LAW10010 Lecture Notes - Lecture 1: Precedent, Judiciary Of Australia, Qantas
Intro to law
Topic 1: Case Law, Precedent and the Australian Courts
Case law
• Case law, or common law, is the law developed by judges, usually those in superior
courts.
• Each case represents the solution to a particular dispute between two parties about
which the trial judge, or bench of appeal court judges, has made a decision.
• Esues ieetal deelopet of la. Eah ase epesets a ik i the all.
• A systematic development of legal principles in that way was not possible, however,
until decisions started being recorded so that subsequent decision-makers had access to
them.
• The doctrine of precedent governs how judicial decisions set down rules of law.
• According to the doctrine of precedent, the rules of the common law are found in past
cases. A rule as stated and applied in one case may subsequently be applied in later
cases.
• In countries which derive their legal systems from the English common law, case law is
developed by the doctrine of stare decisis.
• Stare decisis is the doctrine of binding precedent.
• Stare decisis is a Lati phase that taslates as to stand by the things decided.
Doctrine of precedent or stare decisis
• Each court is bound by decisions of courts higher in its hierarchy.
• A decision of a court in a different hierarchy or lower in the same hierarchy may be
persuasive but will not be binding.
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• Generally a court will not consider itself bound by its own past decisions but will depart
from them only with reluctance.
• Only the ratio decidendi (the reason for the decision) of a past case is binding.
• Obiter dicta (remarks in passing) are not binding but may be persuasive.
• Precedents do not lose their force by lapse of time.
General rules of the doctrine of precedent
Telstra Corporation v Treloar (2000) 102 FCR 595 at 602:
> Stare decisis promotes certainty because the law is then able to furnish a clear
guide for the conduct of individuals. The doctrine achieves equality by treating
like cases alike.
> Stare decisis promotes efficiency. Once a court has determined an issue,
subsequent courts need not expend the time and resources to reconsider it.
> Stare decisis promotes the appearance of justice by creating impartial rules of
law not dependent upon the personal views or biases of a particular judge. It
achieves this result by impersonal and reasoned judgments.
Rationale of the doctrine of precedent
• A precedent may appear unjust and out of step with current social conditions and
expectations.
• But if a legal rule is certain, it may be hard to avoid.
• To fail to change the law would open the court to the criticism that it is out of step with
community values or social developments, while to change it would invite charges of
usupig the ole of the legislatue, theey eatig legal uetaity.
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• A court may be tempted to seek a way out of the dilemma by bending the existing rules
to achieve the desired result.
Limitations of stare decisis
In essence, every case will have a reason for decision, but it is not every rule relied on that
forms a ratio in the strict sense.
Rationes only come from ulig o a poit of la athe tha stateet of a ule of la.
Rationale: only when a point is in dispute will court have given matter full consideration.
Ratio decidendi
Coleman v Power (2004) 220 CLR 1 at 44-5:
> The court has no business in determining issues upon which the parties agree.
> If a point is not in dispute in a case, the decision lays down no legal rule
concerning that issue.
Decisions of superior courts can still be binding on lower courts in similar fact situations,
even where the superior court decision did not lay down a new rule of law.
Ratio decidendi (continued)
Arriving at a statement of the ratio is not always straightforward because:
> It may be difficult to identify the ratio in the strict legal sense;
> It may be possible to state the ratio at a higher or lower level of generality;
> There may be no majority in favour of a particular ratio; and
> It may be difficult to distinguish the ratio from the obiter dicta in the case.
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Document Summary
Topic 1: case law, precedent and the australian courts. A rule as stated and applied in one case may subsequently be applied in later cases. Telstra corporation v treloar (2000) 102 fcr 595 at 602: > stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. The doctrine achieves equality by treating like cases alike. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. > stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments. In essence, every case will have a reason for decision, but it is not every rule relied on that forms a ratio in the strict sense.
