Legal Studies Unit 3 - SAC 3 Doctrine of Precedent

What are the two situations in which the courts make law:

*Common Law/Case Law:* Judges making laws on a new issue that arises in a case before them, on which there is no previous statute or common law, or the current common law requires expansion *Statutory Interpretation: *Through the interpretation of legislation, as it applies to a case before them when it is ambiguous or unclear."

Explain the two types of aids used in interpreting statutes

*Extrinsic materials* Come from outside of the act, but may assist in its interpretation. Examples include the record of parliamentary debates (Hansard), reports of committees, law reform bodies and other bodies such as royal commissions, they can also use dictionaries, and acts that are designed to provide guidelines on interpreting statutes. *Intrinsic sources* Those that are contained within that legislation and may include: the words of the act, the long title, any preamble, headings used, margins or footnotes and definitions.

What are the effects of statutory interpretation?

*Forms a precedent* When a court decides on the meaning of an Act it must give a reason for the decision. This reason forms a ratio decidendi. If the decision has been made by a higher court, it will form a precedent to be followed by other lower courts in similar cases. The decision will be binding in lower courts on future cases involving the statute that was interpreted. E.g The High Court interpretation of 'external affairs' in the Tasmanian Dams Case is read in conjunction with the Constitution s51 to determine the meaning of that phrase. *Limit the scope of the legislation* If the court gives a narrow or limited interpretation to words or terms, the interpretation may limit the range of circumstances that the Act may apply to. E.g. In Deing v Tarola the judge restricted the definition of a regulated weapon so the studded belt, if worn to hold up trousers is not considered to be a weapon. *Increase the scope of the legislation* If the court gives a broad interpretation to words or terms, the interpretation may extend the range of circumstances that the Act may apply to.

Case examples for explaining precedent:

*Grant v Australian Knitting Mills (1936)* After plaintiff Dr. Grant purchased two pairs of woollen underpants in which caused him to contract dermatitis he decided to sue in negligence. The Privy council found for the plaintiff and followed the persuasive precedent set in Donoghue v Stevenson (in which the neighbour principle was established) and found that the manufacturer owes a duty of care to the ultimate consumer. *Mabo and Ors. V. State of Queensland (1992)* The High Court in the Mabo case decided to overrule previous decisions that terra nullius applied in Australia and recognised that native title does exist.

Prerequisites for Statutory Interpretation

- A case must come before the court - There must be no legislation that covers the area of law concerned. - There must be confusion/disagreement over meaning of words in the legislation (it is unclear)

Explain the relationship between the courts and the parliament in lawmaking

--> Parliament is the supreme law making body. Courts are dependent on Parliament to make the bulk of law because of this role. --> However, Parliament is also dependent on the courts to apply and interpret the law made by parliament and to establish new law situations that have arisen for the first time. --> So while they are dependent on each other, they are also independent of each other, supporting the principle of the separation of powers.

Advantages of Doctrine of Precedent

1. Creates *certainty and consistency* as a case will be decided similarly to a previous, comparable case. 2. *Flexibility* due to the fact that the methods of avoiding following precedent (RODD) help prevent the law from becoming too rigid. 3. Encourages *efficiency* as judges can refer to previous cases when making decisions. 4. Allows judges to create new areas of law in order to *uphold the rights* of disputing parties before them.

List the main limitations of a judge's ability to make law?

1. Judges can only make law if there is a test case before them. 2. The position of the court in the hierarchy: 3. The type of legal case and the mode of trial: 4. The personality of the judges: 5. Judges may be bound by existing precedent:

List the reasons for Statutory Interpretation

1. Mistakes in drafting the bill 2.Changing nature of words 3. Words within the act may be ambiguous 4. Future and changing circumstances

The relationship between the courts and parliament can be defined in a number of ways including...

1. Parliament passes legislation to establish courts and therefore Parliament can *abolish the courts* at any time. The exception to this is the High court, which can only be abolished through referendum as it's established in the Constitution. 2. Furthermore, courts apply and interpret the law made by Parliament and as such can *add meaning to the words of the Acts*. This occurred in the 'studded belt case' which resulted in the Supreme Court interpreting the phrase 'regulated weapon' within the Control of Weapons Act. 3.Parliament can also *confirm law/precedents made by courts.* For example, the Mabo case prompted parliament to confirm precedent established into statute by creating a codifying Act called the Native Titles Act. This case also shows that parliament can codify laws made by courts. They can pass legislation that incorporates common law principles; this is known as codification - making common law into statutes or codes and thereby strengthening the law. 4. Parliament can *change laws made by the courts* Parliament can override decisions made by the courts if the decision made does not reflect the intention of the Act.

Disadvantages of Doctrine of Precedent

1. Some *uncertainties*, as no two cases are ever exactly the same. 2. *Inflexible*, as a court is bound to follow precedent and may not be able to avoid it, so common law is limited in responding to changes in society. 3. *Restricted* as they have to wait for a case to be brought to court - slow and irregular. 4. *Complicates* the judicial law making process.

