What is the difference between ratio and obiter

Obiter dicta, on the other hand means 'dictums' given by the way, and binding only on the parties, and do not amount to law and hence not binding on future generations. However, there are exceptions to this rule that even 'obiter dicta' of the Supreme Court are having binding force as law. For the purpose of application of 'Ratio decidendi', the facts of two cases previous and present, must be identical, material and relevant. Otherwise, ratio decidendi is not applicable in the subsequent case.

It is called distinguishing the case. Share to Twitter Share to Facebook. Labels: Constitutional Law , Doctrine. Unknown 17 March at Subscribe to: Post Comments Atom. To avoid being bound by the precedent case, a common technique is to distinguish between the precedent case and the present case. The judge who tries to distinguish cases on the basis of materially irrelevant facts is likely to be easily found out.

Lawyers and other judges who have reason to scrutinize his effort will probably have no trouble showing it to be the initiative of someone who is careless or dishonest, and so his reputation might be damaged and his decision appealed.

That judges have the power to distinguish does not mean they can flout precedent whenever it suits them. And lastly, Mason J writes in H. Sleigh Ltd. By way of contrast, in South Staffordshire Water Company v Sharwood [] 1 QB 44, the finder of two gold rings in the mud at the bottom of a reservoice was held to be not entitled to retain them, because the site of the finding had not been open to the public.

Here, Kirby J distinguished between the precedent case Pervan V. In summary, the distinctions Kirby made were the legal issues in question and the factual circumstances. I have emboldened the key points. They nominate Pervan. However, when Pervan is properly analysed, it can be demonstrated that neither the joint reasons in that case, nor any other decision of this or another Australian court, answer the exact problem now presented for our decision.

Section 8 of that Code provided that there was a "lawful excuse for the publication of defamatory matter" if the publication was "made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair".

The reference in the first part of the enacted Queensland defence to the requirement that the relevant discussion must be "for the public benefit" has never been part of the common law. In particular, it has never been part of the law of South Australia.

The primary holding in Pervan was that s 8 of the Code did not import a requirement that the "comment", upon which the defendant relied, had to be based on facts which were true. Nor did s 8 require that the publisher hold the opinion expressed in the defamatory publication. Such were the issues in that case.

The advertisement, in the public notices section of the newspaper, summoned a meeting of ratepayers. The notice repeated statements made originally under privilege in the Queensland Parliament. Pervan addressed a statute not the common law. It related to a defence of fair comment expressed in distinctive terms in a particular setting. It concerned a publication in a regional newspaper, not a broadcast on a commercial television station. And the publication appeared in a notice in permanent printed form, not a brief broadcast of a promotional advertisement.

Although due respect will be paid to judicial observations, as a matter of law, only the ratio decidendi is binding. The ratio decidendi of Pervan is, as I have demonstrated, far removed from the legal question in issue in this appeal. That question is, relevantly, whether, in a publication such as the words and images broadcast by the defendant in the promotion, the facts in respect of which the defence of fair comment was claimed were sufficiently "indicated".

After a judgment is written, there is a period of discovery that is needed to figure out what the ratio truly is. This involves deciphering whether it has fallen outside of what constitutes as the ratio and how narrow or wide the ratio is likely to be or ought to be.

Therefore, the following is a list of rules for what constitutes the ratio decidendi. To constitute as the ratio, it must be a necessary step to the conclusion. There are many ways to conceptualise this rule. In that case the prior decision ceases to be a binding authority or guide for any subsequent Judge, for the second Judge who lays down the true principle in effect reverses the decision.

But now the question has ceased to be live and decisive. The question has become hypothetical in the sense that the assumption it rests on has turned out to be incorrect. The question is controversial among lawyers and in other cases, but as between the plaintiff and the defendant in this case the controversy has turned out to lack concreteness. For them it has become moot. There is no answer to the question posed which will produce any consequences for the parties.

The question has become purely abstract and academic. The only significance of an answer would lie in what future courts would make of it. They are likely to treat it not as a decision, but only as a dictum; not as the resolution of a controversy, but only as advice; not as an event, but only as a piece of news.

Doubtless it did so here. But the efficacy of a debate does not depend only on whether the participants in the debate have that consciousness. The efficacy of its resolution depends on the court sharing that consciousness and being assisted by that consciousness.

Here a stage has been reached in a journey along the path to decision which has caused that consciousness to cease to exist because an issue has ceased to be decisively important. No assistance can be gained from a consciousness that has ceased to exist. In this field, for me, at least, to embark on difficult and doubtful inquiries in an attempt to answer the question without the assistance to be gained from that consciousness is a potentially very dangerous course.

This is a case in which, since it is not necessary to do so, it is desirable not to. To illustrate, the following hypothetical contains a statement that is not necessary to the judgment. The facts of the case are as follows:. He stopped when he came to the field which Jill, a cooper, held as a tenant of Lord Sheffield. Jack Decided that he wanted to take a short cut to get to the market. Jill did not say to Jack that could walk across her field. This also, we believe, would constitute trespass.

Therefore, the statement was irrelevant to the case and does not constitute as the ratio. To constitute as the ratio, it must to be directly related to the issue. The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia.

Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties.

