#17005 - Case Law Intro To The Doctrine Of Precedent - Legal System

Laws101

8 March

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Pg 102-106 RURU- materials on Learn as well for more on Tikanga

Case Law- Intro to the Doctrine of Precedent

The New Legal System Summary

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Custom- Tikanga

Judges engaged in case, analyse previous cases to see which are relevant

• Case Analysis

• Statutory Interpretation

• Tikanga

Judges decide cases when parties bring cases to court

• Cases arise out of a dispute/question between parties- issues

• The Law relevant to the issues will come from the sources

• Predominantly case law or statue.

~ or custom

Doctrine of binding precedent- A past judicial decision that serves as an example or rule to followed in a subsequent case

Stare decisis- judges don’t decide law on whim, respect previous decisions

“To stand by decisions and not to disturb matters”

• Principled basis for precedents

• Provides certainty/predictability

= like cases should be treated alike because it is desirable in law to have stability and predictability. Need certainty in the legal system. A current case today that is like a previous case, outcome should be the same if the cases are similar. There is predictability then.

Morality changes, social norms change= could be shifts in principals of law as society changed.

Reading: Ruru- Paras 9.1, 9.8.1 and 9.8.2

The NZ supreme court would be more binding due to how it is a higher order. NZ district court which at most could be persuasive but not binding.

Precedent by superior court in hierarchy/jurisdiction is binding on inferior court in same hierarchy (the courts like the Supreme Court) /jurisdiction (like country)

1. Supreme Court

2. Court of Appeal

3. High Court

4. District Court (persuasive in reaching decision)

• Judges see where the decision came from, which court, to see what is binding

Hierarchy of courts is important it helps judge decide whether a previous case is binding or not

Coordinate/inferior/outside hierarchy persuasive

General position- court of coordinate jurisdiction is not bound to follow, court decision

Stare Decisis- almost always follow the decision of the previous case. Basic principle- like cases treated alike- judges should respect this.

• Tend to follow previous decision, but don’t have to

Lower than hierarchy, persuasive value eg. Court of appeal is not bound to a lower court like the high court because of position in the hierarchy.

Previous case not from NZ but comes from a common law family jurisdiction situation like Canada, UK, Australia can be persuasive when deciding on a case outcome

E.g. Canadian Supreme court when using in a NZ court case, can only be persuasive but not binding

Persuasive- regard to previous situation, respect it, not bound, it can reject it, NZ court could say they like the way CASC has done this we can adopt this we are persuaded by it or the NZ court system could say they respect it but it is not an appropriate principle for NZ

Precedent from the same hierarchy

• Co-ordinate court

• Inferior court

NZ Court hierarchy

1. Supreme court (NZSC)

2. Court of Appeal

3. High Court

4. District Court

Precedent from different hierarchy [overseas]

Side note: Privy Council up until NZSC 2004= Part of NZ Hierarchy

In London, decide cases, often just English lawlords who decided cases at the top of the NZ hierarchy, relatively recently, overseas based court that had been apart of the NZ hierarchy. It has been replaced by the NZ Supreme Court, there are some hangover cases that have gone to the Privy Council like Teina Poura, those who had been in the Privy Council already.

Further features of the common law legal family

• Doctrine of binding precedent

~ Certainty

• Hierarchy of court

~ to see which is binding

• Role of Judge to declare law, can’t decide to change the law easily, respect law from decided cases

• An effective system of law reporting

~ Need a system where judges decisions are recorded so you can find a relevant previous case for precedent to work

New Zealand Law dictionary= ‘the interpretation of the meaning, effect and scope of statutes by the courts’

A process

• Discovering meaning and purpose of provisions

• Applying that to the facts

• Achieving outcomes (courts) or predicting/advising on likely outcomes (lawyer)

Parliament has passed this to help focus the mind of judges...