3.3.1 Operation of the Doctrine of Precedent Flashcards
Court Hierarchy:
- High Court
- Supreme Court (Court of Appeal)
- Supreme Court (Trial Division)
- County Court
- Magistrates Court
Common Law:
Law developed through the courts/judges
Doctrine of Precedent:
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.
Doctrine of Precedent creates:
Consistency and predictability
Precedent:
Establishes a principle or rule of law that must be follow by other courts.
State Decisis:
Courts will “stand by what is decided” by higher courts
Ratio Decidendi:
“The reason for the decision” and the binding part of the judgement.
Obiter Dictum:
“Things said by the way”. Statements made by the judge in the precedent case that is not binding.
Binding Precedent:
Precedents that must be followed. Only binding if case has:
- Similar Facts
- Precedent set by a higher court in the same hierachy
Persuasive Precedent:
Can be seen to be noteworthy and highly regarded proportions of law and can be influential on decisions but not binding.
Persuasive Precedent (2):
Don’t have to be followed :
- From another jurisdiction
- From a court that is lower or equal to the court
Case 1:
Donoghue v Stevenson
Case 2:
Grant v Australian Knitting Mills
Persuasive Precedent example:
Donoghue V Stevenson persuasive on Grant v Australian Knitting Mills
Reversing:
When a case is decided the other way on appeal. Thus the Higher Court believes the lower court wrongly decided the case.
Reversing Example:
Studded Belt Case (Supreme Court)
Overruling:
When a superior court decides not to follow the decision of a lower court. Creates a new precedent.
Overruling Example:
AON Risk Services Australia Ltd v Australia National University, overruled decision made in Queensland v JL Holdings Pty Ltd
Distinguishing:
A precedent does not need to follow if the facts of the case are not similar to the facts of the precedent case.
Distinguishing Example:
Davies v Waldron 1989
Disapproving:
- 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.
Disapproving Example:
State Government Insurance Commission v Trigwell and Ors
