Case Law and Precedent

Question 1

What are the names of the parties involved in a civil case?

Answer 1

In civil cases the person bringing forward the actions are called the plaintiffs and the defendant is the party whom the action is brought against.

Question 2

Which parties name appears first in the title of a civil dispute case?

Answer 2

The plaintiff’s name appears first.

Question 3

In the title of an appeal, whose name appears first? and second?

Answer 3

The appellant and the respondent (respectively).

Question 4

What are the names of the parties involved in a criminal trial?

Answer 4

The parties involved are the prosecution and the defendant/accused

Question 5

What are precedents generally referred to as?

Answer 5

Also referred to as ‘judge-made-laws’ or common law.

Question 6

What the is ‘The Doctrine of Precedent’?

Answer 6

The judicial decisions of courts on matters of laws which are binding on all courts lower and in its judicial hierarchy.

Question 7

What is the ‘Ratio Decidendi’?

Answer 7

The legal reason for a decision.

Question 8

What is the ‘Obiter Dictum’?

Answer 8

A passing remark or an observation made by the courts that do not form part of the ratio decidendi.

Question 9

What is the ‘Stare Decisis’?

Answer 9

The doctrine of binding precedent.

Question 10

What does the ‘R’ in case titles stand for?

Answer 10

Regina or Rex.

Question 11

What are the general rules of the doctrine of precedent?

Answer 11

1. Each court is bound by the decisions of courts higher in its hierarchy
2. A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but not binding.
3. A court will not consider itself bound by its own past decisions but will depart from with only with reluctance.
4. Only the Ratio Decidendi of a past case is binding.
5. Obiter Dictum is not considered binding but may be persuasive.
6. Precedents do not lose their force over time.

Question 12

Give an example of a case where the rationale of the doctrine of precedent was expressed?

Answer 12

Telstra v. Treloar 2000.

Question 13

What are the advantages of following the precedent?

Answer 13

The advantages of the following precedent are outlined in Telstra v. Treloar 2000 and they are:

• Certainty
• Equality
• Efficiency
• Promotes the creation of impartial laws, free from personal views or biasses of judges.

Question 14

What are the limitations of the doctrine of precedent?

Answer 14

• A precedent can appear unjust and out of step with current social conditions and expectations.
• Higher courts are not bound by precedent, however, they will still face a judicial dilemma.
• Precedent can create legal uncertainty, opening a court to criticisms of the general public if social values are out of step.

Question 15

Give an example (case) of when the courts have departed from its own precedent?

Answer 15

R v. L 1991. Described how social values and beliefs affect precedent in a marriage and rape context.

OR

Mabo v. Queensland 1992. The judge rejected the application of terra nullius and upheld the native title.

Question 16

What are the difficulties of identifying a Ratio Decidendi of a past case?

Answer 16

• It may be difficult to identify the ratio in the strict legal sense.
• It may be possible to state the ratio at a higher or lower level of generality.
• There may be no majority in favour of a particular ratio.
• It may be difficult to distinguish the ratio from the obiter dictum of a case.