Chapter Summary

Precedent -- Judge-made Law

1 Judicial precedent

1. The original development of the common law was based on the doctrine of precedent. This meant a question that was dealt with in a certain way continued to be dealt with in that way in similar later situations.
2. The general principles of precedent can be summarised as follows:
   • Every court is bound by the decisions of courts which are superior to it in the same hierarchy. In such circumstances, a precedent is regarded as binding.
   • As a general rule, superior courts are bound by their own previous decision. An exception to this is the High Court, though history has shown that it generally follows its own precedents.
   • Individual judges of courts of the same level in the same hierarchy will usually follow their own earlier decisions.
   • Decisions of a superior court in a particular hierarchy, while not binding on a court in another hierarchy, have persuasive value and are known as persuasive precedents.

2 What is involved in precedent?

1. The general rule is that only the decision itself (which obligates the immediate parties to the action) and the reason for it (the ratio decidendi) are binding.
2. Anything else said about the law in the course of a judgment, but not requiring a decision in the case, has no binding power and is known as an obiter dictum.
3. Its relevance can be estimated by taking into account the court it was made in and the person who made it.

3 Common terms used in relation to the doctrine of precedent

1. Res judicata---only the immediate parties to the action are bound.
2. Ratio decidendi---literally means 'reason for deciding' and is capable of creating binding precedent.
3. Obiter dicta---are sayings by the way and they have no binding power. They can only ever be of persuasive value as they do not form part of the matters at issue.

4 Some judicial techniques

1. A case is reversed when it goes on appeal to an appellate court and the order of the lower court is changed.
2. A case is overruled when an appellate court decides in a similar matter in a later case on the basis of a different legal principle. The decision in the later court is now to be followed.
3. A case is distinguished when a court finds some material difference between the facts of the two cases.
4. If the court cannot overrule an earlier case and considers the earlier case no longer to be good law, it can disapprove it.

Statute Law - Made by Parliament

1 How is statute law made?
Statute law is made by Parliament and any subordinate bodies to which Parliament has delegated legislative power.

2 If statute law and common law conflict
Where statute law and common law conflict, statute law will prevail to the extent of the conflict.

3 Rules of statutory interpretation

1. While every attempt is made by both the parliamentary drafters and Parliament itself to ensure complete clarity, this is frequently impossible.
2. When a dispute arises, and if the definitions in the Act are of no help, there are a number of sources of guidance for the courts:
   • Acts Interpretation Acts, whose purpose is to serve as a sort of statutory dictionary. The Commonwealth, all states and the ACT have taken steps to instruct the courts to interpret legislation according to a purposive reading.
   • Objects clauses and definitions sections in legislation.

4 Common law rules of statutory interpretation

1. The literal or plain meaning approach The Act is read as a whole and if its meaning is plain that is the end of the matter. No attempt is made by the court to introduce extrinsic material.
2. The golden rule approach This is an extension of the literal approach, and is used when the plain meaning results in an absurdity, an injustice or an inconsistency with the intentions of Parliament. It makes it possible for the courts to choose a meaning that will avoid such a result (Lee v. Knapp [1967]).
3. The mischief approach This is used when words or phrases are ambiguous, vague or uncertain. The courts will try to discover the overall intention of the legislature by reading the Act as a whole and ascertaining the state of the law prior to the passing of the Act. This should enable them to establish what mischief it was intended to remedy (Smith v. Hughes [1969]).
4. Maxims Two further legal principles that help lawyers and judges to interpret statutes are noscitur a sociis ('words of a feather flock together') and ejusdem generis (the class rule).

5 Delegated and subordinate legislation

1. This is a result of the ever-increasing complexity of big government. It allows the government to concentrate on broad matters of policy, leaving matters of detail to those with the necessary technical expertise. Subordinate legislation must fall within the ambit of the given enabling Act if it is not to be held ultra vires (void).
2. Federal and state special committees review delegated legislation to ensure that it is in accordance with the enabling Act.