PrecedentPrecedent

Topic 7Topic 7

PrecedentThe 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.

Stare decisisStare decisis At its heart is At its heart is a very simple a very simple

principleprinciple: the Law expounded : the Law expounded in one case should be followed in one case should be followed in later, similar cases.in later, similar cases.

““keep to the rationes keep to the rationes decidendi of past cases”, decidendi of past cases”, or or literally, literally, “stand by the thing “stand by the thing which has been decided.”which has been decided.”

Telstra Corporation Telstra Corporation v v Treloar Treloar

(2000) 102 FCR 595, per Branson and Finkelstein JJ at (2000) 102 FCR 595, per Branson and Finkelstein JJ at 602602

The rationale for the doctrine The rationale for the doctrine of precedent: of precedent:

CertaintyCertaintyEqualityEqualityEfficiencyEfficiencyAnd appearance of justice.And appearance of justice.

Rules of PrecedentRules of Precedent

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

NSW Judicial Hierarchy

Federal Judicial Hierarchy

The highest court in The highest court in a judicial hierarchy a judicial hierarchy can overrule its can overrule its previous decisions previous decisions

First and Second TerritorialFirst and Second Territorial Senators CasesSenators Cases

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

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

Judicial hierarchiesJudicial hierarchies

LipoharLipohar v v RR (1999) 200CLR 485 per (1999) 200CLR 485 per

Gleeson CJ at 505-6Gleeson CJ at 505-6 ““The common law has its source in the reasons for decisions of the courts 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 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 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 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 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 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 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 place which precedent has in both understanding the common law and explaining its basis.explaining its basis.This Court is placed by s73 of the Constitution at the apex of a judicial 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 hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these 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 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 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 intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of within the same court reach different conclusions on the same point of law. law. The ultimate foundation of precedent which binds any court to statements 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 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 hierarchy of the same juristic system, and thus able to reverse the lower court’s judgement, has laid down that principle as part of the relevant court’s judgement, has laid down that principle as part of the relevant law.’ Until the High Court rules on the matter, the doctrines of precedent 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 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 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 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 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 true to say that there was not one English common law on a point because the Court of King’s Bench had differed from the Court of Common Pleas.”the Court of King’s Bench had differed from the Court of Common Pleas.”

Only the Ratio Decidendi Only the Ratio Decidendi is bindingis binding

Obiter Dicta, although not Obiter Dicta, although not binding, may be very binding, may be very persuasivepersuasive

Precedents are not Precedents are not necessarily abrogated by necessarily abrogated by lapse of timelapse of time

e.g. e.g. Rule in Rule in Pinnel’s casePinnel’s case (1602) 5 Co Rep 117a(1602) 5 Co Rep 117a

Development of law Development of law through precedentthrough precedent

Issue for common lawIssue for common law Criticism levelled by legal realists Criticism levelled by legal realists

among othersamong others Previous cases can be:Previous cases can be:

DistinguishedDistinguishedSet aside “per incuriam”Set aside “per incuriam”Overruled by superior courtOverruled by superior court

VocabularyVocabulary Ratio decidendi/Rationes decidendiRatio decidendi/Rationes decidendi Obiter dictum/Obiter dictaObiter dictum/Obiter dicta AffirmAffirm ApproveApprove ReverseReverse OverruleOverrule ApplyApply Follow/not followFollow/not follow DistinguishDistinguish