Unit 3 AOS3 - Chapter 5: The Role of The Courts Flashcards
What is the court hierarchy?
This is the arranging of courts according to importance with the superior courts at the top of the court hierarchy.
High court
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Family court and Federal court
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Federal Magistrates Court
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Supreme Court (Appeals division)
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Supreme Court (Trial division)
⬇ ️
County Court
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Coroners Court & Magistrates Court & Children's Court
How do courts make laws?
. Common law
. Statutory interpretation
Explain the following way courts make laws: common law/case law
Judges make laws on a new issue that arise in a case before them, when:
. no relevant legislation exists
. there is no previous binding precedent that applies or
. the current common law requires expansion to apply to the new situation.
Explain the following way courts make laws: statutory interpretation
Judges need to interpret legislation applicable to a case when it is ambiguous or unclear, using resources such as dictionaries, interpretation sections within Acts, and legal speeches made in parliament that are contained in a record known as the Hansard.
Interpreting the meaning of the words in an Act of parliament when
applying them to a case the court is hearing.
Explain the operation of the doctrine of precedent.
The doctrine of precedent is a policy of courts to abide by decisions made in earlier cases. This is based on the decision principle of state decisis (to stand by what has been decided).
The principle of the doctrine of precedent creates consistency and predictability. When a person takes a case to court they will have some idea of the outcome because like cases are decided in a like manner.
Doctrine of precedent allows for flexibility too persuasive precedents and the ability to develop or avoid precedents.
What is the primary and secondary role of judges?
Primary - to adjudicate in cases by finding facts, reach a decision based on facts and apply the law to the facts.
Secondary - to make law.
What are the restrictions on judges’ ability to make law?
Judges and courts are only able to make laws in the following instances:
. if a case is brought before a superior court
. if there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts
Explain the following restriction of judges’ ability to make law: If a case is brought before a superior court
. Judges can only develop or change the law when a relevant case is brought before them.
. A case will be brought by a person who feels aggrieved or injured and has decided to have the issue resolved in court.
. A person bringing a case must have ‘standing’; that is, be directly affected by the case. Taking a case to a higher court is expensive.
. Further, the court can only make law on the relevant issues in question in that case.
Explain the following restriction of judges’ ability to make law: If there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts
. The nature of common law is that the principles of law established in a higher court are binding on lower courts in the same hierarchy.
. If a court is bound by a principle of law that has been established in a higher court, there may be an opportunity to establish a new principle of law, if it can be shown that there are distinguishing differences between the previous case and the case before the court.
What does the reason for a decision do?
The reason for the decision of a court establishes a principle of law that is followed by future courts and forms part of the law, along with Acts of parliament. The reason for the decision is called the ratio decidendi.
Why can’t a jury create a precedent?
Because juries do not decide on points of law; this is left to judges. Juries do not give reasons for their decisions.
What is the principle of stare decisis?
The principle of stare decisis is another way of describing the process of lower courts following the reasons for the decisions of higher courts. Stare decisis literally means ‘to stand by what has been decided.’
This provides for consistency and fairness by ensuring similar cases are dealt with in a similar way.
What is ratio decidendi?
Ratio decidendi literally translated, is ‘the reason for the decision’. Put simply, the ratio decidendi is the binding part of the judgment. The judgment is the statement by the judge at the end of a case outlining the decision and the reasons for the decision. The ratio decidendi is not the decision itself, or the sanction or remedy given, but the reason for the decision, which is then regarded as a statement of law to be followed when dealing with future cases.
Why can the task of determining the ratio decidendi of a case be very complex?
. Because it might not necessarily be placed at the end of the judgement.
. In many cases heard in the High Court, several judges are involved in reaching a decision.
. Only the material facts are relevant and are to be followed in future cases.
Explain the following reason why determining the ratio decidendi can be complex: It might not necessarily be placed at the end of the judgement.
It could be found in various parts of the judgment, and may not appear conveniently in a single, succinct expression of the law.
Explain the following reason why determining the ratio decidendi can be complex: In many cases heard in the High Court, several judges are involved in reaching a decision.
If a unanimous decision cannot be reached, the precedent created is that of the majority. In such cases the ratio decidendi has to be found by looking at the judgments of those judges who form the majority.
Explain the following reason why determining the ratio decidendi can be complex: Only the material facts are relevant and are to be followed in future cases.
. When extracting the ratio decidendi from the judgment as a whole or the individual judgments, only the material facts are relevant and are to be followed in future cases.
. The material facts are important facts that could affect the outcome of the case and are vital to the reason for the decision.
What is considered when deciding cases in the future?
It is the ratio decidendi and these material facts that are considered when deciding cases in the future. The ratio decidendi of a case may be more clearly stated in a later judgment written by a court that has had to consider whether the previous case provides a binding precedent.
What is a precedent?
The reason for a court decision that is followed by another court lower in the same hierarchy. A precedent is either binding or persuasive.
What are binding precedents?
Precedents in a superior court in the same hierarchy dealing with the same legal principles and material facts are referred to as binding precedents. If a precedent is binding on a case, then it must be followed by the judges in that case.
For a precedent to be binding on a particular case, the precedent must be:
. from the same hierarchy of courts
. from a superior court – one that is higher in the hierarchy.
The High Court is not bound by its own previous decisions. However, in the interests of consistency, it will usually follow its previous decisions, unless it believes that a previous decision is not good law, or a previous precedent is outdated because of changes in attitudes, technologies or other circumstances.
What are persuasive precedents?
