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29 Cards in this Set

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What is binding precedent?

- a precedent that must be followed. A principle of law established in one case will be binding upon future cases with similar cases in courts lower in the same hierarchy.


- EXAMPLE: Victorian County Court must follow the past decision on the Victorian Supreme Court when adjudicating a similar case.

What is persuasive precedent?

- used to influence judges when making law; not binding and does not have to be followed. It may be influential or used as a guide.


EXAMPLE: can come from another hierarchy or a court lower or at the equal level in the same hierarchy or obiter dictum comments.

What is common law?

- case law developed in the courts - this term is sometimes used to describe all case law or judge-made law.

What is the doctrine of precedent?

- The system the courts used to make law when there is no law/law isn't clear.


- based upon principle of stare decisis - to stand by what has been decided.


- judges give reasons for decision (ratio decidendi. Judgements of superior courts are recorded and reported into volumes called law reports, and are applied to future cases with similar facts.

- can occasionally change law radically (judicial activism): eg. decision in Mabo's case to create native title


- High Court of Australia is not bound by its own decision


- Judges can disapprove of a precedent: if bound to follow precedent or follow to ensure consistency, can encourage parliament to change law

- precedent: define both binding & persuasive.


- example (persuasive): Decision in UK of Donoghue v. Stevenson was persuasive on Australian court in Grant v. Australian Knitting Mills


- judges are usually conservative law-makers, reluctant to change law, as explained by Justice Mason in the Trigwell Case, prefer to leave law-making to parliament.

- Common law can be flexible: when judges are not required to follow a precedent & can make new precedent:


- distinguishing: judge identifies differences between facts of current case & facts in precedent: therefore not required to follow precedent & able to make new law


- reversing: a superior court, when hearing an appeal, can reverse a precedent established in the lower court, creating new precedent.


- overruling: a superior court can choose not to follow a precedent set by a lower court, in an earlier case and create a new precedent

What is ejusdem generis?

- a legal maxim used in the interpretation of statues - the term means 'of the same kind' - when a general term will be interpreted to include the category indicated by the specific terms that precede it.

What is inter partes?
- a decision between the parties, in which one wins, and one loses.
What is obiter dictum?
- a judge's statement of opinion or observation made during a judgement but not part of the reason for a decision.
What is ratio decidendi?
- the legal reasoning, or role, upon which a decision is based.

What is stare decisis?
- the basis of the doctrine of precedent, where inferior courts stand by the decisions of superior courts.

What is statutory interpretation?
- the process of judges giving meaning to words within an Act where there is a dispute as to the application of the Act.
How do judges interpret legislation?
- using the purposive approach; judges aim to give words in statutes the meaning that parliament intended the words to have; the court will look at sources like Hansard and parliamentary debates.
What are reasons for statutory interpretation?

- Legislation is drafted in broad, general terms but judges need to apply it to specific circumstances. eg: studded belt case, the broad term 'weapon' need to be applied to a specific.


- Parliament may not foresee all future circumstances, and a court needs to 'fill the gaps'. eg: Kevin & Jennifer case, the marriage laws failed to forsee the possibility of person changing gender and didn't deal with the issue; a court needed to fill the gap.

What are reasons for statutory interpretation? cont.
- The meaning of words may change over time, and courts need to give words their current meaning. eg: in the Kevin & Jennifer case, the meaning of 'man' has changed since the law was written; the court needed to give a current meaning.
What are some strengths & weaknesses of courts as law-makers?

- A decision must be made; must settle disputes that come before them. Judges may defer bringing down a judgement for a short period of time while they consider a case, but they must make a decision.


- Courts must wait until a legal action is brought before them. Even then, their law-making power is restricted by the nature of the dispute; that is whether there is any existing common law or legislation in the area.

- Through the application of precedent, courts provide considerable flexibility for the law to adapt to changing needs of society. Eg: Donoghue v. Stevenson has been extended to apply to all case of negligence. by distinguishing past cases, or reversing or overruling past decisions, a court may change an established legal principle.


- Rigidity: doctrine of precedent binds courts to decisions made in superior courts. A court may be bound by precedent, irrespective of whether the judge agrees with the outcome of the application of those principles.

