THE ROLE OF JUDGES IN THE COMMON LAW

THE ROLE OF JUDGES IN THE COMMON LAW • The operation of the common law depends heavily on the expertise of the judge. • He or she must be able to identify and apply appropriate precedents to match the facts of the case being heard, and also to recognise when no binding precedent is apparent.

HOW DO YOU BECOME A JUDGE? • http: //www. hcourt. gov. au/justices/about-the-justices

HOW MUCH DO JUDGES GET PAID?

ANSWER • District Court judges, whose salaries are relative to Supreme Court judges, earn a salary of about $360, 000, while magistrates get just under $290, 000. The NSW Chief Justice Tom Bathurst's salary is $450, 750 plus a conveyance allowance of $22, 550. High Court judges earn more than this.

HOW DO JUDGES MAKE LAW? • While the courts main role is to adjudicate cases and settle disputes, they have a secondary role as lawmakers • In the process of making decisions on a case being heard before a court, judges will make statements of law • These statements of law set out a principle of law for other courts to follow that is known as “precedent”

WHEN CAN JUDGES MAKE LAW? THERE ARE TWO WAYS IN WHICH THEY MAKE LAW • 1. ) judges make laws on a new issue that arises in a case before them, on which there is no previous statute or binding precedent, or common law requires expansion - precedent • 2. ) through the interpretation of legislation, as it applies to a case before them – statutory interpretation

LIMITATIONS/RESTRICTIONS ON A JUDGE’S ABILITY TO MAKE LAW • 1. ) Conservatism of judges – some judges are unwilling to be progressive and make new precedent, preferring to leave this up to courts as they see their role as resolving disputes – eg The Trigwell case, where judges refused to overrule an out of date precedent relating to farmers being liable for the safekeeping of their animals on highways, leaving this change to parliament • 2. ) Parliament can abrogate decisions made by courts if they believe the court erred in its decision. For example the abrogation of the old common law precedent relating to discount for negligence payouts for women who lost their husbands if they were deemed “re-marriageable” after this precedent was upheld in the De Sales v Ingrilles case. • 3. ) Judges can only make law if there is a test case before them – they must wait for a case with a legal issue that has not previously been considered by a court and this means someone with a standing who has adequate funds and time must be willing to take the case forward for example in the Mabo case • 4. ) The position of the court in the hierarchy- only superior courts in the hierarchy make precedent, these are the superior courts of record. For example, the Magistrates’ court is bound to follow superior courts

TECHNIQUES USED BY JUDGES IN APPLYING PRECEDENTS • A precedent will only be strictly binding when the facts of the case before the court are identical to the facts of the case in which the precedent was established. • It is extremely rare for this to occur, so arguments presented to the court usually refer to precedents that have arisen in similar cases. Most precedents are applied in similar rather than identical situations

DE SALES V. INGRILLI CASE FACTS: • De Sale’s husband was killed in a farm accident owned by Ingrilli. Sales claimed under an Act allowing her to receive compensation, but this was discounted 5 % due to old precedent as she was “remarriagable”. Ingrilli argued compensation should be 20 percent as she was so attractive and young. He won this appeal. • In 2002, Ms de Sales appealed to the High Court which upheld her appeal and restored the original five per cent discount. The Victorian Attorney-General of the time, Rob Hulls, regarded the whole concept of the ‘widow's discount’ as sexist and discriminatory. • The Victorian Government enacted the Wrongs (Remarriage Discount) Act 2004 to provide that no discounts be made to any damages awarded based on the remarriage prospects of a plaintiff.

JUDGES WILL USE ONE OR MORE OF THE FOLLOWING TECHNIQUES WHEN SEEKING TO AVOID PRECEDENTS: SNEAKY DODGIES

TECHNIQUES USED BY JUDGES WHEN APPLYING PRECEDENT. • Analyse previous judgements to determine if a binding precedent exists and apply it in the case before them. This usually involves an analysis of the previous cases presented in argument by counsel. • Identify and extract the relevant ratio decidendi that can be applied. • Adapt existing ratio decidendi if the facts of the current case differ from the case in which the precedent was established. • Identify and apply any persuasive precedents that may be relevant if no binding precedent can be identified. Possible persuasive precedents will also be identified and argued by counsel during the proceedings. • Develop a new precedent if the situation makes it necessary.

