Precedent

Question 1

What is precedent?

Answer 1

A source of law where past decisions of judges create laws for future judges to folow

Question 2

What is precedent based on?

Answer 2

Latin term of stare decisis meaning to stand by what has been decided

Question 3

Why is precedent good?

Answer 3

• Promotes fairness and provides certainty
• Allows court hierarchy to continue

Question 4

Types of precedent?

Answer 4

• Binding
• Persuasive

Question 5

Binding precedent

Answer 5

A precedent from an earlier case that must be followed even if the judge does not agree with the legal principle

Question 6

When is binding precedent possible?

Answer 6

When the current case facts is similar to a previous one

Question 7

Persuasive precedent

Answer 7

A precedent that is not binding but influences a judges decision making and can include decisions of any court

Question 8

Obiter dicta

Answer 8

Other things said

Question 9

Ratio decidendi

Answer 9

Reasons for judgement

Question 10

When is stare decisis possible?

Answer 10

When the judgement of a previous case is known

Question 11

What is ratio decidendi described as?

Answer 11

A proposition of law which decides the case in the light or in the context of material facts!

Question 12

What is confusing about ratio decidendi?

Answer 12

In appeal courts, there is more than one judge which may have a different ratio (reason) for judgement e.g. Re A (2001)

Question 13

Re A (2001)

Answer 13

Mary and Jodie were conjoined twins but Mary was the weaker one who relied on Jodie to live. The court of appeal had to decide whether surgeons could separate them against the parents’ wishes

Question 14

When does obiter dicta happen?

Answer 14

When judges speculate what the decision would have been if the facts were different

Question 15

Examples of the use of ratio decidendi

Answer 15

• Donoghue v Stevenson 1932 which became the ratio for Grant v Australian Knitting Mills

Question 16

What happened in Donoghue v Stevenson?

Answer 16

• A woman drank a bottle of ginger beer which had a snail inside
• The woman became sick and sued the manufacturer
• HOL held that the manufacturer owed a duty if care to her which was breached. The woman won the case

Question 17

What happened in Grant v Australian Knitting Mills?

Answer 17

• Grant bought long underwear manufactured by AKM
• Grant got dermatitis from excess sulphite in the underwear and almost died
• Grant sued for negligence and was entitled for compensation

Question 18

What are law reports?

Answer 18

The judgement of the court written down word for word.

Question 19

How is precedent avoided?

Answer 19

• Practice Statement of 1966 (SC)
• Young exceptions (CoA)
• Distinguishing
• Overruling
• Reversing

Question 20

1966 Practice Statement

Answer 20

A law that only applies to the supreme court. The Supreme Court decided that the court itself was absolutely bound by its previous decisions. The Practice statement was created in order to avoid this rule ‘when it appears right to do so.’

Question 21

Examples of the Practice Statement being used

Answer 21

• Caldwell (1982) overruled by R v Gemmell and Richards (2003)
• Addie v Dumbreck (1929) overruled by BRB v Herrington (1972)
• Anderton v Ryan (1929) overruled by Shivpuri (1986)

Question 22

What are the young exceptions?

Answer 22

Three rules that allow a judge to avoid precedent

Question 23

Young exception 1

Answer 23

If there are two conflicting CofA decisions, the court must decide which to follow

Question 24

Young exception 2

Answer 24

The CofA must refuse to follow a decision of its own if it does not agree with a decision of the Supreme Court

Question 25

Young exception 3

Answer 25

The CofA need not follow a decision of its own if it is given per incuriam

Question 26

Per incuriam meaning

Answer 26

By carelessness or mistake

Question 27

What case created the young exceptions?

Answer 27

Young v Bristol Aeroplane Co Ltd

Question 28

Distinguishing

Answer 28

Distinguishing a case on its facts to see if the precedent can be applied or not. Precedent can be avoided if there is an obvious difference in facts

Question 29

Example of when distinguishing was used

Answer 29

R v Brown was distinguished in Wilson

Question 30

Why was the decision in Brown distinguished in Wilson?

Answer 30

Branding seemed like tattooing rather than S&M

Question 31

Overruling

Answer 31

A higher court can overrule a legal rule made in an earlier case by an inferior court. E.g. R v R

Question 32

R v R

Answer 32

The defendant attempted to rape his wife and argued that because they were both in a marriage, that meant consent. The HOL overturned this and his conviction was held

Question 33

Reversing

Answer 33

A higher court can reverse a lower court decision in the same case

Question 34

Reasons judges should be able to avoid precedent?

Answer 34

• Reflects damages in moral values, politics and tech
• Achieve justice in individual case
• Correct errors in previous cases
• Detailed and practical law making
• Parliament unable to provide all the law needed

Question 35

Reasons judges should not be able to avoid precedent?

Answer 35

• Lack of research
• Uncertainty
• Undemocratic
• Complex
• Retrospective: judges behaviour that already happened

Question 36

Advantages of Stare decisis

Answer 36

• Certainty
• Consistency
• Precision
• Flexibility
• Time saving

Question 37

Disadvantages of stare decisis

Answer 37

• Rigidity
• Complexity
• Illogical distinctions
• Slowness
• Retrospective
• Undemocratic