Remember from last term-
Our courts are arranged in a hierarchy, with the higher courts hearing complex cases and the lower courts hearing simpler cases. The level of court in the hierarchy that hears a civil case depends on the amount of money the plaintiff is seeking. For example, an injured person who is seeking over $1000000 in compensation, would have the case heard by the Supreme Court.
Civil Jurisdiction
How does precedent work?
precedent.pptx | |
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Precedent operates on the principle known as stare decisis, meaning to stand by what has been previously decided. In effect, it means that the same legal principle is used to resolve similar types of disputes. This, in turn, helps to ensure people are treated equally and fairly and makes it possible to predict the likely outcome should a dispute arise.
Or the rule that similar cases should be decided in a similar way is at the centre of our idea of justice. If people are to treated equally before the law, legal principals or past decisions must be followed and applied to later cases involving similar fact.
Doctrine of Precedent
There are strict rules on how judges can make or apply precedents, these are known as the doctrine of precedent.
These decisions are recorded in law reports. Only decisions from superior courts are recorded permanently.
Law Reports record the judgement of the case. The judgement is a formal statement by the judge outlining
Stare Decisis
means to stand by what has already been decided.
Lower courts will follow the decision of higher courts in the same hierarchy of similar or like cases
Ratio Decidendi
The most important part of a court decision is the ratio decidendi, a Latin term meaning reason for the decision. It is binding on courts in later cases where the material facts are similar.
An example of ratio decidendi is provided in the case of Watt v. Rama [1972] VR 353. In this case, the Full Court of the Supreme Court had to decide whether or not a child born with brain damage, due to an injury received in a car accident before birth, could claim damages against the negligent driver of the car. The court found in favour of the child. The reason for the decision (ratio) was that a duty of care extends to a foetus and is enforceable if the child is born alive. This reason is binding on all lower courts in the same hierarchy in cases where the facts are similar.
Obiter Dictum
Many statements are made by judges during the course of a judgement that are not actually part of the final reason for their decision. For instance, they may talk hypothetically about what they would do if the facts were different. These statements are referred to as obiter dicta (sayings by the way) and are not binding on later cases. However, they may be persuasive for later cases if they are concerned with the same hypothetical situation referred to by the judge.
An example of obiter dicta is provided in the case of Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465. In this case, the plaintiffs were concerned about the creditworthiness of a potential client so they sought advice from the client’s bankers, Heller & Partners. The plaintiffs relied on the advice received from the defendants only to find that it was incorrect. Consequently, the plaintiffs lost money. Despite this, the court held that the defendants were not liable for the loss because the credit reference had been given ‘without responsibility’. However, each of the appeal court judges stated in obiter that, if there had not been a disclaimer, the defendants would have been liable for negligent advice. These comments made as obiter became the starting point for the development of liability for negligent statements.
Or the rule that similar cases should be decided in a similar way is at the centre of our idea of justice. If people are to treated equally before the law, legal principals or past decisions must be followed and applied to later cases involving similar fact.
Doctrine of Precedent
There are strict rules on how judges can make or apply precedents, these are known as the doctrine of precedent.
These decisions are recorded in law reports. Only decisions from superior courts are recorded permanently.
Law Reports record the judgement of the case. The judgement is a formal statement by the judge outlining
- the facts of the case
- the decision
- the reason given by the judge for the decision reached.
Stare Decisis
means to stand by what has already been decided.
Lower courts will follow the decision of higher courts in the same hierarchy of similar or like cases
Ratio Decidendi
The most important part of a court decision is the ratio decidendi, a Latin term meaning reason for the decision. It is binding on courts in later cases where the material facts are similar.
An example of ratio decidendi is provided in the case of Watt v. Rama [1972] VR 353. In this case, the Full Court of the Supreme Court had to decide whether or not a child born with brain damage, due to an injury received in a car accident before birth, could claim damages against the negligent driver of the car. The court found in favour of the child. The reason for the decision (ratio) was that a duty of care extends to a foetus and is enforceable if the child is born alive. This reason is binding on all lower courts in the same hierarchy in cases where the facts are similar.
Obiter Dictum
Many statements are made by judges during the course of a judgement that are not actually part of the final reason for their decision. For instance, they may talk hypothetically about what they would do if the facts were different. These statements are referred to as obiter dicta (sayings by the way) and are not binding on later cases. However, they may be persuasive for later cases if they are concerned with the same hypothetical situation referred to by the judge.
An example of obiter dicta is provided in the case of Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465. In this case, the plaintiffs were concerned about the creditworthiness of a potential client so they sought advice from the client’s bankers, Heller & Partners. The plaintiffs relied on the advice received from the defendants only to find that it was incorrect. Consequently, the plaintiffs lost money. Despite this, the court held that the defendants were not liable for the loss because the credit reference had been given ‘without responsibility’. However, each of the appeal court judges stated in obiter that, if there had not been a disclaimer, the defendants would have been liable for negligent advice. These comments made as obiter became the starting point for the development of liability for negligent statements.
Binding Precedents
The operation of precedent depends on the existence of a court hierarchy.
A binding precedent is one that must be followed by all lower courts within the same court hierarchy. It is a case of follow the leader. If the High Court creates a new precedent, all courts in Australia are bound by that decision because they are lower in the same hierarchy. If the Victorian Court of Appeal creates a new precedent, then all other Victorian courts must follow that precedent. |
Persuasive precedents
A decision made outside the court hierarchy currently hearing the case is not binding on the court.
These decisions are referred to as persuasive precedents because they can only influence, not bind, the court. For example, the Supreme Court of Victoria may be influenced by a decision of the New South Wales Supreme Court, but is not obliged to follow the decision of the New South Wales court because it is not part of Victoria’s court hierarchy. |