Greetings to all,

 

Mr. Justice James Douglas has drawn my attention to a recent decision of the NSWCA that may be of interest to members: Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA//2018/111.html

 

In a lengthy analysis at [96] ff , Leeming JA discusses a passage in the judgment of Gaudron J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 at 176, which refers to failure of consideration and unjust enrichment and suggests that a non-party to an agreement who was intended to benefit from it may have an action against the party who promised, for consideration, to benefit that third party. In brief, she disagreed in the result with the three judges who would have held that no claim lies, but she disagreed in reasoning with the three judges who would have reached that result by relaxing privity.

 

Leeming JA concludes that the passage has no precedential force ([118]) and indeed that Trident General lacks any ratio decidendi ([113]).

 

Beazley P, while expressing the view that “it is inappropriate for an intermediate court of appeal to express a view as to the precedential value of a decision of the High Court” ([2]), agrees with the reasoning and appropriateness of Leeming JA’s reasoning.

Emmett AJA, on my reading, expresses no view on the matter.

I realize that the issue has become a bit sensitive in Australia since Farah Constructions, but surely it is inevitable that lower courts must decide themselves the extent to which earlier decisions are binding in relation to a later dispute? Even if one believed, following Farah, that lower courts are bound by seriously considered dicta, the question whether such a dictum applies to the facts of a later case can only be decided by the court in the later case..any such decision being, of course, subject to being overruled by a higher court on appeal.

Lionel