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In reality, it will usually be necessary for a subordinate court to determine precisely what the ratio of a case is if it is minded to apply a view of the law conflicting with that in the preceding decision. To identify a statement in a prior case as obiter dictum only, or to identify a principle of law implicitly recognised in the prior case as obiter only, will allow the court a free hand in pursuing a conflicting, view of the law. Finally, it must be stressed that the determination of the ratio/nes of a case cannot be decided merely by reading the ‘legal parts’ of the judgment. The ratio is the reason that was pivotal to the case. The facts of the case (the facts found to have been proven), therefore, must be looked at to find what proposition or propositions of law, express or implied, were pivotal to the judgment. It is for this reason that appellate court and other judgments set out the facts of the case as well as the legal reasoning followed. The facts are, however, important only as the road to appreciating the legal significance of the judgment. Once this is determined the facts can be forgotten, because ultimately they are of relevance only to the particular parties. It is the law that lives on and is applied in other cases. 2.1.4 Evading an unwelcome precedent As mentioned, a court may want to evade an inappropriate precedent that is technically binding on it. Prima facie precedents should be followed, in the interests of continuity and consistency. However, the view may be taken that a precedent is inappropriate, because the reasoning in the case was flawed or it is an old case and society has moved on making the view then taken inapplicable. If the ratio of the case in question is a clear one, and the decision is a relatively recent one by the superior court, the subordinate court should not seek to avoid it but should decide the case in conformity with it, and thus place the onus on the aggrieved litigant to appeal. Ultimately, in this way, the senior court can be invited to reconsider its reasoning. To follow the alternative course will virtually guarantee further litigation on the part of the other party and, indeed, the court in question will be technically in the wrong for not following precedent. On the other hand, the decision of the superior court may, as mentioned, be old and obviously inappropriate - for example, a judge may be confronted with a decision of a superior court decided 60 years before, for which no support has since been voiced at any level of the hierarchy. Here the court may feel more free to seek to avoid the precedent. There are numerous devices for avoiding old precedents, whether binding or otherwise. The court may ‘distinguish’ the present case from the prior one - that is, distinguish them on the facts. The court may say that the earlier case concerned a legally quite different fact situation, and that the propositions of law pivotal to it have no application or no direct lv
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY application in the present case. The court may conceive the ratio in the previous case narrowly, in such a way that it has no obvious application in the present case.
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