Precedent Flashcards
What is precedent?
A source of law where past decisions of judges create laws for future judges to folow
What is precedent based on?
Latin term of stare decisis meaning to stand by what has been decided
Why is precedent good?
- Promotes fairness and provides certainty
- Allows court hierarchy to continue
Types of precedent?
- Binding
- Persuasive
Binding precedent
A precedent from an earlier case that must be followed even if the judge does not agree with the legal principle
When is binding precedent possible?
When the current case facts is similar to a previous one
Persuasive precedent
A precedent that is not binding but influences a judges decision making and can include decisions of any court
Obiter dicta
Other things said
Ratio decidendi
Reasons for judgement
When is stare decisis possible?
When the judgement of a previous case is known
What is ratio decidendi described as?
A proposition of law which decides the case in the light or in the context of material facts!
What is confusing about ratio decidendi?
In appeal courts, there is more than one judge which may have a different ratio (reason) for judgement e.g. Re A (2001)
Re A (2001)
Mary and Jodie were conjoined twins but Mary was the weaker one who relied on Jodie to live. The court of appeal had to decide whether surgeons could separate them against the parents’ wishes
When does obiter dicta happen?
When judges speculate what the decision would have been if the facts were different
Examples of the use of ratio decidendi
- Donoghue v Stevenson 1932 which became the ratio for Grant v Australian Knitting Mills
What happened in Donoghue v Stevenson?
- A woman drank a bottle of ginger beer which had a snail inside
- The woman became sick and sued the manufacturer
- HOL held that the manufacturer owed a duty if care to her which was breached. The woman won the case
What happened in Grant v Australian Knitting Mills?
- Grant bought long underwear manufactured by AKM
- Grant got dermatitis from excess sulphite in the underwear and almost died
- Grant sued for negligence and was entitled for compensation
What are law reports?
The judgement of the court written down word for word.
How is precedent avoided?
- Practice Statement of 1966 (SC)
- Young exceptions (CoA)
- Distinguishing
- Overruling
- Reversing
1966 Practice Statement
A law that only applies to the supreme court. The Supreme Court decided that the court itself was absolutely bound by its previous decisions. The Practice statement was created in order to avoid this rule ‘when it appears right to do so.’
Examples of the Practice Statement being used
- Caldwell (1982) overruled by R v Gemmell and Richards (2003)
- Addie v Dumbreck (1929) overruled by BRB v Herrington (1972)
- Anderton v Ryan (1929) overruled by Shivpuri (1986)
What are the young exceptions?
Three rules that allow a judge to avoid precedent
Young exception 1
If there are two conflicting CofA decisions, the court must decide which to follow
Young exception 2
The CofA must refuse to follow a decision of its own if it does not agree with a decision of the Supreme Court
