COMMON LAW
Legal Studies 3C
Sources of law in Australia
Common law
Parliament
• Judge-made
law
Statute law or
Acts of
Parliament
Courts
Statutory
interpretation
Independence of
the judiciary
Doctrine of
Separation of
Powers
Executive
Legislative
Judiciary
Court Hierarchy – Tasmania
High Court of Australia
(Original or appellate jurisdiction)
Full Court of the Supreme Court
(Appellate jurisdiction)
Court of Criminal Appeal
(Appellate jurisdiction)
Civil law
Criminal law
Supreme Court
(Original jurisdiction)
Court of Petty Sessions
Youth Justice Division
Magistrates Court
Civil division
Coronial Division
Appeals in Tasmania
Appeals
• Matters heard in the Magistrates Courts and Tribunals can be
appealed to the Supreme Court where they will be heard by a single
judge. These are called Lower Court Appeals. Lower Court Appeal
decisions can be appealed to the Full Court of the Supreme Court of
Tasmania (for civil cases) and the Court of Criminal Appeal (for
criminal cases). These appeals are heard by three judges of the
Supreme Court.
• Appeal cases from both the Court of Criminal Appeal and the Full
Court can then be appealed to the High Court. The High Court's
decision is final and no further appeal can be made.
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http://www.courts.tas.gov.au/about_us/organisation
Federal Courts
Federal Courts
High Court
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High Court (1 Justice)
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Original jurisdiction Federal Law
matters
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Original jurisdiction
Appellate jurisdiction (Federal,
Family, High Courts)
Full Bench of the High Court (5 – 7
Justices).
Original jurisdiction - Interpretation
of the Constitution
Appellate jurisdiction
Family Court (original
jurisdiction)
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Full Court of the High Court (no less
than 2 Justices)
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Divorce
Marriage
Bankruptcy
Children (parenting
disputes)
Property
Full Court of Family
Court (appellate
jurisdiction)
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Federal Court (original
jurisdiction)
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Trade Practices
Corporate Law
Taxation
Immigration
Native Title
Full Court of Federal
Court (appellate
jurisdiction)
Appeal to High Court
Independence of the judiciary
• Why is this important?
• Ensures fair and impartial trial for all citizens (judge is an impartial
umpire) - natural justice
• Ensures governments do not exceed their power and that
governments are subject to the rule of law (check on executive
power).
• Interpret the Constitution and legislation (statutory interpretation)
• Create legal principles to resolve disputes (when the issue has not
been legislated on)
Role of the courts
• Settle disputes that arise in the community, therefore apply
existing laws to the facts in cases that come before them.
• Common law – when a legal principle is established by a court
due to limited statute law from parliament in an area of law.
This includes when a new issue is brought before the court in a
case or when a previous principle of law requires expansion to
apply to a new situation.
• Statutory Interpretation – interpreting the meaning of the
words in an act of parliament when applying them to a case the
court is hearing.
When can judges make law
• If a case is brought before a superior court
• If there is no previous binding decision in a higher court in the
same hierarchy that must be followed by the lower courts.
Doctrine of Precedent
• When a court makes a decision in a case that is the first of its kind, the
court is said to be setting a precedent.
• A precedent is the reasoning behind a court decision that establishes a
principle or rule of law that must be followed by other courts lower in
the same court hierarchy when deciding future cases that are similar.
• This creates consistency and predictability
• The process of judges following the reasons for the decisions of higher
courts is at the heart of the doctrine of precedent.
• Precedent example - handout
Doctrine of Precedent
• Stare decisis – another way of describing the process of lower
courts following the reasons for the decisions of higher courts.
• Means – ‘to stand by what has been decided’.
Doctrine of Precedent
Reason for the decision = ratio decidendi
• Ratio decidendi is the binding part of the judgement – the reason for
the decision which is then regarded as a statement of law to be
followed in the future.
Read page 230 – 233 (blue), Page 221 – 223 (red)
Read the following cases:
• Shaddock v Parramatta
• Pinkstone v R
• Q1: What were the ratio decidendi in both cases (what was the precedent set)?
• Q2: What was the decision and penalty in both cases?
