HELP with 'disapproval of precedent'

[TAP94]

I am getting so much conflicting information about disapproving of a precedent and was just wondering whether someone could help to clarify it for me.
Is this correct: Disapproving a precedent can be done by a lower court than that in which the precedent was set, but are they bound to follow such precedent or can they develop their own and have both co existing? Or is it, that courts of the same level in the same hierarchy express disapproval towards a precedent and then develop their own? I understand that there can be the instance where two similar precedents exist until a superior court comes along and overrules them and makes a new decision. But why then don't the courts if they are higher than the one in which the precedent was set just overrule the precedent? Do lower courts in the same hierarchy have to follow (bound by) the earlier precedent? That's what one textbook said. But then how does the situation of two precedents existing at the same time come about?
AHHH...I don't know!!
Any help guys:)))
Thank you eternally!

[JCurmi]

As far as I'm aware, 'disapproving' happens because courts on the same level are not bound by their own decisions, meaning they can disapprove of the precedent set earlier, create a new one, and both will remain until a higher court sets a binding precedent.


Someone correct me if I'm wrong haha.

[brenden]

As far as I'm aware, 'disapproving' happens because courts on the same level are not bound by their own decisions, meaning they can disapprove of the precedent set earlier, create a new one, and both will remain until a higher court sets a binding precedent.


Someone correct me if I'm wrong haha.

I believe this is correct.

[TAP94]

Hi guys, while it does sound logical and I agree with what you are saying...my textbook states that "When a previous decision (precedent) has been made in a court at the same level in the court hierarchy, or at a lower level, the present court may disapprove the earlier decision - that is, it states that it does not agree with the earlier decision."
However, I don't see the point of a higher court in the court hierarchy disapproving the precedent of an inferior court, when it could simply overrule it! That's why, to me, it makes more sense for disapproving to only refer to courts on the same hierarchy, PERIOD.

[brenden]

Yeah actually I was mistaken. I'm 100% confident that lower courts can disapprove the decisions of higher courts in the same hierarchy, and courts equal to each other can disapprove and set two precedents. But a court higher wouldn't bother disapproving, they'd just overrule. I think you're misinterpreting your textbook.

[TAP94]

Okay okay...so is it a mistake in the textbook when it says that "When a precedent is established in a lower court in the same hierarchy, the present court (presumadly higher in the court hierarchy) may disapprove the earlier decision". For example when the County Court establishes a precedent, the Supreme Court can then express disapproval toward such a precedent, that is how I am reading the textbook; although it doesn't seem logical it still seems to be saying that.

[brenden]

Well my score doesn't exactly back me up here but I disagree with the textbook. I'm pretty sure 'Overruling' is one of the ways to avoid precedent so a higher court would just do that. If a higher court 'disapproved' the lower court's precedent would just be abolished.

[ninwa]

Disclaimer: I didn't do legal studies so please wait for confirmation from somebody who does, as sometimes VCE subjects will teach different things from uni.

NB County Court decisions do not establish precedents

A court can disapprove of a decision without expressly overruling it. Are you confused as to why a higher court would merely disapprove without overruling? Sometimes a court will express doubts about the validity of some judgment of a court of the same or lower hierarchy but it may not want to go as far as to say "this is totally wrong". Why? I dunno - maybe it's a really old, established rule and the court doesn't feel comfortable changing it or something.

Disapproving of a precedent is just a way of avoiding having to follow a previous judgment without going as far as to make a new rule. The old precedent remains valid and courts can still follow it later on.

Overruling actually establishes a new precedent, making the previous one invalid.

[meganrobyn]

As far as I'm aware, 'disapproving' happens because courts on the same level are not bound by their own decisions, meaning they can disapprove of the precedent set earlier, create a new one, and both will remain until a higher court sets a binding precedent.


Someone correct me if I'm wrong haha.

100% correct. This would be disapproving and departing at the same time.

Lower courts can express disapproval in their obiter (as someone else said) but they still have to follow.

I'm not aware of a higher court disapproving and then departing, though, because lower courts would just follow their precedent in that area of law, as it would be of higher and thus greater value. Usually they would just find grounds to distinguish. But! That's just a general belief, not something I've checked before posting

[JCurmi]

As far as I'm aware, 'disapproving' happens because courts on the same level are not bound by their own decisions, meaning they can disapprove of the precedent set earlier, create a new one, and both will remain until a higher court sets a binding precedent.


Someone correct me if I'm wrong haha.

100% correct. This would be disapproving and departing at the same time.

Lower courts can express disapproval in their obiter (as someone else said) but they still have to follow.

I'm not aware of a higher court disapproving and then departing, though, because lower courts would just follow their precedent in that area of law, as it would be of higher and thus greater value. Usually they would just find grounds to distinguish. But! That's just a general belief, not something I've checked before posting

I was waiting for you to pop up and clarify

Awesome! Glad I don't have to learn something new now lol.

[meganrobyn]

I was waiting for you to pop up and clarify

Awesome! Glad I don't have to learn something new now lol.
[/quote]

Ha ha, yeah I've been away and my thesis is due on Monday!