 Following the development of legal principles through the decisions of judges in earlier cases can be difficult.  Determining which precedent, if any, applies in a particular case is part of the expertise and analytical skill required of the legal profession.  There is a number of reasons why it may be difficult to determine how a precedent— or which precedent—will apply to a case.

1) Locating relevant cases Over time, there may have been numerous cases relating to a particular area of law. A lawyer may have failed to trace all the relevant cases or a particularly significant case where the facts in question are crucial. 2) Identifying relevant ratios The judgment may contain many comments about the facts of the case, references to other cases, and statements about general propositions of law as well as the reasons for deciding. It may be difficult to determine what is obiter dictum and what is the ratio decidendi. 3) Cases with more than one ratio Precedents are often established by courts hearing appeals. In these cases, the court will be presided over by three, five or even seven judges. While the judges may agree on the final outcome of the case, each judge may have a different reason for deciding. Therefore, there may be multiple ratio decidendi. This makes it very difficult to decide which fundamental principle of law established in the reported case will apply to future cases.

 Sometimes a case comes before the courts concerning a matter on which there has been no clear statement of law, or within which the existing principles of law are out of date and require change.  In these circumstances, individuals need to have the matter resolved by the courts. Recent examples of such issues include disputes about the rights of the unborn child, surrogacy and access to reproductive technologies.  The courts are not free to make law in the same sense as parliament. Unlike parliament, judges cannot make law as an immediate response to a community demand or when a general need is perceived.  The courts can act only to declare those legal principles that apply to the facts of the case before them.

 A number of factors need to be taken into consideration before a court can set a new precedent. These include: 1) the case needs to be heard by a higher court. 2) the judge must be prepared to adopt a law- making role 3) the parties must be prepared to take the case to court where the outcome is uncertain.

The case needs to be heard by a higher court- In order for a change to occur, the case presented before the higher court must concern a new fact situation to which no existing binding precedent applies.  Even so, the court can only reach a decision in relation to the information presented in individual cases. It cannot change entire areas of law in the same manner as parliament. The judge must be prepared to adopt a law-making role- The degree to which judges are prepared to distinguish one case from previous cases will depend in part on the judges’ view of their role in the law-making process.  Some judges are reluctant to be seen as law-makers. In order for the courts to be properly involved in the law-making process, they must assert their power to bring about a change in the law. Taking case to court- The parties must have sufficient resources to take a case to court when the outcome is uncertain.

 Read the Trigwell Case that I will give you.  Summarise the case and then answer the following questions: 1) Explain the difference between the following terms: ● ratio decidendi and obiter dictum ● binding precedent and persuasive precedent ● overruling and reversing ● disapproving and distinguishing. 2) What would you expect to be the outcome if a judge did not follow a precedent that is clearly binding on the court? 3) How does the doctrine of precedent operate to reduce conflict in the community? 4) Outline the major problems that may be experienced in interpreting past decisions. 5) ‘The doctrine of precedent provides for the consistent application of legal principles as well as providing a means to develop the common law to meet the needs of the community.’ Do you agree? Justify your opinion.