The obiter dictum is generally considered to be statements that do not represent the ratio decidendi, i.e. obiter is anything but the ratio. However, not all judgments of a judgment fall within the scope of the ratio decidendi or obiter dictum. The book Laying Down the Law writes: Therefore, this article is my attempt to simplify and clarify the ratio decidendi for Australian jurisdiction. To do this, I reviewed relevant sections of 9 books, 12 scientific journal articles, and 38 cases. 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. [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 a judge has so much 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] Determining the ratio decidendi of a judicial decision becomes a complex task when several concurring reasons are published by several judges in the same case. In such a case, the relationship must be drawn from the essential areas of agreement found in the reasoning of the majority. [32] Imprisonment and Criminal Punishment: The Commonwealth argued that the general statements in Chu Kheng Lim v. Immigration on the exclusive judicial role in imposing involuntary detention as part of the criminal sanction in this case was not supported by a majority of the Court. They were therefore not part of the ratio decidendi of that case.
It can sometimes be difficult to identify the ratio decidendi in an opinion, as judges rarely label it conveniently. When evaluating an opinion, it can be helpful to break down the components of the opinion and look for compelling statements that directly indicate how the judge decided and why the judge made a particular decision. Although His Honour`s remarks indicate that he considered that a claim under section 588M(2) of the Corporations Act is not a claim that can be proved in the bankruptcy of a director, this opinion was not expressed after the reasoning in this case. It is not part of the ratio decidendi of the decision. This is not an opinion reached by his honorary age after the opportunity to review the decisions to which I have referred or the analysis of the precise wording of section 588M. I therefore do not think that the decision obliges me to reach a different conclusion from the one I have reached; Nor that I should. The ratio decidendi of this fictitious judgment was the interpretation of the word “dog” in § 6 of the Dogs Act. Reason, this was the only part of the judgment that required an additional step. The other parts of the judgment were simply the facts, the applicable law and the application of law to the facts. Therefore, the ratio decidendi of this fictitious judgment was that the term “dog” within the meaning of section 6 of the Dogs Act 1947 “means a single dog of a normally domesticated type” and did not extend to wolves. Later, in Jacobs v London County Council [1950] AC 361, 369, Lord Simonds stated: “There is, in my view, no justification for considering a reason given by a judge for his decision as obiter dictum because he has also given another reason.” Finally, in McBride v. Monzie Pty Ltd [2007] FCA 1947, at [6] “If a judge gives two or more alternative reasons for his or her decision, each reason becomes part of the relationship.” Although this rule originated in the United Kingdom, these cases have been upheld in many Australian cases, such as McBride v.
Monzie Pty Ltd [2007] FCA.