[147] To conclude that, in order for the respondent to successfully raise the fair opinion defence in the circumstances of this case, it must persuade the Court to strike down a legal principle for which Pervan (as the common reasons suggest) distorts the requirement of Australian jurisprudence. Although special attention is paid to judicial decisions, only the ratio decidendi is legally binding. The ratio decidendi in Pervan is, as I have explained, far removed from the question of law at issue in this appeal. This question is relevant to determining whether a publication such as the words and images disseminated by the defendant in the advertisement sufficiently “indicated” the facts on which the defence of fair opinion was invoked. At first glance, this seems to contradict the last point (10). However, the court may not be bound by the relationship, but it may still be bound by the precedent. Suppose Jack`s actions were considered trespassing, and suppose the judge went on to explain, “Ms. Jones raised in the argument the consequences of a defendant`s tunnel under plaintiff-owned land. In our view, that would also be an intrusion. [23] However, the facts of the case did not concern the construction of tunnels. Therefore, the statement was not relevant to this case and does not represent it as a ratio. [76] Where the members of a plenum of the High Court “are divided in their opinion on the decision to be made on a question”, the rule of decision is set out in section 23(2) of the Judiciary Act 1903 (Cth). If the case falls within the jurisdiction of the High Court on appeal and there is a similar disagreement, the impugned decision remains.
If there is an equal division within the original jurisdiction of the High Court, the opinion of the Chief Justice or Chief Justice shall prevail. In each of these equally divided circumstances, the applicable decision rule leads to a settlement of this dispute. In none of these cases does the application of the rule result in a decision that necessarily constitutes a binding precedent. If the disagreement in the High Court is not equal, the rule of decision is that “the matter shall be decided in accordance with the decision of the majority”. That rule leads to the resolution of the present dispute, even if the summary of the reasons for the majority members` decision cannot sometimes lead to a ratio decidendi. Before continuing, I would like to emphasize one distinction: the distinction between law and empiricism. What the law is does not necessarily imply how lawyers and judges actually think and behave. For example, some theories claim that judges have an intuitive idea for solving a case and then think backwards, that is, they find credible authorities and reasons why their guess is correct.
[2] How judges think and behave is an empirical question that legal rules cannot answer. Therefore, the following article is a legal analysis of what the relationship and the saying is, not an empirical description of what is really happening in the courts and in the minds of lawyers and judges. The case law makes it clear that it is not permissible to construct a ratio decidendi by combining different elements of distinct grounds, let alone to extract an element of a dissenting judgment and combine it with an element of a majority judgment to create a majority for that element. Parity of reasoning requires that, if a majority of the Court of Criminal Appeal has found that there has been an error of justice, it is not permissible to interpret a new decision of a majority of that court that there is “no material error of justice” by combining the decision of one member of the Court of Justice to that effect with the decision of another member of the Court. who was not convinced. instead of the preliminary question that there had been a miscarriage of justice. In those circumstances, a majority of the Court concluded that there had been an error of justice and it follows that the appeal before that Court must be upheld. [35] “If a judge has such freedom to determine which of his remarks is ratio decidendi and which is obiter dictum, is there not a great danger that he will exert undue influence on the future development of the law? He only has to make twenty proposals and say that he bases his decision on each of them for having created twenty new legal rules. [1] Obita dicta have different degrees of weight. On the light side, there are simple fleeting remarks, and on the heavy side, there are statements that have been fully argued as if it were the ratio. [42] In most cases, judges are successful in avoiding these extremes.
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