Table of Contents

Introduction...........................................................................................................................................2
Operation of doctrine of precedent in Australia.....................................................................................2
Federal court hierarchy..........................................................................................................................3
 High Court of Australia.............................................................................................................3
 Federal Court of Australia.........................................................................................................3
 Family Court of Australia..........................................................................................................3
 Federal Magistrates Court..........................................................................................................3
State Court Hierarchy............................................................................................................................3
 Supreme Court...........................................................................................................................3
 County Court.............................................................................................................................4
 Magistrates Court......................................................................................................................4
Rules for Doctrine of Precedent.............................................................................................................5
Over Ruling of past Decisions...............................................................................................................5
Usefulness of judicial precedent (advantages & disadvantages)............................................................6
Conclusion.............................................................................................................................................7
Bibliography...........................................................................................................................................8

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 JUDICIAL PRECEDENT

Introduction
Judicial precedent means the process whereby judges follow previously decided cases where
the facts are of sufficient similarity. The doctrine of judicial precedent involves an application
of the principal of stare decisis that is, to stand by the decided. In practice, this means the
inferior courts are bound to apply the legal principles set down by superior courts in earlier
cases. For instance, the Supreme Court must follow decisions of the High Court of Australia,
thus the part of the decision which becomes judicial precedent is the ratio decidendi; reason
for the decision. This provides consistency and predictability in law.

For example, let's say that Blue borrows Red's lawnmower while Red is on vacation. Blue
doesn't ask Red for permission. Blue accidentally breaks Red's lawnmower, but he doesn't tell
Red. He simply places the lawnmower back in Red's garage. When Red returns home and
discovers the broken lawnmower, he demands that Blue buy him a new one. The two end up
in court, and the court decides that Blue does owe Red the money required for Red to fix his
lawnmower; however, Blue does not have to buy Red a new lawnmower.

This decision becomes precedent. From now on, lower courts in the same jurisdiction are
expected to follow this new rule: When a borrower breaks a borrowee's item and was using
the borrowee's item without permission in the first place, the borrower must pay to have the
item fixed. Lower courts will follow this new precedent because the doctrine of stare
decisis tells them they should. In order for the doctrine of judicial precedent to work, it is
necessary to be able to determine what point of law is

Operation of doctrine of precedent in Australia

The doctrine of precedent is a fundamental constraint on judicial decision-making in
Australia. The general idea behind the doctrine of precedent is that judges, when they are
deciding cases, must pay proper respect to past judicial decisions. Sometimes this means that
judges are bound to apply the reasoning of judges in past cases. The court system in Australia
is what known as a ‘common law’ system. The power to make laws in Australia is divided
between the executive, the parliament and the judiciary. This is known as the separation of
powers doctrine and is an essential feature of the Australian system of government.

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As in other countries, Australian courts are organised in hierarchies. A hierarchy is a structure
where different levels or bodies are ranked or ordered, depending on their importance. In a
court hierarchy the different courts have different responsibilities. In Australia, both Federal
and State jurisdictions have their own court hierarchies.

Federal court hierarchy

 High Court of Australia: The high court is the highest in Australia, and can hear
from all other courts. It can hear appeals from all other Australian courts, and its other
chief function is to interpret the Constitution and determine whether legislation is
constitutionally valid.

 Federal Court of Australia: hears matters on a range of different subject matter

including bankruptcy, corporations, industrial relations, native title, taxation and trade
practices laws, and hears appeals from decisions (except family law decisions) of the
Federal Magistrates Court.

 Family Court of Australia: Established in 1975 as a specialist family law court, has
jurisdiction over matters such as marriage, divorce and the custody of children. It sits
at the same level as the Federal Court, and appeals from the Full Court of the Family
Court go directly to the High Court.

 Federal Magistrates Court: In 1999, so as to ease the large burden of cases on the
federal and family courts, the Federal Magistrates Court of Australia was established.
the court hears less complex disputes in matters under family, administrative,
bankruptcy, industrial relations, migration and trade practices laws.

State Court Hierarchy

 Supreme Court: At the top of each State hierarchy is a Supreme Court. Supreme
courts have unlimited civil jurisdiction and handle the most serious criminal matters.
In New South Wales (NSW), the Supreme Court consists of 47 judges and four
associate judges. The supreme court of NSW has a divisional level and an appellate
level.

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 County Court: This is an intermediate court, hearing criminal trials for serious
indictable offences. It has jurisdiction to hear all but the most serious of criminal
charges, such as murder and manslaughter. They can hear Civil cases where the
amount claimed does not exceeds $750,000.

 Magistrates Court: The Magistrates Court (or Local Court) handles minor or
'summary' matters, such as drink-driving or shoplifting, as well as smaller civil
matters where less than $40000 is at stake. A special court, known as the Drug Court,
helps drug-addicted criminals avoid imprisonment as long as they agree to strict
conditions.

