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 TerritorialSenators 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 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 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 King’s 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 Pinnel’s 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