The Central Role of Case Law in Legal Systems: A Critical View

This essay critically evaluates the statement that case law plays a central role in all legal systems, focusing primarily on the Australian legal system and its common law tradition. The essay explores the doctrine of precedent, highlighting how past judicial decisions influence current legal judgments....Read More

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Introduction:
Case law is considered as the most significant source of law in all the areas of the, even those
areas also which are strictly legislated. Case laws are considered as primary source of law.
Case laws are deemed as central element for the purpose of understanding and interpreting the
law. In other words, case laws are the law which is developed by the judges of the superior court.
The judgements provided the superior court judges in the form of solution to the dispute between
the parties is the law framed by the judges, and these laws are known as the case laws. Once the
judgement is given by the judge, then it is known as the precedent which states that future
disputes will be settled on the basis of these precedents (The Western University of Australia,
n.d.).
This report discusses the importance of case laws in all the legal systems, and for the purpose of
this assignment Australian legal system is selected. Structure of this report includes brief
discussion on the central topic, and lastly this paper is concluded with summarized conclusion.
Discussion:
Case laws are considered as the important element of the judicial decision making system in
Australia. Importance of case laws are also recognized in the form of doctrine of precedent in
Australia, and as per this doctrine judges while deciding the cases must consider the decision
taken by the past judges. Number of times judges are bound by the past decisions taken by the
superior judges and the reasoning given by them in context of cases. In other words, judges are
bound by the past decisions while deciding the case if such case involves the similar facts. There
are number of times when it is expected from judges that they must take extremely the reasons
given by the courts in the past cases even though at the present stage they are not obligated to
implement the reasons given by the superior judges (Meek, n.d.).
As per this political ideal, institutions of the state, such as courts must make sure that the law
established and implemented in the constant and foreseeable manner. This happens for ensuring
that citizens of the Australia file suits with trust and confidence in context of their rights and
duties.

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Doctrine of precedent ensures and put obligations on judges to follow the decisions and
reasoning of the past cases given by the superior judges while deciding their case. In case, judges
failed to do so then party holds the right to appeal against the decision of the Court.
It must be noted that, following are the important elements which must be exist for the
implementation of doctrine of precedent:
 Important facts of the case must be similar.
 The precedent must be given by the higher court in the similar legal system or hierarchy
of courts (Kirby, 2006).
However, it is necessary to understand that High Court holds the power to decline and follow its
own past decisions. High Court holds the position of constitutional Court in Australia and also
the position of the final court of Appeal in Australia, as this court rejected the proposition that
judges of the High court are obligated in strict manner by its own past decisions. As stated by
Judge in case law New South Wales v Perpetual Trustee Company Ltd (1952) 85 CLR 237, per
Dixon J at 244, such a restrictive was not right, as it provides responsibility to the court in
governance of the nation.
There is no precise rule was set by the High Court of Australia I terms of the situation in which
past decisions of the Court can be overruled, and there is no scope that judges of the High Court
personally disagrees with the past decisions. In case law McGinty v Western Australia (1996)
186 CLR 140 Australian High Court stated that previous decisions of the court must only be
overruled in the exceptional situations and this power must be exercised by the judges with extra
care.
In Imbree v McNeilly [2008] HCA 40, learner driver had the car accident and also cause injury
to one of his passengers, and High Court needs to decide the question whether learner driver
holds duty of care towards the passengers and whether breach of this legal duty results in the tort
of negligence.
For the purpose of deciding this case and for deciding what standard of care learner driver owns
towards the passengers who was supervising the learners also.

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In case of Cook v Cook [1986] HCA 73, the High Court decided that learner’s driver owned
standard of care towards the supervising passenger, but such standard of care was less in
comparison of the standard of care owned by the ordinary driver towards the passengers (Austlii,
1986). While deciding the case Imbree v McNeilly, High court was not obligated to consider the
reasoning of its own past decisions, but generally High court follow its own past decisions if the
facts of the case were similar. Therefore, there were number of reasons which state that High
Court follows the reasoning of the Cook v Cook while deciding this case.
However, situation in this case was different, as Court decided to override the decision of the
Cook v Cook. In Imbree v McNeilly, High Court stated that it was overriding its own past
decision in the case which had similar facts.
In context of this decision, it can be said that decision of the High Court was both unusual and
controversial in nature.
It is necessary to understand the implications of the case laws in context of the state and territory
courts of Appeal. This can be understood with the help of case law Farah Constructions Pty Ltd
v Say-Dee Pty Ltd [2007] HCA 22, in this case implications of the case law importance in
context of the state and territory courts of appeal were explored. The main legal question in
terms of this case was related to the legal obligations of the developers of the property in the
joint venture and it also discusses the liability of the third parties in case of breach of these legal
duties. In this case, High Court state the important provisions related to the case laws and its
applicability.
It must be noted that, Australian courts are arranged in hierarchy, and in this top position was
taken by the High Court of Australia. After this another positions are taken by the Courts of
Appeal of different states and territories. Before this case was decided, the implementations of
the case law decisions for state and territory courts of Appeal were handling in two important
and different ways. First way states that these courts were not bound to follow the High Court
decisions completely, as they were only bound to apply the particular components of the
reasoning given be the High Court. It must be noted that, judicial reasoning was generally
divided into two categories. In first category that reasoning was applied to the law which was
important for the purpose of reaching the decision by the judge, and this category was known as
the reasons for decisions. Another category in this context states that reasoning was not

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important for reaching the decision by the judge, as it was known as things said by the way. This
category was generally uttered by the judges in terms of making the observations related to the
law, while it was not relevant to the case at hand but might be relevant to the other cases in the
future. Before, this case, Court considers that they were only bound to follow the reasons of
decisions given the high court, and not another one. However, this case changes the perceptions.
Second way states that there was no obligation on the court of appeal in one state or territory to
follow the decision given by another state or territory.
From the above facts, it is clear that case laws play very important role in the legal system of
Australia and also contributes in the foundation of the modern approach of the legal system
(Harding, 2013).
Conclusion:
Above stated facts, clearly reflect the importance of the case laws and precedent given by judges
in the legal system of Australia. It must be noted that, doctrine of precedent relied on the judge
effectiveness, and it does not only means to pay the respect to the judges but it consistently and
carefully implement the content of the practice. In other words, doctrine of precedent ensures the
consistency with the moral functions under the rule of law. Arguable in light of these
considerations, there are number of decisions of the High Court which are not reliable.

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References:
Austlii, (1986). Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 (2 December 1986).
Available at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1986/73.html.
Accessed on 13th August 2018.
Cook v Cook [1986] HCA 73.
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22.
Harding, M. (2013). The High Court and the Doctrine of Precedent. Available at:
https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/. Accessed on 13th
August 2018.
Imbree v McNeilly [2008] HCA 40.
Kirby, M. (2006). Precedent - Report on Australia. International Academy of Comparative Law
Conference, Utrecht, The Netherlands.
[http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/
kirbyj_17jul06.pdf].
McGinty v Western Australia (1996) 186 CLR 140.
Meek, M. Applying the law – precedent. Available at:
http://www.findlaw.com.au/articles/215/applying-the-law---precedent.aspx. Accessed on 13th
August 2018.
New South Wales v Perpetual Trustee Company Ltd (1952) 85 CLR 237, per Dixon J at 244.
The University of Western Australia. What is Case Law?. Available at:
https://guides.library.uwa.edu.au/case_law. Accessed on 13th August 2018.

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