LLB 100 Lecture Notes - Lecture 8: Spousal Privilege, Judicial Activism, Builder'S Old Measurement
Week 8 & 9 – Judicial Decision Making: Common Law
Common law is law created by the reported decisions of judges
Also known as case law, precedent or unenacted law
Historically:
• Deeloped though disetioa poe of hae
• Separate court system
• Whee oo la didt poide a eed
• Based upo euit ad good osiee
Now:
• fusio of oo la ad euit
• Specific actions – with discretion to apply
• Different remedies e.g.
- Injunction – a court order directing a person to stop doing something
- Specific performance – a court order direction a person to carry out an obligation
Rule of law
• No one is above the law – applies equally to all
• Decisions made based on known principles
• Natural justice (fair hearing, based upon evidence)
Jude-made Law
• Facts presented
• Consider the relevant law – legislation/precedent
• Apply the law to the facts – providing reasons for the decisions
• Judges are engaged in the process of developing the common law as well as
interpreting statutes
• Judges cant decide to make law in some abstract way because they are concerned
about a particular policy or issue → can only determine specific disputes between
parties to proceedings in relation to which the court has power to act
• In an adversarial system it is the parties who are responsible for defining the scope
of the questions the court has to decide
• Most litigation concerns disputes about the facts rather than the law → disputes
arise because there is more than one version of events → the court determines
which is the preferable version of events
• Most cases are determined by lower courts → questions of law more likely to arise
at the appellate level
• Judges who have a law making role are constrained in their decisions by legal
principle and practice → cant determine issues in any way they like
find more resources at oneclass.com
find more resources at oneclass.com
What is precedent?
• Something that has gone before and is called upon as a model for later policy or
practice
• Quicker and easier to resolve a dispute by reference to a previous decision on a
similar manner
• Promotes justice because of the like treatment of like cases → quintessentially fair
• Promotes certainty and stability
• A prior decision may be persuasive but wont be binding unless it is made by a higher
court in the same hierarchy
• Ratio applies to cases that are sufficiently similar
• Difficult to extract the ratio especially where there is more than one judge, each
giving reasons for the majority decision
The Relevance of Hierarchy
19th century – more rigid doctrine of binding precedent began to develop
coincided with the belief of formalism and the need to separate the function of the courts
from Parliament
development of a reliable system of law
Federal Courts
• The High Court is at the top of the federal and state court apex. The Full Court of the
High Court may depart from its own decisions but exercises this power with care
• The Full Court of the Family Court and the Federal Court are bound by the decisions
of the Full Court of the High Court
• A single judge of the Federal Court is bound to follow the decision of the Full Court
of the Federal Court
• A single judge of the Family Court is bound to follow the decision of the Full Court of
the Family Court
• Federal Magistrates Courts are bound by decisions of the High Court and Full Court
of the Federal Court and Family Court
State Courts
• State appellate courts are bound by decisions of the Full Court of the High Court
• “tate appellate outs aet stitl oud thei o pio deisios
• “tate appellate outs aet oud the deisios of othe “tate ourts at the
same level although the decisions are usually persuasive
• Single judges of the State Supreme Courts are bound by decisions of the appellate
court of the same State, although not decisions from other states
• Magistrates and intermediate court judges are bound by decisions at the appellate
level of the Supreme Court in their state. A single Supreme Court judge is similarly
bound
Other Courts
• The decisions of courts in other countries are not binding but persuasive
find more resources at oneclass.com
find more resources at oneclass.com
Ratio
• The decision of an earlier court is only binding on a later court where the former has
authority in relation to it
• The earlier decision must be relevant to the matter before the court
• The application of the law to the facts produces the reason for the decision
→
this is
the ratio
• The legal principle that resolves the issues raised by the facts
• ‘atio deidedi → lati fo the easo deidig
• A legal rule or principle only constitutes the ratio where it is necessary for the
decision in the actual case → other statements about the la ae oite dita →
the a
• The reasoning process involves identifying a general rule and applying it to the facts
in order to reach a conclusion
The role of the judiciary
• Interpreting and applying the law
• The High Court
Deisios of the High Court are not subject to the usual form of judicial
accountability, that is to say, the appeal process. The only form of accountability
hih applies is the euieet to gie easos. ‐ Chief Justice Gleeson (1998 –
2008)
If the Cout is to do its work properly, it can only hear about 60 appeals each year
and, of necessity must preserve the grant of leave for cases that lay down general
piiples that hae ide appliatio thoughout the Austalia ouit ‐ Justie
McHugh (1989 – 2005)
• Judicial conservatism
Ou oo la sste osists i the applig to e oiatios of
circumstances those rules of law which we derive from legal principles and judicial
precedents; and for the sake of attaining uniformity, consistency, and certainty, we
must apply those rules, where they are not plainly unreasonable or inconvenient, to
all cases which arise; and we are not at liberty to reject them... because we think
that the rules are not as convenient and reasonable as we ourselves could have
devised. ‐ Justice Heydon (2003 – Current), quoting Sir Owen Dixon
• Judicial activism
‘ules thee ust e. Aaltial easoig, itelletual hoest ad adid opiios
are the hallmarks of a judiciary of integrity which observes the rule of law. But so is
the frank recognition of the uncertainty of much law and the willingness to expose
the policy choices which lead a judge to one decision rather than another. To
pretend that the task is purely mechanical, strictly formal and wholly predictable
may result in a few observers who love fairy stories sleeping better at night. But it
does not enhance the legal system. It is not honest. It is fundamentally incompatible
ith the eatie eleet of the oo la. ‐ Justie Ki (996 – 2009)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 8 & 9 judicial decision making: common law. Common law is law created by the reported decisions of judges. Also known as case law, precedent or unenacted law. Historically: de(cid:448)eloped th(cid:396)ough dis(cid:272)(cid:396)etio(cid:374)a(cid:396)(cid:455) po(cid:449)e(cid:396) of (cid:862)(cid:272)ha(cid:374)(cid:272)e(cid:396)(cid:455)(cid:863, separate court system, whe(cid:396)e (cid:272)o(cid:373)(cid:373)o(cid:374) la(cid:449) did(cid:374)(cid:859)t p(cid:396)o(cid:448)ide a (cid:396)e(cid:373)ed(cid:455, based upo(cid:374) (cid:862)e(cid:395)uit(cid:455) a(cid:374)d good (cid:272)o(cid:374)s(cid:272)ie(cid:374)(cid:272)e(cid:863) Now: (cid:862)fusio(cid:374)(cid:863) of (cid:272)o(cid:373)(cid:373)o(cid:374) la(cid:449) a(cid:374)d e(cid:395)uit(cid:455, specific actions with discretion to apply, different remedies e. g. injunction a court order directing a person to stop doing something. Specific performance a court order direction a person to carry out an obligation. Rule of law: no one is above the law applies equally to all, decisions made based on known principles, natural justice (fair hearing, based upon evidence) Jude-made law: facts presented, consider the relevant law legislation/precedent, apply the law to the facts providing reasons for the decisions. Judges are engaged in the process of developing the common law as well as interpreting statutes.
