First Principles of Business Law
Sources of law: case law
5. Precedents that are not binding

5.1. Taking account of non-binding precedents 

 

 

In the light of what has been said up to this point, it can now be stated that the previous decision of a court will be binding on a court that is deciding a new case only when:

  • The material facts of the two cases are sufficiently similar and cannot be distinguished; and
  • The previous decision is a decision of a superior court in the same court hierarchy as the court deciding the new case.

Failing either of these points, the earlier decision is not binding. But does this mean that no account will be taken of that decision? Choose the best answer from the alternatives below.

(a) If a previous decision is not binding, it is not a precedent and it cannot be taken into account as providing a rule of law.

(b) Even if a previous decision is not binding, it might, on its merits, be treated as 'persuasive' and treated as providing a suitable rule of law. However this is only possible if the previous decision is a decision of an Australian court.

(c) Even if a previous decision is not binding, it might, on its merits, be treated as 'persuasive' and treated as providing a suitable rule of law. This is possible even if the previous decision is not a decision of an Australian court.

 

 

 

 

 

 

 

 

  

 

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