In exams, often you will get a decision to read which appears to
be from the Supreme Court (thus very powerful) but is dated in
1950 and thus was only the High Court.
Anytime you have a decision which is from the Supreme Court;
make sure it is newer than 2004. You will see why this is when
we focus more on precedent power, but as general advice; Be
super suspicious of any material you are given from above High
Court level-it is almost certainly a trap.
You don’t need to know the specifics of each of the courts as to the limits of their jurisdiction; but you will need to know at what
stage they can hear a case.
Jurisdiction:
Jurisdiction means the right of a court to hear a case and give a
decision. There are two types of Jurisdiction in New Zealand;
Original Jurisdiction and Appellate Jurisdiction.
Original Jurisdiction= the court has the power to make the first
decision of a case, to hear it before anyone else does. Called
hear a case in first instance.
Appellate Jurisdiction = the court has the power to review the
decision of the previous court and make sure that the law is
correctly applied.
This goes back into the structure of the courts; lower courts hear
issues as they arise with original jurisdiction and higher courts
resolve the matters with finality.
DISTRICT COURT= has original jurisdiction, it will be the first
court to decide on smaller matters and give a resolution.
Technically it can also hear appeals from some tribunals. But
don’t worry about this.
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jurisdiction. It can review a matter from the district courts and
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HIGH COURT= has appellate jurisdiction and original
ensure that the law is applied correctly. It will also be the court
of first instance on more serious matters such as murder.
COURT OF APPEAL = has appellate jurisdiction only. This court
will review matters which have come from the lower courts and
give what is usually the final judgement.
SUPREME COURT = has appellate jurisdiction only. This court is
the ultimate court in New Zealand and can review a decision
that has come from the CA. However, the Supreme Court is can
only hear a case it meets certain requirements, such as public
importance. So for most claims, the CA is the final court.
In all that is the relevant structure of New Zealand court system.
It is largely the same in most commonwealth countries. But the
names may change; you should also know the different names
for the main English courts.
In England the High Court is the Queen’s Bench (or Kings
Bench) and the Supreme Court is the House of Lords.
Lower level courts handle more cases and give quicker
decisions and higher level courts are able to review those
decisions and correct any they believe are incorrect. Thus the
higher level judges are more concerned with controlling the
direction of the law and the lower level judges are concerned
with dealing with each case.
Don’t get caught out with the old Supreme Court or with the Privy Council issues and you should be fine as far as structure
and proceedings are concerned.
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Just in case, you probably don’t need to know this but.
The Australian naming system is basically the opposite of
everyone else. Their Middle level is the “Supreme Court” and their Highest Level court is the “High Court of Australia”. Precedent
Overview
Now that you know the structure of the courts you need
understand stare decisis, or the doctrine of precedent. I am sure
you will have touched on the fundamentals of it in your 121
study, but now you need an actual understanding that you can
put to work.
For the sake of legacy we will start from the start.
Stare Decisis is the idea that a decision in a higher level court
will be binding on those in the lower level. This evolved from
the old English courts where the law was vastly different all
around the country. It is based on the idea that like cases should
be treated alike. So if the courts today say that a person in
situation A must pay damages; then any future people in
situation A should also be told to pay damages.
Precedent Power
The power of precedent is based on the hierarchy of the courts;
each level of the courts creates precedent that binds those below
it. So as you move up the hierarchy the decisions become very
powerful.
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Any precedent decision can be classed into two categories;
binding or persuasive.
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For instance, a decision made by the Supreme Court will be
binding on the Court of Appeal, the High Court, and the District
Court in any similar cases in the future. But a decision from the
High Court will not be binding on the Court of Appeal, and they
may choose to overrule it (correct it).
BINDING PRECEDENT= the court has no choice but to follow along
with the decision made earlier. A Supreme Court decision is
binding on the High Court and thus a high court judge will have
no choice in his decision.
PERSUASIVE PRECEDENT= the court has a choice of whether to
follow the previous decision or to go in a different direction.
Lower court decisions are not binding on higher courts, but they
may be persuaded to follow the decision anyway.
The more powerful the court that made the decision the more
persuasive it is.
These concepts (like many you will cover) may seem nebulous
but it is rather simple once you grasp it.
Every New Zealand court is bound by decisions of the
court above it. New Zealand courts are neither bound
by their own decisions, nor by overseas decisions.
Thus a previous decision by the Court of Appeal will bind the
High Court and District Court, but will not bind the Court of
Appeal.
In the same way; even a decision from the Highest Court of
Australia will not be binding on the family court of New
Zealand. But it is important to keep in mind that even though
they are not binding; decisions from supreme courts overseas
are considered very persuasive.
Ie) English House of Lords decisions are not easily ignored by
District Courts.
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Besides just the level, how the judgment was determined, when
it was determined and whether the judge spent time considering
it or solved it urgently etc; will all be sub-factors to determine
the persuasive value.
Exercise:
I will try to illustrate each of the points so far with an example.
