LWB145 Week Three Lecture Notes
This week will be looking at Case Law and the Doctrine of Precedent in more detail and building on knowledge
gained from the R v SBU exercise (Week 2).
Explain case law
Doctrine of precedent
Writing case notes
What is Case Law?
It is law made by judges through their decisions on the cases brought before them (as opposed to statute
law which is written in legislation).
A case will come before a court because of a dispute between the parties which will need to be resolved by
an independent decision maker.
In civil trials, this decision maker who decides on both questions of law and questions of fact is the judge. In
criminal trials, the judge determines issues related to the law; however the body which determines the facts
and the outcome is the jury.
Judges must therefore apply the law to the relevant facts in order to resolve the dispute. Sometimes, the
process of doing so requires that they first work out just what exactly the law is before they can apply it.
There may instances in which the law itself in uncertain. In this case, judges will need to interpret what
exactly the law means and the scope of the law and, in doing so, they will help to clarify the law and over
time, develop it.
Case Law and the Court Hierarchy
The decisions of superior courts – particularly appeal courts – are the cases which we are most
predominately concerned with here. This is because higher courts deal with more complex matters than
lower courts, and appeal courts are those which have the power to reconsider and overturn decisions of
In Queensland, matters of the Magistrates Court are appealed to the District Court (which has its own court
of appeal). Matters from the District and Supreme Courts are in turn appealed to the Court of Appeal.
Finally, decisions of the Court of Appeal are appealed to the highest possible court, the High Court.
Note here that the general rule when it comes to appeal courts is that only questions of LAW may be
appealed, not questions of the facts relevant to a particular case.
Case Law and Legislation
Legislation prevails over case law (that is, has the power to overrule it).
Nevertheless, there are still areas of the law which case law governs with very little statutory interference
(for example, contracts law).
Even areas which are governed by legislation are still interpreted by case law. In this sense, cases do not
‘make’ law as much as they ‘interpret’ it, but they must be read in conjunction with legislation.
Example – Battery
‘The tort of battery is the actual application of unwelcome physical force without consent or lawful excuse. To amount to a
battery, the act complained of must be direct, intentional and voluntary.’ Torts A Study Guide
What is actual application?
What is unwelcome?
What is physical force?
What is consent?
What is lawful excuse?
What is direct?
What is intentional?
What is voluntary? The courts have, over time, worked out tests for all the aforementioned elements of battery through decisions that
they made in the cases brought before them. Today, these elements are relatively ‘settled’ and refined in terms of
what is commonly accepted as their definitions (you can find these listed in textbooks), however they have all been
contested previously before a court(s).
The Doctrine of Precedent (Stare Decisis)
This means that a court is bound to follow the decisions of courts superior to it in the same hierarchy.
In this context, ‘superior to it’ means a court that is capable of overruling its decision. These are the courts to
which its decision may be appealed.
o We will look at the Australian court hierarchies in Week 7 and more closely at the ‘niceties’ of which
courts bind others in Weeks 8 and 9.
Nevertheless, the decisions of other courts (despite not necessarily being superior or in the same hierarchy)
may be persuasive.
Rationale of the Doctrine of Precedent
Equality – Cases which are similar should be decided alike.
Consistency and Certainty – ‘If it is the law this week, then it should be the law next week’ unless it is
overturned by a higher court or by parliament. This guarantees a certain degree of certainty which we can
have about the law and how to behave, and maintains consistency.
Efficiency – Time should not be wasted on arguing whether or not legal principles are settled.
Justice – Judges should be acting and deciding impartially.
When will the Doctrine of Precedent Apply?
The Doctrine of Precedent should apply when a court is faced with a dispute which involves similar facts to
(if not the same as) the facts already decided by a superior court and when it is faced with a dispute
involving the same legal context (i.e. the same legislation or common law point).
Lawyers will argue about the extent to which a case shares factual similarities with another as a means of
attracting or avoiding the application of a particular prec