4 2 Role of Judges in Common Law

4. 2 – Role of Judges in Common Law 1

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 Task You have 10 mins 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/j ustices/about-the-justices. Why would experience as a barrister be of greater value in becoming a judge than experience as a solicitor?

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 4

What is a precedent? Stare Decisis To stand by what has been previously decided. Appeals Precedent

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 6

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 7

Changing a precedent

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 9

R. O. D. D Draw this Diagram 10

RRRReversing. RRRRRRR 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 11

OOOOOOOverruling. OOOOOO 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 12

DDDDDDDisapproving. DDDDDD 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 a number of binding precedents, lower courts have to decide which is the most appropriate 13

DDDDDDDistinguishing. DDDDDD 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 14

Precedent When a judge Reverses, Overrules Disapproves Distinguishes A new precedent is formed 15

Advantages and disadvantages of the Doctrine of Precedent 16

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 17

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 18

Precedent provides flexibility Advantages 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 19

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 20

Precedent is efficient Advantage Disadvantage Provides guidance in principles for judges to follow There needs to be a dispute and parties prepared to go to court Judges are impartial and can make decisions without fear of political interference This is inefficient It can also be lengthy and expensive Legislation through parliament can be quicker and cheaper 21

Your Turn Questions 1 – 9 Page 185 22