DP 1 : THE ABILITY OF JUDGES AND COURTS TO MAKE LAW

DP 2 : THE OPERATION OF THE DOCTRINE OF PRECEDENT

Unit 3 AoS 3 Revision

DP 1: The ability of judges and courts to make law

Explain what a court hierarchy is.

Answer

The ranking of courts in order of importance or jurisdiction. As the hierarchy progresses upwards, the courts become more superior as a reflection of the more serious nature of the cases they hear.

Magistrates’ Court, County Court, Supreme Court – Trial Division, Supreme Court of Appeal, High Court.

The court’s role in making laws

• Explain the two situations in which the courts make laws.

• Define the doctrine of precedent.

Answer

Courts make laws in two ways. First, they come to decisions on cases where there is no law/relevant legislation. In doing so, they create a precedent (common law – judge made law). The reasons for their decision (ratio decidendi) will become part of the judge made law. Secondly, courts are required to apply statute law (parliament made law) to cases before them. Their interpretation of the law (statutory interpretation) will also set a precedent.

The doctrine of precedent refers to the process by which judges follow the reasons for the decisions (ratio decidendi) given by courts higher in the court hierarchy when deciding on similar future cases.

There are two types of precedent: persuasive and binding.

Question

Distinguish between binding precedent and persuasive precedent.

Answer

Binding precedent must be followed by a court when making a decision on a similar case. It is the ratio decidendi, or the reason for the decision, that forms the binding part of the precedent. Precedents that are binding on a court include: the decision of a higher court and court must be in the same court hierarchy whereas persuasive precedent is precedent that courts do not have to follow but they may choose to do so for consistency. Persuasive precedents include: the decision of a lower court in the same court hierarchy, the decision of a court in a different court hierarchy such as another state or country, the decision in the same court it if it not one that is bound to follow its own decisions, obiter dictum statements.

Exam question

‘The operation of the doctrine of precedent relies upon the existence of a hierarchy of courts.’

Explain the above statement. 2 marks. VCAA 2009.

One possible answer…

If there was no hierarchy of courts the doctrine of precedent could not operate. The decision of higher courts are binding on lower courts in similar cases in the same hierarchy, therefore if there wasn’t a court hierarchy and all courts were on the same level, there would be no way of determining which was a binding precedent and which was a persuasive precedent, so the doctrine of precedent would not operate.

Exam question

The Marital Status Act 2009 has just been passed by the Victorian Parliament.

a. Other than making laws, outline one other role of the lower house of the Victorian Parliament (1 mark).

b. If the constitutional validity of the Marital Status Act 2009 was challenged, identify the court that would hear this matter. Outline one aspect of its appellate jurisdiction (2 marks VCAA 2009).

Answer: Part A

Acceptable responses included: •forms government •represents voters •provides a forum for debate •scrutinises government.The most popular response was that the Lower

House forms the government. Some students did not read the question properly and wrote that the Lower House makes/reviews/debates laws and therefore did not gain any marks.

Answer: Part B Many students correctly identified that the High Court would

most likely hear this matter. No marks were given if a student provided two courts.

The second part of the question required students to have knowledge of the High Court’s appellate jurisdiction. The appellate jurisdiction of courts is part of Unit 4, Area of Study 1 and students should have been familiar with all courts’ appellate jurisdiction. Students had to answer both parts of the question to gain two marks.

As to its appellate jurisdiction, the High Court can hear appeals from:

•its own court •the Full Court of the Federal Court •the Full Court of the Family Court •state and territory Supreme Courts. Weaker answers did not correctly identify the High Court.

Some students did not know the High Court’s appellate jurisdiction and incorrectly stated that it hears appeals from the County Court.

Question

Explain the parts of a court’s judgment. See handout 1.

Question

Explain the methods judges can use to avoid following an existing precedent. 4 marks.

Answer

A judge can avoid or develop following precedent by: Reversing: 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 of change the previous decision made in the lower court. This creates a new precedent that is binding on the lower courts.

