The courts as law makers: the doctrine of precedent

Australian courts are arranged in a hierarchy with lower courts dealing with less serious matters and the higher courts hear more serious matters
1. Lowest To Highest Magistrates court Country court Supreme court Court of Appeal High court
There are two situations in which the courts make laws
1. 1. Judges make laws on a new issue that arises in a case before them, on which there is no previous statute or common law or the current common law requires expansion
2. 2. Through the interpretation of legislation, as it applies to a case before them. The first situation will be the focus of this chapter and the second situation will be examined in chapter 9.
3. Court-made law is also known as case law, common law or law or judge-made law.
LIMITATIONS ON A JUDGE'S ABILITY TO MAKE LAW.
1. Judges can only make law if there is a test before them. That is they must wait for a case to arise with a legal issue that has not previously been considered by any court. or which tests the valitidyof an existing law, or which requires the interpretation of an existing law.
  1. Either statue or common law
2. The position of the court in the hierarchy- only superior courts in the hierarchy create precedent. These are the courts of record, where the jugdment are reported.
3. The type of legal case and the mode of trial- precedent is usually only estasblished in cases on appeal (where there is know jury) or when hearing a civil case without a jury.
4. The personality of the judges- some see there role as adjudicators, not law makers, while other judges are progressives, who see their role is both adjudicator and law maker.
5. Judges may be bound by exsisting precedent that has been established by higher court, so they have to follow it.
  1. judges may be able to distinguish the precedent
DEFINITIONS
1. Binding Precedent: Precedent created by courts higher in the court hierarchy that must be followed by a lower court when making a judicial decision.
  1. Persuasive precedent: Precedent that courts are not bound to follow, such as those made by lower courts or courts of another jurisdiction, but a court may look to the precedent as being influential on their judicial decision making.
2. Obiter dictum (LATIN) Statements said by the way. These statments of a judges opinion on a legal principle or law which is not for direction consideration in the case at issue. it is only ever persuasive precedent.
  1. Ratio decidendi (LATIN) The reason for the desicion. this is the statement of legal principle or law that forms the binding part of a precedent.
    1. Stare decisis(LATIN) To stand by what has been decided.
DEVELOPING PRECEDENT
1. REVERSING
  1. A judge in a higher court deciding a case on appeal may rule that the lower court wrongly decided that case. The superior court can reverse or change the previous decision. This creates a new precedent that is binding on lower courts.
2. OVERRULING
  1. A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. The superior court may decide not to follow the existing persuasive precedent and may over rule or change it.
    1. This creates a new precedent that is binding on lower courts.
3. DISAPPROVING
  1. A judge may refuse to follow an earlier decision of another judge in the same court.
    1. Both precedents remain in force until another case on the issue is taken to a higher court, which can overrule the previous decision and create a new precedent
4. DISTINGUISHING
  1. A judge may find that there are different material facts existing between the case currently being decided and the case in which an earlier binding precedent was set.
    1. If these differences are important enough then the later court may coose to distinguish its case from the previous one and create a new precedent for their particular set of facts. there will then be two different precedents one for each of the two fact situations.
ADVANTAGES OF PRECEDENT
1. Creates certainty and consistency as a case will be decided similarly to a previous, comparable case.
  1. Flexibility due to the fact that the methods of avoiding following precedent (reversing, overruling, distinguishing disapproving) help prevent the law from becoming to rigid.
    1. Encourages efficiency as judges can refer to previous cases when making decisions.
      1. Allows judges to create new areas of law in order to uphold the rights of disputing parties before them.
2. DISADVANTAGES OF PRECEDENT
  1. Inflexible as a court is bound to follow precedent and may not be able to avoid it, so common law is limited in responding to changes in society.
    1. Some uncertainties as no two cases are ever the same.
      1. Restricted by having to wait for a case to be brought to court- slow an irregular
        Complicates the judicial law making process

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