Unit 3
Area of Study 3
:
• The ability of judges and courts to make law
• The operation of the doctrine of precedent
• Reasons for interpretation of statutes by judges
• Effects of statutory interpretation by judges
• Strengths and weaknesses of law-making through the courts
• The relationship between courts and parliaments in law-making

• Define key legal terminology
• Discuss, interpret and analyse legal information
• Apply legal principles to relevant cases and issues
• Describe the nature, importance and operation of courts as law-makers
• Analyse the impact of courts in law-making
• Critically evaluate the law-making processes of courts
• Discuss the relationship between law-making bodies

• Binding precedent
• Common law, case law, judge-made law
• Court hierarchy
• Defendant
• Distinguish, overrule, reverse, disapprove
• Doctrine of precedent
• Ejusdem generis
• Ex post facto
• Extrinsic and intrinsic material

Historical Development of common law:
• In 1154-1189- King Henry ii – local customary laws applied.
Each area dealt with disputes in their own way and applied their own customary laws. These naturally differed from area to area.
• King Henry ii, wanted a unified country and in order to achieve this, he wanted to have uniform laws. He sent out his judges on circuit (ie visiting different areas to resolve their disputes)
• To help them make consistent decisions when deciding the different disputes they created a set of principles for dealing with disputes.
• These principles took over from the customary laws and this is how the law developed.
• In 1289- the principles were written down; and this created the common law of England which Australia adopted.

Australia, as a colony of England, followed the principles of common law developed in England.
One of these principles is that reasons for decisions , made by
Higher Courts, will be binding on lower courts in the same hierarchy.
In other words, lower courts, in the same hierarchy, must apply the same reasons for decisions, when dealing with similar cases, as those applied by higher courts , in earlier decisions.
This principle is called ‘Stare Decisis’ . This means literally ‘to stand by what has been decided’ and it is at the heart of the doctrine of precedent.
In order for the doctrine of precedent to work there needs to be a court hierarchy (an order of importance) from the most superior to inferior courts.

The Victorian Court Hierarchy
High Court
The High Court is a
Federal Court and it’s the Highest Court in Australia.
The decisions of the
High Court are binding on each of the state court hierarchies.
Court of Appeal
Supreme Court
County Court
The
• Court of Appeal,
• Supreme Court
• County Court
• Magistrates’
Court are all state courts
Magistrates’ Courts

Superior Courts
The High Court, The Supreme Court and the Court of Appeal are known as Superior Courts of record because the reasons for the decisions in the court cases that come before them are recorded for future reference.
It is these courts which create common law .
What is common Law?
Common law is law developed through the courts.
It is also known as case law or judge-made law.

Restrictions on Judges’ ability to make law; Judges and courts can only make law if:
- a case is brought before them.
- If there is no previous binding decision already established by a higher court in the same hierarchy
(novel case)

Judges can only make law when:
• When they are deciding on a new issue (novel case) brought before them or when a previous principle of law requires expansion to apply to a new situation. eg the first time a case of negligence was brought to court it was a novel case and it created the common law of negligence. Further cases over time have developed that common law.
• Statutory interpretationinterpreting the words in acts of parliament. eg in the Brislan case the court had to interpret the words ‘other like services’ or in the
Franklin Dam case they had to interpret the words
‘external affairs’. The interpretation given forms precedent.

Doctrine of Precedent
The judges look at past decisions to guide them; they look at the reasons behind the decision in past cases for guidance when deciding new cases.
When a new situation arises and is decided on a precedent is created.
What is 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.

• Precedent is the reason for the decision (the ratio decidendi).
• Precedents can only be made when a judge alone is hearing a case. The Judge makes the decision and gives the reasons for that decision; the reason for the decision is then binding on lower courts in the same hierarchy.
• For this reason precedent is usually made by courts which hear appeals (as there is no jury). ; ie the High court, the Court of Appeal and the
Supreme Court.
• A jury decision cannot create a precedent as juries do not give reasons for their decisions.

Lesson 2 Quick Revision of last lesson:
1. How did common law originate in England?
2. What does ‘stare decisis’ mean?
3. What is precedent?
4.
Why do we need a hierarchy for precedent to exist?
5. What are the advantages of precedent?
6. What are the two ways that judges make law?
7.
What restrictions are there to a judges ability to make laws?
8.
Which Courts can make common law and why?
9. What is the ratio decidendi?
10. What is NOT part of the ratio decidendi.

1. How did common law originate in
England?
Circuit judges began to record the reasons for their decisions, when resolving disputes, over time. These records of decisions were referred to again and again by the judges as they resolve disputes across the country and they formed the first common law.
As a colony of Britain Australia adopted the same common law

6. What are the two ways that judges make law?
• When they are deciding on a new issue
(novel case) brought before them or when a previous principle of law requires expansion to apply to a new situation.
• Statutory interpretationinterpreting the words in acts of parliament.

7
. What restrictions are there to a judges ability to make laws
Courts are reactive; they can only make common law when a case (a dispute to resolve) is brought before them.
Also they can only make common law if there is no previous binding decision already established by a higher court in the same hierarchy (novel case)

9. What is the ratio decidendi?
• Ratio Decidendi ( ratio for short) - is the reason for the decision which is given in the judgment The ratio is the binding part of the decision. (a judgement is the statement read out by the judge at the end of the appeal hearing.