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Handout – How judges make law
Doctrine of Precedent
Binding precedent
For the precedent to be binding, it must be:
• From the same hierarchy of courts
• From a superior court (higher in the hierarchy)
To be considered binding on a new case:
• The main facts of the precedent are similar to the main facts of the new case
• The precedent was set in a higher court in the same hierarchy as the new
case.
• Example: Pinkstone v R (2004) – binding precedent on similar case
• Example: precedent set in the High Court – the ratio decidendi is binding on
lower courts in the court hierarchy
Doctrine of Precedent
Persuasive precedent
A precedent that is not binding on the courts however as they are seen to
be noteworthy and highly regarded propositions of law they may be
considered by some courts as influential on their decisions.
Includes:
• From courts in another hierarchy (other state or country)
• From courts on the same level of hierarchy (which are not binding)
• From inferior courts (courts lower in the court hierarchy)
Doctrine of Precedent
Read page 233 -236 (blue), Page 223 – 226 (red)
Read the following cases:
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Example: Donoghue v Stevenson
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Example: Grant v Australia Knitting Mills
• Q1: What aspect of Donoghue v Stevenson (UK 1932) was used as
persuasive precedent in Grant v Australian Knitting Mills (1936)?
Persuasive precedent comparison
Donoghue v Stevenson
Grant v Australia Knitting Mills
A consumer purchased goods
A consumer purchased goods
Mrs Donoghue did not have a contract with
the manufacturer
Mr Grant did not have a contract with the
manufacturer
There was a snail in the bottle
Underwear contained chemical residues
The bottle of ginger beer had been carelessly
prepared
The underwear had been carelessly prepared
The ginger beer manufacturer could have
reasonably foreseen that damage would
result from the carelessness
The underwear manufacturer could have
reasonably foreseen that damage would
result from the carelessness.
Mrs Donoghue was closely and directly
affected by the actions of the manufacturer
Mr Grant was closely and directly affected by
the actions of the manufacturer
Mrs Donoghue suffered gastroenteritis and
shock
Mr Grant suffered dermatitis
Doctrine of Precedent
Obiter dictum
• “Things said by the way”
• Sometimes a judge will make a statement that is not part of the
reason (ratio decidendi) for the decision, but is an important
statement relating to the main issue of the case. This statement is
known as obiter dictum, and can influence decisions in the future
(persuasive precedent)
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Example: Hedley Byrne & Co Ltd (B=P236, R=P227)
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https://www.youtube.com/watch?v=hjPtEWzMRbA
Precedent - activities
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Read page 230 – 237 (Blue edition)
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Read page 221 – 227 (Red edition)
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Activity –You be the judge (precedent of Grant v Knitting Mills)
Precedents
Ways judges can develop precedent or avoid following an earlier
decision
• Distinguishing a precedent – court decides the main facts of new
case are sufficiently different to previous case (where precedent was
set) therefore precedent is not binding.
• Case: Davies v Waldron (1989) (B=P238, R=P229)
Precedents
• Reversing a precedent (in the same case) – on appeal, the higher
court makes a different decision than a lower court in the same
case therefore precedent set by superior court is binding.
• Case: Queen v Tomas Klamo (2008) (Blue = P240, Red = P231)
Precedents
• Overruling a precedent – higher court decides not to follow an
earlier precedent of a lower court in a different case. The higher
court decision creates a new precedent.
• Case: Aon Risk Services Aust v Australian National University (2009)
– (Blue p241, Red p231)
• Disapproving a precedent – court expresses disapproval of
previous precedent but is bound by it if in an inferior court. If
previous decision has been made in a court at the same level in the
court hierarchy, and the court disapproves of the earlier decision,
present court is not bound to follow precedent.
• Case: State Government Insurance Co v Trigwell & Ors (1978)
Activity
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https://www.youtube.com/watch?v=QSA1Q422r-8
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Read page 238 – 247 (blue edition)
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Read page 227 - 235
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Handout – Learning Activity 1 (match the terms)
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Handout – Activity 11.5 (Essential VCE Legal Studies Units 1&2)
Textbook activities •
Learning Activity 5.3
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Q9
Q10
Statutory Interpretation
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Tas Dams case
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Deing v Tarola (the studded belt case)
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https://www.youtube.com/watch?v=Vb9JjncNq3k
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Final clip to watch