Process of Statutory Interpretation

1. The court uses a wide range of materials from inside (intrinsic) and outside (extrinsic) the Act to give the legislation a more specific meaning. 2. This specific meaning forms precedent - a law for the future. 3. From now on, the precedent must be read together with the Act to give a complete picture of the law in that area.

When can courts change the law?

1. Where a case comes before the court concerning a matter on which there has been no clear statement of law. 2. When the existing precedent is out of date and requires to be changed. Needs to occur in the High Court

What is the role of a judge?

Although resolving disputes is the main role of the courts, in situations where there may be no law or the law is unclear it may be necessary for the judges to make law as a secondary function of this primary role.

Strengths of lawmaking through the courts - Growth of lawmaking

Areas of law making may develop over time because as cases of a similar nature occur, precedents need to be extended. As society changes, courts can develop areas of law to keep pace with society's views and values. Judges are also able to create areas of law when cases come before them on issues on which the parliament has not previously legislated. E.g. For the case of Grant v Aust. Knitting Mills, the law of negligence did not exist. The precedent made In Donaghue v. Stevenson which established the neighbour principle was later applied.

Disapproving (RODD)

Courts at the same level are not bound by each other's decisions. Where a judge in a court refuses to follow an earlier decision of another judge at the same level, they are said to have disapproved the decision. In other words, they have demonstrated that their opinion of the law differs from that of the previous judge. This may result in an appeal to a higher court to determine what the law should be. *Effect:* Creates two precedents for a similar set of facts

Explain the reason for Statutory Interpretation: 1. Mistakes in drafting the bill

Due to a lapse in communication or a misunderstanding of Parliament's intentions, the parliamentary draftsperson may have drafted a flawed bill. Courts then need to interpret the legislation according to the intention of parliament when they passed the act and decide on its meaning.

Explain the reason for Statutory Interpretation: 3. Words within the act may be ambiguous

Due to an attempt to make legislation cover a broad range of situations, this may result in some confusion and ambiguity about the wording used in the act. If a word has more than one legitimate meaning, courts must decide what the most appropriate meaning is to fulfil the purpose of the act. E.g 'weapon' in Studded Belt Case

Strengths of lawmaking through the courts - Predictability

Easy for parties to predict the outcome of their case. Lawyers can read previous reports from previous cases to determine what the precedent is and therefore predicting the outcome of the case at hand.

List the Victorian Court Heirarchy

High Court Supreme Court of Appeal Supreme Court-Trial Division County Court Magistrate's Court

Distinguishing (RODD)

If there is binding precedent from a superior court, the judge may identify some material fact in the case presently being considered that is different from the facts of the previous precedent set, and can therefore decide that the court is not bound to follow the existing precedent. *Effect:* There will then be two different precedents. One for each of the situations

Explain the IMPACT of precedent on the law?

In applying precedents to present cases, judges will attempt to interpret, clarify or explain the meaning or intention of the precedent. In doing so they may... - Strengthen the authority and importance of the precedent - Extend or restrict the application of past precedent. - Overrule, distinguish or disapprove past precedent.

Case example for Statutory Interpretation:

In the Studded Belt Case, the Supreme Court of Victoria had to interpret the phrase 'regulated weapon' in the Control of Weapons Regulations 1990 to determine whether a belt with raised studs was considered to be a weapon when worn as an item of clothing It was held that a weapon had to be something with a 'primary use' as a weapon and no 'primary use' as anything else. The belt had a primary use as a belt and was therefore not a weapon. This definition formed precedent and was read together with the Control of Weapons Act afterwards to determine the law in the area.

Weakness/strength of lawmaking through the courts - ex-post facto

Law making by the courts is only ever ex-post facto meaning that the courts are unable to engage in law- making until they are asked to settle a dispute and are unable to make laws for the future. The courts make laws retrospectively, in regards to the facts of a case presented before them.

Overruling (RODD)

Occurs when a superior court overrules the decision of the lower court. A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. They therefore may decide not to follow it and may overrule or change it. This can only occur when there are two separate cases with similar facts (High Court is not bound by its previous decisions) *Effect: *This creates a new precedent that is binding on lower courts

Explain the limitation of a judge's ability to make law: 2.The position of the court in the hierarchy:

Only superior courts in the hierarchy create precedent. These are the courts of record, where the judgements are reported.

Weaknesses of law-making through the courts - inconsistent

Outcomes may not always be consistent as one case may appear to be similar to an earlier case, however the process of reversing, overruling, disapproving and distinguishing may result in a different decision being reached.

Explain binding precedent:

Precedent created by the courts higher in the court hierarchy (a court of record) that must be followed by a lower court when making a judicial decision on a case with similar facts. - The binding part of the precedent is called *ratio decidendi* "the reason for the decision"; which lower courts in the same hierarchy have to follow for similar fact cases.

Explain persuasive precedent

Precedent created by the courts that are not binding but may influence the judge when making a decision. They may be in a different hierarchy, lower court or the same standing. The persuasive part is called the *obiter dictum* and means "things said by the way" that has an effect on the outcome.

