Precedent means that judges must follow interpretations of the law made by judges in higher courts, in cases with similar facts or involving similar legal principles.

In 1966, the UK House of Lords justified this principle as follows:

"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules." ([1966] 3 All ER 77, [1966] 1 WLR 1234).

The doctrine of precedent is sometimes known by its Latin equivalent ‘stare decisis et non quieta movere’, stare decisis for short, which means:

'to adhere to precedent and not to unsettle things which are established.'

For example, a decision of a judge in the High Court is binding on judges in all lower courts. However, a decision is only binding on other courts in the same jurisdiction. A decision of a state Supreme Court is not binding on the Supreme Court of a different state.

Some of the rules that make up the doctrine of precedent are:

A judge follows the law declared by judges in higher courts in the same jurisdiction in cases with similar facts;
A court must give reasons for its decision in a case. The reasons should include an explanation of why the court has chosen to follow, or not follow, a previous decision that is similar to the case before it. When an earlier decision is not followed it is said to be distinguished from the earlier case;
Most courts are not bound to follow their own earlier decisions, although they often do. For example, the High Court of Australia follows its own earlier decisions in most cases but is not required to do so;
The decisions of courts outside Australia are not binding on Australian courts, although they can be used to assist or guide Australian courts in making decisions on new facts. For example, if a matter before an Australian court is unusual or difficult, judges and lawyers might look to overseas decisions for guidance or comparison; and
The decision of the highest court within a particular jurisdiction is final. The highest court is the court to which the final appeal can be made. In the Australian system, this is the High Court.

Clearly an understanding of which decisions are binding on a judge depends on the hierarchy of courts in the jurisdiction.

Court hierarchies

The law courts in Australia form a hierarchy. The hierarchy of courts is an essential part of our justice system. It allows:

lower courts to follow precedents made by higher courts, this ensures consistency while still allowing the law to be modified over time;
for appeals to higher courts; and
particular courts to specialise in hearing particular types of cases and interpreting particular statutes.

In summary, the hierarchy of courts that is relevant for us is:

High Court of Australia

The High Court is the highest court in Australia. It was created by Section 71 of the Constitution. It has appellate jurisdiction over all other courts, that is, it is the highest possible court of appeal. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State, and Territory courts.

In most cases, the appellate divisions of the Supreme Courts of each state and territory and the Federal Court are the ultimate appellate courts. The Full Court of the High Court is the ultimate appeal court for Australia.

Federal Court of Australia

The Federal Court was created by the Federal Court of Australia Act 1976. It primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration, and other areas of federal law. It has original jurisdiction in these areas. It also has the power to hear appeals from a number of tribunals and other bodies and, in cases not involving family law, from the Federal Magistrates' Court of Australia.

The Federal Court is below the High Court in the hierarchy of federal courts, and decisions of the High Court are binding on the Federal Court. There is an appeal level of the Federal Court (the Full Court of the Federal Court), which consists of several judges (usually three but occasionally five in very significant cases).

State and territory courts

Each state and territory has a court hierarchy of its own, with the jurisdictions of each court varying from state to state and territory to territory. However, all states and territories have a Supreme Court which is a superior court of record and is the highest court in that state or territory. These courts also have appeal divisions, known as the Full Court or Court of Appeal of the Supreme Court (in civil matters), or the Court of Criminal Appeal (in criminal matters).

Decisions of the High Court are binding on all Australian courts, including state and territory Supreme Courts.

Most of the states have two further levels of courts, which are comparable across the country. The District Court (or County Court in Victoria) handles most criminal trials for less serious indictable offences and most civil matters below a threshold (usually around $1 million). The Magistrates' Court (or Local Court) handles summary matters and smaller civil matters.

Hierarchy of courts in patent matters

The major types of court actions in relation to patents are infringement and revocation proceedings.

These actions are initiated in the Federal Court or a Supreme Court (s120, s134, and s155). Original actions may only be heard by a single judge of these courts (s156). The only direct court of appeal is the Federal Court (s158). Appeal from the Federal Court is to a Full Court of the Federal Court, and then to the High Court (s158).

Therefore, the hierarchy in patent matters is:

Amended Reasons

Amended Reason	Date Amended
	18 Oct 2023
Published for testing	06 Jun 2023

5.2.2 Working with Case Law

Also in this Chapter:

Key Legislation:

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The doctrine of precedent