2.2    Doctrine of Precedent
2.2.1 Development and Purpose of doctrine

High Court
The high court is the ultimate appeal court in Australia, on matters both of state and federal law. It precedents are binding on all other Australian courts.
Under the doctrine of precedent as it is currently practiced, a single justice of the High Court of Australia is not bound to follow an earlier decision of a single justice, but is obliged to follow an appellate decision of the full court (2 or 3 judges) of the High Court.

Federal Court
A Single judge of the Federal Court is bound by decisions of the Full Court, because on appeal, the Full Court has the power to overturn the decision of a single judge.
The full court of the Federal Court is not bound by its own previous decisions but is reluctant to overrule them.

Family Court
The Family Court of Australia is also within the federal court hierarchy. A single judge of the Family Court is bound by decisions of the Full Court but not by decisions of other single judges. The full court of the Family Court is not bound by its own decisions and it appears that in more recent decisions it has indicated a fewater preparedness to depart from them.

Federal Magistrates Court
The Federal Magistrates Court, an inferior court in the federal court hierarchy, was created and began operating in 2000, Consistently with the doctrine of precedent, federal magistrates are bound to follow appellate decisions of the Federal Court and the Family Court.

State and Territory Supreme Courts
Single Judges
A single judge of a state Supreme Court is normally bound by decisions of the appellate courts, both civil and criminal of that state. Judges of Supreme Courts of the territories are bound by decisions of the Full Court of the Federal Courts.

State Appellate Courts
It is clear that state appellate courts are bound by decisions of the Full Court of the High Court, though not be decisions of a single justice of the High Court.

Decisions of other Supreme Courts
Each state and territory has its own hierarchy. As a result, state and territory Supreme Courts are not strictly bound by decisions of Supreme Courts of other states or territories, For a number of reasons, however, a state or territory court will give serious consideration to the decisions in other state and federal jurisdictions, and be reluctant to depart from their precedents.

Inferior Courts
A route of appeal may lie from one inferior court to another. That might suggest that the decisions of the appeal court would be binding on the court below.

Administrative Tribunals
Administrative tribunals are not part of any court hierarchy although they inevitably exist within a legal jurisdiction, whether federal or state. As might be expected, therefore, they have a more flexible attitude towards the authority of their own precious decisions than courts.

Decisions from other Common Law Jurisdictions
No decisions of any court in another country is binding on Australian courts. Decisions of English, New Zealand, Canadian and United States courts are cited regularly, however, just as Australian decisions are used in arguments in those courts. Decision of courts in other common law countries are also, less commonly, cited.

English House of Lords
There has been a substantial change in the attitudes of Australian courts towards House of Lords decisions over the last 50 years.
Sir John Latham, the Chief of Justice of the High Court, suggested that in cases of Clear conflict between a decision of the HOL and the High Court, Australian courts should ordinarily follow the HOL decision on matters of general legal principle.

Equally Divided Courts
When judges disagree, the decision of the majority prevails. Normally, the possibility of a court being equally divided is avoided by ensuring that an odd number of judges sit on each case.

Doctrine of Precedent

  • The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and do occasionally ignore.   

  • The doctrine of binding precedent or stare decisis is central to the English legal system. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine, states that within the hierarchy of the English courts a decision by a higher court will be binding on those lower than it. This means that when judges try a case they will check to see if a similar case has come before a court previously, and if there was a precedent set by an equal or higher court, then the judge should follow that precedent. If there is a precedent set in a lower court, the judge does not have to follow it, but may consider it. The House of Lords however does not have to follow its own precedents.

  • Only the statements of law are binding, this is known as the reason for the decision or ratio decidendi, all other reasons are by the way or obiter dictum see Rondel v. Worsley (1969) 1 AC 191 . A precedent does not bind a court if it was found there was a lack of care in the original “Per Incuriam”, for example if a statutory provision or precedent had not been brought to the courts decision. If a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy, they may be persuasive but are not binding ,. Most importantly precedents can be overruled, by a subsequent decision by a higher court or Act of Parliament, Judicial ruling is retrospective, whereas Act’s of Parliament are always Prospective unless stated.

  • The last situation brings about the greatest problem of the precedent system, in that if a higher court overrules a precedent that is quite old, then it is very likely that many cases that have been decided upon that precedent will return to court. Therefore, it becomes increasingly unlikely that a precedent is overruled the older it is.
2.2.2    Rules of Precedent

•    Each court is bound by decision of higher courts.
•    A decision of a court in a different hierarchy may be of considerable weight but will not be binding
•    Only the ratio decidendi of a case is considered binding.
•    Any relevant decisions, although not binding, may be considered and followed.
•    Precedents are not necessarily abrogated by lapse of time.