Overruling: a judge deciding a case in a higher court may not agree with the precedent set in another case in the 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 the lower courts.

Answer

Distinguishing: 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 new precedent for their particular set of facts. There will then be two different precedents: one for each of the two fact situations.

Answer

Disapproving: 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 new precedent. Also, judges in lower courts can express disapproval about a precedent set in a higher court that they are bound to follow.

Evaluating the operation of the doctrine of precedent

The doctrine of precedent allows for both consistency and flexibility.

Critically examine these two strengths of the doctrine of precedent. 6 marks. VCAA 2010.

Answer

Strengths Weaknesses

•Creates certainty and consistency as a case will be decided similarly to a previous, comparable case. •Flexibility due to the fact that these methods of avoiding or developing precedent (RODD) help prevent the law from becoming too rigid. •Encourages efficiency as judges can refer to previous cases when making decisions. •Allows judges to crease new areas of law in order to uphold the rights of disputing parties.

*Inflexible, as a court is bound to follow precedent and may not be able to avoid it, so common law (judge made law) is limited in responding to changes in society. •Some uncertainties, as now to cases are ever the same so the law cannot be applied in exactly the same way in all cases. •The courts are restricted in using precedent in that they must wait for the case to be brought before them – this is slow and irregular so that the application of precedent is also irregular.

One possible answer… The doctrine of precedent refers to the process by which lower courts in the

same hierarchy follow decisions of higher courts in similar cases with similar circumstances. This process provides for consistency and fairness by ensuring that similar cases are dealt with in a similar way by precedents set by higher courts being followed by lower courts. This level of consistency also allows for some predictability which enables legal practitioners to advise clients on possible outcomes of their case. The problem with consistency, however, is that if poor or bad precedents are set, then lower courts must follow them, thus causing injustice in cases as the precedents must be followed. Additionally, if courts are to change that precedent, then a higher court must wait for a case to come before them with similar circumstances in order for the precedent to be changed.

The courts, by avoiding this consistency in precedents, also have some flexibility in avoiding precedents which including reversing, overruling, distinguishing and disapproving. However, there are some limitations in these methods of flexibility. Disapproving of a precedent is normally used by a judge in a lower court and does not change the precedent; it just highlights their disapproval of it. Reversing is only available when the case in which a precedent was set or followed is at appeal and the higher court decides to overrule the decision. Overruling is only available to courts higher than the court that set the precedent, and even then judges are often conservative and may not decide to overrule a precedent. Furthermore, distinguishing can only be available where the facts are different enough for this method to be justified. Finally, although these methods are available to the courts, they can cause the doctrine of precedent to be inconsistent and unpredictable, therefore need to be used in the appropriate case.

Examples!

With the use of examples, explain the process used by the courts to develop common law through the doctrine of precedent. 8 marks.

Donoghue v. Stevenson

The development of the law of negligence: Donoghue v. Stevenson

Facts: The plaintiff, Mrs Donoghue, consumed a bottle of ginger beer that had been purchased by a friend. Noticed a snail in the drink. Suffered shock and gastro. As the fault lay with the manufacturer, who had not cleaned the bottle correctly, Mrs Donoghue sued him.

Decision: Found for the plaintiff, stating that the manufacturer had a duty of case to the consumer. Ratio decidendi of the judgment was that one must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour (the neighbourhood principle).

Impact: the case established the law of negligence in England.

Grant v. Australian Knitting Mills

Grant v. Australian Knitting Mills. Facts: The plaintiff, Dr Grant, purchased

underpants from an Adelaide store. Itchy. Hospitalised. Dermatitis. Dr Grant unable used the manufacturer for negligence, as the undies had a chemical, sulphite, in the woollen material.

Privy Council decision: Found for the plaintiff and followed the persuasive precedent in Donoghue v. Stevenson and held that the manufacturer had a duty of care to the consumer.

Impact: developed the law of negligence in Australia.

A taste of the next DP for revision…

To what extent are judges limited in their ability to make law? Justify your answer. VCAA 2009. 6 marks.

