A bit of revision

To revise: Explain the difference between: ratio decidendi and obiter dictum binding precedent and persuasive precedent.

a decision by a magistrate in the Magistrates' Court Decide whether or not the following decisions would create a binding precedent, persuasive precedent or no precedent for Victorian courts (explain your answers): a decision by a magistrate in the Magistrates' Court an appeal decided by the Court of Appeal sitting in Victoria a decision by the New South Wales Supreme Court a guilty verdict by a jury a 20-year sentence given to a murderer by the Supreme Court a decision on the meaning of some words in the Constitution by the High Court an award of $2 million damages given by a jury in a civil case in the Supreme Court

4.2 - How do judges make law? Judges can only make new law when there is an actual case before the court that requires a decision and the following conditions are met: no relevant legislation can be applied to the facts of the case there are no binding precedents from higher courts within the same hierarchy the case is being heard in a superior court of record, usually the High Court, Federal Court or state Supreme Court.

Note: When parliament passes legislation it is looking to the future, creating law that is expected to cover a variety of circumstances that may arise over time. When judges makes law, they are doing so retrospectively, dealing with a set of events that have already occurred and attempting to resolve a dispute arising from those events.

Techniques used by judges in applying precedents A precedent will only be strictly binding when the facts of the case before the court are identical to the facts of the case in which the precedent was established. It is extremely rare for this to occur, so arguments presented to the court usually refer to precedents that have arisen in similar cases. Most precedents are applied in similar rather than identical situations.

Judges will use one or more of the following techniques when seeking to apply relevant precedents: Analyse previous judgements to determine if a binding precedent exists and apply it in the case before them Identify and extract the relevant ratio decidendi that can be applied Adapt existing ratio decidendi if the facts of the current case differ from the case in which the precedent was established. Identify and apply any persuasive precedents that may be relevant if no binding precedent can be identified.

For each of the following situations, explain whether the court was reversing, overruling, disapproving or distinguishing previous judicial decisions: a judge in the Supreme Court of Victoria decides not to follow a precedent set in the same court in 1956 because she does not believe the precedent is relevant in today's society in dealing with an appeal from a state Supreme Court, the High Court of Australia decides not to apply one of its previous decisions because it will lead to an undesirable result and creates a new precedent instead a Supreme Court judge decides not to apply a precedent because the facts of the current case are substantially different from the previous case the Victorian Court of Appeal determines that a judge in the Supreme Court has wrongly applied the law and decides in favour of the appellant.