Dear Lionel;

As I read the passages Leeming JA and Beazley P do not disagree with your conclusion. Beazley P’s comment about it usually being inappropriate for an intermediate appellate court to express an opinion as to the precedential value of a decision of the High Court is expressly qualified in the clause prior to this by the words: “Except to the extent that it may be necessary to determine whether a particular decision of the High Court applies directly, as a matter of precedent, or persuasively, as a matter of considered dicta…” In other words, her Honour is saying that in those limited circumstances it is appropriate for a view to be taken on the precedential value of a High Court judge’s comments. She then goes on to say at [3] that this was such a case, as the comments of Gaudron J and their precedential value needed to be resolved for determination of the case, and hence not only was Leeming JA correct, but also: “it is appropriate for that view to be expressed as part of the disposition of the argument based on Gaudron J’s reasons that was advanced on the hearing of the appeal in this matter”.

(Presumably she would have thought it not appropriate if the issue had not needed to be ruled on to decide the current proceedings, for an obiter comment of some sort to be made in passing about the precedential value of a dictum handed down by a former High Court decision. But this was not such a situation.)

One may conclude that this is a trifle elaborately deferential, but I tend to think that given the sometimes previously highly charged comments passing between the NSW Court of Appeal and the High Court, it seems wise for the President to be very clear about these matters.

Regards

Neil

 

 

 

 

 

 

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