10. What is NOT part of the ratio decidendi?
It is NOT the decision, or the sanction or the remedy, but the reason for the decision, which is then regarded as a statement of law to be applied in the future.

1. Define: p 195
• Binding Precedent
• Persuasive Precedent
• obiter dictum
2. W hat are ‘material facts’ p 194
3. Which parts of a decision are not part of the reason for the ratio?
4. How can the ratio decidendi of a case be found when there is more than one judge? P
194

Binding Precedent:
A binding precedent is a legal principle established in a higher court that must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases.
eg in Victoria a judge of the County Court must follow the decisions of judges in the Supreme Court.
For a precedent to be binding on a particular case, the precedent must be:
• From the same hierarchy of courts
• From a superior court-one that is higher in the hierarchy
The decisions of the High Court (the highest court in Australia) are binding on all other Australian courts. However, the High
Court is not bound by its own previous decisions.

A Persuasive Precedent
Are not binding on courts. They are seen more as ‘convincing’ argument, but one that does not have to be followed because it is not binding.
Precedents considered to be persuasive but not binding are:
• The decision of a court in another hierarchy-such as another state or country.
• Ratio decidendi of courts at the same level; for example, a County
Court judge would not be bound by a decision of another County
Court judge
• Ratio decidiendi of inferior (lower) courts in the same hierarchy; for example a County Court judge would not be bound the decision of a magistrate in a previous case
• Obiter dicta statements of a court in the same hierarchy or in another hierarchy.
Although not binding, persuasive precedents may be seen as a point of reference. They give an indication of how other judges think the law should be.

Obiter dictum:
Literally means ‘things said by the way’
A judge’s statement or comment, made in his/her judgment, that is not part of the ratio decidendi
(precedent) but may be used as a persuasive argument in later cases.
Eg Hedley Burne v Heller (1964) p 198, the obiter comments were used as persuasive precedent in the Shaddock case (1981) p 193

Read
Donoghue v Stevenson (1932) p196 and
Grant v Australian Knitting Mills (1936) p 197
The British case Donoghue v Stevenson was used as persuasive precedent for the Australian case Grant v
Australian Knitting Mills , which established the law of negligence in Australia.
Why was it persuasive precedent and not binding precedent?

2. Material facts: p 194
Are the facts which affect the outcome of the case and are vital to the reason for the decision.
3. The Obiter dictum comments are not part of the reason for he decision.
4. Where there are more than one judges involved in the decision eg The High Court, where there can be
5-7 justces, then if a unanimous decision is not made then the precedent created is that of the majority.

Examples of cases:
1. Ratio DecidendiPinkstone v R (2004) p194
2. Development of the common law of negligence: a. Read the two cases: Donoghue v Stevenson
(1932) and Grant v the Australian Knitting Mills
(1936). b. Explain why the Donoghue case was used as a persuasive precedent.
c. Read the two cases Hedley Byrne v Heller (UK)
(p 198) and Shaddock (Aust)(p 193). d. How did these two cases develop the law of negligence?
e. Which obiter dictum comments did the Hedley
Byrne case follow?

Ways judges can develop precedent or avoid following an earlier decision (precedent).
Distinguishing a previous precedent
Where there is a binding precedent, a lower court may avoid using the precedent established by a higher court if it finds a significant difference in the material facts of the original case and the case currently being considered.
The precedent is not followed because the judge can distinguish the new case from the previous one.
In this way the lower court can avoid using the set precedent.

Reversing:
Involves one case.
When a case is heard on appeal , a higher court may disagree with the legal principle applied by the lower which first heard the case.
The original decision is reversed and a new precedent is created by the superior court to apply to these material facts in future cases.

Overruling a precedent
When a superior court decides not to follow an earlier precedent established by a lower court in a different case, but with similar material facts.
The superior court will overrule the previous precedent.
It can do this because it is not bound by precedents created in lower courts. When a precedent is overruled, the new ratio decidendi from the latest case becomes the precedent to follow in the
NO future. New precedent is set.

Disapproving :
Two different cases.
When a court disapproves a precedent established by another court at the same level, then a new precedent is established. Both precedents remain in force until another case on the issue is taken to a higher court can overrule the previous decision and create a new precedent.
In the case of a lower court disapproving of a precedent established by a higher court in the same hierarchy, then the original precedent is followed, but reluctantly. All the judge can do is apply the old precedent, but in their obiter comments explain their disapproval of the precedent.

