when a case raises a new point of law that has never before been decided, the judges must make a decision on that point of law
they will look at similar cases and try to reach a similar conclusion
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when was an original precedent created?
donoghue v stevenson
court created brand new tort of negligence
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binding precedent
must be followed by judges in a lower court
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example
the HoL ratio in Donoghue v Stevenson was binding on the Court of Appeal in Grant v Australian Knitting Mills (about the same point of law), so had to follow the earlier precedent
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persuasive precedent
judges can choose to follow but do not have to
comes from various sources; obiter dicta or lower courts
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example
R v R- CoA decided to make **** within marriage illegal.
when case went up to HoL could have made different decision but followed arguments of CoA
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