LAW1LIM Lecture Notes - Lecture 4: Obiter Dictum, Ratio Decidendi, Judiciary Of Australia
LIM Lecture 4 – Courts & Precedent
Three Steps for working with precedent
1.Determine whether the precedent is binding or persuasive
-Court Hierarchy
-Federal Courts – Federal laws (enumerated)
-State Courts – (residual)
-Appeals go up, precedents come down the hierarchy
-Trial division is below appeal division
-Coordinate courts in other jurisdictions when dealing with commonwealth legislation or a common
law principal.
-An overturned case is no longer binding, need to check case base to find out if a higher court has
considered the case since it was decided.
-High court – number of judges sitting in on a case can determine its binding nature
-Foreign Courts may be persuasive, not binding on Australian courts
-Slessor v Eliot is Persuasive as in a higher court Batsanis v Kafka is Binding
Relevant but not exhaustive considerations
2.Identify the legal rule(s) in the precedent
-Ratio decidendi v obiter dictum
-Courts are not bound by the entirety of previous decisions: only the ratio decidendi is binding
-Ratio – the reason for deciding – parts of the decision necessary to determine the issue at hand
-Ratio – a legal principle that will be used in deciding future cases
-Identifying the ration means identifying the legal rule or principle that underlies the decision – one
must isolate an abstract legal principle that can be applied to future cases
-Only congested issues give rise to a ratio – look for disputed issue
-Obiter dictum - any proposition of law that is not strictly necessary to reach the particular decision
(‘remark in passing’)
-Obiter dicta can be extensively considered and highly persuasive
Complexities in identifying the ratio
-The ratio may be implied rather than expressed
-Individual judges may state the ratio in different ways
-There may not be a majority in favour of a particular ratio
-The ratio may be expressed more or less widely
3.Apply the Identify the legal rule(s) to the present case
-Is the present case sufficiently similar to the precedent to apply the same rule? (analogy) or should it
be distinguished from the precedent?
-Analogy and distinction
-Use and compare the facts to argue whether the precedent should be followed or distinguished.
-Analogy – same legal rule
-A case can be distinguished even if it is binding
-Facts determine whether it should be an analogy or a distinction
Conclusion
1. Determine whether the precedent is binding or persuasive
→ Court hierarchy
2. Identify the legal rule(s) in the precedent
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
1. determine whether the precedent is binding or persuasive. Appeals go up, precedents come down the hierarchy. Coordinate courts in other jurisdictions when dealing with commonwealth legislation or a common law principal. An overturned case is no longer binding, need to check case base to find out if a higher court has considered the case since it was decided. High court number of judges sitting in on a case can determine its binding nature. Foreign courts may be persuasive, not binding on australian courts. Slessor v eliot is persuasive as in a higher court batsanis v kafka is binding. Courts are not bound by the entirety of previous decisions: only the ratio decidendi is binding. Ratio the reason for deciding parts of the decision necessary to determine the issue at hand. Ratio a legal principle that will be used in deciding future cases.
