2. 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
3. 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
5. 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
7. 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.
8. 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
9. 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.
10. 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
