Does Judicial PrecedentKill Creativity - Assignment Example

The Running Head: Question 1 & 2   Your name:   Course name:             Professors’ name: Date: Question 1: Judicial Precedent does it kills creativity? The use of the Doctrine of Precedent in many decisions of the High Court has come under the spotlight of the public scrutiny in Australia. Many questions in the public domain have been raised over those decisions that the High Court adhered to the Doctrine of Precedent and the Separation of Powers doctrine. The Doctrine of precedent means Judges in a cases are required to follow the set out rule of law that has been established in the previous already decided cases of the Court of the equal status or higher in status, if the legal principle of the case is same and the facts are similar to previous case.1 Judicial precedent will only operate effectively where past decisions have been stated or known-ratio decidendi ‘or reasons for deciding’- and it is this part of the court judgment that is binding, but anything that the High Court Judge says can be persuasive but are not binding in the case and can be challenged.2 In judicial precedents it usually explain the principle of common law system, in the previous cases judges and magistrates made their judgments based on the proven facts which have been provided by lawyers of both the plaintiff and defendant, as well as the principle of all existing past laws. A judge or a magistrate can take the judgment of the past cases that will help him/her to make the present judgment, or he may decide the present case in the same as the previous similar case,3 unless he give a good reasons for not doing so; It will only depend with the judge or magistrate preceding the court case. in some cases, judicial precedent have a binding effect, but in other situation, judicial precedent can have a degree of persuasive effects. In most cases, judicial precedents of higher courts are binding to the courts which are lower in ranks, for example, previsions decision made in Court of Appeal will bound those of High Court. In most cases common laws are usually used to describe judge-made law which have been handed down through previous cases of the same statues, in other words, laws which does not have an Act of Parliament as its source, for example in murder cases and on civil side tort will depend entirely on the judicial preceding of previous cases.4 There some cases in which judicial precedent can be overruled and this is within the hierarchy of the courts, for example if the previous judge did not correctly interpret the law or the ruling in the judicial preceding is no longer supportable or desirable.5 Decisions made by courts need to be flexible to meet the society expectations, and in the mainstream society case laws which have been decided can make changes faster than the parliament.6 There are ways in which a judge or a magistrate can manipulate the common Law, and without waiting for the members of parliament to enact laws, for example, in the ruling of Airedale NHS Trust v Bland [1993] it was about whether a patient depending on life support machines should be switched off when that person is in a “vegetable state” although by switching off the life supporting machine was contravening the Human Right of that patient- right to live. Another example was the question whether a Siamese twin would be separated through operation by the recommendation of the hospital, the parents were against it. In both case the House of Lords were in agreement with the hospitals.7 Judges and magistrates who follow declaratory theory of law where they show their allegiance to parliament and judges/Magistrates consider parliament to be the highest supreme institution in the country of making law of the country. In this case judges will consider themselves to be merely interpretative, those judges/magistrate who belong to this school of thought do not give room for judicial creativity.8 On the contrary, there are some judges/magistrates who create reasons and would not want to be bound mechanically with higher court’s decisions by creating new law or giving meaning to the old law. There are many opinions whether all judges or magistrates should adapt the “stare decisis” attitude, there are some people in the legal profession who feel judicial precedent not to be normal, why should a judge follow higher authority’s decision besides that one of parliament, while other are on the contrary opinion that a judge should be bound by ratio decidendi when he/she makes a ruling. In recent time there has been no attempt by parliament to put a stop to judicial precedent, but whenever lower courts depart from judicial precedent- higher courts- they are normally reprimanded by the higher courts by either their judgment being reversed, and this usually creates a bad precedent. Some legal professionals believe judges to make law and should be dependent of a number of factors, for example, a case should be ruled according to the growth of time and the sophistication of today’s society, in other words they believe "nakedly usurping the function of parliament," in other times judges/magistrates should allowed to “fill up the gaps” that is unintended by law making organ (parliament).9 An outdated judicial precedent can be compared to a mummified corpse of long-dead social values in which a judge may be forced to apply an out-dated ruling of a superior court that has been into existence for many years because no one has attempted change the precedent. Also, lawyers and their clients can predict on the outcome of a