Common law reasoning and the use of precedent Welcome program The University of Sydney Page 1 Seminar outline Welcome Introduction to the Australian legal system – Common law system – Adversarial Focus on: – The courts – Judge-made law – Case law what it is, how it is used The University of Sydney Page 2 Welcome Dr Chris Rudge [email protected] RM: 532 The University of Sydney Page 3 Introduction to the Australian Legal System – What is law? – How are we to recognise a rule as a law? – What distinguishes a law from other kinds of rules in a society? – Is the law necessary? Why/why not? – History of law in Australia – Reception of English law (colonial legal system) – Aboriginal systems of law The University of Sydney Page 4 Sources of law in Australia – Australian Constitution – Sets out the powers of the States and the Federal Parliament – (note, each of the States also has its own Constitution) – Legislation and legislative instruments – Similar to ‘a code’ – written laws – Acts of Parliament – “Common law” (the focus of this lecture) - judge-made or case law – Note: Cases are usually reported as parties’ names, eg. Dietrich v R (1992) 177 CLR 292 or Donoghue v Stevenson [1932] AC 562 – International law: as an interpretive aid – Indigenous law / customary law: in specific contexts The University of Sydney Page 5 Case law In this system - – There is a preference for primary sources (e.g. legislation, judgments, full text, authorised reports) – Secondary sources have a supplementary role (e.g. texts, monographs, articles, annotations, summaries, digests) The University of Sydney Page 6 The genesis of a case In legal writing, we see statements like this: A duty of care can be owed by the manufacturer of an item to the ultimate consumer, notwithstanding the absence of a contractual relationship between them (Donoghue v Stevenson [1932] AC 562). The University of Sydney Page 7 The genesis of a case – How did this case come to be? – Mrs Donoghue’s friend bought her a bottle of ginger beer at a café. – The bottle was opaque, so it was only when Mrs Donoghue had drunk most of the liquid that she realised there was a decomposed snail at the bottom. – This made her unwell. – She sued Stevenson, the manufacturer of the ginger beer, for her loss arising from her suffering. The University of Sydney Page 8 The genesis of a case – The “case” is the judge’s ultimate decision (the judgment) – Before we end up with a case to read: – An incident occurs (Mrs Donoghue drinks a snail) – Someone involved recognises it as an incident with legal consequences (Mrs Donoghue decides to consult a lawyer) – There is someone to blame (here, the manufacturer, Mr Stevenson) – Famously, this has been labelled ‘naming, blaming and claiming’ (Felstiner, Abel and Sarat, 1980) The University of Sydney Page 9 The genesis of a case – The person seeks legal advice (usually) (hence, we must learn our ‘substantive’ law subjects like tort, contract, real property, and so on) – Negotiation might take place between Mrs Donoghue and Mr Stevenson – Most disputes will end here. The University of Sydney Page 10 The genesis of a case – Some will continue to court proceedings (hence, we must learn about civil and criminal procedure and evidence) – The Australian legal system has both solicitors and barristers – Solicitors: may work alone, or with others in firms; may do transactional as well as litigation work – Barristers: work alone, do ‘appearance’ work (appearing before the court) – Finally, the trial takes place and is ‘heard’ by the judge The University of Sydney Page 11 An adversarial system – The judge can only make a decision based on the evidence that is (properly) before the court – The judge does not gather evidence or information – The judge makes a determination about the facts and about the law – In jury trials (only in criminal matters) the jury determines the facts and hence the law – Note in jury trials, there is no ‘judgment’ – we cannot know how the jury arrived at their decision – Only have judgments in criminal appeals and in sentencing The University of Sydney Page 12 The genesis of a case – The judge gives his or her decision … – It may be ex tempore (spoken) or reserved and written later, but ultimately – – … it is published in written form. – Not all decisions are published – only those of higher courts The University of Sydney Page 13 Exercise: case analysis – Refer to workshop materials The University of Sydney Page 14 How does the judge make their decision? – Two main sources of law: – Statute law – Case law – The judge may be interpreting the meaning of a statute or reading the decisions of other courts (likely both) – If a “higher” court has made a decision on the same issue, the judge must “follow” that decision – This is the doctrine of precedent – Stare decisis