Strengths of lawmaking through the courts - Flexible

Precedent is flexible as it can be changed by superior courts when a previous decision made by a lower court can be reversed or overruled. Earlier decisions can be changed to better reflect changing social environments & community values. E.g. The ratio decidendi of Donoghue v Stephenson regarding the duty of care owed to a neighbour has been extended to apply to a variety of situations involving negligence

Define Precedent

Precedent is the judgement of a court when ruling on a case, that establishes a principle of law for other courts to follow.

Explain the limitation of a judge's ability to make law: 3.The type of legal case and the mode of trial:

Precedent is usually only established in cases on appeal (where there is no jury) or when hearing a civil case without a jury. Juries cannot establish precedent as they make decisions on questions of fact, not law, and do not give reasons for their decisions

How can judges develop or avoid precedent?

RODD Reversing Overruling Distinguishing Disapproving

Explain the limitation of a judge's ability to make law: 4.The personality of the judges:

Some judges are conservatives, who see their role as adjudicators, not law makers, while other judges are progressives, who see their role as both adjudicator and law-maker. A predominantly conservative court is likely to leave parliament to create new areas of law.

Weaknesses of law-making through the courts - difficult to predict

Sometimes there may be one or more precedent that may apply to a case therefore it may be difficult to identify which precedent may apply to a particular case. + when the law is unclear parties may not know how the law will be applied until after a dispute arises

Define Statutory Interpretation

Statutory interpretation involves a judge of judges who are presiding over a legal dispute, to examine and interpret the meaning of words or sections contained in a relevant statute, before applying this to the facts of the case before them. Once words have been given particular meaning that particular interpretation becomes law. → This then creates precedent which is binding on lower courts and is persuasive to other courts. → Purpose Rule: The overall guiding principle in statutory interpretation is to determine the intent or purpose of the legislation and for the statute to be interpreted in the light of that purpose.

Explain the limitation of a judge's ability to make law: 1. Judges can only make law if there is a test case before them.

That is, they must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute law or common law)

Strength of law-making through the courts - Appeals process

The appeals process in the courts acts as an advantage as it allows for a review of these decisions by a higher court. If it is found that the trial court was incorrect in its decision, the the precedent created can be reversed by a higher court.

Weaknesses of law-making through the courts - inflexible

The doctrine of precedent binds courts to decisions made in superior courts where the material facts are similar, causing the courts to be seen as rigid. Furthermore, judicial conservatism (where the judge may be reluctant to change the law) can also create rigidity E.g. Justice Mason in Trigwell's case, was reluctant to divert from earlier precedent because of the need for consistency. This conservatism limits judges law-making ability and creates some rigidity with precedent.

Strengths of lawmaking through the courts - Consistency

The doctrine of precedent provides consistency and fairness in resolution of disputes. All parties can feel confident that their case will be treated similarly to previous comparable cases as the same legal principles should be applied.

What is the Doctrine of Precedent?

The doctrine of precedent refers to the process by which judges stand by decisions given by courts higher in the hierarchy when deciding on similar future cases. This is known as *stare decisis*. "To stand by what has been decided"; refers to the process of lower courts following the reasons for the decisions of higher courts.

Strengths of lawmaking through the courts - Judges are appointed not elected

The judges involved in law-making through the courts are independent from parliament and government as they are appointed not elected. They are therefore not subject to political pressures suffered by these two bodies. Judges are able to maintain or change the law as required and without fear of voter backlash.

Explain the reason for Statutory Interpretation: 2.Changing nature of words

The meaning and application of words can change over time as society changes, and the legislation needs to be interpreted to clarify the meanings of words and to give the act its current meaning.

Weaknesses of law-making through the courts - The growth of the law through courts is slow and expensive:

The process for the development of laws through the courts is slow as courts must wait for test cases of a similar nature to amend or abolish precedent. E.g This is justified by the fact that it took 100 years for the tort negligence to be fully developed

Explain the reason for Statutory Interpretation: 4. Future and changing circumstances

The wording of an act may not encompass future circumstances, which could arise due to changes in technology and new developments. E.g. In Brislan's case, the High Court had to interpret whether 'postal, telegraphic, telephonic and other like services' included wirelesses, which it found it did.

Weaknesses of law-making through the courts - Judges are appointed not elected

Their decisions may not always represent society's values. Judges are typically draw from a narrow socio- economic group and there may be concerns about the way in which they judge their communities values.

Explain the limitation of a judge's ability to make law: 5.Judges may be bound by existing precedent:

There must be no previous binding decision in a higher court in the same hierarchy. Judges may be bound by existing precedent that has been established by a higher court, so they have to follow it. However, if the case they are hearing is significantly different from the case in which the precedent was established, judges may be able to distinguish the precedent.

Reversing (RODD)

When hearing a case on appeal, the higher court judge deciding the case may rule that the lower court wrongly decided the case. The superior court can reverse or change the precious decision. *Effect:* Creates a new precedent that is binding on lower courts