TUTORIAL 2 THE COURTS AND THE CASE LAW

1. Discuss in detail the application of the Doctrine of Precedent to the Australian courts.

The practice of having due regard to the previous decisions of courts is the binding law of precedent under common law. Applying this doctrine in Australia means considering both the state and federal court hierarchies of the courts, including the High Court, and exactly when a particular court is bound by the precedent of another court. All courts determine disputes but only those which are relevant to their jurisdiction. The exception occurs where cross-vesting legislation enables certain courts to exercise authority in courts of another jurisdiction, when this is more practical. For example, Family Court (federal hierarchy) matters are also considered by the State courts. Generally, courts are not bound by their own previous decisions, however such a decision will be seriously considered in reaching a determination. Courts are bound by the previous decision of the full court within their own jurisdiction, and by superior courts. Courts may depart from a previous decision depending upon the individual circumstances. The Full Court of the High Court is not so specific it has not enunciated a definite rule as to the circumstances in which it will do so. Alternately, in the Supreme Court of Victoria, as suggested by the High Court, should only depart from its earlier decision when compelled to the conclusion that the earlier decision is wrong, and that occasion for this are infrequent and exceptional .... Courts are not bound by those decisions which are decided by courts from outside their particular hierarchy. Although courts may follow the decisions of superior courts in other jurisdictions, if applicable, for the purposes of uniformity and certainty. It follows that precedents set in the courts of other common law countries may also be considered as persuasive. An example can be found in the decisions of the Privy Council. Whilst these decisions are no longer binding upon courts in Australia (Australia Act 1986 [Cwlth]), they are considered to be highly persuasive by the High Court. On occasion when courts are divided, a number of ways are adopted to achieve a decision. Whilst there are specific differences to this practice in each jurisdiction, the rules generally applicable are: If an appeal, the decision of the court from which the appeal was made prevails.

 Otherwise the opinion of the Chief Justice or the most senior justice prevails. The application of the Doctrine of Precedent relies upon the hierarchical structure of the courts. This ranking of courts is straight forward, yet the rules guiding the courts on how to apply precedent are more detailed, and therefore complex. In trying to achieve certainty in determining a decision, Australian courts may consider the previous decisions found in other jurisdictions. Overall, the process provides the necessary checks and balances in making law but it is not an example in simplicity. 2. Please read the paper articommon lawe Making law is what the judges of the High Court do by C. Merritt (Financial Review, 7 March 1994). Summarise the article and comment about its applicability to the present legal system of Australia.

Summary: In 1994, Australias Chief Justice, Sir Anthony Mason declared that judges make law. It was considered to be a bold step as the High Court has been criticised for doing so. Law making, however, is a natural function of the High Court, although it is a different activity to that which occurs in parliaments. Law making is a large part of our society. Common law is entrenched, more so than that of parliaments. Yet, parliamentary supremacy maintains its function of repeal over any part of common law. This rarely occurs but politicians accept the convention. Common law, or judge made law is a function of the constitution, and this is a contentious issue in some areas. It appears that there some problems with common law, as follows: Some aspects do not reflect current times, which could be updated to complement the constitution and the parliament. The courts lack open and free communication. A trait of the community of law makers, in that they keep to themselves, thinking that they only apply the law, preferring to be silent about matters of the court, even when common law is growing. The crux of the problem is that decisions on cases based upon rules, which are now obsolete or unsound, result in injustices and inordinate waiting time for statutes to be enacted. There are mechanisms which constrain courts in making law, as follows: An expectation to act justly and equitably, basing decisions on sound reasons, not outdated precedent, as long as it is constrained by statute. A requirement to produce just outcomes. They must keep pace with current trends, as opposed to persisting with unsound and unjust doctrine. If courts were subject to reform and judicial activism then this would help

to reinforce societal expectations and gain public confidence of certain freedoms. Common law has its own doctrine or rules, which guide the making of law. Decisions are be based upon the circumstances applicable to a case, and not on broad concepts. If unable to reach a decision, constitutional issues should then be acknowledged. Not all judges can make law in the same way. Appellate judges have more scope than primary or trial judges who are confined to the facts as they are found. Comment: The article is extremely applicable to our present legal system. Even though the article was written in 1994, common law was established and since practised, about a thousand years ago. The practice of common law, and its relation to the parliament, still exists today. The problems with it are relevant to every sector of society trying to remain current, stamp out obsolescence, and the need to break free from stereotypical assumptions so often associated with exclusive cliques (in this instance judges). A move for open and free communication is ever present and will perhaps make the courts accountable to the people for the benefit of improving common law. The constraints imposed are equally applicable. The overriding concept of having checks and balances ensures that everyone is treated justly and safeguarded against the possibility of corruption. 3. Explain the terms Obita Dicta and Ratio Decidendi. What relevance can you find in these terms for an understanding of the law?

