The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.
For example in the case of Donoghue v Stevenson AC 562, (Case summary). The House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed in Grant v Austalian Knitting Mills  AC 85 (Case summary). Also in Shaw v DPP  AC 220 (Case summary) the House of Lords held that a crime of conspiracy to corrupt public morals existed. This was followed in Knuller v DPP  AC 435 (Case summary).
In order for the doctrine of judicial precedent to work, it is necessary to be able to determine what a point of law is. In the course of delivering a judgment, the judge will set out their reasons for reaching a decision. The reasons which are necessary for them to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts. It is important to separate the ratio decidendi from the obiter dicta.
The obiter dicta is things stated in the course of a judgment which are not necessary for the decision. For example in R v Howe & Bannister  2 WLR 568 Case summary the House of Lords held that the defence of duress was not available to murder. This was the ratio decidendi of the case. The House of Lords went on to consider whether the defnce should be available to those who attempt murder and stated obiter dicta that the defence of duress should not be available to attempted murder.
In addition to binding precedents, there exists persuasive precedents. These consist of judicial statements which are not binding but may be taken into account. For example, the obiter dicta from R v Howe & Bannister was followed by the House of Lords in R v Gotts  2 AC 412 Case summary which held that the defence of duress was not available to attempted murder. A form of persuasive precedent is obiter dicta. Persuasive precedents also include case law from other jurisdictions and traditionally the Privy Council decisions have been merely persuasive on the English courts. However, exceptionally the Privy Council may be binding:
Attorney General for Jersey v Holley  3 WLR 29 Case summary
Hierarchy of the courts
There exists a hierarchy of the courts. The basic rule is that a court must follow the precedents from a higher court, but they are not bound to follow decisions from courts lower in the hierarchy. A basic outline of the hierarchy is:
European Court of Justice
Supreme Court (formerly House of Lords)
Court of Appeal
All other courts (County, Crown, Magistrates, tribunals – these have no power to create precedents)
Where the precedent was set by a court of the same level, the court is generally bound by the previous decision, but this is subject to exceptions. Different considerations apply depending on the level of court as to whether the court may depart from a previous decision of a court of the same level.
Preparing for a class or exam at UNSW Law is not as simple as reading cases and memorising details. In order to become an effective lawyer, you need to train your mind, not just to absorb the information, but to dissect, analyse and challenge it.
Below are some tried and tested methods that will help you get the most out of the material you are studying.
The art of casereading is one of the most significant common-law lawyerly skills.
A case on its own is not very informative. The question you should ask yourself is: what does this case add to what I already know about the law in this area? The process of casereading is a spiralling process which means that every time you go back and read the case you find more. Therefore you should never think your brief of a case is final. Do a rough brief before class. After discussion has confirmed, illuminated and/or altered your view of it, redo the brief.
ONE WAY TO BRIEF A CASE.
- Read it all through without writing anything down.
- Now read it again.
- Write the citation: Write the case name and citation accurately. Make sure you have the name of the court and the date. Also add your text reference or reference in your notes so you can find it again.
- Facts of the case: You should leave this blank or merely sketched in at this stage and come back to it. The material facts can only be established once you are clear about the issues in the case.
- Remedy sought: What did the plaintiff/applicant/appellant want?
- Prior proceedings: What happened in the court (s) below?
- Arguments of the parties: Establishing the arguments will help you decide what the legal issue is.
- Grounds of appeal: This may have been established by the arguments. This is another indicator of the legal issues.
- Issue: What is the legal issue which the court has to decide?
- Outcome or decision: Who won the case? Was the appeal allowed or denied?
- Legal Reasoning: The process of reasoning used by the judges to come to their decision. Trace their arguments through.
- Ratio Decidendi: The ratio decidendi is the principle of law or the legal reason which was necessary for the court to come to its decision. There are narrow and broad views of the ratio decidendi. This may require you to compare different opinions of several judges.
- Obiter dicta: Obiter dicta refers to other things the judge(s) said which were of interest but were not necessary for the decision which was made.
- Notes: Your notes about what difference this case made to your knowledge of this area of law; how the case is significant etc.
ANOTHER WAY – THE MINIMUM BRIEF (not as thorough but better than nothing):
- Read the case through first by scanning.
- Read through again slowly.
- Material facts – set out the material facts ie the ones which are significant for the law the case concerns.
- Issue(s) – set out the questions the judges have to answer.
- Ratio decidendi – what rule did the judge use to answer the question?
- Outcome of the case – who won.
2. Reading statutes
An increasingly large proportion of the law now exists in statutory form. You will do classes on statutory interpretation. For now, this is a basic account of what you should do when you encounter a statute.
- Look at the name of the statute.
- Identify the Short Title of the Statute. Often one of the first sections in the Act will say ‘this Act may be cited as ‘Short Title’.
- Identify the Long Title of the statute – this often begins ‘An Act for the purpose of [x] ....and for related purposes’
- Make sure you know what the jurisdiction is (eg Commonwealth or NSW) and date of the statute.
- Look at the table of contents. This will give you an overview of the material covered by the statute.
- Look at the definition section of the Act. Some Acts have more than one definition section, or there may be particular definitions for within a certain part of an Act. Take note of these.
- When looking at any section of an Act pay attention to the connecting words as well as the substantive words – words like ‘until’, ‘but’, ‘and’ ‘or’ and so on are extremely important for the logical interpretation of the words in the act.
- Read the words of the act looking for their ordinary natural meaning first. In many cases you will not have to go further than this.
- For ordinary words in the Act an English dictionary is useful.