But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues. The ratio must be derived from disputes of law, not disputes of fact. Rations will not come from cases where the parties only disagree on the facts. To constitute as the ratio, it must first be argued in court.

A point of law that will become precedent should have the opportunity to be argued by both parties in court, or the law will go without the benefit of counter arguments and fine-tuning. This rule was first proposed in the old case R v Warner 1 Keb 66 at "[T]he presidents … sub silentio without argument, are of no moment". It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions.

But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s M.

I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so. The facts of the precedent case shape how narrow or wide the ratio should be applied to future cases. The less facts and the less specific the facts, the broader the application of the ratio. Certainly, it could be expected that the approach adopted in Ebner [83] and Clenae would be adapted to the circumstances of this case. In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment.

To constitute as the ratio, the majority of judges must agree where there are multiple judges. That decision is naturally entitled to the greatest respect. It is of its nature a most persuasive precedent, but it is not a precedent which is binding upon this Court. It was not a decision given by Owen J when sitting as a member of a court in the framework of the appellate structure of which this Court is part. A decision of a justice of the High Court sitting at first instance is of course of the greatest persuasive authority for this Court, but this Court is not bound to follow it, and since the decision is challenged, it becomes necessary to decide whether the construction placed upon the agreement by Owen J was the correct one.

Nor am I bound by a decision of the High Court constituted by a single justice cf Bone v Commissioner of Stamp Duties [] 2 NSWLR , at , , or by a decision of the House of Lords, although in either case such a decision is also entitled to great weight and respect. In Federation Insurance Limited V. It is not strictly necessary for this Court now to resolve the controversy as to what Deaves actually did decide.

If it matters, we agree with the assessment made by McHugh J. Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment … That is not to say, however, that a dissenting judgment may not deserve respectful consideration.

A dissenting judge will often see his or her judgment as an appeal to the brooding spirit of the law, waiting for judges in future cases to discover its wisdom. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question.

Her reasoning therefore forms no part of the ratio decidendi of that case. Detention and criminal punishment: The Commonwealth argued that the broad statements in Chu Kheng Lim v Minister for Immigration , about the exclusive judicial role in imposing involuntary detention in the context of criminal punishment, were not endorsed by a majority of the Court in that case.

They were not, therefore, part of the ratio decidendi of that case. Whilst a decision of a single justice of the High Court is deserving of close and respectful consideration, I am not bound by the observations quoted above. When judges have different reasons for their decision, find essential areas of agreement.

Justice Kirby gives us this advice in his speech, Precedent — Report on Australia:. Determining the ratio decidendi of a judicial decision becomes a complex task when multiple concurring reasons are published by several judges in a single case. In such a case, the ratio must be drawn from the essential areas of agreement found within the reasons of the judges in the majority. So if judge A decides for the plaintiff for reasons x, y, and z, and judge B decides for the plaintiff for reasons p, q, and x, and if judge C decides for the defendant, then the ratio decidendi is x, the reason and the only reason shared by a majority of judges.

As all of the Justices concurred in the order of the Court allowing the appeal in that case, the reasoning of none could be discarded. As none of the Justices expressly concurred in the reasoning of another, the analysis depends upon a comparison of the reasons which each gave. Barwick C. Authority makes plain that it is not permissible to construct a ratio decidendi by the aggregation of various elements of separate reasons, still less to extract an element from a dissenting judgment and combine it with an element from a majority judgment in an attempt to create a majority in favour of that element.

Parity of reasoning dictates that, where a majority of the Court of Criminal Appeal has decided that there has been a miscarriage of justice, it is not permissible to construct a further decision by a majority of that Court that there has been "no substantial miscarriage of justice" by aggregating the decision of one member of the Court to that effect with the decision of another member of the Court who was not persuaded, at the point of the anterior question, that there had been a miscarriage of justice.

In such circumstances, a majority of the Court has decided that there has been a miscarriage of justice, and it follows that the appeal to that Court must be allowed.

Where the material facts are the same, judgments may still be binding on lower courts even if there was no ratio, providing that the facts are the similar.

But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided 59 Dickenson's Arcade Pty. Commissioner of Business Franchises Vict. But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided? It cannot mean that a court bound by that decision is bound only by the precise facts of the case.

Stare decisis and res judicata are different concepts. Midland Silicones Ltd. These two terms are synonymous in that they are both part of every judgment given in a court. However, they are not the same. Difference Between Ratio Decidendi and Obiter dictum. In deciding legal issues, the law normally makes two types of legal pronouncement.

The first is based on the material facts before the court. This is the ratio decidendi and it constitute the case law. The other pronouncement is not based on the material facts before it. Understanding these terms will go a long way to determine your ability to explain which part of the judgement of a court is important for lower courts to follow in their own judgment.

In this article, i will briefly explain the differences between Ratio Decidendi and Obiter dictum. I highly recommend that you read this work carefully if you really want to be able to differentiate between the two. Also, you are encouraged to watch the YouTube video below very carefully as it explains more on what Obiter dictum and Ratio Decidendi entails. Also see: Why lawyers put on wigs even till today. Differences and similarities between Ratio Decidendi and Obiter dictum.

The underlying idea is that every case which applies the law to a given set of facts is animated by a legal principle which is necessary to the decision arrived at, and it is the principle which form the binding elements in the case.