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LWB145 Lecture Notes - Week 9.docx

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Law
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JSB171
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LWB145 Week Nine Lecture Notes The Doctrine of Precedent Part Two Review from Last Week  A court will be bound by a decision of a superior court in the same hierarchy.  A court is bound to follow the ratio decidendi of an earlier decision, but will not be bound to follow the obiter dictum of the earlier decision.  Some courts are not part of the appellate structure.  Certain courts are at the ‘common apex’ of different hierarchies.  We looked at per incuriam decisions.  Express or implied overruling of previous cases.  Wilful disregard of binding precedents.  Majority opinions and equally divided courts. Previous Decisions of the Same Court  Are courts bound by their own previous decisions?  The short answer is no – the only exception being the civil division of the English Court of Appeal.  However, even though courts are not technically bound to do so, it is very rare for a court to depart from its previous decisions. Supreme Court of United Kingdom  The highest court in the English court hierarchy, replacing the House of Lords as the highest court on st October 1 2009.  It is highly unlikely that the Supreme Court of the United Kingdom will be bound by its own previous decisions. House of Lords  The House of Lords was initially not bound by its previous decisions.  However, this changed in 1898 when the case of London Tramways Co Ltd v London City Council [1898] AC 375 ruled that the House of Lords was bound by its own previous decisions.  This position changed again in 1966 when a Practice Statement held that the House of Lords was not strictly bound by its own previous decisions. Privy Council  The Privy Council has never been bound by its own previous decisions, Read v Bishop of Lincoln [1892] AC 644. High Court of Australia  The High Court of Australia has never regarded itself as being bound by its previous decisions, Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261.  See Laying Down the Law pp 143-155 for examples of when the High Court might depart from its previous decisions The Full Court of Federal Court & State Courts of Appeal  The Full Court of the Federal Court and the Court of Appeals in each state are not bound by their own previous decisions, Nguyen v Nguyen (1990) 169 CLR 245  See also pages 169 – 171 of Laying Down the Law.  The Queensland Court of Appeal held itself bound by its own decisions for a period of time, but ceased to do so after Nguyen. What About Single Judges?  A single judge is not bound by the decision of a fellow single judge.  This applies to single Supreme Court Justices, District Court Judges and Magistrates.  See La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204: “The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court...But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance...unless he is convinced that the judgment was wrong”’. Appellate Courts in Other Jurisdictions  It may be an oversimplification to think of previous decisions as either binding or merely persuasive.  MacAdam and Pyke refer
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