The Doctrine of Precedent | |
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Statutory Interpretation | |
File Size: | 428 kb |
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Court Hierarchy |
Reasons for a Court HierarchyVictorian courts are arranged in order according to the seriousness of the matters they hear. This is done for four main reasons:
Specialisation Because courts are divided by the matters they hear, court personnel at each level become familiar with the types of cases heard, the relevant laws to those cases and the procedures to be followed. Courts can employ specialist personnel. For example, Family Court personnel, including counsellors, will have detailed knowledge of the Family Law Act 1975, and may understand the specific needs of the parties coming before this court. Doctrine of Precedent The Doctrine of Precedent cannot operate effectively without a court hierarchy. Under this doctrine, rulings on new matters from superior courts are binding on all lower courts in the hierarchy. This ensures that the law is consistently applied. Appeals Appeals can only work effectively with a court hierarchy. If a party is not satisfied with the outcome of their case, they must have the opportunity to have their case reviewed by a superior court. This is a crucial element to ensuring that trials are fair and unbiased. Administrative efficiency Minor matters are heard locally, and major matters by higher courts. Therefore, the administration of justice is streamlined. Because court personnel have specialised knowledge, they can process cases quickly, which reduces court delays and costs. |
Common Law and Statute Law
Common law evolves from decisions made by courts, through the doctrine of precedents. (Also known as judge-made law and case law) Where there is a conflict between common law and statue law, statute law prevails. In other words, if common law says one thing and the statute law states something different, you must obey the statute law.
Precedents
A precedent is a reported judgment of a court that establishes a point of law. A judgment is a court decision. The judgment will include the reasons for the decision. These are known as ratio decidendi. The ratio decidendi forms the legal principle. These legal principles are used to determine subsequent cases.
The Doctrine of Precident
A system used by the courts to make sure that similar cases are dealt with by similar law, in the interests of consistency and fairness. When a legal dispute arises, the courts are the place where it must be resolved. In order to make sure that each case is dealt with fairly (and consistently), courts will look to see if any previous case (that is, a precedent) has dealt with the same fact situation and will apply that precedent to ensure consistency (to enable courts to find precedents, judgments of courts are recorded in written reports called law reports)
Ratio Decidendi
Means literally ' the reason for deciding'. The ratio decidendi is the rule of law stated by the judge as the reason for deciding. According to the doctrine of prededent, in cases that have similar circumstances, the ratio decidendi of higher courts will be binding on all lower courts (in the same court hierarchy) see case study pg 435
Stare Decisis
Means to stand by what has been decided. Lower courts stand by, or follow, the decisions of the higher courts in 'like cases'. The rules relating to stare decisis can be summarised as:
- Rules can only be set by a higher court
- All lower courts are bound by the decisions of higher courts in the same hierarchy
- Decisions of courts at the same level, or equal standing, are not binding.
Binding Precedent
A legal principle that must be followed. For example in Victoria, a judge of the County Court must follow the decisions of judges in the Supreme Court. The decision of the High Court (the highest court in Australia) in binding on all other Australian courts. If a precedent is binding on a case, then it must be followed by all the judges in that case.
For a precedent to be binding on a particular case it must be:
For a precedent to be binding on a particular case it must be:
- from the same hierarchy of courts
- from a superior court
Persuasive Precedent
Precedents made by inferior courts, courts in another hierarchy or courts on the same level of the hierarchy. They are not binding on courts. However, because they are seen to be noteworthy and highly regarded propositions of law, some may consider them just as influential on their decisions. see case study pg 434
Obiter Dictum
A comment made by a judge on a question of law, but not directly relevant to deciding the case. (A statement by the way)
Reported Judgments |
Task |
Not all court judgments are reported. Only the decisions of the higher courts (courts of 'superior record') that involve new or significant issues of law are published in law reports. Only reported decisions can form a precedent.
When a case is reported, a full statement of the case is printed. This statement will include:
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Look at the Library section of the Supreme Court's website for examples of recent judgmentsSupreme Court
or Look at the Library section of the High Court of Australia's website for examples of recent judgments. http://www.hcourt.gov.au/about/role and http://eresources.hcourt.gov.au/ Print out one of the reported cases, annotate the report to show each of the points listed on the left.
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Statutory Interpretation
Statutory Interpretation is another way that judges make law. Judges may need to interpret the words or phrases in an Act of parliament (statute)
Reasons for Statutory Interpretation
Methods Used by Judges to Interpret Acts |
Intrinsic
Contained in the Act itself and include:
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Extrinsic
Outside the Act and include:
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Effects of Statutory Interpretation
The words in the Act are given meaning
•Parties to the case are bound by the decision
•Precedent is set for future cases to follow
•Consistency and predictability
•Can be a broad or narrow interpretation of the statute
•Parties to the case are bound by the decision
•Precedent is set for future cases to follow
•Consistency and predictability
•Can be a broad or narrow interpretation of the statute
Ways Judges Can Develop Precedent or Avoid Following an Earlier Decision (Flexibility)
Distinguishing
the judge finds a material fact in the case is different from the facts in the previous case, and therefore decides the court is not bound to follow it
Reversing
the case in which the precedent was made is appealed, and the court hearing the appeal reverses the earlier decision and creates a new precedent
Overruling
a superior court in a different, later case overrules the previous precedent and creates a new one, meaning the old one is no longer law
Disapproving
a court bound by the decision (e.g. lower court) states that they do not agree with the precedent but is still bound to follow
the judge finds a material fact in the case is different from the facts in the previous case, and therefore decides the court is not bound to follow it
Reversing
the case in which the precedent was made is appealed, and the court hearing the appeal reverses the earlier decision and creates a new precedent
Overruling
a superior court in a different, later case overrules the previous precedent and creates a new one, meaning the old one is no longer law
Disapproving
a court bound by the decision (e.g. lower court) states that they do not agree with the precedent but is still bound to follow
Factors that affect the ability of courts to make law
- the doctrine of precedent
- judicial conservatism
- judicial activism
- costs and time in bringing a case to court
- the requirement for standing
Cost and Time of Bringing a Case to Court
- Legal Representation
- Court Fees
- Quick
- Courts of the ability to make law relatively quickly once a dispute has been brought before them
- When an urgent injunction (remedy in the form of a court order to do or not do something) is required the courts can move quickly
The Requirement of Standing
- Courts must wait until a party decides to pursue a case before they can create precedent
- A party cannot take a case to court unless the court has jurisdiction
- In addition the party initiating the case must have standing (locus standi) ie they must be directly affected by the issues or matters involved in the case.
Task
Draw up a table showing the factors that affect the law-making ability of the courts. Indicate how each factor enhances or limits the ability of courts to make law