Distinguishing precedents

5. The precent is wrongly decided (only open to a court reconsidering the decisions of a court in another hierarchy)

- 'plainly wrong' - where a court determines that a precedent in per incuriam, and therefore it is incapable of constituting a binding authority on lower cases - Decisions are per incuriam when they are made in forgetfulness or ignorance of: 1. An inconsistent legislative provision 2. A case which is binding on the court that made the decision - The omission alone will not render a decision per incuriam - It must be clear that the omission resulted in flawed reasoning which affect the law adopted by the court - Per incuriam is not available to a court in relation to a decision of a court superior in the hierarchy Only applies to a review by a court of its own decisions or a higher court for lower court decisions

1. The precedent is distinguishable on its facts (all courts)

- Materially different from the present facts, therefore, the conclusion arrived is not applicable to the current case

3. Statement in the earlier case is obiter rather than ratio (all courts)

- May be arguable that the statement is not strictly necessary to the conclusion arrived at by the judge - If a statement is said to be obiter then the precedent need not be followed

Distinguishing precedents

- Only the High Court, the ultimate court of appeal will never be presented with a precedent that is strictly binding The frequency of being bound increases as one moves down the hierarchy

6. Precedent is unsatisfactory (only open to a court reconsidering the decisions of a court in another hierarchy)

- The precedent has not achieved useful result but rather led to considerable inconvenience - Only available where the court is not bund by the precedent

2. The statement of law in the earlier case was too wide, and ought to be confined to its facts (all courts)

- The statement of law in a previous case was stated too generally, therefore, judges may attempt to narrow the precedent to only apply to the facts of the earlier case

4. Precedent should not be applied due to changed social conditions (only open to a court reconsidering the decisions of a court in another hierarchy)

- Values had changed and the principle was no longer acceptable to the vast majority of the Australian population - E.g. Mabo v Queensland and the criminalisation of marital rape - Lower courts can not simply overrule binding precedents simply on the basis that they are unsavoury and outdated - Overruling is only available when the court is not strictly bound by the precedent

Review

1. The precedent is distinguishable on its facts (all courts) 2. The statement of law in the earlier case was too wide, and ought to be confined to its facts (all courts) 3. Statement in the earlier case is obiter rather than ratio (all courts) 4. Precedent should not be applied due to changed social conditions (only open to a court reconsidering the decisions of a court in another hierarchy) 5. The precent is wrongly decided (only open to a court reconsidering the decisions of a court in another hierarchy) 6. Precedent is unsatisfactory (only open to a court reconsidering the decisions of a court in another hierarchy)