LAWS1001A Lecture Notes - Lecture 2: Case Citation, Anachronism, Case Report
2 Jul 2018
School
Department
Course
Professor
Common Law and Precedent
Important terms:
Ratio decidendi: Any rule of law expressly or impliedly treated by the judge as a necessary step in
reaching her/his conclusion having regard to the line of reasoning adopted. It is the reason for a
decision in a case; the judge’s decision on material facts. The ration decidendi of a past case is
binding, not the obiter dicta.
Obiter dictum: persuasive authority depending on the status of the judge and cogency of view. It is a
legal principle expounded by a judge which is not necessarily for the judge’s decisions in the case.
Think of this as remarks in passing, and can be persuasive.
Res Judicata:
Per Incuriam:
Stare Decisis: it stands decided. This refers to the doctrine of precedent.
Binding precedent: Court decisions from higher courts in the same hierarchy are binding precedents,
and should be followed in judicial reasoning.
Persuasive precedent: Decisions from the same hierarchy or from lower levels in the hierarchy, or
even in different jurisdictions can be seen as persuasive precedents. Australian courts often look at
English decisions and also New Zealand.
Common Law Described:
Mirehouse v Rennell (1983) 6 ER 1015 at 1023.
Baron Parke:
Our common law system consists in applying to new combinations and circumstances those rules of
law which we derive from legal principle and judicial precedents; and for the sake of obtaining
uniformity, consistency and certainty we must apply those rules where they are not plainly
unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and
to abandon all analogy to them, in those to which they have not been judicially applied, because we
think that the rules are not as convenient and reasonable as we ourselves could have devised.
The core function of the judiciary is the determination of disputes, by application of reason,
importing both factual and legal considerations.
Precedent in Australia:
Precedent is never as rigid in Australia as in England. The strongest argument for overturning a
decision is that it is manifestly wrong.
Lower courts in the court hierarchy are bound by the previous decisions of the higher courts.
Furthermore, decisions made by the courts at the same level should be respected, by citing it and
either conforming with it or applying some kind of consistency. Decisions from outside our
jurisdiction can be utilised for guidance, or it can be rejected.
Apply: using the same ratio as another decision.
Distinguished: claiming that case x was about y, but does not apply to this case because z.
Reconcile: changing a prior decisions ratio slightly, in order to apply to today’s case.
Overrule: name says it all….
Judges do not make the law- the legislature does; rather, the judges declare it.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Ratio decidendi: any rule of law expressly or impliedly treated by the judge as a necessary step in reaching her/his conclusion having regard to the line of reasoning adopted. It is the reason for a decision in a case; the judge"s decision on material facts. The ration decidendi of a past case is binding, not the obiter dicta. Obiter dictum: persuasive authority depending on the status of the judge and cogency of view. It is a legal principle expounded by a judge which is not necessarily for the judge"s decisions in the case. Think of this as remarks in passing, and can be persuasive. Binding precedent: court decisions from higher courts in the same hierarchy are binding precedents, and should be followed in judicial reasoning. Persuasive precedent: decisions from the same hierarchy or from lower levels in the hierarchy, or even in different jurisdictions can be seen as persuasive precedents. Mirehouse v rennell (1983) 6 er 1015 at 1023.
