 Following
the development of legal principles
through the decisions of judges in earlier
cases can be difficult.
 Determining
which precedent, if any, applies
in a particular case is part of the expertise
and analytical skill required of the legal
profession.
 There
is a number of reasons why it may be
difficult to determine how a precedent— or
which precedent—will apply to a case.
1)
Locating relevant cases Over time, there may have been
numerous cases relating to a particular area of law. A lawyer
may have failed to trace all the relevant cases or a particularly
significant case where the facts in question are crucial.
2)
Identifying relevant ratios The judgment may contain many
comments about the facts of the case, references to other
cases, and statements about general propositions of law as
well as the reasons for deciding. It may be difficult to
determine what is obiter dictum and what is the ratio
decidendi.
3)
Cases with more than one ratio Precedents are often
established by courts hearing appeals. In these cases, the
court will be presided over by three, five or even seven
judges. While the judges may agree on the final outcome of
the case, each judge may have a different reason for deciding.
Therefore, there may be multiple ratio decidendi. This makes
it very difficult to decide which fundamental principle of law
established in the reported case will apply to future cases.

Sometimes a case comes before the courts concerning a
matter on which there has been no clear statement of
law, or within which the existing principles of law are
out of date and require change.

In these circumstances, individuals need to have the
matter resolved by the courts. Recent examples of such
issues include disputes about the rights of the unborn
child, surrogacy and access to reproductive
technologies.

The courts are not free to make law in the same sense
as parliament. Unlike parliament, judges cannot make
law as an immediate response to a community demand
or when a general need is perceived.

The courts can act only to declare those legal principles
that apply to the facts of the case before them.
A
number of factors need to be taken into
consideration before a court can set a new
precedent. These include:
1) the case needs to be heard by a higher
court.
2) the judge must be prepared to adopt a lawmaking role
3) the parties must be prepared to take the
case to court where the outcome is
uncertain.
The case needs to be heard by a higher court- In order for a change
to occur, the case presented before the higher court must
concern a new fact situation to which no existing binding
precedent applies.

Even so, the court can only reach a decision in relation to the
information presented in individual cases. It cannot change
entire areas of law in the same manner as parliament.
The judge must be prepared to adopt a law-making role- The degree
to which judges are prepared to distinguish one case from
previous cases will depend in part on the judges’ view of their
role in the law-making process.

Some judges are reluctant to be seen as law-makers. In order
for the courts to be properly involved in the law-making
process, they must assert their power to bring about a change
in the law.
Taking case to court- The parties must have sufficient resources to
take a case to court when the outcome is uncertain.
Read the Trigwell Case that I will give you.
 Summarise the case and then answer the following questions:
1) Explain the difference between the following terms:
● ratio decidendi and obiter dictum
● binding precedent and persuasive precedent
● overruling and reversing
● disapproving and distinguishing.
2) What would you expect to be the outcome if a judge did not
follow a precedent that is clearly binding on the court?
3)
How does the doctrine of precedent operate to reduce
conflict in the community?
4)
Outline the major problems that may be experienced in
interpreting past decisions.
5)
‘The doctrine of precedent provides for the consistent
application of legal principles as well as providing a means to
develop the common law to meet the needs of the community.’
Do you agree? Justify your opinion.
