BLAW10001 Lecture Notes - Lecture 3: Ratio Decidendi, Precedent, Law Reports
10 Jun 2018
School
Department
Course
Professor
BLAW10001 Semester 1 – Case Law
Basic Procedure in a Civil Case
• Civil litigation (claims between individuals) begin with exchange of pleadings
(written documents) to outline nature & extent of dispute
• When case → court, evidence led by witnesses/producing documents to
establish facts
• Each side presents argument for relevant law & how it should be applied
• Court decides what facts are proved & what the law is. Case decided,
appropriate order made
Judge's Power to Make Law
• Judges indirectly create law when deciding cases
• Future judges will follow the decision
Opportunities to Make Law when Deciding Cases
• Judges mainly fins established law & apply
• When there is none, they may:
o Declare a rule of Australian law for the first time e.g. Aboriginal property
dispute
o Interpret an existing rule of law to establish meaning e.g. Alex toxic waste
example case
o Extend an established rule of law to a new situation
o Face a novel fact situation to which no binding rules apply
Development of Common Law & Equity
• Before 14th century, local laws & customs applied
• After 14th century, common law replaced local law
• Strict & legalistic - only looked a presence of an agreement & not why
• Equity developed in response to rigidity of common law
• Looks into why agreement came into place, fairness of outcomes
• Where there is no unfairness/exploitation, cases stop at common law
• In equity, it is contrary to good conscience to enforce a contract if:
o One of the parties is seriously mistaken
o Second party is aware the first party is mistaken, and
o Second party deliberately ensures that error is not discovered until too late
Doctrine of Precedent: 'stare decisis'
• "Let the decision stand"
• Previous decisions of superior courts must be followed, unless a case is
distinguished on material facts to be sufficiently different to justify applying
different rules
'Ratio decidendi'
• "Key reason"
• The legal principle, rule or reason which the court applied to the material facts
to arrive at its decision