et non quieta movere – “stand by the thing decided and do not disturb the calm” The University of Sydney Page 15 The history of the common law – The common law began to develop from the 12th to 14th centuries as centralised courts were established – The ‘common law’ (in this context) refers to all the decisions that have gone before – There must be certainty in matters of law – It would be unjust if like cases were not treated alike – To apply this, must understand court hierarchies – Jurist William Blackstone, 1723-1780 The University of Sydney Page 16 Hierarchy of courts in Australia High Court of Aus State/Territory Commonwealth Courts Courts Supreme Court Federal Court Family Court Intermediate Courts (County/District) Federal Circle Court Lower Courts (Local/Magistrates) For more detail and far better graphics, see textbook. The University of Sydney Page 17 Appeals – Cannot usually appeal on an issue of fact (though can argue the judge’s conclusions were unsupported by the evidence) but only on issues of law – The higher courts only determine issues of law – Therefore may win your appeal but the outcome is the higher court sends your case back to the lower court to be heard again (a rehearing) – Appeal may be “as of right”, or only with “leave” of the appeal court The University of Sydney Page 18 Discussion – Do you think precedent is a good method for judicial decision making? Why/why not? The University of Sydney Page 19 Why follow precedent? – Certainty: arrange affairs with confidence – Equality: like cases are treated alike – Efficiency: no need to keep (re)litigating – Appearance of justice: impartial rules of law, impersonal and reasoned judgments (See Telstra Corp v Treloar (2000) 102 FCR 595 where this was discussed) The University of Sydney Page 20 How to use precedent? Understand the court hierarchies – E.g. in State matters: – 1) High Court of Australia – Gold. No one can touch this. – 2) Court of Appeal – Good, especially if appeal to the High Court has been denied. But remember, not binding on Courts of Appeal in other States. – 3) State Supreme Court – Okay. But not binding on other Supreme Court judges. – 4) District Court – Not much use. – 5) Local Court – Who cares? * A decision of a court in a different hierarchy (i.e. NSW and Victoria) may be persuasive but will not be binding The University of Sydney Page 21 How to use precedent? – How to apply it? – Only the ratio decidendi (the reason for the decision) is binding • “any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury” (Cross, Precedent in English Law, 1977) – Obiter dicta (comments made in passing) are not binding – Must work out the essential reasoning of the decision – this is what is binding – Can be hard when there are several judges and they all give different reasons (separate judgments) – There are likely to be multiple judges in appeal hearings – (E.g. the Court of Appeal usually sits with 3 judges – sometimes 5, if it is an important issue; the High Court usually sits with 5 or 7) The University of Sydney Page 22 Multiple judges – We can still use case law even when there are multiple judgments saying slightly different things – Refer to “majority” and “minority” (dissenting) reasoning – E.g. Consider the High Court’s decision in U v U (2002) 211 CLR 238 – Gummow & Callinan JJ wrote the leading judgment – Hayne J concurred with Gummow & Callinan JJ and added some comments of his own – Gleeson CJ and McHugh J each concurred with Gummow & Callinan JJ (and also with the comments of Hayne J) – Gaudron J dissented – Kirby J also dissented in a separate judgment – The dissenters’ reasoning is obiter – Compare this to the High Court’s decision in RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304 – a single, unanimous decision of 5 judges The University of Sydney Page 23 The doctrine of precedent Determining the ratio decidendi – Ask: – What was the reason for the judges’ decision? (Said another way: why did the judge decide the case in that way?) The University of Sydney Page 24 The doctrine of precedent Judicial decision making – How does a court decide what is the legally binding rule? – Statute – Precedent – Persuasive authorities – Can the law always be found? (the ‘declaratory’ theory of law) The University of Sydney Page 25 The doctrine of precedent Avoiding precedent What if a court doesn’t want to follow a previous decision? – Distinguishing on the facts – Previous statement of law too wide – Previous decision obiter, not ratio – Change in social circumstances or context – Previous decision is unsatisfactory – Previous decision per incuriam (wrongly decided) - only its own previous decisions See Laying Down the Law The University of Sydney Page 26 Exercise: shaping the law Activity: – It is January 2015 and Tracy is celebrating her birthday.