Disaproving Precedents

[chrisjb]

I thought I understood it, but I don't. I thought that disaproving a precedent was when a judge was forced to follow a binding precedent, but expressed their disaproval of the precedent in obiter, and said that they didn't like it.

but my book sais: "When a previous decision (precedent) has been made in a court at the same level in the court hierachy, or at a lower level, the present court may disapprove the earlier decision - that is, it states that it does not agree with earlier decision. The present court is not bound to follow the earlier decision. If the latter case does not follow the earlier case it may make a new precedent. Both the precedent created in the earlier case that has been disapproved and the precedent created in the present case remain in force untill another case is taken to a higher court."

Does that mean that a judge can simply chose to not follow a preceden because they disagree with it, and in that event both precedents would be in opperation untill a higher court rattifies one or the other in a new case? Doesn't this undermine the entire doctrine of precedents?

[chrisjb]

hang on... another question. I think i get what the book is saying, but isn't that the exact same thing as overruling?

[Spreadbury]

no, overruling requires the court that is overruling the precedent to be higher in the hierarchy, disapproving (according to my notes) is used when the courts are of the same level, thus the precedent isn't binding anyway. a judge of a higher level would be able to disapprove as well, but that would be considered overruling as opposed to disapproving.

[eOkee]

I thought I understood it, but I don't. I thought that disaproving a precedent was when a judge was forced to follow a binding precedent, but expressed their disaproval of the precedent in obiter, and said that they didn't like it.

but my book sais: "When a previous decision (precedent) has been made in a court at the same level in the court hierachy, or at a lower level, the present court may disapprove the earlier decision - that is, it states that it does not agree with earlier decision. The present court is not bound to follow the earlier decision. If the latter case does not follow the earlier case it may make a new precedent. Both the precedent created in the earlier case that has been disapproved and the precedent created in the present case remain in force untill another case is taken to a higher court."

Does that mean that a judge can simply chose to not follow a preceden because they disagree with it, and in that event both precedents would be in opperation untill a higher court rattifies one or the other in a new case? Doesn't this undermine the entire doctrine of precedents?

Yes, judges can simply choose to now follow a precedent, created at a court in the same location in the hierachy, if they choose to. For example, a Magistrates Court in the city and another Magistrates Court in, let's say Hawthorn. If two cases go to each of them, where the exact same thing happened and the Court in the city says they are guilty (of negligence) and the Court in Hawthorn doesn't think that the decision made in the City was right, they can disapprove and say ''Nah, you're not guilty" (keep in mind this is hypothetical). So, now, let's say there is another Court in Dandenong (Magistrates) and they have the exact same case again. They can choose either of the precedents set in the Court at the city and the Court at Hawthorn. All will do whatever they want until it goes to a higher court where a level of consistency is demanded after they win/lose appeal.

You should also keep in mind that every single decision made will become persuasive precedent in similar cases.

hang on... another question. I think i get what the book is saying, but isn't that the exact same thing as overruling?

No, overruling/reversing only happens on appeal. Higher courts dont, per se, disapprove, if they do disapprove they will simply overrule or reverse. I guess the precedents on the same case set before the higher court decision render the lower court precedents (of that case) negligible and you know ... not even persuasive I guess =/

Hope that helped.

[andy456]

I thought I understood it, but I don't. I thought that disaproving a precedent was when a judge was forced to follow a binding precedent, but expressed their disaproval of the precedent in obiter, and said that they didn't like it.

but my book sais: "When a previous decision (precedent) has been made in a court at the same level in the court hierachy, or at a lower level, the present court may disapprove the earlier decision - that is, it states that it does not agree with earlier decision. The present court is not bound to follow the earlier decision. If the latter case does not follow the earlier case it may make a new precedent. Both the precedent created in the earlier case that has been disapproved and the precedent created in the present case remain in force untill another case is taken to a higher court."

Does that mean that a judge can simply chose to not follow a preceden because they disagree with it, and in that event both precedents would be in opperation untill a higher court rattifies one or the other in a new case? Doesn't this undermine the entire doctrine of precedents?

