The doctrine of precedent in Australia

Despite what the realists and other critics might say, Australian judges in particular, do take the doctrine of precedent seriously. This is evidenced by the volume of cases that are discussed in this thesis. Included in these cases are numerous decisions of the High Court of Australia. My approach to the topic has been wherever possible, to rely on primary authorities - the cases and legislative provisions - with reference being made to secondary materials only where such materials are of undoubted standing. As a general rule, I have limited discussion to the operation of the doctrine in courts of general jurisdiction, with only occasional references to specialized courts and tribunals such as the Family Court of Australia and Administrative Appeal The Doctrine of Precedent in Australia Tribunals. The focus of the thesis is on what the judges actually do. It is not intended to approach the topic from a jurisprudential perspective. I have not attempted to develop a Grand Theory, but there is a theme: that as Australian judges in courts below the High Court, and in some cases in that court itself, often regard it as 'invidious'1 to have to decide matters for themselves, the judges frequently concern themselves with what the doctrine of precedent demands of them. My approach has been to synthesize many scattered observations on the doctrine of precedent - which has not been done before in Australia. In a number of areas where the rulings and dicta of the courts have left contradictions or a gap I have attempted to derive and to articulate a set of rules from such hints as can be found in relevant judgments. I trust others will find such rules helpful, logical and persuasive. The law is stated as at 31 July 1995