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Precedent help please (1 Viewer)
- Thread starter ellie95
- Start date
Jawa
Member
Because it ensures a blanketed and standardised outcome for cases that are similar.
Because it helps ensure certainty, equality, efficiency and the appearance of justice within the legal system (this is paraphrased from the judgement of Branson JJ and Finkelstein JJ in the case Telstra Corporation v Treloar [2000]).
It allows for a standard to be set and so cases which have similar situations have outcomes and decisions made on the same grounds. It enables people to be treated equally before the legal system in matters which are alike.
beyond_infinity93
New Member
- Joined
- Jan 5, 2014
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- HSC
- 2015
I've just got some notes that I've made from my Legal Studies textbook 
THE DOCTRINE OF PRECEDENT
Common law/case law is law developed by judges when deciding cases
Judges must resolve disputes on the basis of decisions made in similar cases
A judgment that is followed is called a precedent
o Provides the authority for the legal principle contained in the decision
The doctrine of precedent is also known as stare decisis
o Latin: the decision stands
Purpose of precedent: to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion
Old cases retain authority and their decisions can be used as bases for decisions made in modern courts
Doctrine of Precedent works to limit a judge’s ability to be creative when it comes to decision making
MAKING AND FOLLOWING PRECEDENT
When there has been no previous case to provide guidance, a court must use principles of the existing common law and state to make its decision
o Judges also pay attention to social developments and common sense
o Their new decision creates a precedent
Precedents can also be created under the interpretation of legislation
o Disputes about the meaning/application of a section of an Act: court may have to resolve the issue
Courts are not bound to follow other courts’ interpretations of statutes, but are expected to
o If a court decision has not resulted in the changing of wording, then the parliament is satisfied with the courts’ interpretation
When a judge gives a decision in a case, it is usually made of two parts:
o The ratio decidendi – the legal reason why a judge came to a particular decision
A ratio decidendi of a higher court will set a binding precedent on lower courts
o Obiter dicta – other remarks made by the judge regarding the conduct of the trial
These do not form part of the decision and thus do not set a precedent
WHEN PRECEDENT DOES NOT HAVE TO BE FOLLOWED
If the facts/relevant points of law are significantly different from a previous case, the case may be distinguished
When a higher court upholds an appeal of a lower court’s decision, the decision of the lower court is reversed
A court may refuse to follow a decision of another court which is at a lower or equal level in the hierarchy
o Overruling the decision of the lower court
RULES OF PRECEDENT
BINDING PRECEDENT
Lower courts are bound to follow decisions of superior courts
o Binding precedent
The High Court is not strictly bound by its own decisions, though it usually follows them
PERSUASIVE PRECEDENT
Superior courts do not have to follow decisions made in lower courts
o However, may use them to assist in decision making
Decision made in other common law countries may influence Australian judgment
The higher the court in its own jurisdiction’s hierarchy, the more persuasive the precedent
THE DOCTRINE OF PRECEDENT
Common law/case law is law developed by judges when deciding cases
Judges must resolve disputes on the basis of decisions made in similar cases
A judgment that is followed is called a precedent
o Provides the authority for the legal principle contained in the decision
The doctrine of precedent is also known as stare decisis
o Latin: the decision stands
Purpose of precedent: to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion
Old cases retain authority and their decisions can be used as bases for decisions made in modern courts
Doctrine of Precedent works to limit a judge’s ability to be creative when it comes to decision making
MAKING AND FOLLOWING PRECEDENT
When there has been no previous case to provide guidance, a court must use principles of the existing common law and state to make its decision
o Judges also pay attention to social developments and common sense
o Their new decision creates a precedent
Precedents can also be created under the interpretation of legislation
o Disputes about the meaning/application of a section of an Act: court may have to resolve the issue
Courts are not bound to follow other courts’ interpretations of statutes, but are expected to
o If a court decision has not resulted in the changing of wording, then the parliament is satisfied with the courts’ interpretation
When a judge gives a decision in a case, it is usually made of two parts:
o The ratio decidendi – the legal reason why a judge came to a particular decision
A ratio decidendi of a higher court will set a binding precedent on lower courts
o Obiter dicta – other remarks made by the judge regarding the conduct of the trial
These do not form part of the decision and thus do not set a precedent
WHEN PRECEDENT DOES NOT HAVE TO BE FOLLOWED
If the facts/relevant points of law are significantly different from a previous case, the case may be distinguished
When a higher court upholds an appeal of a lower court’s decision, the decision of the lower court is reversed
A court may refuse to follow a decision of another court which is at a lower or equal level in the hierarchy
o Overruling the decision of the lower court
RULES OF PRECEDENT
BINDING PRECEDENT
Lower courts are bound to follow decisions of superior courts
o Binding precedent
The High Court is not strictly bound by its own decisions, though it usually follows them
PERSUASIVE PRECEDENT
Superior courts do not have to follow decisions made in lower courts
o However, may use them to assist in decision making
Decision made in other common law countries may influence Australian judgment
The higher the court in its own jurisdiction’s hierarchy, the more persuasive the precedent