1. Judges, precedent and the common law
COURTS
Judges, precedent and the common law

2. LEGAL SYSTEMS COMMON LAW
Used in countries that have derived their legal system from Britain (Aust, US, Canada, UK)
Partially codified an evolving
Based on precedents gradually accumulated over time
Adversarial – strong role for parties
Impartial judge
CIVIL LAW
Used in countries who derived their law from the Roman laws – Codex and Digest – of the Roman Emperor Justinian. Most of Europe and countries, such as Indonesia, who derive their laws from Europe
Fully codified
Inquisitorial – lesser role for parties
Active judge

3. ORIGINS OF COMMON LAW Based on British system – over 1000 years
Norman Conquest 1066 – monarchs asserted more control – sending legal agents out to collect tax and judge cases
1100’s – a network of the King’s Courts (the curia regis) had come into being
Judges selected the customary law most common in the country, recorded it and enforced it in future case throughout the country – hence “Common Law”
1500’s Year Books of cases published
1800’s formal Law Reports
Click here for more details on origins of common law

4. PRINCIPLES
Stare decisis = to stand on what has been decided. The is the fundamental principle behind precedent
Ratio decidendi = the reason for the decision. This is the common law
Obiter dicta = sayings by the way. These are the judges’ other reasons. They are not law

5. PRINCIPLES
Evidence = the facts presented during the trial. Decisions of the court must be based on evidence
Material Facts = the material facts are those crucial to the decision of the court. Material facts are relevant when deciding to apply a precedent in a future case

6. PRINCIPLES
Hierarchical (click here for to learn more about the court hierarchy)
Binding precedent = set in superior courts that must be followed by inferior courts
Persuasive precedents = set in equivalent of inferior courts that may by influential in the determination of a case
Note: this may be seen as rigid and lacking flexibility so…

7. PRINCIPLES Avoiding or changing precedents
Reversing the decision: A higher court may substitute a “correct” ratio in place of one of a lower court.
This is done on appeal, only one case is involved
Reference: Spindler & Milnes pp

8. PRINCIPLES Avoiding or changing precedents
Overruling the decision: when attempting to follow precedent a superior court finds the lower court’s ratio is unconvincing, the higher court may replace it with its own.
This has the effect of becoming the new precedent to be followed in future cases
Two cases are involved, the original lower court case & the newer superior court case
Reference: Spindler & Milnes pp

9. PRINCIPLES Avoiding or changing precedents
Disapproving the decision: a court decides not to follow the persuasive precedent of a court at the same level in the hierarchy. This decision would be taken if the material facts of the case were sufficiently different to any preceding case
This is done at the initial case, only one case is involved
Reference: Spindler & Milnes pp

10. PRINCIPLES Avoiding or changing precedents
Distinguishing the case: any intermediate or superior court, but not a magistrates’ court, may decide that the material facts of the case are too dissimilar from any previous case and avoid any existing precedents.
This is done at the initial case. Only one case is involved
Reference: Spindler & Milnes pp

11. PRINCIPLES Avoiding or changing precedents
Reversing the same case on appeal and overruling a previous case, may create new common law
Disapproving and Distinguishing, at the first instance, may create common law
Reference: Spindler & Milnes pp

12. CASES Distinguishing – Davies v Waldron [1989] VR 449
Reversing – Shaddock v Parramatta City Council [1981] 55 ALJR 713

13. PRECEDENT IN ACTION
Donohue v Stevenson [1932] – the most famous case creating common law.
Material Facts: Mrs Donohue’s friend ordered (and paid for) a ginger beer. The bottle was dark and opaque – the contents could not be observed.
Her friend poured her some of the drink – she drank it.
Her friend poured the remainder of the bottle into her own glass revealing the decomposed remains of a snail.
Mrs Donohue fell ill from drinking the ginger beer.

14. PRECEDENT IN ACTION
Donohue v Stevenson [1932] – the most famous case creating common law.
Existing law: Contract Law. A statutory body of law covering relationships between manufacturers and purchasers. This law did not apply because Mrs Donohue was not the purchaser of the drink.
No Common Law precedents covered this area. Previous decisions in Langridge v Levy [1837] and Winterbottom v Wright [1842], with similar material facts, had not created a duty of care or the concept of negligence

15. PRECEDENT IN ACTION
Donohue v Stevenson [1932] – the most famous case creating common law.
New Precedent: Lord Aitkin of the Privy Council distinguished the case from previous cases and applied a Christian value – “love thy neighbour”.
BUT! Who is a neighbour in law?
The “neighbour principle” in law means “the persons who are so closely and directly affected by my act that I ought reasonably to have them in my [thoughts when I act or fail to act]” This is lord Aitkin’s ratio decidendi

16. PRECEDENT IN ACTION
Donohue v Stevenson [1932] – the most famous case creating common law.
New Law: The “neighbour principle” is Duty of Care.
Failing to observe a Duty of Care is Negligence
Thus Lord Aitkin created new the common law of negligence in which manufacturers owe consumers (not just purchasers) a duty to ensure that the products they make do not injure them

17. PRECEDENT IN ACTION
Donohue v Stevenson [1932] – the most famous case creating common law.
The New Law Extended: Once the Neighbour Principle was created it was applied in future cases in which the material facts were similar.
Grant v Australian Knitting Mills [1936]. Grant contracted dermatitis from chemicals in woollen underwear and sued the manufacturer AKM. The Australian court extended Donohue to include all manufacturers
Negligence has grown into a huge body of common law covering, amongst others…
Doctors and their patients
Schools and their students
Councils and citizens

18. SIGNIFICANT NEW PRECEDENTS
Mabo [1992] overruled Murrell [1836], a decision of the Supreme Court of NSW that created the concept of terra nullius.
Click here to see the ratio of the Mabo decision
Dietrich [1992] overruled McInnis v the Queen [1979] that said that defendants did not have rights to legal aid
Reference: W/D pp

19. ADVANTAGES OF PRECEDENT
Consistency in decisions. Cases in which the material facts are alike well be treated alike
Predictable outcomes. Parties to a dispute can make reasonable judgments about the likelihood of success. Legal advice is more reliable

20. ADVANTAGES OF PRECEDENT
Flexibility. Being able to avoid inappropriate precedents allow the courts to make common law that adapts to changing circumstances
Unbiased transparent decisions. The basing of decisions on established principles and evidence removes the potential for biased, emotional, personal decisions made by judges

21. DISADVANTAGES OF PRECEDENT
Conservatism. Being ex post facto and based on old decisions the common law lags behind social, economic and technological change
Dependency on Legal Skills. Having a good lawyer, one who knows applicable precedents, is more likely to result in success than having the truth on your side

22. DISADVANTAGES OF PRECEDENT
No Two Cases are the Same. This challenges the whole bases of stare decisis and thus common law
Expense. The process relies on extensive costly research into precedents and skilled (therefore expensive) legal professionals to conduct argument
Ex post facto. This means that common law always looks back. This can make it difficult to predict the future directions of the law. Mabo [1992] came out of nowhere and drastically impacted the mining and pastoral industries