YR 12 LEGAL STUDIES

How courts make law

Chapter overview

This chapter looks at the concepts of Common law Doctrine of precedent Judgments and precedents Statutory interpretation

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

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

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

How can a precedent be created?

When any of the following circumstances arise Novel case Developing precedent Statute law exists

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

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A precedent is created where there is no existing Act of Parliament and past precedents are out of date, i.e. no longer good lawThe judge will have to make a decision and thus establish a new precedent for the case at hand

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

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

Deciding a case

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

Types of precedents

Two types Binding - must be followed Persuasive - may be used as a guide

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

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*

Changing a precedent

There are four ways precedents can be changed and updated Overruling Reversing Distinguishing Disapproving

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

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

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

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

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

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.

Judgments include two additional features

ratio decidendi obiter dicta

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

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’

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

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

Common law rules for statutory interpretation

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

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

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

Class rule

Refers to words that can be grouped together and labelled under a general term

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

Chapter review

In this chapter you have looked at Common law Doctrine of precedent Judgments and precedents Statutory interpretation