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YR 12 LEGAL STUDIES
How courts make law
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Chapter overview
This chapter looks at the concepts of Common law Doctrine of precedent Judgments and precedents Statutory interpretation
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Common Law
Developed in England under the Westminster systemComprised of a collection of past decisions of judges and the facts of casesPast decisions of judges are called precedents and are recorded in law reports
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Precedents
Set by Australian Federal Courts can be found in Commonwealth Law Reports (CLRs) Set by state courts can be found in the relevant state law reports
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Doctrine of Precedent
Allows courts to use past decisions or principles developed in earlier cases in order to treat cases with similar circumstances and like facts equally
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How can a precedent be created?
When any of the following circumstances arise Novel case Developing precedent Statute law exists
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Novel case
A precedent may be created where there is no pre-existing statute or common law principle relevant to the case at handJudge then makes a decisionDecision is referred to variously as: a precedent, a court-made law or a judge-made law
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Developing precedent
A precedent is created where there is no existing Act of Parliament and past precedents are out of date, i.e. no longer good lawThe judge will have to make a decision and thus establish a new precedent for the case at hand
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Statute law exists
A precedent may be created where the words or sections of the relevant statute are unclear or uncertain and the Court has to interpret them and apply them to the case at handJudge has responsibility to apply the words and sections of the statute to the actual facts and circumstances of the case at hand
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Statute law exists
Prior to making any application the judge must first interpret the words and sections of the ActThis interpretation as it is applied to the case at hand becomes precedent that is applicable only to those words,
sections or parts of that particular Act
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Deciding a case
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When can a judge use a precedent?
There is no statute of relevanceThe case at hand has the like facts and similar circumstances to the past caseDecide as to whether the precedent is binding or persuasive If it is a binding precedent it must be
from the same court hierarchy
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Types of precedents
Two types Binding - must be followed Persuasive - may be used as a guide
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Binding precedent
Set when lower courts are bound to follow the decisions of higher courts in the same hierarchy, where the facts of the case are similar
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Persuasive precedent
Do not have to be followedThey can be used as a guide or reference by courts in future casesPersuasive precedents arise in three ways Decisions made by lower court levels in the
same or other court hierarchies* Decisions made by courts in the same
hierarchy and at the same level Decisions referred to by courts in other court
hierarchies*
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Changing a precedent
There are four ways precedents can be changed and updated Overruling Reversing Distinguishing Disapproving
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Overruling
Occurs when a higher court decides that a precedent established by a lower court (in the same hierarchy where there are like facts and similar circumstances) is no longer appropriate and overturns it
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Reversing
Involves one case and is only used in appeals Appeal - review of an earlier judgment
The judge of the appellate will review the previous decision of the court with original jurisdiction and may decide to change the decision by reversing it
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Distinguishing
Occurs when the relevant facts of an earlier case are not similar enough to be followed in a later caseJudge points out the differences in facts between the earlier case and the case under consideration
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Disapproving
In the case at hand the judge may express an unfavourable opinion of the earlier judgment by showing disapprovalJudge cannot overrule the precedent if it was established in a higher court but would have to follow it as it would be a binding precedent
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Disapproving
To initiate a change in the law the judge can achieve it by expressing disapproval and thus A higher court referring to this
judgment may change the law by overruling the lower court’s decision
Parliament may enact an act to change the law
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Two parts of precedents
Judgement includesDonoghue v Stevenson
This is the title of the case. The first name is the name of the plaintiff and the second name is the name of the defendant.
[1932] This is the year in which the case was reported in the law reports.
AC This stands for ‘Appeal Case’ and refers to the series of the law reports in which the case was reported.
AC 562 This is the reference number.
562 This part of the reference number refers to the page on which the transcript of the case begins in the law report.
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Judgments include two additional features
ratio decidendi obiter dicta
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Ratio Decidendi
Binding part of the precedentJudge's legal reasoning for reaching his/her decisionLower courts must follow the ratio decidendi established in higher courtsDifficult to identify as it found throughout a judgment
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Obiter Dictum
Persuasive part of a precedentComments, opinions and observations made by the judge throughout the judgmentOften referred to as ‘a statement or statements said by the way’
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Statutory interpretation
Refers to the process undertaken by courts to interpret Acts before determining their proper applicationCommonwealth and State legislation exists that gives courts the power to interpret Acts Commonwealth level - Acts Interpretation
Act (1981) For each state, see the table 21
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Reasons for interpreting Acts
Particular words of Acts may be vague or unclearActs may not clarify all future applications Acts may not clarify the intention of Parliament
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Common law rules for statutory interpretation
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Literal rule
Used to interpret words of an Act as it was written thus applying the literal meaning of
the words
Judges can use dictionaries to identify the meanings of a particular words
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Golden rule
Used when the literal rule would result in an inconsistent or illogical outcome, or when the literal rule is inconsistent with the purpose of the ActUsed to apply a more lenient definition by taking into consideration the circumstances and the purpose of the Act
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Mischief rule
Applied when the literal rule has been applied but the outcome is still ambiguousApplied to determine the real purpose behind the ActUsed to identify the mischief or misdemeanour that the law is trying to prevent
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Class rule
Refers to words that can be grouped together and labelled under a general term
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Problems with statutory interpretation
Difficulties in identifying ratio decidendiDifficulties differentiating between the ratio decidendi and obiter dictumPrecedent may have more than one ratio decidendiAlthough cases may be similar, it is unlikely that they are identicalJudges may be bound to follow decisions although they may lead to unjust outcomes
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Chapter review
In this chapter you have looked at Common law Doctrine of precedent Judgments and precedents Statutory interpretation