Discuss the operation of the doctrine of precedent in the Australian Courts In your answer address
Twill be recorded as a precedent, And many an error by the same example, Will rush into the state William Shakespeare, Merchant Of Venice IV, Pg 218 The Doctrine of Precedent requires that ‘like cases be decided alike’. ... In this way the earlier case is referred to as the ‘precedent’. ... The doctrine of precedent is adopted by the Australian Courts. The way in which the Doctrine of precedent works is that when an issue first comes before the court the courts make a principle to cover the case. ... It is what Lord Stowell said, “ A Precedent embalms a principle”[1] There are two very important components to the Doctrine of Precedent which guide the process of making new rules and helping the law to cover the case: 1) The two components of the precedent are stated below: a) Ratio Decidendi: The cases make common law and interpret both common law and statute. ... There is really no official statement of the doctrine of ratio. ... The doctrine of stare decisis subjects that the principles would remain unchanged. ... Considering the doctrine of stare decisis we can say that precedent has three spheres of operation to consider: (1) Courts in the same hierarchy (2) A court’s own prior decisions (3) Courts outside the hierarchy * The precedent may impose limits on what judges decide on the basis of the Doctrine of Stare Decisis, this doctrine purports to direct or encourage later courts to follow a principle once it has been established. ... In addition there is a view that a case is some authority not only for the principle it espouses, but also for the reasons for the principle, that is the policy behind it and the precedent, which supports it.[2] That precedent has three spheres of operation to consider: (1) Courts in the same hierarchy A court lower in the hierarchy must follow the decision of a higher court, and higher courts may overrule decisions of lower courts. This concludes that the Federal court and the Supreme Courts must follow their “ superior courts “ for example the Full Court or Court of Appeal. This principle applies to the decisions of superior courts only; it does not apply to decisions of any inferior court. ... The question is not really whether courts should generally follow their decisions. ... (3) Courts outside the hierarchy In, general, Australian courts are not bound by courts outside their hierarchy although they pay respect to decisions of courts of other commonwealth countries and to united states decisions on the points of law common to both countries.