Precedent: Precedent is the legal judgement that has been made within a case when the dispute is heard in courts.
Doctrine of Precedent: The doctrine of precedent is overall framework that works on the notion that judges should apply the same outcome to later cases if there are similar material facts exist for consistency and fairness. The doctrine of precedent requires judges to examine the ratio decidendi (the reason for deciding), upholding the notion of stare decisis of standing by what has been decided. There are also methods in which judges can employ if they do not wish to following precedent through reversing, overruling, distinguishing and disapproving however these options tends to be more effective for superior courts.
Binding Precedent: Binding precedent refers to precedent that must be followed. This is because the precedent was established by a higher court within the same court hierarchy as the current court in which is examining the precedent. The precedent is binding if similar material facts exists and the lower court cannot distinguish (find differences) that can differentiate the two cases and therefore must apply the precedent that is existing.
Persuasive Precedent: Persuasive precedent refers to precedent that does not have to be followed however may have an influence on the decision being made. Persuasive precedent can be those that have been established from a lower court, a court that is outside the current hierarchy or by courts on the same level. As such, they do not have to be followed however judges may still choose to apply them for consistency and fairness.
Flexibility in Applying Precedent:
Flexibility in Applying Precedent: these are methods in which judges/courts can use to avoid following precedent provided that they have the jurisdiction.
REVERSING (only applied on appeal): Revising is a method used by courts when a case is heard on appeal. Here, judges can choose to disagree with an earlier decision made at trial and decide to reverse the outcome. This method can only be exercised by judges not bound by previous precedents. The case that is being reversed is the same case that was originally heard.
For example: A student was injured while wrestling with another student during yard duty. The parent of the injured student sued the school for negligence in their supervision. The case was originally tried in the County court and the decision was reached in favour of the parents and they were awarded damages. The school disagreed with the decision and appealed to the Supreme Court (Court of Appeals). Here the judges disagreed with the decision reached by the County court and reversed the outcome. This method was conducted on appeal and as a superior court (to that of the County court), the Court of Appeals did not have to follow the decision of a lower court.
OVERRULING: Overruling is a method whereby in a later and separate case, a higher court reaches a different outcome based on a different set of principles. Here the superior court has the power to overrule a previous decision made by a lower court or their own court and as such, extinguish the earlier precedent and set a new binding precedent.
For example: The plaintiff was a pregnant woman who lost her foetus as a result of being in a car accident. It was determined that the other driver was negligent. The plaintiff wanted the other driver charged with manslaughter and the matter was heard in the Supreme court. At trial it was determined that although the driver was negligent, the foetus was not considered 'a person' a the time of its death and therefore the accused could not be found guilty of manslaughter.
Fifteen years later, a pregnant woman was crossing the street using the correct 'zebra crossing' and was recklessly hit by an intoxicated driver. As a result, she lost her 6 month old foetus and wanted the driver charged with manslaughter. Due to changes in society's values, foetuses were now considered 'human' and the current Supreme Court overruled the previous decision made fifteen years ago. In doing so, they extinguished the precedent that did not considered unborn foetuses not human and set a new precedent binding on lower courts.
DISTINGUISHING: is another method judges may employ to prevent following precedent. Distinguishing involves judges making a distinction between tow cases based on different material facts. Their argument here is that if they were to apply the same precedent, it would be unjust.
An example is: A kills B (her husband) in order to benefit from his life insurance and was found guilty and sentenced to 25 years. However in a different case, A kills B (her husband) due to battered spouse syndrome. As the material facts of the case are different, courts can distinguish the two scenario and not apply the same outcome. To do so and sentence A in the 2nd scenario to 25 years would be unjust.
DISAPPROVING: There are 2 scenario whereby precedent is said to be disapproved:
Firstly, a lower court can express their disapproval at having to follow a binding decision that they disagree with. Despite not agreeing with the ratio decidendi, a court lower in the hierarchy may be bound to follow precedent if they are unable to distinguish the facts. In their statements, the judge can express disapproval however due to their position in the hierarchy, they cannot destroy the precedent set earlier by a higher court.
