3.3.1 Operation of the Doctrine of Precedent Flashcards Preview

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Flashcards in 3.3.1 Operation of the Doctrine of Precedent Deck (22)
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1

Court Hierarchy:

-High Court
-Supreme Court (Court of Appeal)
-Supreme Court (Trial Division)
- County Court
- Magistrates Court

2

Common Law:

Law developed through the courts/judges

3

Doctrine of Precedent:

States that lower courts are bound to follow the decisions of higher courts in the same hierarchy in cases where the material facts are similar.

4

Doctrine of Precedent creates:

Consistency and predictability

5

Precedent:

Establishes a principle or rule of law that must be follow by other courts.

6

State Decisis:

Courts will "stand by what is decided" by higher courts

7

Ratio Decidendi:

"The reason for the decision" and the binding part of the judgement.

8

Obiter Dictum:

"Things said by the way". Statements made by the judge in the precedent case that is not binding.

9

Binding Precedent:

Precedents that must be followed. Only binding if case has:
-Similar Facts
-Precedent set by a higher court in the same hierachy

10

Persuasive Precedent:

Can be seen to be noteworthy and highly regarded proportions of law and can be influential on decisions but not binding.

11

Persuasive Precedent (2):

Don't have to be followed :
- From another jurisdiction
- From a court that is lower or equal to the court

12

Case 1:

Donoghue v Stevenson

13

Case 2:

Grant v Australian Knitting Mills

14

Persuasive Precedent example:

Donoghue V Stevenson persuasive on Grant v Australian Knitting Mills

15

Reversing:

When a case is decided the other way on appeal. Thus the Higher Court believes the lower court wrongly decided the case.

16

Reversing Example:

Studded Belt Case (Supreme Court)

17

Overruling:

When a superior court decides not to follow the decision of a lower court. Creates a new precedent.

18

Overruling Example:

AON Risk Services Australia Ltd v Australia National University, overruled decision made in Queensland v JL Holdings Pty Ltd

19

Distinguishing:

A precedent does not need to follow if the facts of the case are not similar to the facts of the precedent case.

20

Distinguishing Example:

Davies v Waldron 1989

21

Disapproving:

-When a court does not follow a precedent set in a court as the same level, they are said to have disapproved the decision.

-Disapproval does not change the precedent.

- Judges in an inferior court can express disapproval about a precedent set in a superior court they are bound to follow.

22

Disapproving Example:

State Government Insurance Commission v Trigwell and Ors

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