Law105 : Introduction To Business Assessment Answers

Question: 

In June 2013, the High Court held that a casino does not owe special duty to its patrons in cases where they have a gambling problem.
The Court, in a joint judgement, upheld the decision of the primary judge stating "[i]n the absence of a relevant legislative provision, there is no general duty upon a casino to protect gamblers from themselves.”

Does the Northern Territory Supreme Court have to follow this decision? What would be required for this decision to be overruled? In your answer, explain how the Australian courts employ the doctrine of precedent in reaching their decisions. Refer
particularly to the role of decisions of the High Court in the development of the law in Australia. 

Answer: 

The primary purpose of this paper is to analyse the applicability of a ruling made in the High Court on the Northern Territory Supreme Court in the case of Kakavas v Crown Melbourne Ltd [2013] HCA. The paper also reviews situations where the ruling made by the high court can be overruled. In doing so the paper throws light upon the role of High Court in the development of law in Australia. In this case it had been ruled by the court that “casino does not owe special duty to its patrons in cases where they have a gambling problem”. Whether or not this decision would be applicable on the ruling made by the Northern Territory Supreme Court have to be analysed in the light of the doctrine of precedent. The question of whether the ruling can be overruled can also be determined by referring to the way in which the doctrine of precedent operates in the Australian legal system. In Australia the court system is divided into Federal courts and state courts. The High court of Australia is the highest court in the jurisdiction of the country. This is followed by the Supreme Court of different states and then by the district and County courts.

The doctrine of precedent is a common law principle which undermines the legal system of Australia. The Latin name provided to the doctrine is stare decisis which means to standby what has been decided. It is the rule under which judges are required to follow determinations and rulings of the judges of High Court where a case is concerned with similar issues and fact. This Doctrine had evolved in the mediaeval England when law was formed and judges required great consistency and standardization for the application of law. The development of the Doctrine and common law mandates the judges to make consistent and rational decisions. The application of the doctrine of precedent is only done when the court is considering a case actively. The approach which the judges have to follow in case they are subjected to an issue include a certain in the facts from the parties to the case, reviewing the applicable legislation and integrating it, identifying and reviewing previous rulings and precedents, making sure that replacement would be applicable in the situation, in case there is no precedent then make a new rule which would established precedent and include a ratio decidendi providing reasons for the judgement. For the purpose of functioning effectively, one of the most critical factors for the doctrine of precedent is the court hierarchy. When the precedent has been set in a Higher Court it is applicable on all lower courts, however in the same Court hierarchy. A Precedent in the high court of Australia for example would be binding on the Supreme Court of Victoria, County courts of Victoria and also the magistrate courts of New South Wales. However it is not applicable on the courts of other countries. On the other hand where a decision has been made in the Supreme Court of New South Wales the precedent can be overturned in the High Court. In the same way a decision which has been taken in the supreme court of Northern territory will not have a binding effect on the decision of the Supreme Court of New South Wales where the court would be addressing a similar issue. Although there would not be a binding effect, there would be a persuasive precedent. The intention of the doctrine of precedent is to ensure that there is the consistency efficiency and certainty in the legal system. This would help the people in the society to confidently pursue their rights and responsibilities knowing that a particular issue would be ruled in a particular way.

The doctrine of separation of powers is applicable in Australia. Through this doctrine the functions and roles of three Wings of the government has been separated from each other. The judges of the courts are only provided with the role of implementing the intention of the Parliament in relation to the legal system. Whenever any dispute is brought before them they have to refer to the law made by the parliament to address the issue. Several rules have been imposed on the courts under which they have to fulfill their obligation of integrating the law made by the parliament. These rules are commonly called the rules of statutory interpretation. However not in every area of law has a legislation been made by the parliament. These areas are resolved by the court through the application of common law. Common law is a law which is made by the judges of court themselves. This is also known as case law or equity law. These laws are based on the notion of equity and Justice. It has been argued by Lamond (2014) that giving judges the power to make law would be against the doctrine of separation of powers and would lead to inconsistency and uncertainty in the legal system. In this situation the doctrine of precedent comes into the context and mandates the judges to provide respect to the decision made by other judges in the past. However to ensure effectiveness of the doctrine judges are only required to follow the decision of the Higher Court. Therefore it can be stated that the doctrine of precedent runs vertically rather than horizontally. The decision of the High court is binding on all of the Supreme Courts in Australia under the doctrine. In the light of the above discussed scenarios it can clearly be stated that as the doctrine of precedent is applicable in Australia a decision which has been made by the High Court has to be followed by the supreme court of any other state. This is because the Supreme Court is below the high court in the court hierarchy system. In the same way the northern territory Supreme Court has to follow the decision which has been provided by the high court in the case of Kakavas v Crown Melbourne Ltd.  

