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The Doctrine of Precedent

Samantha Abbot

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WHAT IS PRECEDENT?

WHAT IS

PRECEDENT?

  • doctrine = a legal principle, precedent = earlier events

  • a judgment that is authority for later cases with similar facts;
  • a case that is authority for the legal principle contain in its decisions;
  • gives rise to stare decisis - the precedent is binding on lower courts in the judicial hierarchy;
  • provides a way to preserve a stable and consistent legal framework

Concise Australian Legal Dictionary (5th ed, 2015) 'Precedent'

RULES OF THE DOCTRINE OF PRECEDENT

RATIO DECIDENDI

RULES OF

PRECEDENT

  • each court is bound by decisions of higher courts in its hierarchy
  • a court is not always bound by its own past decisions
  • only the ratio decidendi of a case is binding
  • precedents do not lose their force by lapse of time
  • not all events turn into precedent as much of what we did in the past becomes quickly insignificant (timely and relevant)

the reason

for a decision

in a case

Robin Creyke et al, Laying Down the Law (LexisNexis Butterworths, 10th ed, 2018) 152

ADVANTAGES OF THE DOCTRINE OF PRECEDENT

ADVANTAGES

looking at the rationale for the doctrine gives rise to its advantages

"stand by the thing decided and do not disturb the calm"

PROMOTES

EFFICIENCY

PROMOTES EFFICIENCY

  • Saves time
  • once a court has a ruling on an issue, the precedent of that ruling exists
  • subsequent courts and matters do not need to have time and resources wasted on reconsidering the issue
  • judges spend less time in deliberations as they can apply the decision making process of others

Telstra Corporation v Treloar (2000) 102 FCR 595

KEEPS THE LAW PREDICTABLE

KEEPS THE LAW PREDICTABLE

  • judicial precedent offers the legal system access to consistency and predictability that everyone can rely on
  • by following precedent, a court generates legal certainty and builds up citizens trust
  • creates mindful expectations of how a particular issue will be treated in the future
  • people can predict where they stand in regards to the law and what might happen to them if they go against the law as it provides a guarantee that every case will be treated and decided in a manner that is similar to past decisions

Neil Duxbury The Nature and Authority of Precedent (Cambridge University Press, 2008) 162

ENFORCES

LAW

ENFORCES LAW & JUSTICE

"in order that the citizen may order his affairs and make decisions, the courts must apply uniformly rules and principles that are ascertainable in advance"

= predictable outcomes help generate awareness

  • precedent comes from the consistency of its certainty
  • if people are likely to be able to predict consequences this might encourage the prevention of crime as people know what will happen if they get caught
  • promotes appearance of justice
  • if precedent is applied, judgments are impersonal and reasoned not biased by the views of certain judges

Robin Creyke et al, Laying Down the Law (LexisNexis Butterworths, 10th ed, 2018) 153

Sir Anthony Mason, The Use and Abuse of Precedent (1988) Australian Bar Review 93

FLEXIBILITY AND NEW PRECEDENTS

OFFERS FLEXIBILITY & NEW PRECEDENTS

  • world is constantly evolving in all facets of life
  • new situations may arise that aren't currently covered by legislation or previous decisions
  • this creates the potential to set a new precedent
  • past cases not 100% exact
  • issues from other countries
  • currently available information
  • creates new rules and ratios that serve as precedent for the future that are historically more relevant and applicable

DISCUSSION GUIDE QUESTIONS

DISCUSSION

QUESTIONS

1. do you think precedent is making the legal system lazy?

2. If courts can avoid using certain precedents, do you think this is fair and should precedent still be used in today's society?

3. consider a case or a legally relevant everyday life example of a time when you might want precedent to exist/apply

4. locate and read the case of Phillips v The Queen (2006) 22 CLR 303.

consider the relationship between precedent and judicial hierarchy, do you think there might be times where a court "stamps its authority" as superior sources of binding precedent and does that translate in this case?

what should be done to avoid this?

5. if precedent continues to apply in future times, do you think this should impact judges that are selected to sit on the high court bench? should they exhibit specific personality traits/cognitive thinking patterns/extensive background in applying precedent in their legal vocation in order to predict how they might interpret and apply the law?

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