Precedent

1
Precedent

• Topic 7

2
Precedent

• The hallmarks of justice are that it should be
  certain, and should be universal.
• The doctrine of precedent was developed to
  provide the necessary certainty and universality.

3
Stare decisis

• At its heart is a very simple principle the Law
  expounded in one case should be followed in
  later, similar cases.
• keep to the rationes decidendi of past cases,
  or literally, stand by the thing which has been
  decided.

4
Telstra Corporation v Treloar (2000) 102 FCR
595, per Branson and Finkelstein JJ at 602

• The rationale for the doctrine of precedent
• Certainty
• Equality
• Efficiency
• And appearance of justice.

5
Rules of Precedent

• Each court is bound by the decisions of higher
  courts in the same judicial hierarchy

6
NSW Judicial Hierarchy
7
Federal Judicial Hierarchy
8

• The highest court in a judicial hierarchy can
  overrule its previous decisions
• First and Second Territorial Senators Cases

9

• A judge does not have to follow the decisions of
  other judges at the same level in the same
  judicial hierarchy these decisions will however
  be highly persuasive in the interests of
  consistency.

10

• A decision of a court in a different hierarchy
  may be of considerable weight, but will not be
  binding

11
Judicial hierarchies
12
Lipohar v R (1999) 200CLR 485 per Gleeson CJ at
505-6

• The common law has its source in the reasons
  for decisions of the courts which are reasons
  arrived at according to well recognised and long
  established judicial methods. It is a body of
  law created and defined by the courts. Whatever
  may have once been the case in England the
  doctrine of precedent is now central to any
  understanding of the common law in Australia. To
  assert that there is more than one common law in
  Australia or that there is a common law of
  individual States is to ignore the central place
  which precedent has in both understanding the
  common law and explaining its basis.
• This Court is placed by s73 of the Constitution
  at the apex of a judicial hierarchy to give
  decisions upon the common law which are binding
  on all courts, federal, State and territorial.
  Different intermediate appellate courts within
  that hierarchy may give inconsistent rulings upon
  questions of common law. This disagreement will
  indicate that not all of these courts will have
  correctly applied or declared the common law. But
  it does not follow that there are as many bodies
  of common law as there are intermediate courts of
  appeal. The situation which arises is not
  materially different to that which arises where
  trial judges in different courts or within the
  same court reach different conclusions on the
  same point of law.
• The ultimate foundation of precedent which binds
  any court to statements of principle, is as
  Barwick CJ put it, that a court or tribunal
  higher in the hierarchy of the same juristic
  system, and thus able to reverse the lower
  courts judgement, has laid down that principle
  as part of the relevant law. Until the High
  Court rules on the matter, the doctrines of
  precedent which bind the respective courts at
  various levels below it in the hierarchy will
  provide a rule for decision. But that does not
  dictate the conclusion that until there is a
  decision of the High Court the common law of
  Australia does not exist, any more than before
  1873 it would have been true to say that there
  was not one English common law on a point because
  the Court of Kings Bench had differed from the
  Court of Common Pleas.

13

• Only the Ratio Decidendi is binding
• Obiter Dicta, although not binding, may be very
  persuasive
• Precedents are not necessarily abrogated by lapse
  of time
• e.g. Rule in Pinnels case (1602) 5 Co Rep 117a

14
Development of law through precedent

• Issue for common law
• Criticism levelled by legal realists among others
• Previous cases can be
• Distinguished
• Set aside per incuriam
• Overruled by superior court

15
Vocabulary

• Ratio decidendi/Rationes decidendi
• Obiter dictum/Obiter dicta
• Affirm
• Approve
• Reverse
• Overrule
• Apply
• Follow/not follow
• Distinguish