It has been argued by Kozel (2016) that the doctrine of precedent is defective as it addresses what has already been decided rather than what is right. In the three rules of a good legal system it has been provided by professor Hart that rules of change has to be present in a legal system. The rules of change indicate that legal provisions have to be amended with the changing needs of the society. In order to address the defect in the doctrine of precedent and to incorporate the rule of change within the legal system, a decision which has been made by the high court can also be overruled. It has already been discussed above that the doctrine of precedent would only come into the situation where there is no legislation governing the issue in hand. The primary reason for this is that in the light of the role of the judges to implement intention of the Parliament, when there is any dispute between a law made by the judge which is a common law or precedent and a law made by the Parliament which is the statutory law the latter would always prevail over the former. For instance, it has been provided in the case of the Kakavas v Crown Melbourne Ltd by the High Court that “casino does not owe special duty to its patrons in cases where they have a gambling problem”. When a similar issue is brought before the court of Northern territory the judges have to take into consideration the rules provided in the case by the High Court. However in situation where the state of Northern territory has passed the legislation which is contrary to the rule provided in the case of Kakavas v Crown Melbourne Ltd by the High Court it would be mandatory for the Supreme Court of Northern territory abide by the legislation rather than the precedent set out by the High Court. In this specific situation the decision of the High court would be overruled by the statutory law. In the same way as legislation, case law which has been made by the judge of a High Court will also overrule a previous decision. A profound example has been seen in the case of Imbree v McNeilly [2008] HCA 40. In this case the High court at overruled its own decision in relation to an issue of whether a person has duty of care to a passenger who has been supervising him for driving. Therefore the Northern Territory Supreme Court would have a right to overrule the decision of the high court which has overruled the decision provided in the case of Kakavas v Crown Melbourne Ltd.

As stated by Mousavi (2016) the Australian High Court has a considerable obligation of ensuring proper development of the legal system in Australia. This is because the High court is the highest judicial institution of the country. Any rule which has been made by the High court would be binding on all other courts of the nation. However this would only happen when express legislative provisions do not overruled the decision of the High Court. When it comes to legal areas like trust, contract and tort the rules of common law are usually applied by the courts. Therefore any form of inconsistent decision which can cause uncertainty in the legal system would have a considerable impact on the trust and faith of the citizens in the legal system of the country. Lawyers would not be able to predict the outcome of a case and citizens will not know the exact way in which they should act to ensure legal compliance. Along with making case laws the High court also has the responsibility of giving meaning to the intention of the parliament by integrating legislations. When a High Court has provided meaning to legislation the same meaning is followed by every other court in the country until and unless legislation overrules such meaning or the decision of the High Court itself provides another meaning to the legislation. Being the highest judicial institution in the country the High Court has also been provided responsibility to protect the constitution. The Parliament can only make laws which are consistent to the powers provided to them under Section 51 of the constitution. Therefore when a law has been made by the Parliament the High Court has the responsibility of analysing whether such law is in compliance to the powers provided by the constitution. If the court finds that these laws are not in compliance to the powers it can nullify the law and thus be the significant role in the development of law in the country.

Concluding the paper, it can be stated that the role of the HCA in developing the law of Australia is significant. In the light of the above discussed scenarios it can clearly be stated that as the doctrine of precedent is applicable in Australia a decision which has been made by the High Court has to be followed by the supreme court of any other state. This is because the Supreme Court is below the high court in the court hierarchy system. In the same way the northern territory Supreme Court has to follow the decision which has been provided by the high court in the case of Kakavas v Crown Melbourne Ltd. The decision is also entitled to be overruled in some specific situations. These include situation where the state of Northern territory has passed the legislation which is contrary to the rule provided in the case of Kakavas v Crown Melbourne Ltd by the High Court it would be mandatory for the Supreme Court of Northern territory suicide by the legislation rather than the precedent set out by the High Court. In the same way as legislation, case law which has been made by the judge of a High Court will also overrule a previous decision.

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Kakavas v Crown Melbourne Ltd [2013] HCA

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