**EACH OF THESE IS HYPOTHETICAL**
1)
IN COUNTRY X
Adam grows a big tree on his property. It falls and destroys his
neighbour’s house, the neighbour then sues him for the damage to his house. In the end, the Supreme Court of the country
decided that he does not have to pay for the damages. This
creates a binding precedent.
Later John makes a really tall tower on his lawn. He takes all
proper precautions and the tower is legal, but it falls and
destroys his neighbour’s house. The case goes to the High Court, what will the judge decide?
Likely, the Judge will decide that it is similar to the previous
case of Adam, and thus he must follow the decision. John may
also avoid paying for damages.
The Supreme Court decision was binding on the High Court.
Later again Max hears about those two cases and decides that he
doesn’t like his neighbour. He builds a giant catapult on his land and launches stones to destroy his neighbour’s house. The case once again goes to the High Court; will he also not pay
damages?
The cases are completely different. Max is deliberately trying to
harm his neighbour and thus will be forced to pay (and maybe
go to Jail).
Only similar cases are treated the same.
2)
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Mandy is walking Bills dog but accidentally lets it go, and it
runs away. The District Court charges her with negligence and
makes her pay Bill damages.
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IN COUNTRY Y
Later Bill gets Andy to take care of his dogs but once again they
escape. This time the decision goes to the High Court, what will
the judge decide?
The judge can decide whatever he likes. There is no binding
precedent.
District court decisions are of persuasive value only.
3)
IN COUNTRY Z
It has long been established by the House of Kings that it is an
invasion of privacy to take a photo of someone who is in the
hospital.
Sarah lives in Country X, and has snuck into a hospital to take a
photo of a famous celebrity. Will the many decisions from
Country Z be binding on the District Court of Country X? Does
it matter if the celebrity is from Country Z?
The decisions from country Z will not be binding precedent on
Country X, no matter the power of the court. It will also not
matter where the celebrity is from.
Decisions from other jurisdictions are of persuasive value only
4)
COUNTRY G
In 1912, The Court of Appeal in Country G decided that talking
in class could be considered riotous behaviour, and was a
criminal offence.
Today the Court of Appeal is hearing an appeal from a student
who was talking in class, but argues that the decision is wrong.
Can the Court of Appeal change their decision?
They may choose to reverse the decision and decide that these
days it is no longer riotous to talk in class.
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No (New Zealand) courts are bound by their own decisions
Precedent Part 2
Today
I understand that it is hard to really understand the aims of the
course while we are still learning fundamentals. You may be
feeling a little lost right now. But just stick to it and try to
absorb everything we cover; when we put it all together you will
see how everything has its place, and how integral it all is.
Today we will look at more of the in depth aspects of precedent
and how it operates. Don’t be tempted to gloss over this stuff, it is absolutely necessary to have a complete handle on it for the
test and the exam.
Theory
First it is important to understand what the reason for precedent
is in law. The oft quoted reason is that it provides;
predictability certainty and stability to the law.
These are essential aspects, if the law is unstable and
unpredictable how can we know what it is or what is legal and
what isn’t. These are key aspects as to the rule of law, stability
allows justice to be done.
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But a High Court decision may take a few weeks while a
Supreme Court decision will take months.
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Second, precedent operates in a hierarchy due partly to a need of
timely dispersion of justice. The District Court and the High
Court will see many times more cases than the Court of Appeal;
so it is necessary that they are able to make quicker decisions. In
cases where there is substantial argument against the decision,
the Court of Appeal and possibly the Supreme Court can
carefully review the law and correct it if necessary.
You already know that higher courts bind lower courts and
decisions from overseas are only of persuasive authority.
But are decisions from higher courts always binding on lower
courts?
The answer is that any decision from a higher court is binding
on a lower court and must be applied (used/followed) to the case
unless it can be distinguished.
Cases are distinguished if the judge can argue that they are not
sufficiently similar enough to need to follow the precedent
decision.
A case regarding airplane safety may be distinguished from one
which is concerned with ship safety. In that case the judge
would not have to follow the previous precedent.
Whether a case can or cannot be distinguished is largely up to
the individual facts and the perception of the judge.
Can a case about a rimu be distinguished from a case about an
oak tree? The answer will depend on the facts of the case.
We will cover distinguishing in more detail later in the course,
but for now it is important to understand that a decision which is
binding must be followed; unless it can be distinguished.
Exercises:
I will test your understanding of precedent.
1) What is the other name for the doctrine of precedent?
2) What reasons do you believe exist for the way precedent
treats foreign cases?
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4) What is the status of precedent in the following decisions?
Provide a small explanation.
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3) Do you believe that precedent should be adhered to in every
circumstance?
a) 1992 Foreign High Court decision referenced in NZ Supreme
Court
b) 2003 Foreign Supreme Court decision referenced in NZ
District Court.
c) 1996 NZ Court of Appeal decision in NZ District Court.
d) 1944 NZ Supreme Court decision in NZ Court of Appeal.
e) 1982 NZ High Court decision in NZ District Court.
f) 1988 NZ District Court decision referenced in NZ Court of
Appeal
g) 1988 NZ Court of Appeal decision in NZ Court of Appeal.
