Chapter 12.3

Question 1

the doctorine of precedent

Answer 1

the doctorine of precedent is the process by which judges follow the reasons for the decisions of courts higher than them in the same court hierarchy, when deciding on cases where the material facts are of a similar nature to those which were present when the precedent was originally established. This can have a significant impact on whether a court is able ot make law when deciding on a case

Question 2

what does the doctrine of precedent ensure

Answer 2

the doctrine of precedent ensure there is consistency, predictability and fairness in court decisions

Question 3

material facts

Answer 3

the key facts or details in a legal case that were critical to the courts decision

Question 4

reasons for precedent

Answer 4

the application of precedents to current cases helps ensure common law is consistent and predictable. It is one of the ways in which the rule of law is upheld, providing some certainty in the way that laws are applied

Question 5

having lower courts follow the legal principles established by higher courts in the same hierarchy ensures that

Answer 5

• Like cases are decided in a like manner. This enables the parties in a dispute to look back to previous cases to gain some idea of how a court might determine their case
• Legal representatives are able to give advice on the likely outcome of the case as they will have some understanding as to how the court may decide the case
• Judges have some guidance as they can refer back to previous cases and decide accordingly
• Decisions made by superior courts are followed in lower courts
• The same point is not being decided over and over

Question 6

two key types of precedent

Answer 6

• binding precedent
• persuasive precedent

Question 7

binding precedent

Answer 7

A binding principle is a principle of law created by a higher court in the court hierarchy, which must be followed by a lower court when making a judicial decision.

Question 8

what does binding precedent mean in relation to the court hierarchy

Answer 8

• precedents set in the high court are binding on all victorian and australian courts
• precedents set in the court of appeal are binding on the supreme court trial division, the county court and the magistrates court
• precedents set in the supreme court trial are binding on the county court and the magistrates court

Question 9

ratio decidendi

Answer 9

The binding part of a court judgement is commonly referred to using the latin phrase ratio decidendi, meaning the reason for the decision. A court judgement is a statement by the judge that outlines the decision and the legal reasoning behind the decision.

Question 10

the principle of stare decisis

Answer 10

The principle of stare decisis is another way of describing the process of lower courts following the reasons for the decision of higher courts, its lat phrase means to stand by what has been decided

Question 11

persuasive precedents

Answer 11

A persuasive precedent is a past decision which are are not bound to follow, but which may be influential on judicial decisions making. precedent which are persuasive, but which are not binding include those that come from other court hierarchy and from courts on the same level in the court hierarchy.

Question 12

persuasive precedents may be

Answer 12

• Set by courts in another court hierarchy, such as a court in another state, territory or country
• Set by lower courts in the same court hierarchy
• Set by courts by the same standing within the same court hierarchy

Question 13

obiter dictum

Answer 13

Statement made as obiter dictum means contained in court judgements from the same or another court hierarchy may also be considered as persuasive. Its latin meaning is a things said by the way. It refers to those statement or comments made by a judge that are not an actual part of the reason for the decision, but are still important and may be considered as persuasive in future cases.

Question 14

developing and avoiding precedents

Answer 14

When deciding cases, judges will consider precedents established in earlier cases. If a judge is not bound to follow the earlier precedent, they may decide to:
- adopt the precedent (follow or apply the precedent, in which case the precedent will be affirmed or have been considered favourably)
- choose not to follow the existing precedent.
In cases where judges are not bound to follow and existing precedent, they may also be able to create new precedents.

Question 15

there are four way that judges can treat previous precedents

Answer 15

• reversing
• overuling
• distinguishing
• disapproving

Question 16

reversing a precedent

Answer 16

when one decision is made on a case and that case then goes to appeal a judge may reverse the original decision, thereby establishing a new precedent.

Question 17

overruling a precedent

Answer 17

when the high court makes a ruling that goes against a past decision. this is uncommon as although the high court isnt bound to follow its own decisions, it will usually adhere to these in order to uphold the consistency and fairness of the law. however overruling may occur where the high court believes there to be contradictory, inconsistency or incoherent matter of law

Question 18

distinguishing precedent

Answer 18

when a judge decides not to follow a precedent because they believe there are significant differences between that precedent case and the one now before the courts

Question 19

disapproving a precedent

Answer 19

when a court on the same level as the precedent setting case goes against the previous decision in another case before them because they disapprove of the legal reasoning in the precedent. this creates conflicting precedents that generally need to be resolved by a higher court upon appeal