One of the most significant changes to the doctrine of precedent that applies to the Australian courts derives from the changing status of the English judicial decisions.

TASK 2

The Hon Justice Michael Kirby reviews the current operation of the doctrine of precedent in Australia. According to the Australian Bar Review (1988) the doctrine of precedent is referred to as  ''the hallmark of the common law''1 of the Australian legal system that constructs a resolution for legal issues in which Australian lawyers use. The review claims that they are a number of certain factors that have affected the operation of the doctrine of precedent in Australia which includes the abolition of all avenues of appeals to the Privy Council, the Mabo v Queensland case, the  constant tension between continuity and the change of law and the shift towards statute law.

One of the most significant changes to the doctrine of precedent that applies to the Australian courts derives from the changing status of the English judicial decisions.2 The operation of the Judicial Committee of the Privy Council during the 1970s and 1980s were being enforced as a final court of appeal.3 The Privy Council and the Judicial Committee in respect to any legal principle essential to a case, used the rules to establish decisions that were binding in all courts which included the federal, State and Territory throughout the nation.  However the doctrine of precedent did change once the Privy Council and the Australian legal and constitution severed all ties with each other.4

Presently, the High Court is now given the position as a final court of appeal in Australia. The High Court has always departed from precedent and has been much more inclined to re-examine its past decisions. This factor can be seen on the Mabo v Queensland  case where it declared the status of Terra Nullius to Australia. This shows that when judges show their discretion and flexibility in the common law system by departing the doctrine of precedence and accepting and acknowledging community values and policy choices it does affect the doctrine of precedence.5

The constant tension between continuity and the change of law is another factor that affects the doctrine of precedence, as reflected in a debate seen in the 2003 Hamlyn Lectures.6 Hon. Justice Kirby states in the lecture that ''Somewhere between the spectre of a judge pursuing political ideas of his or her own from the judicial seat irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative''. It also shows that society changes and the law needs to change along with it in order to work effectively.

Finally, another factor that affects the doctrine of precedence in Australia is the shift towards statute law. The common law today operates in orbit of statute law.7 The statutory provisions which the judicial interprets is said to have bind the courts below in order to have the same meaning to the words in question, however, if the same type of expression is seen in a different statute then the courts are bound by precedence and will ordinarily seek to apply similar principles to the new setting.8

TASK 3

Part A: Paraphrasing

There is an Australian debate concerning the application of the doctrine of precedence to which the discussed subject is about the judicial method. The debate looks through two different types of view between the merits of ''strict and complete legalism and judicial restraint'' and the ''judicial activism and judicial creativity''.9

Sir Owen Dixon expresses his view on the doctrine of strict legalism in his swearing in as Chief Justice of Australia by disclosing his opinion which he stated as the doctrine of strict legalism helps maintain the confidence of all parties in Federal conflicts.10 He also states that the courts may be extremely legalistic, though he looks at his as more of a pro rather than a con. Sir Owen Dixon also reinforces this argument by stating that though the court may be rather excessive in legalism, it does provide a safe guide when there is a conflict in judicial decisions there is always a strict and complete legalism.

Nonetheless, the ''judicial activist or judicial realist'' (both refers to the same thing) is said to have a wider prospective in law-making judges. The debate discusses that the 'judicial activist/realist' applies discretion and flexibility in the Australian common law system by taking into account the community values and policy issues that the judges use when formulating a rule.

The debate doesn't also looks at just 'judicial activists' as a definition, the debate also criticises the notion in decisions that have been applied in Australia. These criticism includes the reversal of the accepted of terra nullius, the freedom of political communication as a constitutional right and the right to legal representation for an indigent individual for the most heinous crimes as an essential element for the right to a fair trial.

Part B

In relation to the debate about judicial method between the ''strict and complete legalism'' and ''judicial restraint'' as against what critics call ''judicial activism'' and defenders describe as proper ''judicial creativity'', the ''strict and complete legalism'' should be the clear winner in this debate. Strict and complete legalism is a matter for the courts, it needs to be professional and conductive even though it can be excessively legalistic. Furthermore, the Chief Justice of Australia in his own words states 'there is no safer guide to judicial decisions in great conflict than a strict and complete legalism'. This ensures that both parties of each side maintain full confidence in the courts when there is a federal conflict.

TASK 4

Our Ref: 12345                                                                Slack and Slick Lawyers

                                                                                P O Box 25

                                                                                Sydney, NSW 2770

23rd March 2012

Dear, Mr/ Ms Client

Thank you for the confirmation of our advice given to you the month previously (13th February 2012). To ensure a complete understanding between us we will be stating pertinent information about this advice and a quick recap.

The issue here is that you have a neighbour who has a series of perennial woody plants that you take as unfair due to the lack of sunshine you get because of it. In accordance with the NSW law, section 14A of the Trees (Disputes Between Neighbours) Act (2006), you as the owner of your dwelling, may make an application to the court for an order to remedy, restrain or prevent severe obstruction to your window of the sunlight or your view caused by the trees next door. This law is applicable only when 2 or more obstructing woody perennials that grow to form a hedge of at least 2.5 metres height.

If you do make an application the court will then consider whether the trees existed prior to the dwelling, whether they have any historical, cultural, social or scientific value and the amount and also the court will take into account the hours per day, time and year of any sunlight that is lost as a result of the obstruction.

It should be remembered that this very same law also tells you to give 21 days notice to your next door neighbour that you are lodging an application and what you are seeking. The court will only grant you remedy if you have tried to make a reasonable effort to reach an argument with the party involved.

Slick and Slack Lawyers are aware that you have engaged in an effort to approach your neighbour in a non-confrontational manner, this gave the appearance that the matter may have been sorted, however, the other side failed to do as they perceived you to be a menace. There is now an AVPO against you.

As this matter has now led to more problems with your neighbour, we strongly recommend that you do not go anywhere near your neighbour.

Going forward, get back to us with what you think we should do in relation to the second matter about the hedge of trees including if you would like us to launch an action in court about your matter.

Yours Sincerely

Lourine Singh

Slack and Slick Lawyers

Bibliography

• Australian Guide to Legal Citation (2010)
•  Kirby, M.D., “Precedent, Law, Practice and Trends in Australia”  (2007) 28 Australian Bar Review 243

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