The System of Precedent

Describe One of the main features of common

law is the doctrine of precedent. A precedent is “a judgement made by a

court that establishes a point of law”. It means that judges must resolve

disputes on the basis of decisions made in similar cases.

It can also be known as stare decisis – the decision stands

Explain The purpose of precedent is to ensure

that people are treated fairly and that the law develops consistently and coherently

Old cases retain authority, and their decisions can be used for the basis of modern-day decisions

Precedent stops judges from being “creative” when making decisions

Making Precedent

Two main ways precedent is developed1. When there is no existing law

Judges must rely on common sense and the principles of law for guidance in making their decision.

Many laws regarding murder have been created in this way: eg: provocation and self-defence

2. When legislation is interpreted

Parliament is responsible for creating legislation, but courts must interpret it, or establish the meaning of certain words.

In Vic, a person can only be guilty of burglary if they enter a “building” – the court must decide what constitutes a building

Rules of Precedent

Binding Precedent Where binding precedent occurs, a court

MUST follow the precedent already set, whether it believes the decision is correct, or not.

In NSW, a precedent is binding if it has been set by a higher court, in similar cases.

A judge is only bound by the ratio dicidendi. Obiter dicta do not create precedent.

Definitions

Ratio dicidendi A statement by the

judge about the reason for their decision

It creates a precedent that lower courts must follow

Obiter dicta Other statements

made by judges, such as their personal opinions.

These create no immediate precedent, but can be used later to justify a precedent

Persuasive Precedent May influence a decision, but a court is

not required to follow it Could include statements made by a

judge, or decisions made by courts in other jurisdictions (eg: a NSW judge may quote a judge who heard a similar case in the UK.)

How persuasive a precedent is depends on the judge and the court.

Court Binding Precedent Persuasive Precedent

High Court All state and federal courts High Courts and courts in some other countries

Full Court of Federal Court

Single judge of Federal Court and Full Court of Federal Court

High Court and courts in other hierarchies

Single judge of Federal Court

Single judge of Federal Court

Courts in other hierarchies

Courts of Appeal (NSW, Vic, Qld), Full Bench and Full Court of Supreme Court

Single judge of Supreme Court, District Court (County Court in Vic.) and Magistrate’s Court in same jurisdiction

High Court and courts in other hierarchies

State Supreme Courts

District Court (County Court in Vic.) and Local Court in same jurisdiction

High Court and courts in other hierarchies

Privy Council (UK) None in Australia All Australian Courts

House of Lords (UK)

None in Australia All Australian Courts

Critically analyse precedent

Advantages Disadvantages

Evaluate precedent