon by the courts to help guide them in their decision, however it does not have to be followed

Question 13

Can a jury create precedent?

Answer 13

A jury decision cannot create precedent as juries do not decide on points of law.

Question 14

Do judges always have to follow a previous precedent?

Answer 14

Judges may not always have to follow a previous precedent and, in some cases, may be free to create new precedents. Apart from following a binding precedent, there are four other ways that judges can treat previous decisions.

Question 15

Explain overruling

Answer 15

It involves two cases, the present case is heard in a high court than the previous case and the higher court overrules the previous decision. Only higher courts can overrule. There is a change in precedent to higher court decision. When a superior court decides not to follow the precedent of the lower court, it overrules the previous precedent.

Question 16

Explain Reversing

Answer 16

It involves one case on appeal to a higher court. The higher court can reverse the decision of the lower court and favour the other party. Only courts of appeal can reverse a decision. The new precedent created by the superior court is then the precedent that is to be followed in future cases.

Question 17

Explain disapproving

Answer 17

Any court can disapprove of a decision however lower courts are bound to follow the previous decision. They can express their disapproval an this can encourage the parties to appeal the decision.

Question 18

Explain distinguishing

Answer 18

Any court can distinguish between the material facts of the current case to the previous case. Involves two cases, where the present case has different material facts than the previous case that has set the precedent. This can result in that the courts are not bound to follow the exsisting precedent.

Question 19

Explain the development of the tort of negligence through the courts

Answer 19

Donogue vs Stevenson
(precedent is expanded to consumable products)
Grant vs Australia Knitting Mills
(the duty of care doctrine was widened to cover different types of articles.)
Hedley Byrne v Heller
(financial and economic loss, intangible)

Question 20

Explain Statutory Interpretation

Answer 20

Another way judges can create law, it is the process by which judges interpret the words or phrases in an Act of Parliament in order to give meaning to the words.

Question 21

Why is statutory interpretation

Answer 21

Needed when a case is brought before a court where there is a dispute over whether the words of the act apply to the situation before the court.

Question 22

How does statutory interpretation create precedent?

Answer 22

When judges interpret the words/phrase in a statute, the meaning behind the interpretation sets a precedent for all lower courts, in the same hierarchy applying the act in the future. The new precedent becomes part of the law along with the statue.

Question 23

Reasons for Statutory Interpretation

Answer 23

• The intention of the Act is not clear Parliament’s intention may not be clear enough. Accurate instructutions and direction may not have been given to the parliamentary counsel.
• It is difficult to foresee all applications of an Act. In a rapidly evolving society, it is impossible to predict changes in areas such as technology and environmental conditions.
• The words in an Act may attempt to cover a broad range of situations, but the courts have to interpret whether a specific situation comes under this broad definition. Or words may not be defined in the Act or the meanings of words change over time.
• The Act is about a complex and technical topic. Parliamentary counsel are extremely skilled in drafting legislation, they may not be familiar with specialist areas such as areas of technology.

Question 24

Effects of Statutory Interpretations

Answer 24

• Consistency and predictability-as the courts follow the previous decisions when deciding similar case, this results in a degree of predictability and consistency with the outcome of the case.
• Words of phrases in the legislation are given meaning: When a judge interprets the words/phrases in an Act then these words/phrases are given meaning
• Extending the law through a broad interpretation of an Act: A wide interpretation of a word/phrase in an Act may extend the law to cover a new situation or area of law.
• Restricting the law through a narrow interpretation: If a court gives a narrow interpretation to the words/phrases of an Act, this may restrict the scope of the law.

Question 25

What are intrinsic materials

Answer 25

Intrinsic materials are contained in the Act itself and include:

• the words of the Act
• the long title

Question 26

What are extrinsic materials

Answer 26

Extrinsic materials are those outside the Act that can be used to assist in the interpretation of the Act.

• Hansard (where a record of parliamentary debates are)
• Dictionaries

Question 27

Literal Meaning

Answer 27

When the meaning of the words or phrase is clear the court interprets the word literally according to other sections of the act.

Question 28

Purposive Approach

Answer 28

It the judge feels that using a literal approach will not achieve the purpose of Parliament. The judge will look at Parliament’s purpose and what the act intended to achieve when it was originally passed.

Question 29

Strengths of courts as a law-making body Certainity etc

Answer 29

-The doctrine of precedent creates certainty, consistency and predictability. Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how court will decide a particular case.

Question 30

Strengths of courts as a law-making body: Change the law quickly

Answer 30

-Courts can change the law quickly, if a relevant case is brought before them. Courts can make a quick decision that can resolve a dispute for the parties in the case before the courts, and create precedent to be followed by the courts and others in the community.

Question 31

Strengths of courts as a law-making body: Not subjecy to poltical influence

Answer 31

-Courts are not subject to political influence when making a decision. Judges are appointed, rather than elected, so they are not subject to the same political pressure experienced by members of parliament. Their independent and unbiased status allows them to make more objective assesments, of the case and the law before them.

Question 32

Strengths of courts as a law-making body: Fill gaps in legislation

Answer 32

Courts are able to fill gaps in legislation. Parliament can make laws about a whole range of issues but may not cover every set of circumstances that could arise. The courts can fill in the gap left by parliament, which is essential because new situations are constantly arising.

Question 33

Weaknesses of courts as a law-making body: Locate precedents made by the courts

Answer 33

It can be difficult to locate precedents created by courts, Finding relevant precedents can be time-consuming. Identifying the ratio decidendi for the particular cases may be difficult, as their could be different judgements from different judges.

Question 34

Weaknesses of courts as a law-making body: Wait untill a relevant case comes before the courts

Answer 34

Courts cannot change the law unless a relevant case is brought before the courts, and then they are restricted to the specific area of the law that is in the case before them. The courts can immediately change the law when a case is before them, but changes in a particular area of the law through the courts can be slow to develop.

Question 35

Weaknesses of courts as a law-making body: Laws are made ex post facto

Answer 35

Courts make laws ex post facto, court decisions are made retrospectively, that is, they decide on a situation that has already taken place. Changes in the law through the courts are also very expensive for the parties concerned.

Question 36

Weaknesses of courts as a law-making body: Judges do not always represent current community values

Answer 36

Judges do not always represent current community values when making a decision. This is due to the courts not being an elected body. Members of Parliament are elected by the people to make laws on behalf of the people. Judges are not elected.

Question 37

Explain the finality of a decision

Answer 37

• A higher court can overrule the decision of a lower court
• A court of appeal may reverse the original decision
• A decision may be extended to include a wider meaning.

Question 38

Explain the relationships between parliament and the courts as a law-maker

Answer 38

• Parliament passes legislation to create the structure and jurisdiction of the courts - e.g the Magistrates Court Act 1989 (Vic) established the structure and jurisdiction of the modern Magistrates Court, replacing the original acts and has been attended every year to incorporate new jurisdictions.
• Courts apply and interpret legislation created by parliament. When deciding on disputes, court apply an act of Parliament to the case before them and in doing so are often required to interpret the meanings of the words in the legislation.
• Parliament can change laws created by the courts-courts can create laws through the creation of precedent. As parliament are the supreme law-making body it can override or abrogate any law created by the courts