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This is a summary of how precedents are made using textbook and lecture content...

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How Precedents Work - Coherent notes from Lecture and Textbook BLAW10001

The Doctrine of Precedent ‘Doctrine of precedent’ requires that a judge who is deciding on a new case should decide it in the same way that similar cases have been decided in the past. A precedent is binding when: - The material facts of the two cases are sufficiently similar and cannot be reasonably distinguished; AND - The previous decision is the decision of a superior court in the same court hierarchy as the court deciding the new case. When a precedent meets the abovementioned requirements, the past decision is ‘binding’ on the lower courts. - This means, the lower court has no choice but to follow the same reasoning to decide the new case. - This is the called principles of ‘stare decisis’ The Principle of ‘Stare Decisis’ - The principle which states that if a court has decided a case and a similar case arises at a later date. The new case should be decided in a similar way as the earlier case - Translates to ‘let the decision stand’ The ‘Ratio Decidendi’ of a case - ‘Ratio decidendi’ consists of the legal principle, rule or reason which the court has applied to the material facts of a case to reach its decision. - This is the only binding section of the precedent - When a judge is bound by precedent, they must look at how to match the previous judges’ approach and how to incorporate the previous judges’ reasoning in their own written reasons. The ratio decidendi of the case consists of two elements: 1) The new case contains material facts which define the type of situation in which a particular rule applies 2) It contains the precise rule of law which the court has applied to resolve the issue raised by material facts

The doctrine of precedent states that previous decisions of superior courts must be followed unless the cases can be distinguished on their material facts and therefore treated as sufficiently different to justify applying different rules. - ‘Distinguished’ means that there is a substantial difference in material facts that are important to the case - This allows the judge to disregard precedent in the process called ‘distinguishing the previous case’ If the requirements are not met, the court can treat the previous decision as persuasive. - The decision is not binding but the same ideas/reasoning can be applied by a court in a different jurisdiction/greater hierarchy....