Yes, judges can simply choose to now follow a precedent, created at a court in the same location in the hierachy, if they choose to. For example, a Magistrates Court in the city and another Magistrates Court in, let's say Hawthorn. If two cases go to each of them, where the exact same thing happened and the Court in the city says they are guilty (of negligence) and the Court in Hawthorn doesn't think that the decision made in the City was right, they can disapprove and say ''Nah, you're not guilty" (keep in mind this is hypothetical). So, now, let's say there is another Court in Dandenong (Magistrates) and they have the exact same case again. They can choose either of the precedents set in the Court at the city and the Court at Hawthorn. All will do whatever they want until it goes to a higher court where a level of consistency is demanded after they win/lose appeal.

You should also keep in mind that every single decision made will become persuasive precedent in similar cases.

hang on... another question. I think i get what the book is saying, but isn't that the exact same thing as overruling?

No, overruling/reversing only happens on appeal. Higher courts dont, per se, disapprove, if they do disapprove they will simply overrule or reverse. I guess the precedents on the same case set before the higher court decision render the lower court precedents (of that case) negligible and you know ... not even persuasive I guess =/

Hope that helped.

I might be wrong but I believe that the Mag's court is not a court of record. Therefore ratio decedendi isnt recorded therefore no precedent is made (persuasive or binding)....
Which means every decision is possibly different for the same offence in the same court..... If you think about it it makes sense, like driving offences. All stuff goes into it so the judge isnt really 'disapproving' the others decision..
the example would however work for the county court but i believe there is only 1 in Vic, so it would just be different judges not locations

[chrisjb]

sweet. I got it... Disaproving a precedent occurs when a judge choses not to follow a precedent set at the same level of his/her hierachy. They can do it cos it's not binding- just persuasive.

Does that mean that if for example a judge of the supreme court disaproved of a precedent made by another judge of the supreme court, a judge in the county or magistrates court would be able to chose which one they wanted to follow?

What if the high court disaproves of a precedent it has made? does this mean that two different precedents will forever be applicable as there is no higher court to determine which precedent should stay?

[eOkee]

sweet. I got it... Disaproving a precedent occurs when a judge choses not to follow a precedent set at the same level of his/her hierachy. They can do it cos it's not binding- just persuasive.

Does that mean that if for example a judge of the supreme court disaproved of a precedent made by another judge of the supreme court, a judge in the county or magistrates court would be able to chose which one they wanted to follow?

What if the high court disaproves of a precedent it has made? does this mean that two different precedents will forever be applicable as there is no higher court to determine which precedent should stay?

If there was a judge in the Supreme Court in 2003 and a judge in the Supreme Court in 2006 disapproves the decision made by that (previous) judge and chooses to rule otherwise: they will create a new precedent. In this case, BOTH precedents will remain in force until either is taken up to appeal to either The Court of Appeal or The High Court, who can then overrule the decisions made in the Supreme Court. (Should keep in mind here that it will generally distinguish between the two cases to create a new precedent).

I would say that the County and Magistrates court would distinguish between which precedent to follow depending on which legal principles are more applicable to the case that has come before them, and I do think that in a court like the Supreme one, judges would follow precedent thats set before them in order to seal in some consistency into the system. In my text book it specifically says "The present court is not bound to follow the earlier decision but for the sake of consistency it usually will". Also the Parliament does not want 300 conflicting common laws floating around about the same case and that's why persuasive precedent is there: all for consistency and predictability. As for answering your question directly:

Both precedents will apply to courts lower in the hierachy. The judges in the County and Magistrates court would distinguish and choose which precedent is most applicable to the case before them and apply the appropriate one.

Same goes with the High Court question you had: they will both apply until overturned by The Full Bench of the High Court. Weeeeeeeeee 

I might be wrong but I believe that the Mag's court is not a court of record. Therefore ratio decedendi isnt recorded therefore no precedent is made (persuasive or binding)....
Which means every decision is possibly different for the same offence in the same court..... If you think about it it makes sense, like driving offences. All stuff goes into it so the judge isnt really 'disapproving' the others decision..
the example would however work for the county court but i believe there is only 1 in Vic, so it would just be different judges not locations

I'm pretty sure all judges set precedent: either persuasive or binding. If two cases come up the same in two Magistrates' Courts; the Magistrates Court in Dandenong would look at the decision made by the Magistrates Court in Hawthorn and choose to follow it. Judges want conistency; and driving offences can differ from person to person depending on circumstances and then the consequences are different because they choose to distinguish between the decision earlier. I'm basing that comment on the fact judges must justify their decisions.

