The Doctrine of Precedent

The doctrine of precedent represents a primary constraint on the judicial decision-making in Australia and the world over. The idea behind this doctrine is that judges are bound when deciding cases with similar facts, by past judicial decisions. Therefore, courts strive to ensure that law developed is applied in a predictable manner and consistently. Specific legal questions emerge from the operations of the legal doctrine in Australia. The first major question concerns why and when the High court may not follow its past decisions. The second question concerns the implications of the doctrine for territory and state Courts of appeal. These legal questions significantly implicate the High Court. Due to these implications, the doctrine forms an essential part of the Australian legal system which borrows heavily from the English legal system (Komárek, 2013). Therefore, understanding how it works is important. Additionally, it is important to understand that while some cases are bound by previous decisions, others are not.

The precedent is based on Stare Decisis which requires decisions made by equal or lower courts to follow earlier decisions made by the High Court. Due to its implications, the doctrine brings certainty to the Australian legal system. In every case that judges make judgment upon, two types of states must accompany the judgment. The states are the Obiter dicta and Ratio dicidendi (Vines, 2013). The ratio dicidendi refers to the basis for the decision or the reason the decision is made. The general statement does not include essential details of the case. It is stated for the future application in similar cases. The case of Donoghue v. Stevenson (1932) is an example of the ratio. In this case, the plaintiff suffered illness after taking beer containing a dead snail. As a result, the plaintiff sued the manufacturer for negligence which caused the suffering on the part of the plaintiff. The ratio dicidendi of Donoghue v. Stevenson (1932) consequently led to considerable developments to the law of negligence. Obiter Dicta are the statements outside the ratio dicidendi. The statements do not contain the main reasoning of the decision. As a result, Obiter Dicta are not binding in future decisions. While not part of the precedent, the judge can refer to Obiter Dicta in future cases to make more persuasive arguments in light of the law.

Three types of precedents exist in law. The first is the original precedent which is the initial precedent to be set in circumstances where there is no reference for the judge to base a decision. Hence, the new precedent will be used in future cases. The judge gives the reasoning used to arrive at a decision as there are no earlier decisions to follow.  For example, while there was a concept of a duty of care within specific circumstances before the case of Donoghue v. Stevenson (1932), the case widened applications. The case is an example of an original precedent. The second type is the binding precedent. A binding precedent is applicable in cases where present cases have to follow previous decisions where there are satisfactory similarities in facts in the current cases. The previous decision has to be from the High Court or higher positioned court or court on the same level.  Thus, lower courts are bound to follow Higher Courts’ decisions when dealing with cases where facts are deemed to be sufficiently similar.

The third type is the persuasive precedent. The persuasive precedent is not binding in nature and courts are not required to use previous precedents. However, judges may find it necessary to apply precedent in a flexible manner. Precedents made by lower courts can be used as illustrated in the case of R v. Gotts (1992). In the case, the obiter dicta of R v. Howe (1987) made by a lower court was followed by the court of appeal. Law review articles, decisions from the Privy Council and treaties can be sources of the persuasive precedent.

How the Doctrine fits with the hierarchy of the Australian court structure

Australian courts are organized in a hierarchical manner. The high court is at the top of the hierarchy while the courts of appeals of different territories and states fall below the high court. The Supreme Court is the next in hierarchy after the courts of appeals (Saunders and Stone, 2014). Before the decision on Farah Constructions was made, the doctrine of precedent had two major implications on the state and territory courts of appeal. The first implication is that while the courts were required to apply previous decisions of the High Court, only certain elements were required to be applied rather than the entire reasoning of the high court.

While lower courts are bound by the doctrine, the High Court does not have to follow its past decisions. However, it may ordinarily do so in cases that raise similar facts. For example, in the in Imbree v McNeilly (2008) case, the high court did not Cook v Cook (1986) rule. Instead, it overruled its earlier decision, therefore rejecting the reasoning of a past decision it had made irrespective of the similarity of facts raised in the case. By overruling its own previous decision, the court does not maintain the ordinary practice of following precedents.

The doctrine also has an implication on the territory and state courts of appeal.  The implications are explored in the Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007). In this case, the legal question concerned the legal duties that accrued to property developers as well as the liability of third parties in instances of breach of specific duties. The high court used the case as a means to apply the doctrine. In the case of Bofinger v 7 Kingsway Group Ltd (2009), the high court felt bound to remind judges within the hierarchy of courts to follow the precedent of the high court in preference to other sources of law (MacCormick et al., 2016).  Therefore, as demonstrated in the Farah Constructions Pty Ltd v SayDee Pty Ltd (2007), courts within the hierarchy of the Australian courts are bound to take into consideration high court’s opinion whether or not the opinions are expressed merely by way of obiter or as part of the ratio of a case.

