Topic 7 - Precedent

12/12/2014 6:20:00 PM

Doctrine of Stare Decisis:

Decisions made in a case should be follow by other similar cases

at a later time.
keep to the rationes decidendi of past cases, or literally,
stand by the thing which has been decided.

Telstra Corporation v Treloar (2000) 102 FCR 595, per Branson and
Finkelstein JJ at 602
The rationale for the doctrine of precedent:
Certainty
Equality
Efficiency
And appearance of justice
Rules of Precedent
Lower courts are bound by decisions of higher courts in the same
judicial hierarchy.
Decisions made by the highest court in a judicial hierarchy may
be overrule by the same court in later and similar cases.
o First and Second Territorial Senators Cases
o Decisions made by judges at the same level court are not
binding on another judge at the same level court.
However, those decisions are highly persuasive because of
the importance of being consistent.
o Decisions made by other courts in a different judicial
hierarchy are not binding but may be persuasive
Lipohar v R (1999) 200CLR 485 per Gleeson CJ at 505-6
The common law has its source in the reasons for decisions of the courts
which are reasons arrived at according to well recognised and long
established judicial methods. It is a body of law created and defined by
the courts. Whatever may have once been the case in England the
doctrine of precedent is now central to any understanding of the common
law in Australia. To assert that there is more than one common law in
Australia or that there is a common law of individual States is to ignore
the central place which precedent has in both understanding the common
law and explaining its basis.

This Court is placed by s73 of the Constitution at the apex of a

judicial hierarchy to give decisions upon the common law which are
binding on all courts, federal, State and territorial. Different intermediate
appellate courts within that hierarchy may give inconsistent rulings upon
questions of common law. This disagreement will indicate that not all of
these courts will have correctly applied or declared the common law. But
it does not follow that there are as many bodies of common law as there
are intermediate courts of appeal. The situation which arises is not
materially different to that which arises where trial judges in different
courts or within the same court reach different conclusions on the same
point of law.
The ultimate foundation of precedent which binds any court to
statements of principle, is as Barwick CJ put it, that a court or tribunal
higher in the hierarchy of the same juristic system, and thus able to
reverse the lower courts judgement, has laid down that principle as part
of the relevant law. Until the High Court rules on the matter, the
doctrines of precedent which bind the respective courts at various levels
below it in the hierarchy will provide a rule for decision. But that does not
dictate the conclusion that until there is a decision of the High Court the
common law of Australia does not exist, any more than before 1873 it
would have been true to say that there was not one English common law
on a point because the Court of Kings Bench had differed from the Court
of Common Pleas.
Ratio Decidendi are binding
Obiter Dicta are not binding but may be persuasive
Precedents do not become invalid over time
Rule in Pinnels case (1602) 5 Co Rep 117a

Part payment of a debt is not sufficient consideration for a

promise to discharge the whole debt

but the gift of a horse, hawk or robe etc might be more

beneficial to the plaintiff than the money Lord Coke in Pinnels
case
Pinnels case (1602) 77 ER 237

Development of law through precedent

Issue for common law
o Why?

Criticism levelled by legal realists among others

o Why?
Previous cases can be:
o Distinguished
How?
o Set aside per incuriam
What does that mean?
o Overruled by superior court
Why is that not good?

Statutory Interpretation

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