Flashcards in 3.3.1 Operation of the Doctrine of Precedent Deck (22)
-Supreme Court (Court of Appeal)
-Supreme Court (Trial Division)
- County Court
- Magistrates Court
Law developed through the courts/judges
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.
Doctrine of Precedent creates:
Consistency and predictability
Establishes a principle or rule of law that must be follow by other courts.
Courts will "stand by what is decided" by higher courts
"The reason for the decision" and the binding part of the judgement.
"Things said by the way". Statements made by the judge in the precedent case that is not binding.
Precedents that must be followed. Only binding if case has:
-Precedent set by a higher court in the same hierachy
Can be seen to be noteworthy and highly regarded proportions of law and can be influential on decisions but not binding.
Persuasive Precedent (2):
Don't have to be followed :
- From another jurisdiction
- From a court that is lower or equal to the court
Donoghue v Stevenson
Grant v Australian Knitting Mills
Persuasive Precedent example:
Donoghue V Stevenson persuasive on Grant v Australian Knitting Mills
When a case is decided the other way on appeal. Thus the Higher Court believes the lower court wrongly decided the case.
Studded Belt Case (Supreme Court)
When a superior court decides not to follow the decision of a lower court. Creates a new precedent.
AON Risk Services Australia Ltd v Australia National University, overruled decision made in Queensland v JL Holdings Pty Ltd
A precedent does not need to follow if the facts of the case are not similar to the facts of the precedent case.
Davies v Waldron 1989
-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.