3.3.1 Operation of the Doctrine of Precedent

Question 1

Court Hierarchy:

Answer 1

• High Court
• Supreme Court (Court of Appeal)
• Supreme Court (Trial Division)
• County Court
• Magistrates Court

Question 2

Common Law:

Answer 2

Law developed through the courts/judges

Question 3

Doctrine of Precedent:

Answer 3

States that lower courts are bound to follow the decisions of higher courts in the same hierarchy in cases where the material facts are similar.

Question 4

Doctrine of Precedent creates:

Answer 4

Consistency and predictability

Question 5

Precedent:

Answer 5

Establishes a principle or rule of law that must be follow by other courts.

Question 6

State Decisis:

Answer 6

Courts will “stand by what is decided” by higher courts

Question 7

Ratio Decidendi:

Answer 7

“The reason for the decision” and the binding part of the judgement.

Question 8

Obiter Dictum:

Answer 8

“Things said by the way”. Statements made by the judge in the precedent case that is not binding.

Question 9

Binding Precedent:

Answer 9

Precedents that must be followed. Only binding if case has:

• Similar Facts
• Precedent set by a higher court in the same hierachy

Question 10

Persuasive Precedent:

Answer 10

Can be seen to be noteworthy and highly regarded proportions of law and can be influential on decisions but not binding.

Question 11

Persuasive Precedent (2):

Answer 11

Don’t have to be followed :

• From another jurisdiction
• From a court that is lower or equal to the court

Question 12

Case 1:

Answer 12

Donoghue v Stevenson

Question 13

Case 2:

Answer 13

Grant v Australian Knitting Mills

Question 14

Persuasive Precedent example:

Answer 14

Donoghue V Stevenson persuasive on Grant v Australian Knitting Mills

Question 15

Reversing:

Answer 15

When a case is decided the other way on appeal. Thus the Higher Court believes the lower court wrongly decided the case.

Question 16

Reversing Example:

Answer 16

Studded Belt Case (Supreme Court)

Question 17

Overruling:

Answer 17

When a superior court decides not to follow the decision of a lower court. Creates a new precedent.

Question 18

Overruling Example:

Answer 18

AON Risk Services Australia Ltd v Australia National University, overruled decision made in Queensland v JL Holdings Pty Ltd

Question 19

Distinguishing:

Answer 19

A precedent does not need to follow if the facts of the case are not similar to the facts of the precedent case.

Question 20

Distinguishing Example:

Answer 20

Davies v Waldron 1989

Question 21

Disapproving:

Answer 21

• When a court does not follow a precedent set in a court as the same level, they are said to have disapproved the decision.
• Disapproval does not change the precedent.
• Judges in an inferior court can express disapproval about a precedent set in a superior court they are bound to follow.

Question 22

Disapproving Example:

Answer 22

State Government Insurance Commission v Trigwell and Ors