Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Test it this way. Has there ever been an appellate decision, from any jurisdiction in the common law world, where the sole reason for allowing the appeal was that the lower court was wrong in its views as to the precedents binding upon it, even though those precedents were not binding on the appellate court?

The answer is surely no. If these precedents are not binding on the appellate court, it must go further and decide whether they are right or wrong.

So I don't accept that "the role of the High Court on appeal is, in part at least, to decide whether the intermediate appellate court made a legally correct decision, then their role must include formulating principles about the law of precedent which bind the intermediate court". The reason is that the High Court is not a re-constituted NSWCA, attempting to mimic what should have happened. The High Court of Australia is not bound by the same rules of precedent binding upon the NSWCA. Therefore, such questions as whether the NSWCA is bound to follow its own previous decisions, or whether the NSWCA is bound to follow seriously considered dicta of the HCofA, can never be in issue before the HCofA. These statements on this question are not ratio, however forcefully expressed they may be. They could only be ratio if they could be necessary or sufficient for the outcome, and they are not.

We had the same story in England in the 70s. Lord Denning would rule, in the Court of Appeal, that he was not bound to follow earlier Court of Appeal decisions. The House of Lords would tell him that he was so bound. In subsequent cases Denning would thank the House of Lords for its opinion, but explain that what they had said was necessarily obiter, and that even if they were right the most recent Court of Appeal decision on this question of precedent was the last one by himself. If he was bound by his own earlier decision, he was bound to say that he was not bound. He was bound to be free. This reasoning, although in my view unimpeachable, provoked the impotent fury of the House of Lords.

All of the leading decisions of the precedental force of decisions of the English Court of Appeal for the Court of Appeal itself are, necessarily, decisions of the English Court of Appeal. The House of Lords cannot authoritatively rule on this issue, however much they may stamp their feet.

(To get away with this sort of behaviour it might be said that you have to be Lord Denning. He had no ambition to go back to the House of Lords, and cared not a fig what the likes of Viscount Simmonds thought.)

What is the current position of the NSWCA on what it must do faced with two earlier inconsistent intermediate appellate court decisions? If the answer is 'follow the most recent', then they were bound to follow Tara Shire Council v Garner [2003] 1 Qd R 566. The HCofA's statements on the precedental effect of intermediate appellate court decisions in Say-Dee are just obiter, and cannot have changed the law.

The only bodies which can authoritatively rule on the precedental effect for the NSWCA of earlier intermediate appellate court decisions are the NSWCA and the legislature.

Even if the NSWCA ruled that they are bound by "seriously considered dicta" of the HCofA, statements such as those in Say-Dee on the rules of precedent for the NSWCA cannot qualify as "seriously considered". The reason is that they have not been tested in the "firey furnace" of argument by counsel. (For some forceful statements on this see D Heydon "Judicial Activism and the Death of the Rule of law" (2004) 10 Otago LR 493). This issue of precedent won't have been tested in argument, and was not in Say-Dee if you read the transcript, because it cannot be in issue before the HCofA.

RS