1. The role of the courts as law-makers

2. Think about this…
Has there ever been a time at home or at school where you have done something wrong and been punished, but been unhappy because someone else in the family or the class did the same thing but received a less severe punishment.
Who usually decides the punishments or consequences in these situations? Is it always the same person? Would it make sense if a record was kept of punishments given in the past, so that there could be consistency when a different person has determine a consequence in the future?

3. Key knowledge

4. importance
Parliament is seen as the key law-maker in our society, with courts settling disputes that arise under those laws.
In fact, the courts have a much broader role than this.
The courts develop laws in areas not covered by legislation and interpret the legislation passed by parliament.
Our courts have a vital role as law-makers in our legal system.

5. What is common law? Australia's courts operate as a common law system
This means that judges make judgements based on decisions made in previous cases where the facts were similar.
Common law originally developed in England and is a significant part of the law of English-speaking countries around the world, as well as those countries that were influenced by the English legal system.

6. In the earliest times of England, disputes were resolved by local “freemen” who would listen to arguments of each side, then submit an accused to trial by ordeal – a medieval method of determining guilt or innocence by a painful test
If they were unharmed, they were considered innocent.
The name ‘common law’ originally referred to the fact that it was a system of law that was common (that is, widespread and universal) to the whole country.

7. Definition to add to your booklet
Common Law:
Common law is a system of law based on judge-made law or case law, as opposed to legislation or statute law
Stare decisis
Stare decisis means to stand by what has been decided and is the basis of the doctrine of precedent
Lower courts follow, or ‘stand by’, the decisions of the higher courts in the same court hierarchy in “like cases”

8. The doctrine of precedent
As a former British colony, Australia has adopted the common law approach within its court system.
The common law also applies in countries such as the United States of America, Canada, New Zealand, India, Malaysia and a number of African countries that are former British colonies
The central feature of common law is the doctrine of precedent.
In essence this means that when deciding the outcome of a case, judges will look to the results of similar cases and will tend to be guided by the decision in those cases

9. The doctrine of precedent
This is the process by which judges follow the reasons for decisions given by courts higher in the same court hierarchy when deciding on similar future cases

10. The doctrine of precedent relies on the following set of principles.
There is a hierarchy of courts, in which higher courts are referred to as superior courts of record
The principle of stare decisis (‘to stand by what has been decided’) is applied.
Lower courts in the hierarchy are required to follow the decisions of higher courts in the same hierarchy
A higher court can overrule or reverse a decision of a lower court within the same hierarchy
The highest court in the hierarchy (in Australia, the High Court) has the power to overrule its own decisions.

11. Details of decisions made by superior courts of record are kept in law reports, which are readily available to all legal practitioners.
Cases that are similar in facts are decided in a similar manner to provide consistency within the legal system.
Common law rules can always be overruled by parliament through the legislative process.
When a new issue comes before a court, the judge is empowered to effectively create new law, provided that it is not inconsistent with existing precedent, or with relevant legislation.

12. Court hierarchy in victoria

14. Ratio decidendi
Not everything said by a judge (or judges) in the course of reaching a decision is a precedent.
Only the ratio decidendi forms the legal principle to be used in future cases
This term literally means “the reason for deciding”.
The ratio decidendi is the rule of law stated by the judge as the reason for deciding
According to the doctrine of precedent, in cases that have similar circumstances, the ratio decidendi of higher courts will be binding on all lower courts (in the same court hierarchy).

15. Obiter dictum
During the course of making and explaining their decisions, judges will say other things — comments on important facts and legal principles that helped them arrive at a decision.
These statements are referred to as obiter dictum (‘things said by the way’) and do not constitute a binding precedent.
In some cases a judge may speculate on how the decision might not be the same if one or more facts of the case were different. The following English case illustrates this.

16. Terms to define Ratio decidendi:
the legal reasoning, or rule, upon which a decision is based
Obiter dictum
A judge’s statement of opinion or observation made during a judgment but not part of the reason for a decision

18. Case study obiter dictum ratio decidendi

19. In the case Cohen v. Sellar the court decided that since Mr Sellar had broken the engagement, Miss Cohen could keep the ring.
Miss Cohen and Mr Sellar were engaged to be married, and Mr Sellar gave his fiancée an engagement ring. After a while they began to argue frequently and the defendant Sellar broke off the engagement. The question arose as to who was entitled to keep the engagement ring.
In previous cases where the woman had broken off the engagement, she had been required to return the ring. The judge in this case decided that since the man had broken off the engagement, he had no right to demand the return of the ring.

