Judicial precedent and hierachy Flashcards
What is ratio decidendi and Orbiter Dicta?
Reason for deciding * judges reason for decision reached ( precedent of other cases)
and statements of Law that are not part of the ratio.
What is the hight court persuasive to?
Previous decisions by high court are highly persuasive but can override own decisions.
What is the four fold rationale on the doctrine of precedent?
Certainty
Efficiency
Equality
Appearance of Justice
Stare Decisis?
Stand by things decided. Essentially a doctrine of precedent. Generally courts will adhere to previous ruling.
When will a high court overrule its own precedent?
When is is outdated or they are replacing old cases. Eg immigration cases (MABO)
Problems a precedent ?
Inherently retrospective and a piecemeal
What does uspuring mean?
Take a position of power or importance.
How do courts depart from their own decisions?
When they are plainly wrong or if they are outdated. ( When social values change, Legislation)
How do Courts treat the decision of courts in a different hierachy? (State)
Highly persuasive.
What overrides all state decisions?
Federal court (HCA)
State the typical court hierachy?
High court/final court of appeal.
Full court/ court of appeal (intermediate appellat court)
Supreme court- Single court
Disctict court- Local/ magistrates court.
Are foreign decisions Binding?
Technically not binding, only persuasive
What are the most commonly cited English courts?
Mostly persuasive are court of Lords, supreme court and court of appeal
