Precedent…

Precedent and the doctrine of precedent Precedent is Judge made Law It is the rule that similar cases should be decided in a similar way The doctrine of precedent is the set of strict rules that guide Judges in their decision. The decisions of the courts are recorded in ‘law reports’ Law reports record the judgement in a case including… The facts of the case The decision in the case The reason given by the judge for his/her decision

The Latin… Stare Decisis – to stand by what has been decided. Lower courts will stand by what has been decided in Higher courts. Ratio Decidendi – The most important part of the Judgement, the reason for the decision. Other judges will look to this reasoning to guide them in future decisions. Obiter Dictim – Statements made by a judge that do not directly affect the outcome. These general comments will not form part of ‘binding precedent’ but can form part of ‘persuasive precedent’

Persuasive Precedent Judges in Victorian courts are only bound by decisions made in other Victorian courts or the High court, not by courts in other states and countries. If there is a case that has never been considered in Victorian Courts, the court may look to other court systems for guidance. This is persuasive precedents Obiter dictum comments also form persuasive precedent

Can precedent Change??? The short answer is yes. The long answer is yes, but… Judges are usually bound by precedent set in a higher court, however judges must not be unreasonably restricted in their ability to apply the law to each case. Judges can change precedent depending on on two conditions – The authority of the court where the precedent was decided The authority of the court where the case is being heard There are four processes a judge can use to change precident.

Changing precedent… Distinguishing – a judge can decide that precedent does not apply to the case. This can happen when the judge decides that the facts of the case are different to the precedent. In this case the precedent is either added to or not applied. Disapproving – Although a judge may be bound by precedent he or she can voice there strong disapproval as part of their Obiter dictum Overruling – A judge in a higher court can overrule an earlier precedent and replace it with a different one Reversing – when a case is heard in a lower court one of the parties may appeal to a higher court. If the judge in the higher court does not agree with the legal principals used in the lower court they can reverse the decision. The precedent used by the lower court can no longer be applied.

KK1 - KK1 will be due on the last day of the school holidays. You will have plenty of time in class this week. If you use your class time to its fullest you will have less Holiday Homework Yay! thanks Steve