Appeal in each australian hierarchy and hence the

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appeal in each Australian hierarchy, and hence the supreme court in each such hierarchy, is the High Court. The doctrine of precedent holds that a court must follow the decision of a court in the same hierarchy, which is superior to this court. If it does not, there is a real risk that its decision will be reversed on appeal. It may think the decision of the superior court is wrong; but the proper course (and one less productive of further litigation) is to follow the decision and let the disadvantaged litigant take the issue further by appealing, if he or she is minded to do this. A court is not bound to follow its own previous decision, although preferably it should only depart from it in extreme cases, for otherwise uncertainty will arise. Thus, the High Court has been known to overrule its own past decision, but exceptionally rather than routinely. liii
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY A court is not bound to follow the decision of a court inferior to it in the same hierarchy. Likewise, a court is not bound to follow the decision of any court in another hierarchy. In these latter cases, however, it is said that the decisions of the other courts should be viewed as being of persuasive effect. They should be respected as considered determinations of the state of the law. 2.1.3 Concepts of ratio decidendi and obiter dictum Where the doctrine of precedent compels a court to follow the decision of another court, what exactly is it in the decision of the latter that is binding on the former? The answer is, that it is only the ratio decidendi (plural: rationes decidendi ) and not the obiter dictum (plural: obiter dicta ) in this decision that can be binding. The ratio decidendi is the reason for the decision - the reason why the judge decided as he or she did. That is, it is the reason without which the decision would not have gone the way that it did. The ratio is of course a proposition of law. It can be express (as where the judge states it) or it can be implied. It does not matter, by the way, what the court states the reason for the decision to be - it is not this which is binding. Rather, it is for the successor court itself to glean from the judgment what the pivotal reason for the decision was. There will, of course, typically be more than one ratio in a case. The obiter dictum is an observation as to the law which is not pivotal to the decision. The typical judgment will contain observations as to the law (usually more than one dictum ) in the course of explaining the judge's reasoning, some of which are not critical to the decision. This will happen, for example, in a sensible endeavour to survey a relevant branch of the law to put the pivotal principles into context. The written judgment of any court can be looked to as a source of law. In practice only the judgments of the appellate courts are a source of precedents, binding or otherwise. It is to the appellate court that difficult questions of law are taken and argued and are the subject of detailed judgment. It is the appellate court whose status makes it a likely source of
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