1. 4.2 – Role of Judges in Common Law 1

2. The main role of courts  decide the facts of the case (that is, what happened)  decide what law applies  apply the relevant law to the facts  reach a decision.

3. Online Research Task You have 10mins  How does someone become a judge? What qualifications are necessary? Do some online search on any of the justices of the High Court and find out about that person’s career before joining the High Court. A brief outline of the background of each of the current justices can be found at http://www.hcourt.gov.au/ju stices/about-the-justices. http://www.hcourt.gov.au/ju stices/about-the-justices  Why would experience as a barrister be of greater value in becoming a judge than experience as a solicitor?

4. Role of the judges Judges don’t make law all the time, they can only make law when;  A case comes before the court and there is no legislation (parliament made law)  There is no precedent in that area  The judge is required to interpret the words or meaning of a statute law 4

5. What is a precedent?  Stare Decisis To stand by what has been previously decided. Precedent Appeals

6. How do judges apply precedent ?  They analyse previous judgements to determine if there is any binding precedent  Find the ratio decidendi (reason for the decision) – This is the binding aspect of a decision  Discriminate from the Obiter Dicta (things said by the way). These comments are not binding are just comments made by the judge  Identify and apply a persuasive precedent that may be used if no binding precedent – (From another court hierarchy both nationally or internationally or a court of the same level)  Develop a new precedent if required 6

7. Changing a precedent  It may seem that judges have little flexibility to make up their own minds and make their own laws BUT  Judges do have some flexibility which enables them to change common law to ensure it remains relevant and that the law reflects modern views 7

8. Changing a precedent

9. Four techniques/ways judges can use to avoid following an earlier decision There are 4 techniques available to judges if they are confronted by a precedent that they feel is;  inappropriate  Does not fit the circumstances of the present case  Remember R.O.D.D 9

10. R.O.D.D Draw this Diagram 10

11. RRRRRRRReversingRRRRRRR  When a case has gone to a higher court on appeal the judge can change the decision made by the lower court in the same case  Therefore the judge can reverse the precedent set by the last judge and the new decision set by the higher court becomes the precedent 11

12. OOOOOOOverrulingOOOOOO  When a superior court decides not to follow an earlier decision of a lower court, it overrules the previous precedent  A case in a higher court is not bound by the decisions/ precedents of lower courts  The decision in the higher court will overrule the precedent established by the lower court  E. g Supreme Court overrules a County Court decision  A new precedent is therefore created 12

13. DDDDDDDisapprovingDDDDDD  A judge can disapprove an earlier decision and reach a different decision, creating a second precedent for the same set of facts  This can occur in courts at the same level of the hierarchy  If there are a number of binding precedents, lower courts have to decide which is the most appropriate 13

14. DDDDDDDistinguishingDDDDD D  A judge can identify differences between the present case and therefore create a different precedent  This allows the judge to not to have to follow an existing precedent 14

15. Precedent When a judge Reverses, Overrules Disapproves Distinguishes A new precedent is formed 15

16. Advantages and disadvantages of the Doctrine of Precedent 16

17. Precedent provides consistency and fairness Advantage  When disputes are being resolved parties to a dispute can feel confident that their case will be treated like ones in the past Disadvantage  Outcomes of similar cases are not always the same  The process of R.O.D.D may result in a very different decision as one in the past 17

18. Precedent provides certainty Advantage  Parties to a dispute may feel that they can predict the outcome of their case based on a decision of a previous similar case Disadvantage  An outcome is difficult to predict because there is more than one precedent that may apply to the case 18

19. Precedent provides flexibility Advantages  Precedent can be changed by a superior court when it distinguishes cases of similar facts Disadvantages  Judges are conservative and often prefer to follow earlier decisions made by past judges rather than make a new precedent  This makes the law inflexible, out dated 19

20. Precedent provides for growth in the law Advantage  Areas of law can develop and grow over time as judges can elaborate and expand precedents Disadvantage  Growth through the law is expensive, slow.  Cases have to come to court before any development of the law can occur.  Parties to a dispute have to take the risk of taking a case to court 20

21. Precedent is efficient Advantage  Provides guidance in principles for judges to follow  Judges are impartial and can make decisions without fear of political interference Disadvantage  There needs to be a dispute and parties prepared to go to court  This is inefficient  It can also be lengthy and expensive  Legislation through parliament can be quicker and cheaper 21

22. Your Turn  Questions 1 – 9 Page 185 22