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Rules for Doctrine of Precedent
Some of the rules that make up the doctrine of precedent are:

 a judge follows the law declared by judges in higher courts in the same jurisdiction in
cases with similar facts,

 A court must give reasons for its decision in a case. The reasons should include an
explanation of why the court has chosen to follow, or not follow, a previous decision
which is similar to the case before it.

 Most courts are not bound to follow their own earlier decisions although they often
do. For example, the highest court in Australia, the High Court, while not bound to
follow its own earlier decisions, does so in most cases.

 The decisions of courts outside Australia are not binding on Australian courts,
although they can be used to assist or guide Australian courts in making decisions on
new facts

 The decision of the highest court within a particular jurisdiction is final. The highest
court is the court to which the final appeal lies.

Over Ruling of past Decisions

The concept of overruling involves the court in later case states that the legal rule decided in
an earlier case is wrong. This could be when a higher court overrules a decision made in an
earlier case by a lower court.

In Imbree v McNeilly (2008), the High Court had to decide a case arising because a learner
driver had a car accident and thereby injured one of his passengers. A driver owes a legal
duty of care to his or her passengers; breach of this legal duty constitutes the legal wrong of
negligence. The question for determination in Imbree v McNeilly was: what standard of care
does a learner driver owe to a passenger who is also supervising or instructing the learner? In
the case of Cook v Cook (1986), the High Court had ruled that a learner driver owed a

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qualified standard of care to a supervising passenger that is lower than the standard of care
that an ordinary driver owes to an ordinary passenger.

The High Court is not bound to follow its own past decisions, but it ordinarily does so in
cases raising similar facts. Thus, there were reasons to think that in Imbree v McNeilly, the
High Court would follow Cook v Cook and rule that the driver in Imbree v McNeilly owed a
qualified standard of care to his injured passenger. However, the Court decided not to
follow Cook v Cook, and instead overruled that earlier decision. In other words, in Imbree v
McNeilly, the High Court rejected the reasoning of one of its own past decisions, in a case
raising similar facts.

Usefulness of judicial precedent (advantages & disadvantages)

 The system provides fairness and justice as similar cases will be treated and decided in the
same way as a past case. This allows lawyers to advise their clients with some certainty as to
their position and whether to take a case to court. Judges in the higher courts are able to
develop and update the law to take account of changing social conditions. Their decisions
may influence Parliament to introduce or update new statutory rules. New situations may
arise which are not covered by any statutory rule or previous precedent. Judges will be able to
consider past similar cases or perhaps cases from other countries and make rules for the case
before them which can operate as a precedent for future cases

A judgement from an appeal courts may contain three or five separate judgements which may
differ from each other. A judgement may be extremely long and it is for lawyers and judges
in future cases to work out the ratio decidendi. There may be differing opinions on what the
ratio is and what the obiter is. The result of a court case can be uncertain until the final
(appeal) judgement is made. Some judges may be unwilling to depart from a precedent to
make a change in the law. A rule can remain in place for a long time, even if it is outdated, as
change requires a case to come to a higher appeal courts before new rule can come about.
Precedent has to be backward looking in the case that sets the precedent. This could be unfair
in criminal cases if an offence is made by the judgement. When the offender committed the
action it was not unlawful. This is unlike statutory law when an offence is created for the
future by an Act of Parliament.

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Conclusion
The doctrine of precedent depends for its effectiveness on judges not only maintaining a
general practice of paying respect to past judicial decisions, but also conscientiously and
carefully articulating the content of the practice, and ensuring that the practice is consistent
with, while not overreaching, its moral foundations in the rule of law. Arguably, in light of
these considerations, some of the High Court’s recent decisions have not lived up to the
mark. It is to be hoped that in its future decision-making, the High Court will do better.

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 Bibliography
(Harvard Referencing)

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Mar. 2016].

Lawteacher.net. (2016). Judicial Precedent 1 | English Legal System Lecture Notes | Law
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Legalresearch.org. (2016). Stare decisis and techniques of legal reasoning and legal
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http://legalresearch.org/writing-analysis/stare-decisis-techniques/ [Accessed 29 Mar. 2016].

prezi.com. (2016). Copy of How legal rules are created by precedent. [online] Available at:
https://prezi.com/8pnuzzqelqxo/copy-of-how-legal-rules-are-created-by-precedent/ [Accessed
23 Mar. 2016].

Teaching With Crump!. (2016). P6, P7 & M2 - Creating Law. [online] Available at:
http://teachingwithcrump.weebly.com/p6-p7--m2---creating-law.html [Accessed 29 Mar.
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wiliam, S. (2016). Court hierarchy, The legal system, Law and society, Commerce Year 9,
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