LAWS1201 Study Guide - Final Guide: Judiciary Of Australia, Judicial Discretion, Abbreviation
Basic case analysis
1. Citation
2. Brief statement of material facts
3. Ground(s) of appeal and/or issue(s) to be decided
a. Multiple issues – steps 3 to 5 must be repeated for each issue
4. Reason(s) for decision
5. Decision
Hart v Rankin [1979] WAR 144
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Doctrine of precedent = stare decisis
• Consistency, predictability and fairness
• Judges must pay proper respect to past judicial decisions. Judges are either:
o Bound to apply the reasoning of judges in past cases/follow past decisions when deciding cases that raise similar
facts
o Or, they must take into account the reasoning of judges in past cases even if they are not bound to apply that
reasoning
• Rules of common law found in past cases, but weight or authority of those rules varies – determined by the doctrine of
precedent
• Countries which derive their legal systems from English common law are said to employ the principle of stare decisis: ‘to
stand on what has been decided’ or the doctrine of binding precedent
• General rules
o Each court is bound by decisions of courts higher in its hierarchy
o A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive/influential, but
will not be binding
o A court will not consider itself bound by its own past decisions but will depart from them only with reluctance
Ratio decidendi – ‘the legal reason for a decision’
• Binding, doctrine of precedent not necessarily binding
• Arriving at a statement of the ratio is not always straight forward, because:
o It may be difficult to identify the ratio in the strict legal sense
o It may be possible to state the ratio at a higher or lower level of generality
o There may be no majority in favour of a particular ratio
o It may be difficult to distinguish the ratio from the obiter dicta in the case
• Identifying the ratio
o If parties disagree only about the facts
▪ The rule the court adopts and applies will not be viewed as ratio
o Rationes can come only from those legal issues that were in contention
o The DoP will view as a ratio only a “ruling on a point of law” rather than a “statement of a rule of law”
• Obiter dictum: a legal principle expounded by a judge which is not necessarily for the judge’s decision in the case; a
‘passing remark’
o When distinguishing a case
o E.g. preceded by such words as ‘although a consideration of this question is not necessary for the decision of
this case’
Limitations of stare decisis
• A precedent may appear unjust and out of step with current social conditions and expectations
• If the terms of the case law rule are certain, it will be difficult for a court conforming to the doctrine of precedent to avoid
applying it
• ‘judicial dilemma’
• To fail to change the law would open the court the criticism that it is out of step with community values or social
developments / while to change it would invite charges that the court is undermining the separation of powers by
‘usurping the role of the legislature’, thereby creating legal uncertainty
• Benefits
o Certainty, equality, efficiency and the appearance of justice
Level of generality
• Rationes can be stated at a very low level of generality, worded so as to apply only to the facts of the case
• The restatement of rules at a higher level of generality allows each of them to encompass a wider range of cases and so to
have a greater value as a precedent – essential in order for the doctrine of precedent to be useful
• E.g. Donoghue v Stevenson – at the lowest level of abstraction the decision would be binding on later courts only in
cases with precisely the same facts. At the highest level, all manufactured products.
Ratio of appellate decisions
• A ratio decidendi is a proposition with which a majority of the court has agreed
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• E.g. the High Court may have to consider the authority of two of its previous decisions
• A court bound by a previous decision whose ratio is not discernible is bound to apply that decision when the
circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision’
Authoritative obiter dictum
• In certain cases decided in superior courts, the ratio may be considerably less significant than the obiter dicta
• This can occur when a superior court takes the opportunity to expound important rules of law even though they are only
provoked, rather than directly relevant to the proved facts of the case before it
• The High Court expressed the view that its dicta should be accorded great respect, on the basis that departures from such
influential dicta can introduce a great deal of confusion into the Australian legal system
Interaction between case law and legislation
• Legislation takes precedent over case law – doctrine of parliamentary supremacy over the courts which was the outcome
of the constitutional struggle between the Stuart kings, the judiciary and the parliament
• Parliament – can change case law rules that are seen as inappropriate
• Courts – responsible for resolving disputes over the meaning of words in legislation
Old precedents
• Age does not determine the authority of a precedent, but the older it is, the less likely it is to apply to current social and
economic conditions to avoid unjustness
Court hierarchy
Federal and state
Tribunal = review decisions on merit and law (merit-based review)
High Court = review decisions only on errors of law, can override precedent
Jurisdictions – in constitution
• The authority to decide, and is particularly associated with adjudicative bodies
• Specific powers
• Exclusive powers
Inter-state precedent is non-binding but it influential
Case law
Navigating case law
a) Published online by the court – unreported
a. ‘Neutral citation’ or ‘medium neutral citation’
b. Online versions should only ever be cited or referred to if the case has not been reported
b) Law reports or law report series
a. Only a small proportion of decisions are republished or ‘reported’
b. Law reports add a ‘headnote’ which must never be cited as authoritative
c. Cur adv vult or curia advisar vult – the court wishes to be advised
d. Authorised and unauthorised law reports
i. Authorised – approved by the judiciary, the government and an official law reporting council for the
jurisdiction
De-coding cases (Ch 20 LDL)
1. Reported case citation
a. Square brackets – no consecutive volume numbers and the year is essential for finding the case
b. Round brackets – consecutive volume numbers and the year is not essential for finding the case
Party names [Year] Vol.# Report Series Abbreviation Starting Page
• Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256
Party names (Year) …
• Lane v Morrison (2009) 239 CLR 230
2. Unreported case citation – the modern neutral system
a. Year the judgement is handed down is in square brackets
3. Pinpoint citations – a quote provided from the case
a. A reference to where the quote occurs in the case
i. Page no. if reported decision
ii. Paragraph number if unreported decision (with a medium neutral citation)
Judicial decision making
Obstacles to fact-finding
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