Persuasive precedents are not binding on courts. However, because they are seen to be noteworthy and highly regarded propositions of law, some courts may consider persuasive precedents as influential on their decisions.
Precedents considered to be persuasive but not binding are:
. from courts in another hierarchy, such as other states or countries
. from courts on the same level of the hierarchy (which are not binding)
. from inferior courts (that is, courts lower in the court hierarchy)
. obiter dicta contained in a judgment of a court in the same hierarchy or in another hierarchy.
Eg. Donoghue v. Stevenson (1932) AC 562 persuasive for Grant v. Australian Knitting Mills (1936) AC 85 (established the law of negligence in Australia).
What does the doctrine of precedent do?
The doctrine of precedent means that lower courts are bound to follow the decisions of higher courts in similar cases.
What is the main purpose of the courts?
To resolve disputes. In this process, the courts many be required to apply existing law to the facts before them. When a court makes a decision in a new situation then it is said to be making law. This is known as precedent.
How does this system of law-making (doctrine of precedent) operate?
Through the existence of a court hierarchy.
What is obiter dictum?
Obiter dictum (plural obiter dicta) literally translated means ‘things said by the way’. In the judgment given at the end of a case, the judge sometimes makes a statement that is not part of the ratio decidendi (the statement was not a matter that was necessary to the decision in that case but it was still a matter of considered opinion). This statement may be influential on decisions in the future – it will act as persuasive precedent. Such statements are obiter dicta (sometimes just referred to as ‘obiter’). An example of obiter dicta is given in the Hedley Byrne v. Heller case.
Explain the difference between ratio decidendi and the obiter dictum.
The court’s decisions are made up of two parts, being the ratio decidendi and the obiter dictum.
The ratio decidendi (reasons for the decision) are the legal principles laid down in the decisions and are part of the decision that must be followed.
The obiter dictum (words by the way) are statements made by the judge which are not directly relevant to the point of law in question.
What do you need to include if a question is worth 5 or more marks?
You can’t forget to include rules of avoiding and expanding binding percent (RODD).
When looking at precedents developed in earlier cases in order to make a decision for a current case, what cane judges do?
. They may decide to adopt the precedent (follow or apply it)
. affirm the precedent (agree with it)
. or they may try to avoid having to follow the earlier precedent.
How are Judges not always forced to follow a previous precedent/how are they sometimes free to make new precedents?
Apart from following a binding precedent, there are four other ways that judges can treat previous decision.
What are the four ways judges can treat (develop or avoid) precedents?
RODD . Reversing . Overruling . Distinguishing . Disapproving
Explain the following way to treat a precedent: reversing
When a case (which created percent) is taken on appeal to a higher court, the superior court may change the decision of the lower court, thereby reversing the earlier decision (precedent) in the same case. The new precedent created by the superior court is then the one to be followed in future cases.
Think - same case
Explain the following way to treat a precedent: overruling
When a superior court decides not to follow an earlier precedent of a lower court in a different case, it can overrule the previous precedent. This means a similar case in a higher court creates a new precedent, which makes the previous precedent inapplicable.
It can do this because it is not bound by precedents created in lower courts. For example, the High Court can overrule an earlier precedent created by the Supreme Court of Victoria.
When a precedent is overruled, the new ratio decidendi from the latest case has the effect of becoming the precedent to be followed in the future.
Think - similar case
Explain the following way to treat a precedent: distinguishing
If there is a binding precedent from a superior court, the judge may find some material fact in the case presently being considered that is different from the facts of the previous case where the precedent was set, and can therefore decide that the court is not bound to follow the previous decision.
Explain the following way to treat a precedent: disapproving
When a previous decision (precedent) has been made in a court at the same level in the court hierarchy, or at a lower level, the present court may disapprove the earlier decision, that is, it states that it does not agree with the earlier decision.
For courts on the same level in the court hierarchy, the present court is not bound to follow the earlier decision (although for the sake of consistency it usually will). If the later case does not follow the earlier case it may make a new precedent.
Judges in an inferior court can express disapproval about a precedent set in a superior court that they are bound to follow.
What happens when a court of the same standing makes a new precedent?
Both the precedent created in the earlier case that has been disapproved and the precedent created in the present case remain in force until another case is taken to a higher court, which can overrule the previous decisions and create a new precedent.
How do Judges in an inferior court can express disapproval about a precedent they must follow?
Judges in an inferior court can express disapproval about a precedent set in a superior court that they are bound to follow. For example, a judge could make a statement (obiter dictum) saying that they do not agree with the precedent but believe that it should be left to parliament to change the law, or to indicate to a higher court that he or she believes that the precedent needs to be reconsidered.
How does the doctrine of precedent provide for consistency and flexibility?
Consistency:
. Stare decisis
. Binding precedents
Flexibility:
. Persuasive precedents
. Prevented scan be developed or avoided
What is the High Court, the Supreme Court (Court of Appeal) and the Supreme Court (Trial Division) referred to?
They are referred to as the supper courts of record.
Their decisions are often recorded in law reports.
When does law making through the courts generally occur?
When is court is hearing a case on appeal (no jury) or hearing a civil case without a jury.
(A jury decision cannot create precedent as juries do not decide on points of law)
What is the interpretation of past decisions?
Courts can be called on to interpret the meaning of the words in past decisions and apply precedents set in previous cases.
Sometimes courts are bound by past decisions while at other times the courts are able to distinguish, overrule, reverse or disapprove past decisions.
This allows the law to develop through the courts. Decisions may also be broadened or narrowed when interpreted by future courts.
A precedent set by a court may not be a final statement of the law.