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h) 2010 NZ Supreme Court decision in Canadian Family Court.
Legal Logic
Answers from Precedent Lesson:
1) Stare decisis- Which means; stand by decisions and do not
move that which is quiet.
2) Precedent in NZ law gives decisions coming from foreign
countries only persuasive value. The reason for this is that the
legal and political situation may be vastly different, and we wish
to have law which is suitable for New Zealanders.
However, decisions which come from high ranking courts
overseas such as the House of Lords are considered to have
strong persuasive value. Thus it is far from uncommon for NZ
courts to adopt law found elsewhere, so long as it is deemed
correct for us.
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4)
a) Would have persuasive authority only
b) Would be very persuasive but not binding.
c).Would be binding precedent (CoA binds DC)
d) Would have persuasive authority only (remember that in
1944, what is now the High Court was called Supreme Court)
e) Would be binding precedent (HC binds DC)
f) Would have persuasive authority only (and likely not much)
g) Would have persuasive authority only (CoA not bound by its
own decisions)
h) Would have persuasive authority only (likely very
persuasive)
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3) Very strict adherence to precedent would mean that courts
would be bound by their previous decisions. I personally feel
that this would be a mistake and would only serve to prevent the
law from evolving or correcting itself. It may be worth
sacrificing some stability and predictability in the law in order to
obtain justice. This is especially true with older decisions from
vastly different social situations.
Caution:
As we approach reasoning and ratio there is something that I
wish to make very clear.
This course is not the same as Law121; you do not have to
remember anything at all about the cases themselves. The
purpose of this course is to understand judges reasoning
techniques and learn to use the same techniques yourself.
In this course, consider yourself a judge not a student.
Thus for all intents and purposes it makes absolutely no
difference if a case is real or hypothetical.
The reason I say this is to prevent you from trying to learn about
whatever area of law your lecturer is basing the cases on. It will
not help you in the exam at all.
For instance, in 2010; the entire course was based around
learning about the development of NZ privacy law. As a result,
many students went into the test/exam knowing as much about
privacy as they could only to be confronted with a test which
was about growing trees and an exam on shoplifting.
Focus on the skills and reasoning not on the substance of the
case itself. For this reason (and also because it’s more fun), almost every case and every law I discuss will be completely
hypothetical.
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We have looked at precedent and how decisions bind onto lower
courts. But it is important to be very precise in how this is
understood. A judge’s decision on a case may end up being 100pages long and discuss many aspects of law. Logically this
cannot all be binding on the lower courts. Thus**A CASE IS ONLY
BINDING ON THAT WHICH IT DECIDES .** Only the decision itself
binds the lower courts.
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Today:
This decision or the rule of a case is called the ratio of the case.
So it is more correct to say that; only the ratio of a case is of
precedent value to other cases. Don’t worry too much about what a ratio is; we will spend a lot of time working on that
before the test. But for now you have to comprehend that only
the ratio is binding.
I.E)
the Supreme Court has a case about a person who cut down 100
Pohutukawa trees. On page 1 they declare that cutting down
Pohutukawa is a crime, but then spend 99 pages talking about
how ice creams should never cost more than $2.
This extreme situation will not create any precedent regarding
ice cream. The case is only binding for what it decides, and that
was regarding native trees.
Logic:
So now we come to the question of how a judge comes to a
decision and what logic he uses. Broadly speaking there are two
relevant legal logics: Deductive reasoning and Analogical
reasoning (there is also Inductive reasoning, which is really
interesting. But I don’t believe it is terribly relevant to your study).
DEDUCTIVE REASONING: This is more common in statute law; it is
a process of deduction (going from general to specific). A judge
will read that the general law says that if you intentionally
deprive someone of something it is theft. Then he will apply this
onto the specific fact situation and note that since you
intentionally deprived me of my car, you are a thief.
ANALOGICAL REASONING: This is used in common law. It is the
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process of comparing specific to specific. Basically a judge will
compare his current specific fact situation to a previous one that
is similar (analogous) and decide if they are similar enough that
the same decision can be used.
At this point I hope it should be clear to you that we will be
interested in Analogical reasoning for the first half of this
semester and Deductive reasoning for the second half.
Before continuing I believe it is prudent to summarize the
position thus far and hopefully prevent as many people as
possible from getting lost in all the details. If you are feeling
confused; hang in there.
So far we have only considered the foundational theory, but this
is a practical course. It is much harder to understand these
concepts when you have yet to use them. If you keep up and
study a bit; I am 100% confident you will be perfectly
comfortable with all this stuff before the test.
Courts operate in a hierarchy.
Stare decisis dictates that lower courts are bound by the
decisions of higher courts (within the same country).
When a court makes a ruling on a case, the relevant part of
that ruling is called a ratio. A case is only binding for what
it actually decides.
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When a Judge is deciding if the ratio of a previous case
should be used on the current case; he uses analogical
reasoning to compare the two fact situations.