OVERRULING CASE STUDY - IMBREE V. MCNEILLY (2008) 236 CLR 510 • The High Court is not bound by its own decisions and so can overrule one of its own previous decisions if it believes that decision was not sound in law. • In 1986, the High Court had ruled in the case of Cook v. Cook (1986) 162 CLR 376 that an inexperienced learner driver owed a reduced standard of care to his or her instructor, when compared to the standard owed by a fully licensed driver. This would mean that there was a reduced liability on the part of the learner driver in the case of an injury to the instructor. While on a trip to the Northern Territory, Mr Imbree allowed Mc. Neilly, a sixteenyear-old, to drive his car. When Mc. Neilly swerved to avoid an obstacle, the car overturned and Imbree was injured. The High Court was required to consider whether or not the rule in Cook v. Cook was appropriate. The High Court decided to overrule Cook v. Cook and held that the standard of care owed by a learner driver should be the same as that owed by other road users. This decision reflects the fact that legislation relating to learner drivers places the same legal obligations on them as it does on licensed drivers.

OVERRULING CASE SIMPLIFIED… • For example through overruling previous decisions, as seen in the Cook v Cook case, where the High Court overruled its own decision regarding the culpability of learner drivers, giving them the same responsibility on the roads as probationary or fully licensed driving.

DISAPPROVING CASE STUDY - RE SOUKUP (UNREPORTED, 15 OCTOBER 1997, SUPREME COURT OF VICTORIA) • Soukup was an elderly man suffering from dementia and subject to delusions. He killed his wife with a knife, but had no memory of what he had done. He was found guilty of manslaughter and released on a good behaviour bond, after the judge accepted his level of diminished responsibility for the killing. State Trustees then made an application to the Supreme Court for a ruling on whether Soukup was entitled to benefit from his wife's estate. The legal position had generally been that a murderer should forfeit any benefit from the death of his victim, but in the case of Re Keitley [1992] 1 VR 583, a battered wife who had killed her husband was excused from this forfeiture rule, due to her low level of culpability. The judge in Re Soukup disapproved the ruling in Re Keitley and ruled that Soukup could not benefit from his wife's estate. In his judgement, the judge considered that legislative change would be appropriate to settle the issue.

DISAPPROVING CASE SIMPLIFIED… • For example disapproving, as seen in the Soukup case, where it was disapproved that anyone at fault of killing another person could benefit from their estate. Soukup was unable to benefit from his wife’s estate after accidentally killing her.

DISTINGUISHING CASE STUDY - DAVIES V. WALDRON [1989] VR 449 • Waldron was found in the driver's seat of his car with a blood alcohol level above the legal limit. His keys were in the ignition and he had attempted to start the car. In court he claimed he was starting it for a friend who was going to drive him home. His counsel argued that the precedent established in a previous case, Gillard v. Wenborn should be applied. In this case a driver also over the legal blood-alcohol limit had been found not to be in charge of a motor vehicle. He was asleep in the driver's seat, with the engine running, but had only turned the engine on to get the heater working. The judge in Davies v. Waldron distinguished this case from Gillard v. Wenborn, based on the likelihood of the driver actually attempting to drive the car. Waldron had been found actually trying to start the car, so was at risk of driving, while the accused in Gillard v. Wenborn was asleep and not at risk of driving the car. Waldron was found guilty.

DISTINGUISHING CASE SIMPLIFIED… • For example through distinguishing cases, as seen in the Gillard v Wenbourne case where it was differentiated that having a key in the ignition of a car whilst over the legal limit of alcohol is different factually than being asleep in a running car in order to use the heater.

