From: Neil Foster <>
Date: 16/06/2022 01:57:25 UTC
Subject: ODG: authority of dicta and contributory negligence/intentional torts

Dear Colleagues;

Two interesting cases I have noticed over the last few days. Both of most interest to Australian colleagues but the second is a general decision on the common law which I think may be of interest to others.

  1. In Hill v Zuda Pty Ltd [2022] HCA 21 (15 June 2022) the main issues were statutory interpretation of legislation governing superannuation. But in the course of its unanimous decision the High Court commented on the question of the precedential value of “seriously considered dicta” uttered in one State appellate court, in proceedings in the court of another State. This is an important question in our federal system. Helpfully, though somewhat surprisingly, the court provided its full comments on this in a brief 2 paragraphs which I will paste here:


25 Farah Constructions identified two decision-making principles. The first is that an intermediate appellate court should not depart from seriously considered dicta of a majority of this Court[23]. The second is that neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong[24] or, to use a different expression, unless there is a compelling reason to do so[25]. 

26 Although both principles are directed to ensuring coherence in the law, the principles are distinct. The first concerns the relationship between an intermediate appellate court and this Court. The second concerns the relationships between intermediate appellate courts and between intermediate appellate courts and trial judges. In that latter context, intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.

I think this is an important clarification. Seriously considered dicta of the High Court should be followed by everyone; such comments from State appellate courts are not prima facie binding (in the sense they can only be departed from if “plainly wrong”) on other courts of other States, though their “decisions” are. Of course still leaves room for debate about what is a “decision” (what one could call the ratio) and what are merely dicta.


  1. In Irlam v Byrnes [2022] NSWCA 81 (3 June 2022) the NSW Court of Appeal finally makes a decision on the question of whether contributory negligence is a defence at common law to an intentional tort. The court rules that it is not- see the most extensive discussion from [23]-[58] by N Adams J. The decision shows a good awareness of the fact that what we call an “intentional tort” (here battery) does not always require an intention to cause harm (merely an intention to do the relevant act which “crosses the boundary”, here of someone’s body); and that under Australian law the tort of battery can be committed negligently as well as with full intention. The conclusion (the “ratio” if you like!) at [58] is


contributory negligence does not operate as a defence to an intentional tort such as battery where, as in this case, the injury is a direct consequence of that intentional tort.


N Adams J notes that the issue of “directness” may be a better category to use than some that have been previously suggested, and that CN may apply as a defence to “indirect” consequences of battery (as in the previous NSW decision of State of New South Wales v Riley  (2003) 57 NSWLR 496;  [2003] NSWCA 208.)


The decision is also a NSW torts teacher’s delight- a reasonably bizarre set of facts, issues around self-defence under ss 52-53 CLA, illegality under s 54. But the contributory negligence issue is a major point which has been uncertain for some time.








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