It is yet not that simple to apply a precedent. It is necessary to find out what the precedent in each particular case is whatever the precedent may be. The precedent in a case is the ratio decidenti of that case in other words it is the reasons why the judge made the particular decision in the case. The ratio decidenti is the part of the case that is binding to the case and the comments made by the judges on the legal principles which do not constitute the deciding cause in the case are not binding. These comments are called obiter dictum. The binding effect of the precedent is shown below:-
Brennan J said in Trident General Insurance Co. Ltd v McNiece Bros. Pty Ltd [1998] 165 CLR 107 at 129 as follows :-
“If an intermediate appellate court were free to disregard a fundamental doctrine settled by the final appellate court, an endemic uncertainty would infect the administration of justice.”
An excellent example of the authority and use of the doctrine of precedent is Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords. This case had references like Dixon v. Bell [1816] 5 M. S. 198; Langridge v. Levy [1837] 2 M. W. 519; [1838] 4 M. W. 337; Longmeid v. Holliday [1851] 6 Ex. 761; Bates v. Batey Co., Ld. [1913] 3 K. B. 351; Weld-Blundell v. Stephens [1920] A.C. 956, 985. In this case the appellant had suffered as a result of drinking part of the filling of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decaying remains of a snail. The ratio decidenti of this case was:-
By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.
Another example for the doctrine of precedent is Tipiloura v The Queen [2004] HCATrans 260. This case had references like Jeffers v The Queen (1993) 112 ALR 85; Aston and Burnell v The Queen (1995) 69 ALJR 776 ; Cheatle v The Queen (1993) 177 CLR 541.
Statutory interpretation is one of the most important aspects of the law system in Australia. This is because Australian law is subjugated and made my legislation. The government of Australia, the Federal government and the State government, preside over broad statutory regimes which are premeditated to administer and organize the law. There are two different approaches to the statutory law in Australia.
One is the literal rule. By the literal rule we mean that the words in the statute used must be given in their literal meaning. In other words the statute is presented and applied in the way it was written being plain and ordinary. The purpose of the court is to discover the meaning of the Parliament as it was spoken in the words used. This approach will be used even if it brings the plaintiff a suffering or irrationality, in this case the remedy if for the Parliament to amend and pass the statute. Below are some statements judges have made in regard to the literal rule.
“If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question weather the legislature has committed an absurdity.” (Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273)
One of the leading statements of the literal rule was made by Tindal. He said:-
“… The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.” (CJ in the Sussex Peerage Case [1844] 11 Cl&Fin 85)
The modern approach to statutory interpretation is the purposive approach. This approach is now being used in Australia. The purposive approach is the approach that will promote the common requirements which bring about the requirements. This approach was first documented with the influence in the case Mills v Meeking34 by Dawson J and was codified in the Acts Interpretation Act of 1901 in Section 15AA as follows:-
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
Lord Denning MR described purposive approach in Notham v London Borough of Barnet [1978] 1 WLR 220 as:-
“Promote the general legislative purpose underlying the provisions.”
In the case Pepper v Hart [1993] AC 593, Lord Browne Wilkinson referred to
“The purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”.
The first stage of statutory interpretation in this approach is that even though the meaning of the words is clear and in plain English. The approach is that the interpretation is taken beyond the plain meaning. The meaning will be something perceived in the mind the word and any other meanings of the word will also be taken into account. A derived series to this approach is that it may create an uncertainty about the implication of a lawmaking terms that would otherwise be considered clear.
Some judges and parliament members believe that the Doctrine of Precedent brings inflexibility and restrictions to the Court's capability to implement speedy changes in society. Such advantages are overridden by guarantees of independence and the terms of assurance and stability. Blackburn J in the Gove Land Rights case13 was of a similar opinion. Precedent also underpins the position and public expectations of judges as to their independence and severe faithfulness to the law. The Court does however understand that the law has to become accustomed with change in society. The use of judicial creativeness by the Court, does not recommend a removal from precedent. Judicial creativity provides a means for the Court to adjust law to modern society. Therefore, if application of judicial creativity is intertwined with the perception of precedent, then the idea that the use of precedent is declining can be negative. This does not propose a decline in the use of precedent but rather the fundamentals of new precedents where the court evolves with societal change.
There are certain limitations to creativity of the judiciary system. Since the decision of Queensland v Commonwealth the issue of dominance has become harder to substantiate. Where the court does make decisions different, a high level of reasoning is required. Gibbs J said:-
“It is only after the most careful and respectful consideration of earlier decisions, and after giving due weight to all circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the court.”
When the court does topple and restate aspects of common law in Australia it is merely declaring the law for the future and not just for an immediate moment.
The importance of precedent is summed up in the words of Lord Gardiner in London Tramways Co. v London City Council where he said:-
“Judges regard the use of precedent as an indispensable foundation upon which to decide what the law and its application to individual cases is. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for an orderly development of legal rules.”
The High Court of Australia is now more self-motivated. The presidential importance of many of the decisions made by the High Court has changed from being binding to persuasive but the courts loyalty towards the doctrine of precedent and the basics of common law has not changed.