REVERSING CASE STUDY - ROSENBERG V. PERCIVAL (2001) 205 CLR 434 • Ms Percival was suffering from a dental condition known as temporomandibular joint disorder (TMJ) which was becoming worse. She sought the advice of Dr Rosenberg, a dental surgeon, who operated to try to resolve the problem. Ms Percival then suffered a worse form of TMJ, that left her permanently disabled. She sued Dr Rosenberg in the Western Australian Supreme Court for failing to warn her of the risks associated with the operation. • The trial judge found in favour of Dr Rosenberg, as there was no evidence of negligence on his part, and Ms Percival had admitted in her evidence that she would probably have proceeded with the operation even if she had been warned of the risks. Ms Percival appealed to the Full Bench of the Western Australian Supreme Court, which reversed the decision of the lower court, finding in favour of Ms Percival. Dr Rosenberg appealed to the High Court, which found that the Full Bench of the Supreme Court had erred in its application of a precedent established in the case of Rogers v. Whitaker (1992) 175 CLR 479 and reversed the decision of the state court, finding in favour of the appellant, Dr Rosenberg

REVERSING CASE SIMPLIFIED… • For example reversing, as seen in the Percival v Rosenberg case where several reversals of decisions were made regarding a medical negligence claim referring to a dental operation.

Advantages of doctrine of precedent Disadvantages of doctrine of preedent Creates certainty and consistency as a case will be decided similarly to a previous, comparable case Some uncertainties, as no two cases are ever the same and judges can distinguish facts Flexibility due to the fact that the methods of avoiding following precedent (distinguishing, overruling, reversing and disapproving) help prevent the law from becoming too rigid Inflexible, as court is bound to follow precedent and restricted by their position in the hierarchy. May not be able to avoid precedent, so common law is limited in responding to changes in society Allows judges to create new areas of law in order to uphold the rights of disputing parties before them and decisions are relevant to today’s society allowing law to stay current Restricted by having to wait for a case to be brought to court – slow and irregular Parliament can abrogate/overrule any precedent through legislative process

TEST YOUR UNDERSTANDING 1. Under what circumstances can judges make law? 2. Explain three techniques used by judges to apply precedents to cases before them. 3. Differentiate between each of the following terms: • reversing • overruling • disapproving • distinguishing. APPLY your understanding 4. It has been argued that having to follow decisions from the past is too restrictive for judges and denies them flexibility. Give reasons for why you either agree or disagree with this opinion. Exam Question:

DISCUSS HOW PRECEDENT ALLOWS FOR FLEXIBILITY AND CONSISTENCY 5 MARKS

• One significant advantage of the operation of the doctrine of precedent is that it creates certainty and consistency as the case will be decided similarly to a previous comparable case. For example, much of our common law relating to negligence comes from this process, and new litigants bringing forward a case regarding negligence can ascertain the outcome of their case due to the binding precedent set in Grant v Knitting Mill, which all courts in the Australian court hierarchy must follow. Furthermore, the doctrine of precedent allows for flexibility, in that the methods of avoiding a redundant or socially unacceptable precedent exist, for example, overruling, distinguishing, reversing and disapproving. These methods can prevent the law from becoming too stagnant. For example in the, the ability of courts to overrule their decisions is shown through the Mc. Neilly case, where the High Court overruled its previous decision relating to the culpability of learner drivers.

• On the contrary, uncertainties may arise due to the operation of the doctrine of precedent, as no two cases are ever identical, therefore no true binding precedent may apply. Furthermore, courts must wait for a case to come beforet hem to adjudicate which makes the process, at times, slow and irregular. Furthermore, precedent can be incredibly inflexible as lower courts are bound to follow higher courts’ decisions which may be socially redundant. For example, in the De Sales v Ingrilles case regarding remarriage discount for women seeking compensation.

• Although precedent can be inflexible and inconsistent at times, the ability to avoid redundant precedents and the certainty that precedent can allow for, means that the doctrine of precedent is still an effective method of lawmaking used by courts.

EXPLAIN THE OPERATION OF THE DOCTRINE OF PRECEDENT. IN YOUR RESPONSE, EVALUATE TWO STRENGTHS OF THIS PROCESS (8 MARKS)

DESCRIBE TWO WAYS IN WHICH JUDGES MAY BE ABLE TO AVOID PRECEDENT – USE A CASE • Define statutory interpretation and explain one reason why statues may need to be interpreted • Is the process whereby the courts are asked to interpret the meaning of words or phrases in a statute made by parliament to resolve a dispute before the court • For example where the High Court, in the Mc. Neilly case, overruled its own decision regarding the culpability of learner plate driviers