Judicial reasoning
and the doctrine of
Precedent
Susan Carter
Precedent
 The
hallmarks of justice are that
it should be certain, and should
be universal.
 The doctrine of precedent was
developed to provide the
necessary certainty and
universality.
Stare decisis
 At
its heart is a very simple
principle: the Law expounded in
one case should be followed in
later, similar cases.
 “keep to the rationes decidendi of
past cases”, or literally, “stand by
the thing which has been decided.”
Telstra Corporation v Treloar
(2000) 102 FCR 595, per Branson and Finkelstein JJ at 602
The rationale for the doctrine of
precedent:
 Certainty
 Equality
 Efficiency
 And appearance of justice.
What is binding?

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The whole judgment?
Everything each judge says?
Only the ratio decidendi
Ratio? The reason for the decision, or the
answer to the question of law before the courts
Ratio of this judgment?

http://www.youtube.com/watch?v=y_az3eNb0
fI&feature=related
Judgment of Solomon

Was Solomon answering a question of fact or a
question of law?
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Only answers to questions of law create binding
precedent
Important distinctions
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Distinguish between questions of fact and
questions of law
Ratio decidendi and obiter dicta
Obiter is persuasive, not binding
Don’t ignore the obiter!!!
Precedent and hierarchy
Each
court is bound
by the decisions of
higher courts in the
same judicial
hierarchy
How many hierarchies in a
federal system?
1.
2.
3.
4.
5.
6.
7.
8.
9.
Federal
NSW
Victorian
Qld
SA
WA
Tasmania
ACT
NT
NSW Judicial Hierarchy
So is precedent possible in a
Federal system?
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Precedent creates common law
NSW common law or common law for all of
Australia?
Lipohar v R (1999) 200CLR 485 per Gleeson CJ at 505-6
“The common law has its source in the
reasons for decisions of the courts which are
reasons arrived at according to well
recognised and long established judicial
methods. It is a body of law created and
defined by the courts....the doctrine of
precedent is...central to any understanding
of the common law in Australia. To assert
that there is more than one common law in
Australia or that there is a common law of
individual States is to ignore the central
place which precedent has in both
understanding the common law and
explaining its basis.
This Court is placed by s73 of the Constitution
at the apex of a judicial hierarchy to give
decisions upon the common law which are
binding on all courts, federal, State and
territorial. Different intermediate appellate
courts within that hierarchy may give
inconsistent rulings upon questions of
common law. This disagreement will indicate
that not all of these courts will have correctly
applied or declared the common law. But it
does not follow that there are as many bodies
of common law as there are intermediate
courts of appeal. The situation which arises is
not materially different to that which arises
where trial judges in different courts or within
the same court reach different conclusions on
the same point of law.

The ultimate foundation of precedent which
binds any court to statements of principle, is as
Barwick CJ put it, ‘that a court or tribunal higher
in the hierarchy of the same juristic system, and
thus able to reverse the lower court’s judgement,
has laid down that principle as part of the
relevant law.’ Until the High Court rules on the
matter, the doctrines of precedent which bind
the respective courts at various levels below it in
the hierarchy will provide a rule for decision.
But that does not dictate the conclusion that
until there is a decision of the High Court the
common law of Australia does not exist,...”
Precedent and hierarchy
The
highest court in
a judicial hierarchy
can overrule its
previous decisions
Attitude of High Court
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Queensland v Commonwealth (1977) 139
CLR 585 per Gibbs J
http://www.austlii.edu.au/au/cases/cth/H
CA/1977/60.html
Read paras [9] –[11]
Need for continuity and consistency in judicial
decision making
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9. It then becomes necessary for me to decide whether I
ought to follow the decision of the majority in Western
Australia v. The Commonwealth, notwithstanding that I
believe it to be wrong. There is of course no doubt that
this Court is not bound by its own decisions..... No Justice
is entitled to ignore the decisions and reasoning of his predecessors,
and to arrive at his own judgment as though the pages of the law
reports were blank, or as though the authority of a decision did not
survive beyond the rising of the Court..... It is only after the most
careful and respectful consideration of the earlier decision, and after
giving due weight to all the circumstances, that a Justice may give
effect to his own opinions in preference to an earlier decision of the
Court. (per Isaacs J at p599)

10. It would be futile to attempt to state any
succinct general principle by which the Court
should be guided in deciding whether to overrule
an earlier decision of its own. ... the Court would
be slow to disturb a decision which applied a
principle that had been carefully worked out in a
succession of cases, and had been more than once
reaffirmed. On the other hand, a judgment which
had been given per incuriam, and was in conflict
with some other decision of the Court, or with
some well-established principle, might be readily
reviewed. ....
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But when it is asked what has occurred to justify
the reconsideration of a judgment given not two
years ago, the only possible answer is that one
member of the Court has retired, and another
has succeeded him.
11.... the replacement of one Justice by another
[should not] in itself justify the review of an
earlier decision. Having considered all the
circumstances that I have mentioned I have
reached the conclusion that it is my duty to
follow Western Australia v. The Commonwealth,
although in my view it was wrongly decided.
And Mabo
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Mabo v Queensland (No 2) (1992) 175 CLR617
http://www.austlii.edu.au/au/cases/cth/HCA/
1992/23.html
Per Brennan J

“…this Court is free to depart from English
precedent which was earlier followed as
stating the common law of this country…it
cannot do so where the departure would
fracture what I have called the skeleton of
principle….The peace and order of
Australian society is built on the legal
system. It can be modified to bring it into
conformity with contemporary notions of
justice and human rights, but it cannot be
destroyed.” (at [29])
Decision at same level?
A
judge does not have to follow
the decisions of other judges at
the same level in the same
judicial hierarchy – these
decisions will however be highly
persuasive in the interests of
consistency.
Other hierarchies?
A
decision of a court
in a different
hierarchy may be of
considerable weight,
but will not be binding
Expiry date of precedents?
 Precedents
are not necessarily
abrogated by lapse of time
The rule in Pinnel’s case

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Part payment of a debt is
not sufficient
consideration for a
promise to discharge the
whole debt
“…but the gift of a horse,
hawk or robe etc might be
more beneficial to the plaintiff
than the money” Lord Coke in
Pinnel’s case

Pinnel’s case (1602) 77 ER
237
Expressing the ratio
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How narrowly do we express the ratio?
Is Pinnel’s case only relevant when a hawk is
involved?
Donoghue v Stevenson [1932] AC 562
28
‘Neighbour principle’
“The rule that you are to love your neighbour becomes in
law, you must not injure your neighbour and the lawyer’s
question, who is my neighbour receives a restricted
reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would
be likely to injure your neighbour. Who then, in law, is
my neighbour:…those persons who are so closely
and directly affected by my act that I ought
reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts
or omissions which are called into question.”
‘product liability principle’
“A manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with
no reasonable prospect of intermediate examination, and
with the knowledge that the absence of reasonable care
in the preparation or putting up of the products will result
in an injury to the consumer’s life or property, owes a
duty to take reasonable care.”
Both per Lord Atkin
Development of law through
precedent
Issue for common law
 Criticism levelled by legal realists among
others
 Previous cases can be:
 Distinguished
 Set aside “per incuriam”
 Overruled by superior court

Vocabulary
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Ratio decidendi/Rationes decidendi
Obiter dictum/Obiter dicta
Affirm
Approve
Reverse
Overrule
Apply
Follow/not follow
Distinguish