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March 31, 2020, 01:17:58 pm

Author Topic: distinguishing/overruling/disapproving/reversing  (Read 17931 times)  Share 

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LFTM

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distinguishing/overruling/disapproving/reversing
« on: May 30, 2010, 11:55:45 am »
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Im having trouble distinguishing methods of avoiding precedent, anyone have any easy methods of remembering these?

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Visionz

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Re: distinguishing/overruling/disapproving/reversing
« Reply #1 on: May 30, 2010, 12:36:38 pm »
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Read them again and again? The actual name for the principle is enough to apply the correct method for me. Distinguishing for example, is LITERALLY distinguishing a difference in the facts/materials of a case. The others are literal too.

Spreadbury

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Re: distinguishing/overruling/disapproving/reversing
« Reply #2 on: May 30, 2010, 01:10:49 pm »
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reversing and overruling are essentially the same thing, though there are two vital differences. reversing is where the previous decision is overturned on appeal while overruling requires two separate cases. and then disapproving is basically where the judge goes "no **** you, I want to go another way"
Bachelor of Laws, Deakin

Fyrefly

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Re: distinguishing/overruling/disapproving/reversing
« Reply #3 on: May 30, 2010, 02:26:01 pm »
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reversing and overruling are essentially the same thing, though there are two vital differences. reversing is where the previous decision is overturned on appeal while overruling requires two separate cases. and then disapproving is basically where the judge goes "no **** you, I want to go another way"

Disapproving is more like: "No **** you, I want to go another way, but I can't because I'm bound by your precedent."
It's saying: "I don't agree with your decision, but I have to follow it coz court hierarchy says I have to."
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Fyrefly

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Re: distinguishing/overruling/disapproving/reversing
« Reply #4 on: May 30, 2010, 02:30:16 pm »
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THESE NOTES ARE NOT MINE, THEY WERE PREPARED BY GRAHAM CARBERY.
Graham Carbery was a lecturer at VU for their Adult VCE program back in 2007 (when I did VCE =P).
Not sure what he's up to now, but he's awesome and I'm not taking the credit for his awesomeness.

Quote
Judges have developed some techniques that help to prevent the way precedent
operates from becoming inflexible.
These techniques include: reversing, overruling,
distinguishing and disapproving.


Reversing a decision occurs when a party that loses a case appeals against the original
decision
and the appeal is upheld, this means that the original decision has been reversed.

Overruling a previous decision occurs when a superior court decides not to follow a
previous decision of a lower court. For example, if a precedent set in the Supreme Court
of Victoria in 1997 was referred to in a case before the Victorian Court of Appeal in
2007, and the Court of Appeal decided not to follow it because it thought it was wrongly
decided, the Court of Appeal would be said to have overruled the Supreme Court’s 1997
decision.

Distinguishing a case on the facts occurs when a court decides not to apply an existing
binding precedent to the case before it because it is satisfied that the material facts of the
current case are different from those of the precedent, therefore the precedent does not
apply. Judges sometimes use this approach when faced with a binding precedent, that if
followed, would, in the judge’s opinion, result in an unjust outcome. However, if the
losing party believes the judge has wrongly distinguished the two cases they may appeal,
and if the appeal court agrees that the trial judge was in error, the original decision will be
reversed and the binding precedent followed.

Disapproving occurs when a lower court follows a binding precedent it does not like, but
the judge makes it clear that although s/he is compelled to follow the precedent s/he
disapproves of it. The purpose of recording her/his disapproval, while still following the
precedent, is the hope that either the losing party will appeal and a higher court may
overrule the precedent, or that the case might be brought to the attention of parliament
and corrective legislation passed.
|| BComm + DipLang (Jap) @ Monash ||

Visionz

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Re: distinguishing/overruling/disapproving/reversing
« Reply #5 on: May 30, 2010, 03:00:36 pm »
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Trigwell case is the example for disapproval too, FWIW.

LFTM

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Re: distinguishing/overruling/disapproving/reversing
« Reply #6 on: May 31, 2010, 08:21:24 am »
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thanks guys, very helpful