The Australian Legal system is based in the application of both common law and statutory law. Common law which is also known as case law or equity law are the decisions of the court which have been made in a situation where adequate legislative provisions are not present. These rules are made by the courts based on general rule of law keeping in mind the principles of Justice and equity. Pether (2015) has stated that common law is a law which is based on decisions taken in the ends of justice[1].
On the other hand statute laws are those legislations, regulations and obligations which have been drafted and enacted in the parliament of Australia. The Australia constitution has provided the commonwealth parliament powers to draft law in certain areas via section 51. The states and territories also have the power to enact laws in areas which are not exclusively governed by the commonwealth parliament. The purpose of this paper is to find out whether the Northern Territory Supreme Court is bound by the decision taken by the Federal High Court of Australia in the case Kakavas v Crown Melbourne Ltd [2013] HCA 25[2]. In doing so the paper explains how the doctrine of precedent is used to reach their decisions and the role of HCA in developing the Australian law.
It has been argued by Callander, Steven, and Clark (2017) that it is the role of the judges in the court to only grant practicality to the intention of the parliament when they are addressing any dispute brought before them[3]. There are several rules which the courts are provided with in form of a guideline to implement the wish of the parliament in relation to legislation which are known as the rules of statutory interpretation. However the problem arises which the courts are presented with an issue which is not specifically governed by legislation. In this situation the courts have to rely on the principles of justice and equity to address the issue. However of addressing such issues would be left to the discretion of the judges there would be no certainty or consistency in the legal system.
The doctrine of precedent is a doctrine which has been implemented to ensure that when courts are presented with such issues they would be able to address them by maintaining certainty and consistency in the legal system. The doctrine of precedent simply requires a lower court to follow the decision of a higher court. The court which is a lower court or the court which is a higher court is determined through the court hierarchy system. For the purpose of understanding that whether the decision which has been taken by the HCA in the case of Kakavas v Crown Melbourne Ltd would be binding on the judges of the Northern Territory Supreme Court, the Australian court hierarchy system has to be analyzed[4].
The judicial system of Australia is made up of state courts and federal court. Each state has their own Magistrate courts which are the lowest courts in the state. After the magistrate court, comes the district court which is the second lowest court in the state. Above the district court is placed the Supreme courts of the states which also consists of a court of appeal. Each state has its own supreme court. Thus, the highest court in a state is the Supreme Court followed by the district court and the magistrate courts. At federal level Australia has the high court which is considered to be highest court in Australia.
In relation to this judicial system if the doctrine of precedent is applied it can be stated that the decision which has been taken by the High court is binding on all other courts of the country, irrespective of the states. The decision taken by the Supreme courts of Australia is binding on Magistrate courts and District courts. The decision of the district court is likewise binding on the magistrate court[5]. The doctrine of precedent does not have a reverse effect. This means that the decision which has been taken by the Supreme Court would not be binding on the high court. However it has to be noted that the lower courts are only bound by the decision taken by the higher courts in their own jurisdiction.
This means that the decision taken by the Supreme Court of Singapore will not be binding on the District court of NSW. Another aspect of the doctrine of precedent which is not binding in nature is that of a persuasive precedent. This is a kind of precedent which runs at a horizontal level rather than a vertical level. A judge of the High Court would not have any obligation to follow a decision of another Judge of the same court. They may only be persuaded by the decision. Likewise a judge of a Supreme court would not have obligation to be bound to the decision taken by another judge of the Supreme court they may only be persuaded[6].
Thus,, from the above discussed rules it can be ascertained that as the decision which has been taken in the case of Kakavas v Crown Melbourne Ltd has been taken by the High court which is the highest court in Australia, the decision will have a binding effect on the decision of the Northern Territory Supreme Court when the judges in this case are presented with same facts which had been discussed in the case[7]. There decision will only be applicable where the court has similar facts to address as compared to the case and not otherwise. The doctrine of precedent brings certainty and consistency to the decision making system.
The legal practitioners can use the doctrine to predict the outcome of a case. They can be assured that the decision which would be taken by the court would be based on fixed principles rather than ambiguity. As in the case of Kakavas v Crown Melbourne Ltd it had been held that “casino does not owe special duty to its patrons in cases where they have a gambling problem[8]”, a case which comes to the Northern Territory Supreme Court having similar issues have to be addressed by keeping in mind the same principles.
