Week 4: Lec 3 (Case Law) Flashcards
What is a dissenting judgement?
It is a decision (sometimes decisions) that are in the minority - they don’t help the losing party in the case - but may be of assistance in later cases
The Supreme Court in Z v Z (decided in 2012) rules that the case X v Y (decided in 1990), where Y paid $1 mullion in damages to X, was wrongly decided - Y should not have been found to be liable. Dome X have to pay the 1 million back?
No,
Example of the doctrine of res judicata - the original decision as between the parties remains the same, but X v Y is now treated as bad law, i.e. it cannot be followed
How can a lower court avoid following the decision of a higher court that is binding upon it?
1 -by distinguishing it = finding the material facts of the current case are sufficiently different to the case that is binding upon it
But: The wider the ratio, the more difficult to avoid the earlier case; and the lower court;s decision is likely to be appealed to a higher court
2 - By finding it per incuriam (earlier case was wrong and missed relevant statutory provision)
If the Court of Appeal agrees with the High Court that the plaintiff should win, can the Court of Appeal give different reasons for why the plaintiff should win?
Yes,
The Court of Appeal can restrict the decisions (and therefore the ratio), or it could expand the reasons (and therefore the ratio)
In a case where the plaintiff was successful in suing the defendant for a faulty washing machine, the judge said the plaintiff used the machine when he knew that it was not working properly. The statement about the plaintiff losing had he operated the machine when he knew it wasn’t working is an example of what?
It is an obiter. It is a statement about something that did not actually happen.
Why is the Obiter important?
The courts use it to give a general indication of how they might later decide cases and the higher the court that gives the obiter, the more important that obiter is.
