1.5 Case law

You need to be familiar with case law, understand how it is relevant to your role, and know how to apply it.  This section supports you to do this.

Snapshot of this section

Case law is law established by the decisions of the courts in former cases.

Case law on licensing decisions is established by DLCs, ARLA and the courts.

You may need to refer to case law where it:

  • is relevant to the application
  • relates to the grounds for any agency opposition or public objection
  • has been referred to in an application, an agency report, submissions or a public objection.

 

This section covers:

  1. What is case law?
  2. How is case law established and applied?
  3. Using case law in your role

 

1.5.1       What is case law?

Case law is the law created by judges when deciding individual disputes or cases. It includes the common law (areas of law that rest mainly or entirely on court decisions) and also decisions interpreting and applying statutes (Acts).

Case law is built up from judgments given by higher courts when they interpret and apply statutes in the cases brought before them. Sometimes called ‘precedents’, these cases are binding on all courts (in lower jurisdictions), and must be followed as good law in similar cases to help achieve correctness and consistency. Over time, these precedents are recognised, affirmed and enforced by the subsequent court decisions, thus continually refining and developing the common law.

The common law might change as society’s expectations change or as statutes change. You therefore need to be careful that cases you rely on have not been surpassed, negatively commented on, or overturned on appeal.

Case law differs from the laws enacted by Parliament, which include:

  • Statutes (legislation) – statutes enacted by Parliament eg, the Sale and Supply of Alcohol Act 2012 (the Act)
  • regulations – regulations established by government agencies based on statutes eg, the Sale and Supply of Alcohol (Fees) Regulations 2013. Regulations will generally be derived from, and subordinate to, the relevant statute.

 

1.5.2       How is case law established and applied?

Courts decide the law that applies to a specific case by interpreting statutes and applying precedents. 

Our courts follow the doctrine of stare decisis, which means that a lower court is bound by a higher court where the facts/issues are materially the same.

Generally speaking, higher courts do not have direct oversight over the lower courts. They cannot act on their own initiative to overrule judgments of the lower courts. A party to the decision has to appeal it to a higher court. If a decision maker acts against precedent and the case is not appealed, the decision will stand and be binding on the parties to it.

Case law on licensing decisions in New Zealand is established by DLCs, ARLA and the courts. A decision of a DLC can be appealed to ARLA. Decisions of ARLA can be appealed to the High Court, and then, if leave is granted, to the Court of Appeal. ARLA issues practice notes and guides, which DLCs should be fully aware of and follow. 

DLCs are not bound by their own previous decisions; however, these should inform decisions on current applications. Nor are individual DLCs bound by the decision of another DLC. However, as a matter of best practice, DLCs should stay informed about relevant decisions from other DLCs around the country.  

 

1.5.3       Using case law in your role

When to refer to case law

You should consider relevant case law when preparing your position on the application, your report to the DLC, and submissions and evidence for any hearing.

You may also need to refer to case law where it:

  • relates to the grounds for your or any agency opposition or public objection
  • has been referred to in an application, an agency report, submissions or a public objection.

If you are citing case law, be wary of paraphrasing in case you inadvertently change the meaning. It is usually better to quote the words of the case directly.

Use case law sparingly.  Use commonly known precedent decisions.  Use recent case law where possible.

Case law can change quickly and you should ensure you are referring to up-to-date decisions (which have not been appealed or are not under appeal).

 

Use relevant case law

Keep any use of case law relevant to the issue. If you oppose an application because of an applicant’s character, make sure that any case law you quote is relevant to this point. 

If you are referring to case law, read the whole case rather than other people's summaries of those cases. Some cases have general statements of law which apply to all cases.  However, others only apply in certain circumstances. (This is known as ‘distinguished' on the facts:  legal terminology meaning that a court can decide that the reasoning of the precedent case does not apply due to materially different facts between the two cases.)

If you are seeking to distinguish a precedent case (particularly one which is binding ie, a High Court decision), you will need to set out why it does not apply in this instance. For example, you need say to the court, “The [agency] submits that the finding in [case] does not apply in this instance. This is because [cite reasons].”   

Check whether the quoted decision was appealed.  Has the decision had other negative comment even if it was not appealed? What was the status of the decision – was it an interim or final decision? What was the result?

 

You can’t ignore relevant case law

You cannot ignore case law that doesn't support your position, but you will have to consider whether the facts make it materially different from what your view is. You can refer the committee to case law that supports your view, and also advise them of any contrary case law. For example, “I refer you to Smith v Jones, in which it was decided that all hotels be painted red. There are 25 other judgments in support and one in opposition, which states that all hotels should be painted blue.”