Precedent (binding, original and persuasive) Flashcards
What is binding precedent?
A decision made in a higher court that binds all lower courts
What happens if a different decision is reached in a higher court than the court the binding precedent was made in originally?
The decision becomes binding and replaces the previous precedent as it is from a higher court
What two things are binding precedent imposed by?
Stare decisis and Ratio decidendi
Which courts are the only ones who can avoid binding precedent?
Supreme and CoA
How do higher courts avoid binding precedent?
The practice statement and young
How do lower courts avoid binding precedent?
By distinguishing
Which is the binding part of the judgement?
The ratio
Example of binding precedent cases?
.Dica
.Eisenhower
.Gillick
What is original precedent?
Precedent which creates and applies new legal rules and is made where there isn’t a previous judicial decision on a point of law
Does original precedent follow previous precedent?
No, it’s original
Which courts are most likely to make original precedent?
Top-end courts
What classes at original precedent?
Anything that adds to the law
Cases for original precedent?
.Donoghue and stevenson (Neighbour principle)
.Chan fook
.Graham
What is persuasive precedent?
Precedent which is not binding but can be referred to when making a decision
Where is persuasive precedent made?
lower-end courts
Who can use persuasive precedent?
Higher courts to advise their decisions
What are the 5 types of persuasive precedent?
- Obiter dicta
- Decisions from other countries
- Privvy council
- Dissenting judges
- Courts lower in the hierarchy
Why are decisions from the other countries binding?
Because they are decisions from other countries’ legal systems, not ours, and we aren’t bound by their precedent
Example of persuasive precedent from another country?
Wagonmound (fire in sydney harbour)
What is an example of persuasive precedent from dissenting judges?
Davis v Johnson- Lord Denning- “Groping around in the dark”
