The courts as law
1 Australian courts are arranged in a
hierarchy with lower courts dealing
with less serious matters and the
higher courts hear more serious
1.1 Lowest To Highest
Court of Appeal
2 There are two situations in
which the courts make laws
2.1 1. Judges make laws on a new issue that
arises in a case before them, on which
there is no previous statute or common
law or the current common law requires
2.2 2. Through the interpretation of legislation,
as it applies to a case before them. The
first situation will be the focus of this
chapter and the second situation will be
examined in chapter 9.
2.3 Court-made law is also known as case law,
common law or law or judge-made law.
3 LIMITATIONS ON A JUDGE'S
ABILITY TO MAKE LAW.
3.1 Judges can only make law if there is a test before them. That is they
must wait for a case to arise with a legal issue that has not
previously been considered by any court. or which tests the valitidyof
an existing law, or which requires the interpretation of an existing law.
3.1.1 Either statue or common law
3.2 The position of the court in the hierarchy- only
superior courts in the hierarchy create precedent.
These are the courts of record, where the jugdment
3.3 The type of legal case and the mode of trial-
precedent is usually only estasblished in cases
on appeal (where there is know jury) or when
hearing a civil case without a jury.
3.4 The personality of the judges- some see
there role as adjudicators, not law makers,
while other judges are progressives, who
see their role is both adjudicator and law
3.5 Judges may be bound by exsisting precedent
that has been established by higher court, so they
have to follow it.
3.5.1 judges may be able to distinguish the
4.1 Binding Precedent: Precedent created by courts higher in
the court hierarchy that must be followed by a lower court
when making a judicial decision.
4.1.1 Persuasive precedent: Precedent that courts are not bound to follow, such as
those made by lower courts or courts of another jurisdiction, but a court may
look to the precedent as being influential on their judicial decision making.
4.2 Obiter dictum (LATIN) Statements said by the way.
These statments of a judges opinion on a legal principle
or law which is not for direction consideration in the case
at issue. it is only ever persuasive precedent.
4.2.1 Ratio decidendi (LATIN) The reason for the
desicion. this is the statement of legal principle or
law that forms the binding part of a precedent.
188.8.131.52 Stare decisis(LATIN) To stand by what has been decided.
5 DEVELOPING PRECEDENT
5.1.1 A judge in a higher court deciding a case on appeal
may rule that the lower court wrongly decided that
case. The superior court can reverse or change the
previous decision. This creates a new precedent that
is binding on lower courts.
5.2.1 A judge deciding a case in a higher court may not agree with
a precedent set in another case in a lower court. The
superior court may decide not to follow the existing
persuasive precedent and may over rule or change it.
184.108.40.206 This creates a new precedent
that is binding on lower courts.
5.3.1 A judge may refuse to follow an earlier decision of another judge in the same court.
220.127.116.11 Both precedents remain in force until another case on the issue is taken to a
higher court, which can overrule the previous decision and create a new
5.4.1 A judge may find that there are different material facts
existing between the case currently being decided and the
case in which an earlier binding precedent was set.
18.104.22.168 If these differences are important enough then the later
court may coose to distinguish its case from the previous
one and create a new precedent for their particular set of
facts. there will then be two different precedents one for
each of the two fact situations.
6 ADVANTAGES OF PRECEDENT
6.1 Creates certainty and consistency as a
case will be decided similarly to a
previous, comparable case.
6.1.1 Flexibility due to the fact that the methods of avoiding following
precedent (reversing, overruling, distinguishing disapproving) help
prevent the law from becoming to rigid.
22.214.171.124 Encourages efficiency as judges can refer to
previous cases when making decisions.
126.96.36.199.1 Allows judges to create new areas of law
in order to uphold the rights of disputing
parties before them.
6.2 DISADVANTAGES OF PRECEDENT
6.2.1 Inflexible as a court is bound to follow
precedent and may not be able to avoid it,
so common law is limited in responding to
changes in society.
188.8.131.52 Some uncertainties as no two cases are ever
184.108.40.206.1 Restricted by having to wait for a case to
be brought to court- slow an irregular
220.127.116.11.1.1 Complicates the judicial law making process