The Concept and use of Precedent.pdf - The Concept and use...

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Overview: Precedent is something that sometimes appears to occur naturally in a decision making process because it seems fair that like cases are decided alike. It is important to have a good understanding of: Terminology The Rationale for using a system of precedent The reasoning used to determine which part of a case is of precedential value (the Ratio decidendi ) How later courts use the previous courts decision based on the court hierarchy How to work with precedents How to apply and also how to avoid precedents (when we do not want them to apply). § Terminology Doctrine of precedent or Doctrine of stare decisis (Latin for D.O.P). It is a principle that requires judges to follow the ruling and determinations of judges in previous cases where a case involves similar facts and issues Precede –– to come before. § Ratio Decidendi Reason for the decision The part that forms precedent which can be applied in later cases The rule of law treated by the judge as a necessary step in reaching their conclusion having regard to the line of reasoning adopted by them. Obiter Dictum Comments made by judges Not leading to the decision Not binding, just merely persuasive. Appeals Sometimes an appeal is open to a court higher up in the hierarchy to reconsider the decision of the lower court Person making the appeal is called the Appellant ; and the opposing side is called the Respondent The Concept and use of Precedent Tuesday, 30 June 2020 7:39 pm
side is called the Respondent Case names may vary from the trial to appeal: Smith v Jones (Trial Court) but if Jones appeal, then it will become § Jones v Smith in the higher court § On appeal, a decision might either be affirmed (Upheld) or reversed (Set aside). § Rationale for the Doctrine of Precedent (Branson & Finkelstein JJ in Telstra Corporation v Treloar (2000) 102 FCR 595) "It is a doctrine based on policy. The rationale for the doctrine can be grouped into four categories": Certainty Equality Efficiency Appearance of Justice Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals.

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