Role of Courts SAC (unit 3 AOS 3)

[Firemurphy]

Hi guys, when discussing the ideas of consistency and flexibility in the doctrine of precedent, what should we talk about?
Can anyone give an example of a binding precedent? (for the consistency point) the textbook Justice and Outcomes (beazer) does not do this clearly enough.

Also, if a question asks us to explain how judges can make law and it's worth about 4-6 marks, should we explain all of reverse, overrule, distinguish and disapprove (RODD)- ie. do we explain all 4 of the concepts or should we only focus on, say, 2 of the techniques. Eg. For example, judges can reverse precedent because..... (lengthy explanation). That is, is it better to give a brief overview of all 4 techniques or go into details of only 2 of the techniques?
And is it worth comparing courts to parliament even if the question does not ask us to do so?

*To clear up also:
Judges can only make law:
*through statutory interpretation, using the four techniques (RODD) and using judicial creativity (Mabo)
only, or are there any other methods?

I know I am being pedantic but Legal Studies is all about pedantic, minuscule details! Thanks guys, hope you understand and can help me out!

[michak]

In terms of binding precedent for example the grant v Australian knitting mills case is an example. It's an old one but everyone learns it. In this case there was no older court rulings to follow nor any legislation so the decision that the court made would have formed a binding precedent on all future cases with similar facts.

For your second question on RODD I would always mention all of them. And yes you are correct those are the ways courts can make law.

Continue asking questions none of us mind, all happy to help

[meganrobyn]

In terms of binding precedent for example the grant v Australian knitting mills case is an example. It's an old one but everyone learns it. In this case there was no older court rulings to follow nor any legislation so the decision that the court made would have formed a binding precedent on all future cases with similar facts.

For your second question on RODD I would always mention all of them. And yes you are correct those are the ways courts can make law.

Continue asking questions none of us mind, all happy to help

Just with the issue of binding precedent:

- Binding and persuasive precedent are relative concepts. In other words, there's no such thing as "a" binding precedent full stop: it depends on which case it's being argued in later. For example, Grant would not have been binding on cases with dissimilar material facts.

- Also, Grant *did* have potentially binding precedent to follow: Donoghue v Stevenson. Australia and the UK were part of the same court hierarchy for state cases until 1986 when the Australia Acts were passed, which means DvS was heard in the same court hierarchy. The SA Supreme Court applied the negligence precedent; the HCA distinguished it on appeal; then the Privy Council applied it on further appeal.


With the ways in which courts make law, there is only one way: setting precedent.

Precedent can be set in two main fields:

1. On the meaning of legislation, where legislation exists (statutory interpretation).

2. On aspects of a common law rule (such as negligence originally) where no legislation exists.


If there is no existing precedent, the courts will have to draw an analogy with a similar area of law and kind of branch out on their own (this is where creativity comes in).

If there IS existing precedent, the courts may either be persuaded by it or bound by it. If they are persuaded by it but choose not to follow it, this can be for a few reasons: it might be from a different hierarchy; it might be from obiter; it might be from an inferior court; it might have different material facts (distinguishing); it might have come from a lower court (reversing or overruling).

But there is only one way courts make law, and that is by setting/extending/developing precedent. It doesn't make sense to say that creativity is in a different category from departing, or that statutory interpretation is in a different category etc.