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Week 6 & 7

Judicial Decision-Making

Common law legal system

legislation Common law

- case law

weeks 6 and 7

Common law

Eg. D v S

Equity

Eg. unconscionability

Common law is the law created by the

reported decisions of judges.

Common law is also known as:

case law

precedent

unenacted law

Common Law

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Common Law v Equity

HISTORICALLY:

Developed through discretionary power of

“Chancery” – supplemented common law

Separate court system

Where common law did not provide a remedy

Based upon “equity and good conscience”

Common Law v EquityNOW:

“Fusion” of common law and equity

Specific actions – with discretion to apply…

Different remedies - eg:

Injunction – a court order directing a person to stop

doing something; and

Specific Performance – a court order directing a

person to carry out an obligation.

Common law

Legal method

Facts presented – ascertain relevant facts for action

Consider the relevant law

Legislation / Precedent

Apply the law to the facts

Providing reasons for decision

Rule of law

No-one is above the law – applies equally to all

Decisions made based on known principles (laws)

Natural justice (fair hearing, based upon evidence)

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What is precedent?

Stare decisis et non quieta movere let the decision stand and do not disturb settled things...

“An imaginary case”

“certainty, equality, efficiency, appearance of justice”

- Telstra Corp v Treloar (2000)

Common Law

Only the ratio decidendi is binding.

Res judicata - only the immediate parties to the

action are bound

It may be difficult to extract the ratio of any

decision, particularly if there is more than one

judge, each giving different reasons for the

(majority) decision.

Precedent

Rules of precedent

Decisions of higher courts are binding on all lower

courts in the same hierarchy

Judges in same level not bound- try to follow

Ratio applies – to cases sufficiently similar

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Precedent

Binding v persuasive

Constraints v choice

Distinguishable on the facts

Previous case too wide – ratio limited to it facts

Previous case is obiter dictum, not ratio

Precedent should not apply – change in society

Precedent unsatisfactory/wrongly decided

Donoghue v Stevenson – an example

George v Skivington

– Lord Atkin: a ‘direct authority’ (at 584)

– Lord B/M: reasoning unsound (at 570)

Heaven v Pender

– Lord Atkin: a valuable practical guide when limited by notion of

proximity (at 580)

– Lord B/M: distinguishes on facts (at 573)

Winterbottom v Wright

– Lord B/M: a ‘closely applicable authority’(at 568)

– Lord A: cases dealt with different issues (at 588)

Donoghue v Stevenson (1932)

Ratio? Lord Atkin at 599

“(A) manufacturer of products, which he sells in such a form

as to show that he intends them to reach the ultimate

consumer in the form in which they left him with no

reasonable possibility of intermediate examination, and

with the knowledge that the absence of reasonable care in

the preparation…will result in an injury to the consumer’s

life or property, owes a duty of care to the consumer to

take that reasonable care”

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3 elements to the ratio:

Agent of Harm:

Dead snail / any organic matter / any foreign element

Vehicle of Harm:

Opaque bottle of ginger beer / opaque bottle of drink/

any bottle of drink / any container of food or drink /

any product

Defendant:

Manufacturer of goods distributed in shops /

any manufacturer / any person working with the object

Other judicial techniques – eg D v S

a legal question (at 578)

law does not equal morality (at 580)

but JJ also advert to policy considerations, eg. Lord

B/M (at 576-8): floodgates/consequences

importance of language/use of rhetoric, eg. Lord Atkin:

neighbour principle; Lord Buckmaster … If one step,

why not fifty? (at 577)

appeal to common sense, eg. Lord Atkin: a proposition

which … no one … who was not a lawyer would for one

moment doubt (at 599)

The role of the judiciary

Interpreting and applying the law

Is this amending/changing/making the law??

Principles of legislative interpretation are well

established

Appeal process ensures general ‘uniformity’

Parliament can always amend

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The role of the judiciary

The High Court

“Decisions of the High Court are not subject to the usual form of judicial accountability, that is to say, the appeal process. The only form of accountability which applies is the requirement to give reasons.”

- Chief Justice Gleeson (1998 – 2008)

“If the Court is to do its work properly, it can only hear about 60 appeals each year and, of necessity must preserve the grant of leave for cases that lay down general principles that have wide application throughout the Australian community”

- Justice McHugh (1989 – 2005)

The role of the judiciary

Judicial conservatism

“Our common law system consists in the applying to new

combinations of circumstances those rules of law which

we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and

certainty, we must apply those rules, where they are not

plainly unreasonable or inconvenient, to all cases which

arise; and we are not at liberty to reject them… because

we think that the rules are not as convenient and reasonable as we ourselves could have devised.”- Justice Heydon (2003 – Current), quoting Sir Owen Dixon

The role of the judiciary

Judicial activism“Rules there must be. Analytical reasoning, intellectual honesty and candid opinions are the hallmarks of a judiciary of integrity which observes the rule of law. But so is the frank recognition of the uncertainty of much law and the willingness to expose the policy choices which lead a judge to one decision rather than another. To pretend that the task is purely mechanical, strictly formal and wholly predictable may result in a few observers who love fairy stories sleeping better at night. But it does not enhance the legal system. It is not honest. It is fundamentally incompatible with the creative element of the common law.”

- Justice Kirby (1996 – 2009)

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The role of the judiciary

Making law??

Where there are no settled principles:

“Judges… have no authority to adopt arbitrary departures

from basic doctrine. Least of all may they do so, in our

secular society, on the footing of their personal religious

beliefs or ‘moral’ assessments concealed in an inarticulate

premise dressed up, and described, as legal principle or

legal policy.”

- Cattanach v Melchior (2003) 215 CLR 1 at 53 (per Kirby J)

The role of the judiciary

Making law??

Where there are no settled principles:

“There being no binding authority and the general principle

being of limited guidance, it is necessary to have resort to

the usual sources of the common law invoked by the courts

in such circumstances. Those sources are:

1. The state of any legal authority that may be developed

and applied by analogy to new circumstances

2. Any applicable considerations of relevant legal

principle; and

3. Any considerations of legal policy.”

- Cattanach v Melchior (2003) 215 CLR 1 at 42 (per Kirby J)