Precedent

The circumstances needed to create binding precedent:

The circumstances that are needed to create binding precedent are; that it was set in a higher court, there are similar material facts and that it was made in the same court hierarchy.

Essential difference between overruling and reversing:

The essential difference between overruling and reversing is that overruling involves two cases and reversing just involves one case which has gone on appeal.

The relationship between statutory interpretation and precedent:

The reason for statutory interpretation leads to the creation of precedent.

Name 3 parts of a judicial judgement and explain which part is the most important:

The three parts of a judicial judgement are summary of facts, reason for the decision and the actual judgement/decision. The most important part of the judicial judgement is the ratio decidendi as this is what forms binding precedent for the lower courts. Ratio decidendi is essentially precedent and the reasoning behind it.

Explain how and when courts make precedent:

Courts make precedent when a case that is the first of its kind arises. The judge's decision (ratio decidendi) and the judge's comment (obiter dictum) are recorded in a law report, which is made by a superior court. This precedent then becomes binding on lower courts in the same court hierarchy. Courts also make precedent through statutory interpretation which is the meaning behind the words in an act of parliament. Precedent either becomes binding or persuasive depending on the future case and what court it is heard in.

What is precedent:

Precedent is law made by the courts. It is made for cases that are the first of their kind and is then used to decide future cases

Explain the difference between ration decidendi and obiter dictum:

Ratio decidendi is the judge's reason for the decision whereas obiter dictum is just the judge's comment on the case. Ratio decidendi becomes binding on lower courts whereas obiter dictum is merely influential and becomes persuasive precedent.

What situations/decisions may produce a persuasive precedent:

Situations/decisions that may produce a persuasive precedent are when a case is set in a different court hierarchy, e.g. another country, when the decisions is from a lower or equal court and when the judge considers the obiter dictum.

How would the decision in the Grant vs. Australian Knitting Mills affect the following case: (A careers advisor at a school gives a student incorrect advice about the prerequisites for law)

The Grant vs. Australian Knitting Mills would affect the following case as the material facts are similar so the precedent in the Grant vs. Australian Knitting Mills could be binding or persuasive depending on whether the case was being heard in Australia, in which case it would be binding. It also affects the case if it was set in a higher court in Australia, as this would make it binding on the current case, although the judge if presiding in a lower court could possibly distinguish the facts.

Suggest two reasons why the Magistrates Court cannot produce precedent:

The Magistrates court cannot set precedent because they do not produce law reports and there is no lower court to be bound by the precedent they set.

Three strengths of precedent:

Three advantages of precedent are: it creates a fair predictable, court system, judges are free from outside pressure and it fills gaps in statute law. Precedent creates a predictable legal system because lawyers can look in law reports and at the precedent and predict the likely outcome of their client's case. Judges do not have to worry about being re-elected and can focus on the law making and settling of disputes. This means decisions are not influenced by potential voters. Precedent and statutory interpretation add details to statute law that would otherwise be overlooked. Precedent involves specific cases whereas statute law is broad.

Three differences between precedent and statute law:

Three differences between precedent and statute law is that precedent is law made by the courts whereas statute law is law made by parliament. Precedent is found in law reports and statute law is found in acts of parliament. Lastly, courts cannot make precedent regarding any case, only those that come before the courts whereas parliament can make laws regarding anything within their power.

Three weaknesses of precedent:

Three weaknesses of precedent are: judges have to wait for the relevant case to arise, judges are appointed not elected and precedent is difficult to find. Judges are not allowed to investigate a potential law they could make, unless the relevant case arises. Since judges are not elected but appointed they might not represent the public's best interests. They also represent a small demographic of society, so only this minority has their best interests represented. As precedent is kept in law reports and there are many of these it makes it hard to find and keep track of it.