Now that we have looked at the descriptive ratio, we need to look at the prescriptive ratio, that is, how the precedent ratio can be applied to future cases. 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. Ultimately, it is up to the future court to decide how close or broad the precedential relationship should be. Gleeson J.A., Gummow, Hayne and Heydon JJ. stated in Woolcock Street Investments Pty Ltd v. CDG Pty Ltd [2004] HCA, at [61]: First, Gaudron J. (with McHugh J. and myself) disagreed in Pacific Coal. Their reasoning is therefore not part of the ratio decidendi of this case. [4] The different reasoning of the majority in Re Tracey and Re Nolan means that none of these cases has a ratio decidendi. This does not mean, however, that the doctrine of stare decisis is irrelevant or that the decisions in these cases have no precedent.
Since it is impossible to extract a ratio decidendi from the two cases, each decision is decisive only for what it decided ((59) Dickenson`s Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177, p. 188; Philip Morris Ltd. v. Commissioner of Commercial Franchises (Vict.) (1989) 167 CLR 399-496.). But what does it mean that a case whose ratio decidendi is not recognizable is authoritative for what it has decided? This cannot mean that a court bound by that decision is bound solely by the exact facts of the case. Stare decisis and res judicata are different concepts. The essence of the judiciary is the resolution of disputes between the parties.
If the parties do not want to discuss a particular issue, it is up to them to decide. It is not the tribunal`s role to decide issues on which the parties agree. It is not an answer to this argument to say that this court has a duty to determine the law for Australia. Cases are only authorities for what they decide. Where a point of a case is not contested, the decision does not contain any rule of law on that issue. If the question conceded is a necessary element of the decision, it creates a estoppel that binds the parties forever. But that`s it. The case cannot have a broader ratio decidendi than that at issue in the present case. Its precedent is limited to problems. [112] Strictly speaking, Ebner`s (and Clenae) ratio decidendi concerned an issue that does not arise in these appeal proceedings.
It concerned the exclusion of judges because of their own financial interests in a bank that had its own financial interest in the outcome of the dispute (in the Ebner case) or that was actually a party to proceedings before the judge (in the Clenae case). In this case, the trial judge had no personal financial interest in the outcome of the dispute. His brother had an indirect and conditional financial interest. To the extent that the Chief Justice had an interest or obvious interest, his nature was potentially familial, emotional or empathetic. It wasn`t financial. It was therefore a case of disqualification by family relationship with the brother, who in turn had an indirect and conditional financial interest in the dispute decided by the judge, his brother. [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. If the facts are the same, judgments may bind the lower courts even if there was no proportion, provided that the facts are similar. The book Laying Down the Law made this point well: „If the essential facts are the same, the lower court will always have to come to the same conclusion by applying the same legal standards as the higher court, even if the law would not have been challenged in that particular decision of the higher court.” [36] In all cases, there is no ratio decidendi. In Perara-Cathcart v. The Queen [2017] HCA, Justice Gageler stated: While a decision by a judge of the High Court deserves careful and respectful consideration, I am not bound by the remarks cited above. On the one hand, it is obiter dicta and, on the other hand, the decision in F. Hoffman-La Roche is in no way binding on me as a precedent: Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651-654 and 664. To form the relationship, it must be a necessary step towards conclusion. There are many ways to conceptualize this rule.