Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

I assume that Mason P's remarks in his farewell speech are, in part, referring to the harsh words of the High Court of Australia in Farah Constructions v. Say-Dee. One thing which puzzles me, and I am sorry if this goes off the topic of restitution somewhat, is why he thinks that the statements in Say-Dee (at [78]) have altered the rules of precedent?

The High Court of Australia seem to state that intermediate courts of appeal are bound to follow 'seriously considered dicta' of the High Court. However that statement was itself necessarily obiter dicta. Any statement made by the High Court on what a Court at a lower level should consider binding is necessarily obiter dicta as it cannot be necessary for the outcome of the case before the High Court.

Indeed, the High Court's decision appears to me, as an outsider, to be somewhat inconsistent.

If an intermediate appellate court refuses to follow serious considered dicta of the High Court of Australia, its power to ignore such dicta forms part of the ratio of that decision of the intermediate court. It will be necessary for the outcome of the case (as it was before the NSW Court of Appeal in Farah) and therefore ratio. If, as is stated by the HC of A at [135] in Farah, intermediate appellate courts are bound to follow earlier decisions of intermediate appellate courts, they are bound to conclude that they have the power to ignore seriously considered dicta of the High Court of Australia. They are bound to ignore obiter statements, even those from the High Court, to the contrary.

Further, I wholeheartedly agree with the High Court that courts should only authoritatively pronounce on issues which have been tested in argument before them [132]. Court should not embark upon frolics of their own. However, this is one of the reasons why the High Court cannot authoritatively pronounce upon what the intermediate courts should consider binding. Such a question is never of relevance before the High Court itself, and counsel will not have addressed the court on the question (as they did not in Say-Dee). Before an intermediate appellate court, by contrast, such a question can be of relevance to the outcome, can and will be the subject of submissions by counsel, and can be authoritatively resolved.

The logic of the High Court's position seems to me to indicate that courts in the position of the Supreme Court of New South Wales should consider themselves bound by their own earlier decisions both as to what counts as binding precedent for themselves and as to their own power to develop the law. Statements from the High Court on these matters are just obiter dicta given without the benefit of argument and, insofar as inconsistent with prior NSW Court of Appeal practice, must necessarily be ignored.

(For what it is worth, I think the High Court were clearly right in the result reached in Say-Dee on the substantive issue.)

Robert Stevens

Following the recent retirement of President Mason, RDG members may be interested in some of his trenchant insights, as reflected in his farewell speech and a short article in the ALJ.