2.2 the system of precedent

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Published on February 16, 2014

Author: alisawilliams

Source: slideshare.net

The System of Precedent

Describe  One of the main features of common law is the doctrine of precedent.  A precedent is “a judgement made by a court that establishes a point of law”.  It means that judges must resolve disputes on the basis of decisions made in similar cases.  It can also be known as stare decisis – the decision stands

Explain  The purpose of precedent is to ensure that people are treated fairly and that the law develops consistently and coherently  Old cases retain authority, and their decisions can be used for the basis of modern-day decisions  Precedent stops judges from being “creative” when making decisions

Making Precedent

Two main ways precedent is developed 1. When there is no existing law Judges must rely on common sense and the principles of law for guidance in making their decision.  Many laws regarding murder have been created in this way: eg: provocation and self-defence 2. When legislation is interpreted Parliament is responsible for creating legislation, but courts must interpret it, or establish the meaning of certain words.  In Vic, a person can only be guilty of burglary if they enter a “building” – the court must decide what constitutes a building

Rules of Precedent

Binding Precedent  Where binding precedent occurs, a court MUST follow the precedent already set, whether it believes the decision is correct, or not.  In NSW, a precedent is binding if it has been set by a higher court, in similar cases.  A judge is only bound by the ratio dicidendi. Obiter dicta do not create precedent.

Definitions Ratio dicidendi  A statement by the judge about the reason for their decision  It creates a precedent that lower courts must follow Obiter dicta   Other statements made by judges, such as their personal opinions. These create no immediate precedent, but can be used later to justify a precedent

Persuasive Precedent  May influence a decision, but a court is not required to follow it  Could include statements made by a judge, or decisions made by courts in other jurisdictions (eg: a NSW judge may quote a judge who heard a similar case in the UK.)  How persuasive a precedent is depends on the judge and the court.

Court Binding Precedent Persuasive Precedent High Court All state and federal courts High Courts and courts in some other countries Full Court of Federal Court Single judge of Federal Court and Full Court of Federal Court High Court and courts in other hierarchies Single judge of Federal Court Single judge of Federal Court Courts in other hierarchies Courts of Appeal (NSW, Vic, Qld), Full Bench and Full Court of Supreme Court Single judge of Supreme High Court and courts in Court, District Court (County other hierarchies Court in Vic.) and Magistrate’s Court in same jurisdiction State Supreme Courts District Court (County Court in Vic.) and Local Court in same jurisdiction High Court and courts in other hierarchies Privy Council (UK) None in Australia All Australian Courts House of Lords (UK) None in Australia All Australian Courts

Critically analyse precedent Advantages Disadvantages

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