How does the doctrine of precedent operate in australia

The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties. The operation of the doctrine of precedent in Australian law raises a number of specific legal questions, many of which implicate the High Court of Australia.

In this post I briefly consider two questions:. When and why does the High Court decline to follow its own past decisions? In Imbree v McNeilly [] HCA 40 , the High Court had to decide a case arising because a learner driver had a car accident and thereby injured one of his passengers. A driver owes a legal duty of care to his or her passengers; breach of this legal duty constitutes the legal wrong of negligence.

The question for determination in Imbree v McNeilly was: what standard of care does a learner driver owe to a passenger who is also supervising or instructing the learner? In the case of Cook v Cook [] HCA 73 , the High Court had ruled that a learner driver owes a standard of care to a supervising passenger that is lower than the standard of care that an ordinary driver owes to an ordinary passenger.

The High Court is not bound to follow its own past decisions, but it ordinarily does so in cases raising similar facts. Thus, there were reasons to think that in Imbree v McNeilly , the High Court would follow Cook v Cook and rule that the driver in Imbree v McNeilly owed a qualified standard of care to his injured passenger. However, the Court decided not to follow Cook v Cook , and instead overruled that earlier decision.

In other words, in Imbree v McNeilly , the High Court rejected the reasoning of one of its own past decisions, in a case raising similar facts. As you might expect given the significance of the doctrine of precedent to the rule of law, what the High Court did in Imbree v McNeilly was both unusual and controversial. What are the implications of the doctrine of precedent for state and territory courts of appeal?

The central legal questions in Farah Constructions were about the legal duties of property developers in a joint venture and the liability of third parties for the consequences of breaches of those duties, but we are interested in the case only insofar as the High Court used it as a vehicle to say something about the doctrine of precedent.

The defendants, taking the opposite view, argued that the rule for judges of first instance is that such judges will usually follow the decision of another judge of first instance unless convinced that it was wrong. However it is not the seniority or status of the judge that is relevant, but the superiority of the court. On that basis, the decisions of High Court judges and masters exercising the jurisdiction of the High Court are decisions of a court of co-ordinate jurisdiction.

Therefore the rule that a first instance judge follows the decision of another first instance judge, except where the second judge is convinced that the earlier decision is wrong, applies as between decisions of High Court judges and masters. Deputy Master Collaco Moraes rejected this argument. In his view, a decision of a master and a judge of the High Court are of the same standing in terms of the doctrine of precedent.

They are both judges of the High Court exercising the same jurisdiction, though the jurisdiction of masters is subject to certain restrictions. Counsel for the claimant in Coral Reef argued that the decision of Deputy Master Collaco Moraes in the Randall case was wrong because:. Master Matthews therefore rejected the decision of the High Court judge in Sarpd Oil for the reasons given by the Court of Appeal in the same case in reversing him.

This case provides a useful analysis of the doctrine of precedent, particularly as it relates to the status of masters and their parity with High court judges in terms of hearing and deciding cases. It is particularly helpful in the sense that it takes into account changes to the civil procedure system, reflects the more modern view that is taken by High Court judges in relation to the decisions of masters, and bears in mind that important decisions of masters can be readily accessed online.

Your email address will not be published. Facts The issue arose in the context of an application by the two defendants for security for their costs of a claim brought against them by the claimant Coral Reef. The claimant had not supplied any information to the defendants, claiming reliance on the decision of Andrew Smith J in Sarpd Oil International v Addax Energy SA [] EWHC Comm , to the effect that a respondent to a security application: Has no duty to volunteer evidence about its financial position, nor to explain why it is unwilling to do so.

These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different.

Some works are not in either database and no count is displayed. Repository Staff Only: item control page. QUT Home Contact. Home Browse About. Description Despite what the realists and other critics might say, Australian judges in particular, do take the doctrine of precedent seriously.

Notify us of incorrect data How to use citation counts More information.