The relationship of Common Law to Statute law

The law is a body of rules and principles adopted by the country to guide the actions of individuals. Common Law to Statute law is two types of law adopted by Australia. The common law emerges from judicial decisions made by courts, tribunals, and judges in their equitable jurisdictions. Statutory laws are statutes or formally written laws adopted by the legislature and are made by the Territory, State, and Commonwealth Parliaments. The primary difference between the two lies in their relevance, the authority who set down the acts and the way the two are developed.

Statute laws and common laws interact during decision-making by judges.  Judges make use of the combination when making rulings. Largely, property law, tort law, and contract law do not exist in statutory law but have their roots in common law. In specific circumstances, some cases such as the international sale of goods related to contract law, are ruled using statutory law. In such instances, the judges make use of past rulings as well as statutes to make decisions. Therefore, decisions are based on precedence, a component of the common law, and adhere to statute law (Milsom, 2014).

Another form of interaction is evident in the interpretation of the law. Statute laws provide broad and general statements of policy. Common law defines the limits of the policy and puts it into practice. Therefore, the interpretation of statute law is often dependent on common law.  Sometimes, the law can fail to define essential terms or be vague (Burrows, 2012). Common law defines the important terms and expands expand on the definition of statute law. For instance, tort law may not provide all of the indemnities that a complainant can obtain from a respondent in the statute. On the other hand, the common law will allow the plaintiff to sue for suffering, lost wages, medical expenses, pain and other forms of compensations for injuries or negligence. So, while the statute law does not explicitly state the form of damages, through precedent, the common law establishes damages that the plaintiff can receive. By basing their decisions on previous cases, courts are able to maintain consistency and ensure that plaintiffs and defendants are not treated differently under different situations. Bias can become a serious issue in civil systems that are dependent on statutory law. However, statute law triumphs over the common law subject to constitutional constraints. Common law principles are used as the basis for the interpretation of statutes. Further, the “principle of legality” safeguards the relationship by ensuring that statutes do not informally eliminate common law rights. 

The positive aspects and negative points of the process

The positive aspects of the interaction of the two laws are that while they are often discussed as two distinct sources of legal rules and principles, they cannot exist independent of each other. Under the constitution, they form part of a single integrated system. They interact indirectly and directly and have a symbiotic relationship. Precedent forms the basis of common laws and allows cases to be decided on a case-by-case basis (Bratchford, 2017). On the negative side, the Australian legal system exacerbates the challenges of integrating statute and the unified common law of Australia. There are diverse and fragmented statutory schemes that proliferate in Australia. The schemes do not lend themselves to the application or legal analysis. In the light of these negative aspects, the interaction between common law and statute law becomes challenging.

References

Bofinger v. Kingsway Group Ltd, 239 C.L.R. 269, 2009 H.C.A. 44 (2009).

UK Donoghue v. Stevenson (nee Macalister), 1932 S.C. (HL) 31, 1932 A.C. 532 (1932).

Farah Constructions Pty Ltd v. Say-Dee Pty Ltd, 230 C.L.R. 89, 2007 H.C.A. 22 (2007).

Imbree v. McNeilly, 236 C.L.R. 510, 2008 H.C.A. 40 (2008).

Cook v. Cook, 162 C.L.R. 376 (1986).

R v. Gotts, 1992 A.C.2 412 (1992).

R v. Howe, 1987 A.C. 417 (1987).

Komárek, J., 2013. Reasoning with previous decisions: beyond the doctrine of precedent. The American Journal of Comparative Law, 61(1), pp.149-172.

Vines, P., 2013. Law and Justice in Australia: Foundations of the legal system. Oxford University Press.

Burrows, A., 2012. The relationship between common law and statute in the law of obligations.

Milsom, S.F.C., 2014. Historical foundations of the common law. Butterworth-Heinemann.

Saunders, C. and Stone, A., 2014. Reference to foreign precedents by the Australian high court: a matter of method.

MacCormick, D.N., Summers, R.S. and Goodhart, A.L., 2016. Interpreting precedents: a comparative study. Routledge.

Bratchford, D., 2017. Your library: Your questions answered: Judgments and sentencing information. Proctor, The, 37(7), p.30.