Secondly, courts on the same level can disapprove each other's decision. If courts exists on the same level (e.g. Supreme Court vs Supreme Court) they are not bound to follow each other's decisions. Here, as precedent is not binding, a decision may be sought from a higher court to provide clarification.
DIFFICULTY IN APPLYING PRECEDENT: One difficulty in applying precedent is determining how similar material facts are between one case and another. No two cases are exactly alike. Therefore, judges may face difficulty in determine how similar material facts have to be before they can apply precedent to ensure a consistent outcome. An example is Donoghue v Stevenson and Grant v Knitting Mills. Are the facts of the two cases similar enough to warrant an application of precedent.
Another difficulty faced when attempting to apply precedent is identifying and locating the relevant 'ratio' (decidendi). When arriving at their decision, judges may give complex arguments or suggest more than one ratio. This may blur the lines between what can be considered the reason for deciding (and therefore should be followed) as oppose to statements made by the way.
Statutory interpretation refers to the action of courts/judges adding meanings to wording within legislation. In doing so, they don't actually change the words themselves, only the definition that applies to the relevant wordings. Reasons for statutory interpretation: One reason why statutes may need to be interpreted is due to ambiguous wording within legislation. At the time of drafting, legislation may have been rushed through parliament in order to meet a dire need and as such, wording that is used may have been unclear, broad or ambiguous. As such, when a dispute appears before the courts, judges are given the responsibility of interpreting what context the words should be given and what can be deemed reasonable. An example of this is found within the Studded Belt case of what constitutes as a "regulated weapon".
Another reason for statutory interpretation is the changing meaning of words over time. Legislation written by parliament may have been written many, many years ago and as such, due to changing society values and technology, the context of the words may change. This can be seen within Kevin and Jennifer's case whereby what constitutes as a "man" has changed. When the marriage Act was written, it may not have been possible to have gender re-assignment surgery and as such this word was updated to include people that have chosen to lead a different lifestyle due to elective surgery.
Studded Belt Case: The plaintiff was arrested by a police officer charged with an offence for having a "regulated weapon". This offence is part of the Wrongs Act whereby an individual could be charged if they possessed items with raised studs. Within the Magistrates court the plaintiff was found guilty and appealed. The supreme court on appeal found the original decision unreasonable. Here the judges were required to interpret the meaning of the words 'regulated weapon' and found that; at the time of the arrest the plaintiff was wearing the belt as an accessory despite it having raised studs. Secondly, although the belt could be used as a weapon, it was being used as such at the time. From this ruling, the judges took a narrow interpretation of the words "regulated weapon" and limited the parameters in which the words could be applied. In doing so, the judges reversed the decision of charging the plaintiff for wearing a belt with raised studs. This also led to parliament amending the wording of the Wrongs Act to reflect the decision of the courts and become more reasonable and its use.
Kevin and Jennifer: The plaintiffs were married and sought to have their union recognised under Australian law. Here, the dispute came about based on whether Kevin could be considered a man. Kevin was originally born female however had undergone gender re-assignment surgery and taken hormones to become a male. The Attorney General intervened and tried to argue that a legal marriage was between a man and woman and Kevin, was not a male. The Family court was then required to interpret the wording of "man" and ruled in favour of the plaintiff.
Here the judges found that, a person's sex should only be relevant at the time of the marriage. When Kevin married Jennifer, he was living his life as a male, undergone surgery and taken hormones to change his sex. He had even gone so far as registering with births, deaths and marriages to change is sex. As such, although he was not born a male, technology has allowed him to become one in the most reasonable manner and therefore should be considered a man. The decision undertaken by the judges took a broad interpretation of the word man to include not only those born male but also catered for technological advancements providing the ability to gender re-assignment.
As a result of this decision, the definition relating to the word "man" was expanded.