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Legal Studies Units 3 & 4 > Court Law and Precedent > Flashcards

Flashcards in Court Law and Precedent Deck (47):

The Role Of The Courts And Common Law

The court’s primary role is to adjudicate cases and settle disputes; they have a secondary role as law-makers.
– Compare to Parliament, whose primary role is to make law.
• Common law refers to law developed through the courts (as distinguished from
‘Acts’ and ‘Statutes’, which refer to laws passed by Parliament).


Two ways in which courts can make law

Test cases
Statutory interpretation


Test cases

The courts can only make law when an appropriate test case comes before the court, where either no applicable law exists, or the existing law is ambiguous as to if/how it should be applied.


Statutory interpretation

Statutory interpretation refers to the practice of courts interpreting the meaning of the words in statutes when applying them to a case the court is hearing.


The doctrine of precedent DEFINITION

The process by which judges follow the reasons for their decisions – given by courts higher in the court hierarchy – when deciding on similar future cases.


Ratio decidendi DEFINITION

The ratio decidendi or ‘reason for the decision’ is the statement of legal principle that forms the binding part of the precedent.


Obiter dictum

– Obiter dictum, on the other hand, are statements ‘said by the way’; they do not form the binding part of the precedent, but may be persuasive.


Two types of precedent

There are two types of precedent: binding precedent and persuasive precedent.
• Essentially, judges can establish a new standard which all inferior courts within the same hierarchy must follow when deciding like cases (binding precedent), or that can potentially inform the decisions of other judges but that they are not bound to follow (persuasive precedent).


Binding precedent

Precedent created by courts higher in the court hierarchy that must be followed by a lower court when making a judicial court decision in cases of similar fact. Precedents that are binding on a court include The decision of a higher court in the same
hierarchy. The ratio decidendi is the only binding part of the precedent.


Persuasive precedent

Precedent that courts do not have to follow, but may be influential on court decisions either within the same court hierarchy but by inferior or the same courts, or within a different court hierarchy both domestic and abroad. Obiter dicta often forms the basis for persuasive precedent. Judges can decide as to whether or not to follow a persuasive precedent.


Snail in a bottle case name

Donoghue v Stevenson [1932]


Facts of Donoghue vs Stevenson case

The plaintiff (Mrs. Donoghue) drank half a bottle of ginger beer and found a partially decomposed snail at the bottom. She contracted gastroenteritis and shock, which she claimed was was a direct result of her consumption of the drink. She sued the manufacturer claiming his fault.


Decision, Ratio decidendi and impact of snail case

Decision: HOL found for the plaintiff, stating that the manufacturer had a duty of care to the ultimate consumer.
Ratio decidendi: that one should take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour (your ‘neighbour’ being any persons who are closely and directly affected).
Impact: This case established the tort of negligence in England.


5 restrictions on judges to make law

Test case
Type of case


Test case restriction

Judges can only make law if there is a test case before them: that is, they must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute or common law).


Court hierarchy restriction

The position of the court in the hierarchy: only superior courts in the hierarchy create precedent. These are the courts of record, where the judgments are reported.


Type of case

The type of legal case and the mode of trial: precedent is usually only established in cases on appeal (where there is no jury) or when hearing a civil case without a jury.


Personality restriction

some judges are conservative and see their role as adjudicators, not a law makers. Some judges are more progressive, who see their role as both adjudicator and law maker. A predominantly conservative court is likely to leave parliament to create new areas of law.


Precedent restriction

Judges may be bound by existing precedent: that has been established by a higher court, so they have to follow it. However, if the case they are hearing is significantly different from the case in which the precedent was established, judges may be able to distinguish the precedent.


4 ways of avoiding precedent




A judge in a higher court deciding a case on appeal may rule that the lower court wrongly decided that case. The superior court can reverse or change the previous decision. This creates a new precedent that is binding on lower courts.



A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. The superior court may decide not to follow the existing persuasive precedent and may overrule or change it. This creates a new precedent that is binding on lower courts.



A judge may find that there are different material facts existing between the case currently being decided and the case in which an earlier binding precedent was set. If these differences are important enough, then the later court may choose to distinguish its case from the previous one, and create a new precedent for their particular set of facts. There will then be two different precedents- one for each of the two fact situations.



A judge may refuse to follow an earlier decision of another judge in the same court. They are then showing their disapproval and lack of agreement with the earlier decision. Both precedents remain in force until another case on the issue is taken to a higher court, which can overrule the previous decision and create a new precedent. Also, judges in a lower court can express disapproval.


If a Victorian Supreme court judge sets a precedent in Case A that is almost identical to the facts of Case B in the New South Wales Magistrate’s court, is the precedent binding or persuasive on the latter court?

Precedent will be persuasive, as despite that the New South Wales court is inferior, the precedent was not established within the same hierarchy; therefore, it is non-binding.