particular case, if judicial precedent has to be followed because once the legal rule has been made in the superior court in one case, lawyers and their client can orientate their behavior with regard to that particular rule made in the superior court,10 they will be secure in the knowledge that that decision won’t be changed sooner or by a lower court or similar court of status, on the other hand judges/magistrates have to make their ruling based on judicial precedent even though they feel it is inappropriate to them.11 Question 2: In the case between ACCC v Allergy Pathway Pty Ltd (No 2) [2011] that was a significant ruling of the Federal Court of Australia (2011).12 The statement that was posted in Pathway Pty Ltd on the company’s both Facebook and Twitter walls by the third parties were regarded to be the comments by the company, and these publications had breached the previous undertaking of the Federal Court; the company not to involves itself on the conduct that will breach Australian Consumer Law.13 the companies that are dealing with direct selling or supply products which have high level of regulatory scrutiny, like in the case of Allergy Pathway Pty Ltd should be cautious when using social networks to advertise their products; the company should monitor and review all the comments that are made by the third parties (consumers) to ensure all the post which are deceptive are removed from their walls. 14 The ACCC in 2009 brought allegation before the court that Allergy Pathway Ltd had engaging in misleading and deceptive conduct, which had contravened ss 52, 53(aa), 53(c) and 55A of the Trade Practices Act 1974 (Cth) (TPA).15 and they were falsely representing their goods and services to be of particular standards or quality and had benefits, which they do not have; and the company was liable to misleading the public. In particular, the was noted that the company in various publications had falsely stated that: it could test for allergens; it could cure eliminate the allergic reactions; it could treat allergic reactions; it mode of treatment of allergies was safe and of low risk; and it was okay after the treatment of an allergy to have contact with substance which the individual had reaction to. To support their claims, ACCC used the report of Professor Douglass, who was the Head of allergy Asthma and Clinical Immunology Service- Alfred Hospital. The respondents accepted that the statement which were posted at their websites breached their undertakings, and the Court was to determine whether the company and its directors were similarly in contempt for going along with the misleading posted comments on the company’s social network pages, and the comments remained there after the company and its directors became aware of the comments posted on its website.16 In his ruling, Finkelstein J said the company and its directors were in contempt of the law because of these statements posted in their social network walls; the factor in his determination of the case was that, the company did not take any necessary action to remove the statements posted to their social networks by the third parties, and that in itself it would have been in breach of the undertaking by the company. Judge Finkelstein J said, “at one point we could not conclude Allergy Pathway was responsible for the third parties statements posted on their websites, but it was appropriate to conclude that the company accepted the responsibility for the statements posted in their social networks walls, when it knew of the statements and decided not to remove them on their social networks walls; hence we can conclude the company became the publisher of the comments. When the company knew existence of those statements, it is enough to conclude that Allergy Pathway was in breach of the second limb of its undertaking,” court made declarations of breach, corrective advertising and costs.17 In the ruling, each respondent was fined 7,500 dollars, Injunctions for 3 years were made, and the company was told to stop giving false information to consumers about the efficacy of treatment that is available at its clinics. Also, the judge declared the company had falsely represented that: it could test and identify substances which and allergic person was allergic to, it could treat or eliminate all the allergies a person was suffering from, and after treatment, the person can come into contact with problematic substances that made the individual to be allergic. The judge ruling had important implications for companies using social networks to promote their products and services.18 Social networks can be highly effective advertisement resource, with this ruling in mind, companies need to ensure adequate and proper procedures have been put in place, before using social networks to promote their goods and services by such means, particularly they should take cautions on the misleading testimonials that are being posted by third parties in their social networks, and if that procedure is not in place, companies risk facing penalties for contravening the new Australian Consumer Law; it is unlawful to make, or use, false or misleading testimonials.19 In the case between ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 there was no judicial precedent because the judge made his own law concerning the matter; he did not rely on the previous or similar case. the judge was able to explain the principle of common law system, and this was from the proven facts which have been provided by ACCC against Allergy Pathway Ltd. 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