1 & 2- Courts Abilities and Precedent Flashcards
List the Victorian court hierarchy (from lowest to highest)
Magistrates' Court County Court Supreme Court (Trial Division) Supreme Court (Court of Appeals) High Court
What are the situations in which the courts can make laws?
Through common law and statutory interpretation.
What is precedent? Provide an example.
A precedent is a statement of law. This is made when courts use similar facts and circumstances of past cases to influence future cases.
Eg: precedent from the 1837 Langridge V Levy case was followed in the George V Skivington case (1869). The word ‘fraud’ was replaced by the word ‘negligence’.
What is the difference between binding precedent and persuasive precedent?
In binding precedent, the courts MUST follow their past decisions. Is formed by the ratio decidendi and the stare decisis.
In contrast, persuasive precedent is not binding, and courts do not have to follow their past decisions- but may be persuaded to. Includes obiter dictum.
What is the ‘ratio decidendi’?
The reasons or principles for a decision.
What is ‘stare decisis’?
To stand by what has been decided.
What is ‘obiter dictum’?
Comments made in passing, or statements said ‘by the way’.
When is common law created?
When there is no existing statute or common law on the case at hand, courts can set a new precedent which then becomes common law.
When is statutory interpretation created?
When judges interpret legislation, giving meaning to the words within it.
What are the criteria to make precedent binding?
- Is precedent from a higher court
- Is precedent from a court in the same court hierarchy
- Has similar facts and circumstances.
What are the criteria to make precedent persuasive?
- Is precedent from lower / same-level court
2. Is interstate or international precedent.
