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Role of the Courts (2)

Role of the Courts (2). Binding Precedents. A binding precedent is a legal principle that must be followed. The doctrine of precedent depends on lower courts following the decisions of higher courts.

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Role of the Courts (2)

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  1. Role of the Courts (2)

  2. Binding Precedents • A binding precedent is a legal principle that must be followed. • The doctrine of precedent depends on lower courts following the decisions of higher courts. • The general rule is that a decision of a higher court in the same hierarchy is binding or must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases. • For instance, in Victoria a judge of the County Court must follow the decisions of judges in the Supreme Court.

  3. Persuasive Precedent • Persuasive precedents are not binding on courts. However, because they are seen to be noteworthy and highly regarded cases, they may be considered by some courts as influential on their decisions. Precedents considered to be persuasive but not binding are: • From courts in another hierarchy, such as other states or countries. • From courts on the same level of hierarchy (which are not binding) • From inferior courts • Obiter dicta contained in a judgement of a court in the same hierarchy or in another hierarchy. Case example: Donoghue v. Stevenson (1932) which was persuasive upon the Australian case: Grant v. Australian Knitting Mills (1936)

  4. Donoghue V. Stevenson (1932) • Read the case as a class from page 196-197 of your text book. • Summarise the case in detail into your notes. • http://www.youtube.com/watch?v=zWia3GCzyLQ

  5. Grant v. Australian Knitting Mills (1936) • In the Australian Case Grant v. Australian Knitting Mills, Grant was affected by dermatitis from wearing a pair of undies he has purchased. The manufacturer of the underpants has negligently left a chemical in the material. • Grant has a contract with the seller, but did not have a contract with the manufacturer. He had sued the manufacturer for negligence. • The court referred to the case Donoghue v. Stevenson. Although this was a persuasive precedent as it was in another hierarchy, the court chose to follow the decision in that case and decided that the manufacturer owed a duty of care to the consumer. • The injured party was successful, and the law of negligence was clearly established in Australia.

  6. Are the facts the same?

  7. Obiter Dictum • Literal translation is ‘things said by way’. • This is not part of the ratio decidendi. The judge sometimes makes a statement that is not part of the ratio decidendi. • It is not binding. This statement may be influential on decisions in the future- it will act as persuasive precedent.

  8. Question Time  • Complete questions 1-12 on page 199.

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