Distinguish between binding and persuasive precedent

Binding precedent refers to precedent created by courts higher in the court hierarchy that must be followed by inferior courts within the same hierarchy in in cases of similar fact. Persuasive precedent, on the other hand, refers to precedent that courts are not compelled to follow but that may be influential on their judicial decisions.


Explain one way in which precedent can be developed

One way in which precedent may be developed is through overruling. A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. The superior court may decide not to follow the existing persuasive precedent and may overrule or change it, creating a new precedent that is binding on lower courts. This method enables judges presiding in superior courts to act as a check and balance on previous decisions and to enable flexibility in the law as to ensure it doesn’t remain too rigid.


A legal academic was quoted, saying, ‘judges may as well not have the power to make and develop the law, given how restricted they are in this role’. To what extent do you agree with this statement? Justify your answer.

I agree to an extent with the above statement. Whilst judges are fundamentally restricted by only having a secondary role as law-makers they have certain powers to make law. The operation of the doctrine of precedent enables judges to establish new legal principles where no such law exists or the existing law is unclear. They are also able develop the law through methods of avoiding precedent and statutory interpretation. Judges may overrule, reverse, distinguish or disapprove existing precedents as well as expand the practical application of legislation through interpretation ensuring that the law does not remain stagnant by remaining flexible. However, the courts must wait for appropriate test cases to come before them before they can make/develop the law and may be bound be precedent that they are unable to avoid, limiting the ability of the common law to respond to changes in society.



State all courts that the decision is binding on and all courts that the decision is not binding on and why.


The doctrine of precedent EXPLANATION

The High Court, the Court of Appeal and the Supreme Court are referred to as superior courts of record and their decisions are often reported in law reports. The reasoning of the judges in cases heard in these courts becomes known as precedent and must be followed by all lower courts in the same hierarchy when deciding cases with similar facts to those in the precedent case. In this way, earlier decisions of superior courts guide the judges in lower courts — this process of judges following the decisions of higher courts is at the heart of the doctrine of precedent.


Is the high court bound by its previous decisions

The high court is not bound by its previous decisions, but in the interests of consistency it will usually follow its previous decisions unless they are not good law.


Can juries create precedent

Law-making through the courts generally occurs when a court is hearing an appeal (so there is no jury) or is hearing a civil case without a jury. A jury decision cannot create a precedent as juries do not decide points of law.


Ratio Decidendi EXPLANATION

The 'reason for the decision' forms the binding part of the judgement made by the judge. It is not the decision itself, or the sanction or remedy given, but the reason for the decision, which is regarded as a statement of law to be followed in the future. The material facts are those that are vital to the reason for the decision as it is these facts that are considered when deciding case


Obiter Dictum

Things said by the way. In a judgement at the end of a case the judge sometimes makes which is not part of the Ratio decidendi. The statement may be influential on decisions in the future, it will act as a persuasive precedent.


4 things persuasive precedents include

Decisions in another hierarchy
Decisions of same level
Decisions of lower level
Obiter dictum contained in a judgement in a court higher in the same hierarchy or in another hierarchy.


Steps in the doctrine of precedent



Determining step 1

As judges decide case they will determine whether or not a similar case has been previously decided.


Similar step 2

If the judges decide the fact of the case are the same he/she will then give the same decision as the judge beforehand did, I.e. he is using the previous case as a precedent.


Step 3 distinguish

If he decides the cases are not similar i.e. he distinguishes the two cases he will then make his own decision. That decision then becomes law for that new situation and becomes precedent for later judges to follow.


4 principles of the doctrine of precedent




Courts are arranged in a hierarchy of importance.



Every court is bound to follow the decision of a court superior to it in the same court hierarchy when faced with a similar fact situation that gives rise to the same applications of legal principles.


Lower courts

Decisions of lower courts and courts of equal standing are not binding, only persuasive.



Individual judges are not bound by the decisions of other judges in courts of the same level but they are influenced by their colleagues opinions.


Statutory interpretation explanation

Statutory interpretation is needed when a case is brought before a court where there is a dispute over whether the words of the act apply to the situation before the court. When judges interpret the words/phrase in a statute, the meaning behind the interpretation sets a precedent for all lower courts, in the same hierarchy applying the act in future. The new precedent becomes part of the law along with the statute. In this way, judges are said to have created law by adding to existing law and clarifying what is law.


Example of persuasive precedent

An example of a persuasive precedent is the British case of Donoghue v. Stevenson (1932) AC 562, which provided a clear proposition of the law of negligence. This case was not binding on Australian courts, but was used as persuasive precedent in Grant v. Australian Knitting Mills (1936) AC 85, which established the law of negligence in Australia.


State decisis

The principle at the heart of the doctrine of precedent (literally ‘to stand by what is decided’).

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