18.4.2 Precedent Common law is developed through the legal principle of precedent. If your sister was given a car for her 18th birthday, you might expect your parents to do the same for you because your parents have set a precedent. Courts use the same idea. When a judge makes a decision in a court case, this decision will be recorded in a law report. Other judges hearing cases with similar facts will refer to these decisions. As judges follow precedents set in earlier cases, the law is applied consistently and fairly. Additionally, it might be possible to predict the outcome of a case. This process, which is used by courts to interpret
statutes and create precedents, is shown in FIGURE 4 . Precedent works because of our court hierarchy.
FIGURE4 The decision-making process for settling disputes in court
Dispute before court
Is there a past case where facts are similar?
No
No
Is there relevant legislation?
Create new precedent
Yes
Yes
Apply legislation
Decision
No
Is it binding on current case?
Is it persuasive?
Decision
Yes
Yes
Decide whether to use or whether to create new precedent
Apply
Decision
Decision
18.4.3 Australia’s court hierarchy Australia’s court system is made up of many different courts, which are arranged in levels in order of importance (a hierarchy). The higher courts in the hierarchy hear the most serious matters; less serious cases are heard in the lower courts. At the bottom of the court hierarchy is the Magistrates Court (called the Local Court in New South Wales, the Magistrates Court in Victoria and elsewhere). These courts hear more than 90 per cent of the cases that go to court, and they have a large number of courthouses. There is probably one in your local area. The District Court (called the County Court in Victoria) exists in most states and sits only in the main cities. There is only one Supreme Court in the capital city of each state, and only one High Court in Australia (in Canberra).
536 Jacaranda Humanities Alive 8 Victorian Curriculum Third Edition
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