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4.2 – Role of Judges in Common Law

The main role of courts

decide the facts of the case (that is, what happened)

decide what law applies

apply the relevant law to the facts

reach a decision.

Online Research TaskYou have 10mins

How does someone become a judge? What qualifications are necessary? Do some online search on any of the justices of the High Court and find out about that person’s career before joining the High Court. A brief outline of the background of each of the current justices can be found at http://www.hcourt.gov.au/justices/about-the-justices.

Why would experience as a barrister be of greater value in becoming a judge than experience as a solicitor?

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Role of the judges

Judges don’t make law all the time, they can only make law when;

A case comes before the court and there is no legislation (parliament made law)

There is no precedent in that area

The judge is required to interpret the words or meaning of a statute law

What is a precedent?

Stare Decisis

To stand by what has been previously decided.

PrecedentAppeals

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How do judges apply precedent ?

They analyse previous judgements to determine if there is any binding precedent

Find the ratio decidendi (reason for the decision) – This is the binding aspect of a decision

Discriminate from the Obiter Dicta (things said by the way). These comments are not binding are just comments made by the judge

Identify and apply a persuasive precedent that may be used if no binding precedent – (From another court hierarchy both nationally or internationally or a court of the same level)

Develop a new precedent if required

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Changing a precedent

It may seem that judges have little flexibility to make up their own minds and make their own laws

BUT

Judges do have some flexibility which enables them to change common law to ensure it remains relevant and that the law reflects modern views

Changing a precedent

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Four techniques/ways judges can use to avoid following an earlier decision

There are 4 techniques available to judges if they are confronted by a precedent that they feel is;

inappropriate

Does not fit the circumstances of the present case

Remember R.O.D.D

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R.O.D.D Draw this Diagram

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RRRRRRRReversingRRRRRRR

When a case has gone to a higher court on appeal the judge can change the decision made by the lower court in the same case

Therefore the judge can reverse the precedent set by the last judge and the new decision set by the higher court becomes the precedent

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OOOOOOOverrulingOOOOOO When a superior court decides not to follow an earlier decision of a

lower court, it overrules the previous precedent

A case in a higher court is not bound by the decisions/ precedents of lower courts

The decision in the higher court will overrule the precedent established by the lower court

E. g Supreme Court overrules a County Court decision

A new precedent is therefore created

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DDDDDDDisapprovingDDDDDD A judge can disapprove an earlier decision and reach a different

decision, creating a second precedent for the same set of facts

This can occur in courts at the same level of the hierarchy

If there are a number of binding precedents, lower courts have to decide which is the most appropriate

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DDDDDDDistinguishingDDDDDD

A judge can identify differences between the present case and therefore create a different precedent

This allows the judge to not to have to follow an existing precedent

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Precedent

When a judge Reverses,

Overrules

Disapproves

Distinguishes

A new precedent is formed

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Advantages and disadvantages of the

Doctrine of Precedent

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Precedent provides consistency and fairness

Advantage

When disputes are being resolved parties to a dispute can feel confident that their case will be treated like ones in the past

Disadvantage

Outcomes of similar cases are not always the same

The process of R.O.D.D may result in a very different decision as one in the past

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Precedent provides certainty

Advantage Parties to a dispute

may feel that they can predict the outcome of their case based on a decision of a previous similar case

Disadvantage An outcome is difficult

to predict because there is more than one precedent that may apply to the case

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Precedent provides flexibilityAdvantages

Precedent can be changed by a superior court when it distinguishes cases of similar facts

Disadvantages Judges are

conservative and often prefer to follow earlier decisions made by past judges rather than make a new precedent

This makes the law inflexible, out dated

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Precedent provides for growth in the law

Advantage Areas of law can

develop and grow over time as judges can elaborate and expand precedents

Disadvantage Growth through the

law is expensive, slow.

Cases have to come to court before any development of the law can occur.

Parties to a dispute have to take the risk of taking a case to court

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Precedent is efficient

Advantage Provides guidance in

principles for judges to follow

Judges are impartial and can make decisions without fear of political interference

Disadvantage There needs to be a

dispute and parties prepared to go to court

This is inefficient

It can also be lengthy and expensive

Legislation through parliament can be quicker and cheaper

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Your Turn

Questions 1 – 9

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