1. ‘Let us consider the reason of the case. For nothing is law that is not reason’: Coggs v Barnard (1703) 92 ER 107, 109 per Sir John Powell CASE LAW AND THE DOCTRINE OF PRECEDENT

2. What is case law? Case law, also known as common law, is the law developed by judges Case law is distinguished from statute law (Acts of Parliament), which is the law made by Parliament Each case represents the solution to a particular dispute about which the trial judge, or bench of appeal court judges, has made a decision Unlike Parliament, which usually makes laws to prevent problems, judges makes decisions in order to resolve problems

3. Case Law SCENARIO In the recent Christchurch earthquake, a building collapsed completely, causing serious injuries to workers who were inside the building at the time of its collapse Evidence has proved that the building was built poorly and that if the building had met building standards it would not have collapsed. What is the role of the courts in this scenario? What is the role of Parliament?

4. Case Law Cases can be thought of as building blocks When parliament enacts legislation, it usually intends to create a complete framework of rules regulating a given area In contrast, when judges make decisions, they are concerned primarily with the case before them But together, a series of cases dealing with a common area can have the same effect of creating a firm legal framework Each case represents a brick in the wall Later cases build on earlier cases With the advent of the printing of judges’ decisions, the systematic development of legal principles became possible Judgments given in legally important cases are published in a series of law reports This is the basis of the doctrine of precedent – the law decided in a case should be followed in later, similar cases

5. The Doctrine of Precedent The rules of the common law are found in past cases These rules are called PRECEDENTS But the weight or authority of the rules found in past cases may vary These relative weights are determined by the doctrine of precedent The weight of a precedent depends on the court which made the precedent The higher the court is in the court hierarchy, the greater the value/weight of the of its judgment/decision The process of applying the precedents (rules) developed in past judgments in order to decide current disputes is also known as stare decisis Refer to the Australian Court Hierarchy Diagram on page 134 of your textbook

6. Rules of Precedent Each court is bound by decisions of courts higher in its hierarchy (see diagram on page 134 of your textbook) A court will be bound by decisions of the appeal division of the same court A court is not bound by decisions of a court of equivalent standing A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding Generally, a court will not consider itself bound by its own past decisions but will depart from them only with reluctance Only the ratio decidendi(‘the reason for the decision’) of a past case is binding; Obiter dicta (‘remarks in passing’) are not binding but may be persuasive; and Precedents do not lose their force over time – very old precedents remain valid

7. Precedent in Practice The HCA is not bound by its own previous decisions Decisions of the High Court are binding on all courts below it in the hierarchy Decisions of the Supreme Court, Court of Appeal are binding on all courts below it, including the Supreme Court (Trial Division) The decisions of other state Supreme Courts (e.g. NSWSC, WASC, TASSC, etc) are given respect (i.e. they are persuasive), but the Victorian Supreme Court is not technically bound to follow them The County Court and Magistrates’ Courts are bound by the decisions of all courts above them in hierarchy ACTIVITY: Complete Activity 3.1, P.135 in your exercise book.

8. Rationale of the Doctrine of Precedent The rationale was expressed by Branson and Finkelstein JJ in Telstra Corporation v Treloar (2000) 102 FCR 595 at 602. ‘The doctrine of stare decisis takes its name from the Latin phrase ‘stare decisis et non quieta movere’, which translates as ‘stand by the thing decided and do not disturb the calm’. It is a doctrine based on policy. The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in the future will be the same as is currently applied. The doctrine achieves equality by treating like cases alike. Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments.’

9. Limitations of the Doctrine of Precedent A precedent may appear unjust and out of step with current social conditions and expectations, particularly when social and commercial considerations are constantly changing. If the terms of the case law rule are certain, it would be difficult for a court conforming to the doctrine of precedent to avoid applying the rule A lower court may be bound by the rule, while a higher court, even if not bound, will still face a ‘judicial dilemma’. Not following precedent undermines the decisions made by courts. To fail to change the case law would open the court to the criticism that it is out of step with community values or social values. BUT, if the court does drastically change the law by creating a new precedent (such as the HCA did in Mabo), the court may be accused of trying to take over the role of Parliament, in contravention of the Doctrine of Separation of Powers (remember, Parliament is the supreme law-making body – i.e. this is the Doctrine of Parliamentary Sovereignty).