1. What is meant by the ratio decidendi of a decision?

The reasoning of the case

2. What is obiter dictum?

Is a statement or consideration of law in a case that is not a port of the ratio. It is persuasive
only. It can be a hypothetical consideration, an alternative line of reasoning ect.

3. How is the difference between a ratio decidendi and an obiter dictum distinguished?
Obiter dictum is usually observations made by the judge and are not essential to the decisions
and therefore is not binding precedent but may be persuasive. Although obiter is only
persuasive, the degree of persuasiveness varies depending on the authority of the court and
consideration given to the dicta by the court (Nowicka v Superannuation Complaints tribunal
[2000] FCA 939).

4. What is ‘stare decisis’?

The doctrine of precedent

5. Should old cases be ignored?

No because they form precedent for future decisions

6. What are the differences between courts and administrative tribunals?

They run parallel to each other. Tribunals are less formal, less expensive and faster. They
have authority of own decisions treated more flexibly (i.e. don’t usually have to follow
precedent)

7. What is meant by ‘distinguishing’ a prior decision?

To ‘distinguish’ a prior decision means that the court has not followed precedent due to
materially different facts between the two cases

8. Why do we have the doctrine of precedent?

a. Certainty
b. Equality
c. Efficiency
d. Appearance of justice
Telstra v Treloar (2000)

9. Which decisions are persuasive only and why?

Persuasive precedent

10. Do all cases have a ratio decidendi?

Ratio decidendi=rule of law on which a judicial decision is based (i.e. the reasoning behind
the case) When a judge delivers judgement in a case he outlines the facts which he finds have
been proved on the evidence. Then he applies the law to those facts and arrives at a decision,
for which he gives the reason (ratio decidendi). Not every case decided will have a ratio
because there may just be a dispute about the facts.

11. Can a case have more than one ratio decidendi?

If the decision has more than one judge, then there may be more than one reasoning. Also if
there are several different points of law, then there will be multiple reasoning

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12. How is a ratio decidendi of an appellate decision determined?
Every decision than an appellate court makes governs the future decisions f trial courts.

13. Who drafts statutes in Australia

There are three branches of government in Australia: Legislative, executive and judicial
(separation of powers)
Legislative branch = create laws
Executive = puts the laws into operation
Judiciary = interprets the law

14. Methods of statutory interpretation

 Common Law approach
o Literal approach = ‘Plain meaning’ Higgon v O’Dea [1962] WAR 140
 Golden rule approach = applied when literal approach gives an absurd
result. Allows judges to be able to add or change the meaning of
statutes and thereby becoming law makers. Grey v Pearson (1857);
Adler v George (1964)
o Purposive approach
 Mischief rule = looks at the intended purpose of parliament
 Statutory approach
o Purposive approach
 S15AA Act interpretation Act 1901 (Cth)
 S 33 Interpretation Act 1987 (NSW)

15. Who interprets statute?

It is a process where the courts interpret and apply legislation therefore the main people to
interpret statute are judges.

16. Use of extrinsic material

Extrinsic material is any documents that exist outside the statute/legislation that is being
interpreted. Can include official reports, explanatory memoranda ect. Section 15AB of the
Acts Interpretation Act 1901 (Cth) allows for extrinsic material to be used.

17. How did common law end up in Australia?

The laws that governed England were transplanted to Australia by British colonists, because
Australia was said to be terra nullius. The Australia Courts Act 1828 provided that all laws
and statutes that are enforced in England would be enacted in Australia. Appeals in Australia
would be heard at the Privy Council in England until it was abolished by the Australia Act in
1986. In 1901 the Commonwealth of Australia Constitution Act (UK) was passed, and
although it was a UK statute it became the Constitution of Australia

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