- Courts can make law free from any political pressures - the are appointed & therefore independent - not influences by pressure groups (unlike parliament); don't fear voters' backlash and can change law on controversial issues objectively. (Mabo case).


- Courts are not elected bodies, public not involved in law-making, parliament is elected to make laws on behalf of the people, the courts aren't. Result in laws that do not reflect valued & not accepted (Mabo).

- Can respond to the need to change the law reasonably quickly (to an extent); when dispute arises, promptly make the law which is then set for future cases.


- Not always quick, takes time to appeal to higher courts (Mabo began in QLD 1982 & ended in HC making new law in 1992) & for courts to make decisions. Plus they make laws in reaction events, rather than planning for future needs and finding and applying precedent is inefficient.

- Can 'fill in the gaps' in legislation; remedy oversights/omissions by parliament when they create the law. (Kevin & Jennifer's case - failure to clarify the law as to whether man & woman was at birth or time of marriage).


- However, courts cannot investigate a whole area of law and reform a whole are law: changing/making the law in small, narrow areas raised by the case.

What are the features of the relationship between the courts and parliament?

- Parliament makes laws; courts resolve through apply the law to the situation.


- Courts interpret the legislation made by parliament (interpretation of 'weapon').


- Courts may highlight flaws/gaps in the law and encourage parliament to alter the law (As HC did in Trigwell's case)


- Courts conservative law-makers; often reluctant to change law - see as parliaments role (Trigwell)

- Courts may create laws that are confirmed and expanded upon by parliament - parliament codifies common law (native title developed in Mabo's case & codified by parliament in Native Title Act).


- Parliament may alter the law in response to laws made by courts - cancel or abrogate law made by courts. (principle of law established in rape in marriage case abrogated by Vic parliament)

- parliament creates courts and outlines their jurisdiction by passing legislation.


- courts declare legislation invalid if breaches the Constitution (HC declares laws invalid if breach express rights; declare state laws invalid if inconsistent with Commonwealth law.)

Why may a court not follow a previous decision at the same level?

- Stare decisis is the basis of the DOP where lower courts must follow the decisions of higher courts in like case. Decisions of courts at same level are not binding, even if facts are similar.


- earlier decision may be avoided by disapproving of earlier decision. This occurs where courts of same level will not follow the earlier decision as it is thought to be wrong. This may result in an appeal.

What is reversing?

- where a higher court hears a case on appeal and decides that the lower courts which has heard the case had wrongly decided the case, it will reverse the decision. The ratio decidendi of the lower court is no longer valid. It is replace by the ratio decidendi of the higher court.
What is overruling?
- a case may come before a higher court that relies on a legal principle that has been formed in an earlier case decided in a lower court. The judge presiding in the higher court may believe that the earlier case has been wrongly decided and the higher court would not follow the precedent set by the lower court. When a higher court does not follow the decision of a lower court, the higher court is said to be overruling.
What is disapproving?
- courts at the same level are not bound by each other's decisions. Where a judge in a court refuses to follow an earlier decision of another judge at the same level, they are said to have disapproved of the decision. This may result in an appeal to a higher court to determine what the law should be.
What is distinguishing?
- courts are bound only be the decisions of the higher courts in similar cases. Where the facts of a case are sufficiently different from a previous case, the decision in the previous case will not be considered or binding. Tis process allows for the continued development of the common law to meet new situations.
What are some problems in using precedent?

- locating relevant cases.


- identifying relevant ratios


- cases with more than one ratio


- dissenting judgements


- determining what is a like case


- conflicting authorities

When will a new precedent be set?

- it must be a novel case


- the case needs to be heard by a higher court


- the judge must be prepared to adopt a law-making role


- the parties must be prepared to take the case to court where the outcome is uncertain.



How do judges interpret legislation?

- Intrinsic sources: (within the Act) sections within the Act, long title and footnotes.


- Extrinsic sources: (out of Act) Interpreation Act, Oxford Dictionary, Hansard and previous decisions.

What effect does statutory interpretation have?

- forms a precedent


- limit the scope of legilsaton


- increase the scope of the legislation