[andy456]

sweet. I got it... Disaproving a precedent occurs when a judge choses not to follow a precedent set at the same level of his/her hierachy. They can do it cos it's not binding- just persuasive.

Does that mean that if for example a judge of the supreme court disaproved of a precedent made by another judge of the supreme court, a judge in the county or magistrates court would be able to chose which one they wanted to follow?

What if the high court disaproves of a precedent it has made? does this mean that two different precedents will forever be applicable as there is no higher court to determine which precedent should stay?

If there was a judge in the Supreme Court in 2003 and a judge in the Supreme Court in 2006 disapproves the decision made by that (previous) judge and chooses to rule otherwise: they will create a new precedent. In this case, BOTH precedents will remain in force until either is taken up to appeal to either The Court of Appeal or The High Court, who can then overrule the decisions made in the Supreme Court. (Should keep in mind here that it will generally distinguish between the two cases to create a new precedent).

I would say that the County and Magistrates court would distinguish between which precedent to follow depending on which legal principles are more applicable to the case that has come before them, and I do think that in a court like the Supreme one, judges would follow precedent thats set before them in order to seal in some consistency into the system. In my text book it specifically says "The present court is not bound to follow the earlier decision but for the sake of consistency it usually will". Also the Parliament does not want 300 conflicting common laws floating around about the same case and that's why persuasive precedent is there: all for consistency and predictability. As for answering your question directly:

Both precedents will apply to courts lower in the hierachy. The judges in the County and Magistrates court would distinguish and choose which precedent is most applicable to the case before them and apply the appropriate one.

Same goes with the High Court question you had: they will both apply until overturned by The Full Bench of the High Court. Weeeeeeeeee 

I might be wrong but I believe that the Mag's court is not a court of record. Therefore ratio decedendi isnt recorded therefore no precedent is made (persuasive or binding)....
Which means every decision is possibly different for the same offence in the same court..... If you think about it it makes sense, like driving offences. All stuff goes into it so the judge isnt really 'disapproving' the others decision..
the example would however work for the county court but i believe there is only 1 in Vic, so it would just be different judges not locations

I'm pretty sure all judges set precedent: either persuasive or binding. If two cases come up the same in two Magistrates' Courts; the Magistrates Court in Dandenong would look at the decision made by the Magistrates Court in Hawthorn and choose to follow it. Judges want conistency; and driving offences can differ from person to person depending on circumstances and then the consequences are different because they choose to distinguish between the decision earlier. I'm basing that comment on the fact judges must justify their decisions.

precedent is the resaon for the decision not the decision itself. I am lead to believe that only courts of record (ie Supreme Court or above) record the reason for the decision. The actual decision may be recorded and 'researched' by the judge for a reference but that is NOT precedent.

But I might be extremely wrong, in which case I apologize..
Can anyone else clarify this

[eOkee]

precedent is the resaon for the decision not the decision itself. I am lead to believe that only courts of record (ie Supreme Court or above) record the reason for the decision. The actual decision may be recorded and 'researched' by the judge for a reference but that is NOT precedent.
But I might be extremely wrong, in which case I apologize..
Can anyone else clarify this

Yesssssssss you're right, only Supreme Court and higher create precedent!

edit:

sweet. I got it... Disaproving a precedent occurs when a judge choses not to follow a precedent set at the same level of his/her hierachy. They can do it cos it's not binding- just persuasive.

No, that's not right. A judge in the County can disapprove of a precedent set in the Supreme Court, but he is forced to folllow it. It can influence the parliament to look into the common law (or precedent set) and abrogate it if they, too, disapprove of it. Disapproving does NOT ONLY mean they disapprove of a precedent set in the same level, they can disapprove of precedents set in a higher court, too.