However, there are certain situations where the decision provided by the High court can be overruled by the Northern Territory Supreme Court. The principles of the legal system state that, whenever a dispute is identified in relation to case law and statute law, it is the duty of the court to give priority to the provisions set out by the statue law. Therefore it is clear in the situation that in case the commonwealth parliament of Australia or the parliament of the NT passes a legislation which rules that “a casino does owe special duty to its patrons in cases where they have a gambling problem” then.
the decision of the High court in the case of Kakavas v Crown Melbourne Ltd would be subjected to be overruled. In addition where a decision has been taken by another high court judge where it is stated that the judge of Kakavas v Crown Melbourne Ltd had erred in making a decision at the point of law, than the NTSC would also be provided with a right to follow a decision which has been presented by the latter high court case. The decision can also be overruled by the High court itself based in the principles of unconstitutionality[9].
From the discussion carried out above it is evident that the high court of Australia has a significant role to play in the development of law in Australia. Any decision which has been taken by the high court becomes a law when express legislative provisions are not present to address similar issues. There are various areas of law in Australia which are governed by the provisions of both common law as well as statutory law. These areas include, trust law, tort law and contract law. In addition the High court also has a significant role to play in the development of law in Australia via the provisions of statutory interpretation. As the doctrine of separation of power operates in Australia.
the role of the legislature is only to make law; it is the court which has the duty of interpreting and applying such laws in practical situation[10]. Thus,,, when a statute is interpreted by the High Court, the same meaning of the statute stands at law and has to be utilized in the same way by the lower courts until a new interpretation has not been provided. Thus,, it is evident that the Australia High courts along his a significant role in the development of law in the court. In addition the High court is the guarding of the constitution. It has been provided the right to challenge any law which has been passed by the parliament under the notion of unconstitutionality.
According to this notion the parliament has to enact laws which are in compliance to the power provided to them by the constitution. Where a law made by the parliament does not comply with the provisions of the constitution, it can be rendered invalid by the High Court. However, Grant (2014) has argued that due to the superiority of the parliament over the other wings of the government, laws are rarely disallowed by the such as the case of Kruger v Commonwealth [1997] HCA 27, (1997) 190 CLR 1, High Court[11].
In conclusion, it can be stated that the High court of Australia has a significant role to play in the development of law in Australia. Any decision which has been taken by the high court becomes a law when express legislative provisions are not present to address similar issues. The doctrine of precedent is a doctrine which has been implemented to ensure that when courts are presented with such issues they would be able to address them by maintaining certainty and consistency in the legal system.
The doctrine of precedent simply requires a lower court to follow the decision of a higher court. The court which is a lower court or the court which is a higher court is determined through the court hierarchy system. In the given situation as the decision in the case of Kakavas v Crown Melbourne Ltd has been taken by the high court which is a superior court to the NTSC it would be a binding decision and would only be overruled in case of another decision or presence of statutory law.
Backstrom, Michelle. “Legal foundations: The intersection of entertainment production and the Australian legal system.” Entertainment Law. (The Federation Press, 2017). 1-10.
Bankowski, Zenon, D. Neil MacCormick, and Geoffrey Marshall. “Precedent in the United Kingdom.” Interpreting Precedents. (Routledge, 2016). 315-354.
Callander, Steven, and Tom S. Clark. “Precedent and doctrine in a complicated world.” (American Political Science Review 111.1 2017): 184-203.
Kakavas v Crown Melbourne Ltd [2013] HCA 25
Kozel, Randy J. “Precedent and Speech.” (Mich. L. Rev. 115 2016): 439.
Kozel, Randy J. “The scope of precedent.” (Mich. L. Rev. 113 2014): 179
Kozel, Randy J. Settled Versus Right: A Theory of Precedent.(Cambridge University Press, 2017).
Lamond, Grant. “Analogical reasoning in the common law.” (Oxford Journal of Legal Studies 34.3 2014): 567-588
Pether, Penelope. “Strange Fruit: What Happened to the United States Doctrine of Precedent.” (Vill. L. Rev. 60 2015): 443.
Rembar, Charles. The law of the land: The evolution of our legal system. (Open Road Media, 2015).
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