The role of judges in the common law - PowerPoint Presentation

Slide1

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.Slide2

How do you become a judge?

http://www.hcourt.gov.au/justices/about-the-justices Slide3

How much do judges get paid?Slide4

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.Slide5

How do judges make law?

While the courts main role is to adjudicate cases and settle disputes, they have a secondary role as lawmakersIn the process of making decisions on a case being heard before a court, judges will make statements of lawThese statements of law set out a principle of law for other courts to follow that is known as “precedent”Slide6

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 - precedent2.) through the interpretation of legislation, as it applies to a case before them – statutory interpretation Slide7

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up to courts as they see their role as resolving disputes – eg The Trigwell case, where judges refused to overrule an out of date precedent relating to farmers being liable for the safekeeping of their animals on highways, leaving this change to parliament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 courtsSlide8

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 situationsSlide9

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.Slide10

Judges will use one or more of the following techniques when seeking to

avoid precedents: sneaky dodgiesSlide11

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.Slide12

Overruling case study -

IMBREE V. MCNEILLY (2008) 236 CLR 510The 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

McNeilly

, a sixteen-year-old, to drive his car. When

McNeilly

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.Slide13

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. Slide14

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.Slide15

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. Slide16

Distinguishing case study -

DAVIES V. WALDRON [1989] VR 449Waldron 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.Slide17

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. Slide18

Reversing case study -

ROSENBERG V. PERCIVAL (2001) 205 CLR 434Ms Percival was suffering from a dental condition known as temporo-mandibular 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

RosenbergSlide19

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. Slide20

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 Slide21

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:reversingoverrulingdisapproving

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: Slide22

Discuss how precedent allows for flexibility

and consistency 5 marks Slide23

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 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

McNeilly case, where the High Court overruled its previous decision relating to the culpability of learner drivers. Slide24

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. Slide25

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. Slide26

Explain the operation of the doctrine of precedent. In your response, evaluate

two strengths of this process (8 marks)Slide27

Describe

two ways in which judges may be able to avoid precedent – use a caseDefine 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 courtFor example where the High Court, in the McNeilly case, overruled its own decision regarding the culpability of learner plate

driviers