Possible answer Although judges can make law, they are limited in their ability to a certain

extent. Courts are limited in their ability to make law because they act ex-post facto. This means that courts cannot make a law until a case comes before them. Therefore, they cannot make laws whenever they want (unlike parliament).

Courts are also limited because they are bound by precedents made by higher courts in the same court hierarchy where the legal principles within similar circumstances. Therefore, if a binding precedent exists, courts do not have any ability to change the law and must abide by it.

Courts are often also limited because judges can be very conservative and reluctant to change a bad law. Courts also cannot seek public opinion or consult committees before making a decision.

Despite this, however, courts do have some ability to make law. Judges are not ‘elected’ by the people and are therefore free to make decisions and not be influenced or pressured by consequences of not being re-elected if they make an unpopular ruling. Further, judges have some flexibility in being able to avoid following precedent. A common method is to distinguish the facts of the case before them from the facts in the case which is a binding precedent, thereby being free to make a ruling different to the binding precedent. Another common method is to disapprove a decision made in a higher court, therefore opening the door for that case to be overruled in a future case in a higher court.

Overall, courts do have the ability to make laws, but are limited to some extent.

Definitions

Define the following terms: Binding precedent Court hierarchy Disapproving precedent Distinguishing precedent Doctrine of precedent Obiter dictum Overruling precedent Persuasive precedent Precedent Ratio decidendi Reversing Stare decisis See handout 2 for answers.

Exam question

Explain how a law can be made by parliament and through court decisions. Comment on the effectiveness of these two methods of law making. 12 marks. (VCAA 2002).

Answer

Parliament – advantages Parliament can investigate the whole topic and make a comprehensive set of laws Parliament has access to expert information and is therefore better able to keep up with changes

in society •parliament provides an arena for debate Parliament can delegate its power to make law to expert bodies Parliament is able to involve the public in law-making Parliament can change the law as the need arises •parliament can make law in futuro Parliament

is democratically elected.Parliament – disadvantagesInvestigation and implementation of a new law is time consuming and parliament is not always able

to keep up with changes in society The process of passing a bill is time consuming Delegated authorities are not elected by the people and there may be too many bodies making

laws It is not always possible to change the law in accordance with changing values in society Parliament is not always sitting, so changes in the law may have to wait some time •changes in

the law may involve financial outlay, which may not be economically viable at the time Parliament can make laws retrospective, which can be unfair Division of law-making powers between the federal and state parliaments is in dispute from time

to time Parliament’s Upper House can rubber stamp or deliberately obstruct legislation

Answer

Courts – advantages Courts can keep the law from becoming too rigid by distinguishing,

overruling and reversing previous decisions and giving meanings to words in statutes

Courts can fill the gaps in the law by making a decision on a matter when it arises

Courts can interpret the words of an act of parliament to give a more just result

Judicial decisions are free from outside pressure The doctrine of precedent limits the possibility of prejudices or bias

influencing judicial decisions Appeals process allows for the review of decisions.Courts – disadvantages• Courts cannot change a law unless a case is brought before the court• Courts may be bound by an old precedent which could lead to unjust

results• Changes in the law through the courts are ex poste facto • Change through the courts can be very expensive for the parties

involved• Parliament can override court-made law• Some judges are very conservative and could be reluctant to change bad

laws

Can you…

Explain the ability of judges and courts to make law (including limitations and restrictions on law making)?

Explain the meaning and the operation of the doctrine of precedent?

Distinguish between binding and persuasive precedent? Explain the means by which courts develop or avoid

precedent: overruling, reversing, distinguishing and disapproving?

Evaluate the advantages and disadvantages of the doctrine of precedent?

Describe the impact of precedent on the law, using an example?

Hot tips

You should use key terminology such as stare decisis, ratio decidendi, obiter dictum, binding and persuasive precedent in your discussion of the operation of precedent.

Whenever discussing how courts create law through precedent, you should also include consideration of how precedent can be developed through reversing, overruling, distinguishing and disapproving.