The Role Of The Doctrine Of Precedent

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The purpose of this essay focus on the important role of the doctrine of precedent in Australia legal system. The doctrine of precedent, in a simple words, is the principle that binds the common law together. As a general rule it means the courts were bound to follow the decisions of all courts superior to it in its own court hierarchy. This paper is divided into four parts. The first part mentions a background of the topic, the second part concentrates on analyzing the principle as well as the advantages and disadvantages of the doctrine of precedent. Finally the conclusion sums up the outcome of the research. The doctrine of precedent, as mentioned, was settled in the nineteenth century. Before that, precedents were considered to be…show more content…
The diagram above show the Australia Court hierarchy. The diagram is also demonstrate how the concept of Doctrine of Precedent applies. A further question that arise is when the High Court of Australia and the Supreme Court of Victoria will depart from their previous decisions. First of all, the High Court of Australia will normally follow its own earlier decisions and will depart from them if there is a strong reason to do so. In the case in which the High Court did not follow its own previous decision, it said that: “while stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law especially we would add if the change is necessary to maintain a better connection with more fundamental doctrines and principle”. For example, in the case of Imbree v McNeilly (2008) 249 ALR 647 7, the decision of the previous case named Cook v Cook (1986) 162 CLR 376 8 was no longer a good law to be follow therefore the court decided to overruled this previous case. Conversely, a court of appeal will normally follow its own previous decision and the situations that it determines not to do so will be rare. For instant, the Victorian Court of Appeal only depart from its own previous decision where it is convinced that the decision is “clearly, or plainly, wrong’ 9. In the case of
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