An analysis of the precedent doctrine in australian courts
Doctrine of attachment in australia: a jurisdictional comparative analysis in the wake of the 1952 arrest convention peter glover 1 introduction the action in rem, once considered the lifeboat of admiralty jurisdiction, the australian federal court decision in. Unit 1 the australian legal system: topic 6 role of the courts reading contents interpretation of the law the doctrine of precedent interpretation of the law. Persuasive precedent may come from a number of sources such as lower courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or law reviews in civil law and pluralist systems, as under scots law, precedent is not binding but case law is taken into account by the courts.
16 see, for example, gorney, australian precedent in the supreme court of israel (1955) 68 harv l rev 1194 and macintyre, the use of american cases in canadian courts (1966) 2 u brit colum l rev 478. Abstract ‘per incuriam’ means ‘through want of care’ a decision of the court which is mistaken the ‘per incuriam’ rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. Horizontal precedent, the doctrine requiring a court to follow its own prior decisions in similar cases, [fn158] is a more complicated and debatable matter many judges have deemed activist the failure to adhere to horizontal precedent.
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and. Attitudes of the english and australian courts this attitude also suggests a relaxation of a strict doctrine of precedent and a search for basic underlying reasoning which is applicable to the circumstances such considerations may produce difficulties of analysis the attitude tends towards flexibility in the law the doctrine of. The doctrine of binding precedent or stare decisis is central to the english legal system, and to the legal systems that derived from it such as those of australia, canada, hong kong, pakistan, singapore and new zealand. A new study has identified the most frequently cited precedents in australian law unsurprisingly, “[t]he top ten positions are occupied by high court decisions” the number one decision, “significantly cited by over 1,200 later judgments”, was house v the king, a 1936 decision about when an appeal should be allowedit established that “a result should be reviewed by an appellate.
The doctrine of judicial precedent depends on two factors, court hierarchy and law reporting court hierarchy is covered under the section of 'operation of the doctrine' inferior courts are bound by previous decisions made by the courts higher above (seago, 1993. The high court's use of the doctrine of precedent, free study guides and book notes including comprehensive chapter analysis, complete summary analysis, author biography information, character profiles, theme analysis, metaphor analysis, and top ten quotes on classic literature. Australian legal system, be mandated by precedent, then it is the task of this court to look into the authorities said to constitute that precedent’ 5 on this basis, their honours were prepared in brodie to overrule previous decisions of. Doctrine of judicial binding precedent this question raises the issue of the role of precedentin order to examine the statement, scrutiny of the doctrine of the judicial precedent is required case law is used to describe the collection of reported decisions of the courts, and the principles which stem from them. The high court has felt it necessary to extend the doctrine of precedent, so that the common practice of the lower courts, in both england and australia, of following non-ratio dicta becomes compulsory for the australian courts on a straightforward reading of the approach, one might think that it is really just confirming existing practice.
Discuss the advantages and disadvantages of the doctrine of precedent and how judges may make new law include 1 case where judges have made new law the doctrine of precedent is an important feature of judge-made law (common law. The doctrine of precedent is the fundamental basis of the law applied by the judiciary, which specifies that a court should apply the rulings of previous cases in situations where the facts are the same more specifically, a court is bound to do so if the previous case was tried in a higher court, in the same hierarchy. 318 federal law review volume 40 might be called social facts ('sf') sf are statements made as part of judicial development and general application of law2 sf are not 'adjudicative facts' relevant only to the parties to a particular dispute3 judicial reference to sf is not a recent phenomenon in the australian high court. The doctrine of precedent means that the following of the legal principles made by the higher courts and the court of appeal in prior cases once judges in the higher court, normally means the house of lords or the court of appeal make a decision to a case, it is come to binding precedent that the lower courts have to follow in the future cases.
An analysis of the precedent doctrine in australian courts
The doctrine of immunity of instrumentalities in the united states and australia: a comparative analysis by ronald sackville i introduction the high court has often considered the extent to which governments in. Whatever the analysis of rule of law, and its application to the australian legal system, the rule of law is an impor- tant feature of our constitutional system. Doctrine of binding precedent doctrine of judicial binding precedent this question raises the issue of the role of precedentin order to examine the statement, scrutiny of the doctrine of the judicial precedent is required case law is used to describe the collection of reported decisions of the courts, and the principles which stem from them. The battle of voltage pictures vs illegal downloaders of the dallas buyers club was always going to set a precedent for the movie industry and the australian market if voltage had prevailed in.
Advantages of judicial precedent advantages: o consistency and predictability – the system provides fairness and justice as similar cases will be treated and decided in the same way as a past case. The doctrine of judicial precedent is based on stare decisis that is the standing by of previous decisions once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts. Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in the united states), statements made in dicta, treatises or academic. The analysis of case law is the foundation of your legal studies it is the precedent in australian courts the doctrine of precedent involves the application of the ratio of a previous higher court decision in the same hierarchy to future decisions in the same hierarchy the application of precedent provides the basis for the.
That is, the doctrine of precedent is limited by the legal system a court is in thus a court in one legal system generally must follow a decision of a higher court in the same legal system or hierarchy of courts. A stare decisis: the doctrine of precedent in common law and its role in constitutional law there are three basic features of stare decisis: 15 15 for the purposes of this article, stare decisis means the common law doctrine of following previous decisions, including vertical and horizontal precedent see frederick schauer, thinking like a lawyer (harvard university press 2009) 37. A court may consider decisions by other, non-superior courts to be persuasive precedent, however, and follow them if they are well-reasoned and if there is no binding precedent that conflicts the doctrine of stare decisis confers many benefits on the american judicial system.