Precedent
Topic 7
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.
Rules of Precedent
Each
court is bound
by the decisions of
higher courts in the
same judicial
hierarchy
NSW Judicial Hierarchy
Federal Judicial Hierarchy
The
highest court in a
judicial hierarchy can
overrule its previous
decisions

First and Second Territorial Senators
Cases
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.
A
decision of a
court in a different
hierarchy may be of
considerable weight,
but will not be
binding
Judicial hierarchies
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. Whatever may have once been the
case in England the doctrine of precedent is now 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,
any more than before 1873 it would have been true to say that there was not one English
common law on a point because the Court of King’s Bench had differed from the Court
 Only
the Ratio Decidendi is
binding
 Obiter Dicta, although not
binding, may be very
persuasive
 Precedents are not necessarily
abrogated by lapse of time
 e.g. Rule in Pinnel’s case (1602) 5 Co
Rep 117a
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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
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Ratio decidendi/Rationes decidendi
Obiter dictum/Obiter dicta
Affirm
Approve
Reverse
Overrule
Apply
Follow/not follow
Distinguish