20. Case continued
In delivering his judgment, the judge speculated on what might have been the situation if circumstances had been different.
His opinion was that if the engagement had been dissolved by mutual consent or if the marriage had not occurred because of illness or disability, then the ring should be returned.
If the marriage had gone ahead, but the couple had later divorced, the ring should remain with the woman.
In this case, the fact of the man breaking off the engagement constituted the ratio decidendi, because it involved the application of established legal principle. The judge's opinion relating to other possible circumstances is an example of obiter dictum.

21. task:
Quick-write: explain the term “doctrine of precedent” in your own words.

22. Binding precedent Is a precedent that must be followed
The doctrine of precedent depends on lower courts within a court hierarchy following the ratio decidendi of superior courts
The general rule is that a decision of a higher court in the same hierarchy is binding or must be followed by lower courts in the same hierarchy when deciding similar or “like” cases

23. Persuasive precedent
A persuasive precedent is a precedent that contains a “convincing” argument, but one that does not have to be followed because it is not binding.
It is not a decision made by a higher court in the same court hierarchy in a case with similar facts
Decisions considered to be persuasive authority include:
decisions made in another court hierarchy, either interstate or in another common law country
decisions made in a lower or equal court in the same hierarchy
obiter dictum from a case either from within or outside the same hierarchy
the opinion of an eminent legal expert, as expressed in textbooks or legal journals.

24. Add to your definitions
Persuasive precedent:
A precedent that a court does not have to follow but which is nevertheless very influential – including a decision made in a lower or same level court, a different court hierarchy or the obiter dictum from a case
Binding precedent
Is a decision of a judge/s that must be followed by all lower courts within the same court hierarchy where the facts of the case are similar – for example a decision of the Supreme or High Court

25. Persuasive precedent: Donoghue v Stevenson – snail in the bottle 1932
Facts: plaintiff, Donoghue, consumed half opaque bottle of ginger beer bought by friend. Poured rest out and with it came decomposed snail, she fell very ill. Fault lay with manufacturer as they had not cleaned bottle. Donoghue sued him, despite not having contract directly with him or the seller.
Court decision: found for the plaintiff (Donoghue) stating that the manufacturer owed a duty of care to the ultimate consumer. Ratio decidendi being “one should take reasonable care to avoid oacts or omissions that can reasonably forsee would likely injure your neighbor, being any persons who are closely and directly affected by your act.
Significance: established the law of negligence in England.

26. Grant V. Knitting Mill (Itchy underwear case) 1936
Facts: The Plaintiff, Dr Grant, suffered severe dermatitis to his nether-regions and was hospitalised due to wearing woolen underwear manufactured by the defendant who had negligently left chemicals on the material. Grant sued for negligence.
Court decision: found for the plaintiff and followed persuasive precedent set in Donoghue v. Stevenson, ruling that negligence was present due to defects (as ruled in Donoghue v Stevenson) even if defects are unnoticeable to the naked eye.
Impact: law of negligence established in Australia from persuasive precedent of Donoghue V. Stevenson.

27. Did you know
Cases that are decided by a jury are not recorded in law reports because the decision has not been made by a judge, so there can be no ratio decidendi. A jury is not required to give reasons for its decision and is actually prohibited from doing so.

28. TEST your understanding
2. Identify and explain the key principles of the doctrine of precedent.
3. What is the significance of the principle of stare decisis?
APPLY your understanding
5. Explain the difference between:
ratio decidendi and obiter dictum
binding precedent and persuasive precedent
WHAT WORD DO YOU NEED TO USE?
6. Explain the link between the court hierarchy and the doctrine of precedent.
Exam questions:
Explain the parts of a judgment in a case that are important for establishing precedent (2 marks)
What is the principle of stare decisis and why is it essential to the operation of the doctrine of precedent? (2 marks)

29. Question 7
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.

30. Exam question 1.) give two reasons for a court hierarchy (2 marks)
2.) distinguish between binding and persuasive precedent (2 marks)

31. 1.)
One reason for the existence of a court hierarchy is specialisation. If there were no court hierarchy, and only one level of courts, judges and magistrates would not be able to build up knowledge and expertese dealing with particular cases, for example the magistrates court deals with 90 percent of cases, which are mostly summary offences. Another reason for a court hierarchy is the doctrine of precedent. If there were no hierarchy of courts, lower courts would not be able to stand by the decision of higher courts in cases were the facts are similar .

32. 2.)
Persuasive precedent refers to a precedent that a court does not have to follow but which is nevertheless very influential, this can include a decision made in a lower or same level court and the obiter dictum from a case, whereas binding precedent is a decision of a judge/s that must be followed by all lower courts within the same court hierarchy where the facts of the case are similar, for example a decision of the Supreme or High Court.