- Note that many words have specific meanings in Acts which they may not have in English because the Act Interpretation Act of the jurisdiction has said so. These words include ‘shall’, ‘may’, and ‘minister’ etc. Such acts also define some ordinary words such as ‘day’, ‘month’ etc . It is worth having a look at the relevant Acts Interpretation Act, eg NSW Interpretation Act 1987
- Generally when a problem arises in relation to an Act there will be a selection of sections from that Act which are particularly significant for that problem. You need to read the Act with the problem in mind, rather than trying to read the Act like a story.
- The art of statutory interpretation is a major skill you will learn during your law degree. The basic principles are to read the act in its ordinary meaning and to determine what parliament intended by the words. Since the passing of the Acts Interpretation Acts in Australia it has been possible to look at material extrinsic to the Act itself, such as the Second Reading Speech of the Minister introducing the legislation into parliament, to help determine parliament’s intention.
3. Managing large amounts of complex material
One of the major skills that is needed to do a law degree is to learn to manage large amounts of complex material. Some of these skills you will have already, but here are some ways such material can be managed.
Making material accessible and meaningful for yourself
METHOD A – verbal mapping
- Skimming – skim through the material trying to figure out what its main thrust is.
- Mark up the paragraphs, giving subheadings – if you put subheadings next to each paragraph saying what that paragraph is about you will have done two things – first, worked out what the paragraph is about and second, marked it so that you can come back to it and point to where that point is made. This is particularly useful in law where it is important to know exactly where things came from.
- Make a summary by putting together all your paragraph headings.
METHOD B – mindmapping
A mind map is a non-linear method of representing relationships between ideas.
It may be useful to you if you are a visual learner to do diagrams: using colour, arrows, pictures or whatever enhances your learning.
Image used with permission from Survive Law
METHOD C - colour coding
This method uses colours to underline or highlight words in the text. It is also useful for visual learners. (It’s not so useful for people who lose all their coloured pens)
It is quite often used for case-briefing:
For example, go through the case and mark it up in different colours, identifying which parts of the case do different things:
- Red - ratio or legal reasoning
- Blue - material facts
- Green - obiter dicta
- Orange - statements of social significance
- Yellow - issue in the case
- Purple - the decision
4. Indexing and preparation for exams
Legal study requires constant provision of authority or evidence for a proposition put forward. So it is important to be able to point to where things came from. For this reason it is useful to have for each course:
- a set of casebriefs – eg on cards or looseleaf or exercise book or a separate file on your computer – which is separate from your lecture notes. They should be numbered. For exams you will still need paper so you need to be able to print out any files you use
- your classnotes with pages numbered
- ultimately, a summary of the course which cross-indexes the summary with the classnotes, the textbook, the cases and any other material. If you put this in question form this is particularly useful if you are using the MIRAT way of solving problems.
Eg: Was this an offer of contract? (lecture notes pp5-10)
Ref to test for the rule to apply: was the offer real or just a mere flourish? If it was just a mere flourish it is not an offer: Carlill v Carbolic Smoke Ball – (Casebrief No 6, Textbook p 35)
In this way when it comes to looking something up quickly for an open book exam or an assignment, you will be able to find your way around the material without difficulty.
5. Solving problems – using MIRAT
The MIRAT system is a useful way to begin doing legal problem-solving. MIRAT stands for the following:
Application of rule to the facts
Normally when one is given a problem question it will have a set of facts on which you are asked to advise. These facts will include the material facts, ie, the facts which are important in relation to the law. For example, consider the following extract:
Joanna Jones was driving on the Highway near Leichhardt in a red sports car with the hood open. She was accompanied by her friend Anna Ames. They were having an argument. Joanna Jones was wearing a Chanel scarf round her neck. Her car had recently been serviced at AAA Automotive Repairs.
Which of these facts is material will depend on the legal issue to be determined. For example, if the issue was a matter of criminal law concerning a fight between Joanna and Anna which took place in the car, where the car had been serviced was probably not a material fact. If the issue was whether a car accident had been caused by poor service then where the car was serviced would be significant and the fact that Joanna and Anna were arguing may not be.
At the same time, the legal issue to be determined will be suggested to you by the facts.
The legal issue you have to determine is the legal question a court would have to answer on these facts.
The rule will be the ratio decidendi (reason for the decision) of a case or a provision in a statute. Sometimes this will be a very obvious and well-established rule, eg a duty of care is owed by all drivers to other users of the road: Derrick v Cheung. At other times you may have to take the time to make an argument at this stage about what the rule should be, arguing on the basis of the direction of precedent, or that cases outside the jurisdiction should be followed for some reason etc.
Application of the rule to the facts. This is a crucial part of the process. Applying the rule to the facts is the only way to reach a conclusion about how to answer the issue question. If the rule can be stated as a test then you can apply that test to the facts.
You can then come to a tentative conclusion. This means you can arrive at a conclusion; however, the conclusion is generally tentative because you may be wrong and your conclusion might need to have an alternative considered. It is thus best to say something like ‘it is most likely that’...
Answering the question – multiple MIRATS
Most problem questions have multiple legal issues in them. There may be logical connections between these issues. For example, in a contract question there may be questions about formation of contract which require a number of issues to be answered, and only if all those can be answered in the affirmative will a contract be regarded as formed. Thus each of the tentative conclusions needs to be connected together at the end to give a final answer to the problem question. Most problem questions require you to advise the client. This means you are advising them about their likelihood of success should they bring an action or if one is brought against them. It is vital to answer the question by considering this general advice as well as the answers to each specific legal issue.