’
Gillard v Wenbon
• Intoxicated driver
• fell asleep in the back seat of his car
• In the morning turned on the engine to start heater to warm himself up
• But fell asleep in the front seat with the engine running
• Accused found not guilty of being ‘in charge of a motor vehicle’

Davies v Waldron (1989)
• Intoxicated driver
• Sitting in the front seat of a car and had attempted to start the engine o his car.
• The accused’s lawyer argued that he started the engine for a friend to drive, as the engine was difficult to start
• there was no other person in or near the car when the police found him
• Found to be guilty of being ‘in charge of a motor vehicle

• The judge in the Davies v. Waldron (1989) case was able to distinguish between the facts of the case from Gillard v. Wenborn
• In Davies v. Waldron distinguished the case saying, in Davies v Waldron the driver found attempting to start the car (and was at risk of driving), whereas the accused in Gillard v.
Wenborn was found asleep in the driver’s seat with the car running, and was not at risk of driving.
• In Davies v. Waldron , the judge found the accused did start to drive motor vehicle within the meaning of the Road Safety Act .

(insurance company)after ANU suffered damages to its buildings in Canberra after a bushfire in 2003, In 2004 the parties settled out of court.
• New information came to light and ANU wanted to settle change its Statement of Claim against AON, to introduce new claims. The judge granted ANU permission to amend the Statement of Claim.
• AON appealed to the Court of Appeal against the decision to allow them to amend the Statement of Claim.
The Court of Appeal dismissed the appeal.
• AON appealed to the High Court , which then allowed the appeal, against the ANU to amend the original Statement of Claim to be heard.

• In a 1997 case Queensland v. JL Holdings, a precedent was set, allowing a party in a civil case to adjourn (delay) a trial, even after it had commenced, in order to make a substantial amendment to its case,
• The trial judge allowed this to occur in order to attain justice, as long as it paid some of the other party’s costs.

• The High Court overruled its previous precedent set in 1997, (allowing a party to adjourn (delay) a trial in order to make a substantial amendment to its case, as long as it paid some of the other party’s costs).
• The High Court in the AON case overruled this decision and placed limits on a parties right to make changes to their claims, particularly once litigation had begun

• In the Studded Belt Case
( Deing v Tarola 1992) a 20yr old man was apprehended by police at McDonalds. He was wearing a black leather belt.
The belt had raised studs.
He was charged with an offence under S6 of the
Control of Weapons Act 1990
(Vic)
• His case was heard in the
Magistrates ’ Court and he was found guilt , as it fitted the description of one of the weapons listed in the Control of Weapons Regulations
1990.
• An appeal was lodged in the
Supreme Court and the
Supreme Court decided differently to the Magistrates’
Court.
• The judge concluded that the studded belt was not a regulated weapon.
• The Judge upheld the appeal against the conviction and ordered that Tarola be acquitted.
• This therefore reversed the original decision of the
Magistrate’s Court
.

• An old British common law principle allowed animals to roam free, without requiring them to be restrained by a fence and the landowner did not owe a duty of care for their straying stock.
• Mr and Mrs Trigwell (1978) were injured in a car crash when a vehicle collided with their car after hitting two sheep. They sued the driver of the other car and the owner of the sheep for damages.
• The High Court decided to follow the old common law that the landowner did not owe a duty of care for their stock straying from their land onto the highway

• In Obiter statements the judge stated his disapproval of the old common law, but even so, was reluctant to change the law as he felt lawmaking should be left to Parliament.
• the Victorian Parliament decided to follow the suggestion made by the judge in the Trigwell case and it passed the Wrongs Animals Straying on
Highways) Act 1984 (Vic)
• This Act abolished the common-law immunity and made owners of land liable for damage negligently caused by their animals straying on highways.

Statute Law and Common Law
• Common law – the area of law developed by the courts, judge-made law
• Statute law – laws made by parliament
Different areas of law often develop through a combination of common law and statute law. If parliament have yet to legislate in a particular area of law, the courts are left to decide such legal issues on a case by case basis (example: the rights of transgender people). In resolving such disputes in court, judges will make decisions (precedents) that will then be used to guide decisions in future cases. Also these precedents and obiter statements can guide parliament about future statute law.

Homework: Answer the following exam question:
‘Outline the operation of the Doctrine of Precedent’ 6 marks
Paragraph your work, include the following words in your response and underline them. Don’t use dot points.
• Court hierarchy
• Stare decisis
• High court, supreme court, Court of Appeal
• A case has to come to a court
• Ratio decidendi
• Similar material facts
• On appeal
• Novel case
• Obiter dictum
• Binding and persuasive precedent
• R.O.D.D.

Development of law of negligent advice
Hedley Byrne v
Heller (UK)
•Wrong advice given
•Not successful because bank had disclaimed responsibility
•Obiter – there ought to be a duty of care owed for negligent advice
Shaddock v
Parramatta City
Council
Norris v
Sibberas
•Wrong advice given
•Followed obiter from above as persuasive
•Shaddock successful because a duty of care is owed when advice is given in the course of business
• Wrong advice given
• Sibberas successful in original trial
• Trial judge followed precedent set in Shaddock v
Parramatta City Council
• Decision reversed on appeal and Norris successful
• Appeal judge distinguished Shaddock case saying that Norris was NOT an expert in financial matters and therefore did not owe a duty of care

• Courts can make laws ex post facto – after the action or omission has taken place
• They decide on a situation that has already taken place
• In the case of Grant v Australian Knitting
Mills the law of negligence was made after the act – the knitting mills where acting within the law at the time and were later found to have broken the law