guilty of rape on the other spouse.
369
Another example concerned the rule at
common law that a person could recover money paid under a mistake of fact
but not under a mistake of law. In 1992 the High Court of Australia modified
this rule to allow a person to recover money paid under a mistake of law where
they had paid money to a person who was not legally entitled to receive it.
370
Ambiguity in a Rule
It is always possible that part of an element or part of the consequences is
ambiguous. In this case the later court has to resolve the ambiguity by
interpretation.
Obiter Dictum
Ratio decidendi is the rule of law on which the case was decided. Any other
statement of law in the case is classified as obiter dictum. As will be stated
below, the relevance of the distinction concerns a later court following an
earlier court. A later court is bound, if at all, by the ratio of the case, but not
by any obiter dictum. That said, a carefully reasoned obiter dictum can carry
weight as a persuasive even if not determinative statement of law.
371
Prediction
A precedent is a past case that states a rule of law that is the ratio of the case.
But when the same issue, a similar issue or a related issue arises in another
case and a court will use this established rule (the ratio of the earlier case) to
resolve the issue, then lawyers try to predict the outcome.
372
Ratio, therefore, is both past and future. Ratio operates
retrospectively to
resolve the case in which the ratio is formulated. Finding the ratio, therefore, is
legal archaeology, digging up and examining cases from yesterday and before.
Ratio operates prospectively because it is used as a projection of how future
cases will be decided. It is gazing into a crystal ball as part of a process of
predicting the future, namely shedding light on how a court will respond to an
issue when it next comes before it.
373
369
R v L (1991) 174 CLR 379
370
David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353
371
A famous example is Hedley Byrne v Heller [1964] AC 465. The report of this
case took up 60 pages of the law report. Some 50 pages was consumed with an
obiter statement to the effect that in some circumstances (which were stated) a
person could sue another for negligent advice leading to purely financial loss.
Since this was a decision of the House of Lords, the highest court in the British
hierarchy, the message was clear –
when the right case comes along, this is how
we will decide it.
372
Atiyah (1992)
373
See Atiyah (1992), Starke (1988).
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