The ratio decidendi is the principle underlying reason, the central element, which is applied to the legal material facts of a case in determining the final decision. It is the ratio which will be binding on subsequent courts. The ratio is relevant to understanding law because it is the ratio which provides the absolute reason for a decision, and therefore a law of precedent, which has been made. Understanding the ratio equates to understanding the decision, or precedent, which enables subsequent courts to follow that decision. The obita dicta are the peripheral issues surrounding the ratio but are not part of it. Since they deal with matters generally and not absolutely, they are not authoritative and therefore they are not needed to determine a case. Obiter can have persuasive force but are not binding on subsequent courts. The obiter is relevant as it can provide reasons for a subsequent court to depart from a previous decision.

4.

Inferior courts are always bound to follow the decisions of the higher courts. Discuss.

Inferior courts are bound to follow the decisions of the higher courts vide the doctrine of binding precedent, referred to as stare decisi, but only when a similar situation exists, and within the same hierarchy of the particular jurisdiction. For matters of a similar nature the doctrine of binding precedent is critical for inferior courts to loyally accept the decisions of higher courts and has the advantage of providing certainty and detail in a case. Decisions can thus be made more predictably, consistently, fairly, impartially and more efficiently. If matters have a dissimilar nature then precedent may be considered too rigid. This will necessitate a departure from the decisions of higher courts. In effect this ensures that there is continual development to meet the changing needs of society. Also, depending upon how much detail exists, earlier decisions can be bulky and complex. Courts outside a particular judicial hierarchy may not be compelled to follow higher decisions. Although these decisions are not authoritatively binding, they can be highly persuasive. When inferior courts make a determination they must consider the decision of higher courts. If the court considers a case to be similar to one already considered by a higher court, within their hierarchy, then the precedent is binding. Effectively the decision has been made for them and the process could be described as routine. However if these criteria are absent then courts must make new decisions. This is a refreshing aspect of the courts in that laws can be updated and made relevant to current times. Alternatively, there is therefore potential for the law to be manipulated. However the avenue of appeal from a superior court provides the judiciary an internal check and balance mechanism.

5.

When reading an extract from a court case, what information should you look for as being important? Give your reasons.

When reading an extract it is essential to understand why the court made its decision. The courts decision is base upon the ratio decidendi, which will explain: The central proposition of law, or the ratio, because this is relevant to the courts final determination. If a precedent exists it will have similar ratio, and therefore binding.

Therefore the ratio is the most important information. However in understanding a court case as a whole entity, additional information which must be understood includes: 6. The parties involved. The material facts which affected the outcome. The arguments used to persuade the decision. The decision, who won, and any remedy awarded. The judicial reasons for the decision. The obiter dicta - other important statement of law. Discuss the impact of English decisions on Australian legal system.

Section 74 of the Australian constitution includes the Privy Council as part of the Australian Court structure. In theory, this would make it the highest court of appeal and therefore all courts in Australia would be bound by Privy Council decisions. However appeals are no longer taken from the High Court to the Privy Council and therefore Privy Council determinations are not imperatively binding. Thus the High Court is effectively the highest court of appeal in Australia. Appeals to the Privy Council were totally abolished in 1986 with the passage of a number of acts, which includes the Australia Act 1986 (UK). The impact of English decisions are therefore negligible, having no binding authority, although the High Court regards Privy Council decisions as highly persuasive. 7. Read John v. Federal Commissioner of Taxation (1989) 166 COMMON LAWR 417 at 438-439 and answer the following questions: (a)What are the four matters that justify the High Court departing from its own previous decisions? 1. 2. 3. 4. The earlier decisions did not rest upon a principle carefully work out in a significant succession of cases. A difference between the reasons of the justices constituting the majority in one of the earlier decisions. The earlier decisions achieved no useful result but on the contrary had led to considerable inconvenience. The earlier decisions had not been independently acted on in a manner which militated against reconsideration, as had been the case in Queensland v. The Commonwealth.

(b)Which, if any of these factors were relevant to the consideration in John v. Federal Commissioner of Taxation (1989) 166 COMMON LAWR 417? Factor No. 1. (c)Explain the application of these factors in John v. Federal Commissioner of Taxation (1989) 166 COMMON LAWR 417. The factors were considered not part of the ratio decidendi in reaching an outcome, thus enabling the High Court to depart from its own previous decision. 8. Read Nguyen v. Nguyen 91 ALR 161 at 177-179 and answer the following questions: (a)In which court did the High Court believe the decision whether a particular state Supreme Court was to be bound by its own previous decisions ultimately lay? The Full Court of the Supreme Court. (b)What did the High Court observe in relation to the Supreme Court of Victoria? Does it regard itself as bound by its own previous decisions? Appeal to the High Court from a decision of the Supreme Court of Victoria is only possible with special leave of the High Court. This effectively made the Court of Appeal the court of last resort, except in the event of a substantial miscarriage as considered by the High Court. Therefore it regards that it is inappropriate to be strictly bound by its own previous decisions. (c)On what occasions did the High Court suggest a Supreme Court could depart from its own earlier decision? When compelled to the conclusion that the earlier decision is wrong. (d)Why did the High Court believe that Supreme Courts should generally consider themselves free to depart from their own earlier decisions? Because cases where departure is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of law.