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I don’t necessarily want to add anything about what are very peculiar Australian constitutional arrangements , but my reading of the Mason comments reflects my very crude understanding of Australian federalism – that what we in England and New Zealand might think is a very simple matter of judicial hierarchy is for them a matter of federalism and that it is very problematic in formal terms to claim that there is an Australian common law, although the jurisdiction of the High Court to decide common law cases makes that less problematic than to say that there is a US common law. This often seems especially so to me in equity cases where one has to be aware of the very different equity traditions in NSW and Victoria for instance. Mason’s court has had a number of significant battles with the High Court most famously in the tort context and his comments perhaps reflect a “why don’t you just leave us alone” feeling that judges in England or New Zealand might also feel about their superiors but which they lack constitutional standing to express.

Geoff

From: Duncan Sheehan (LAW)
Sent: Tuesday, 24 June 2008 8:50 p.m.
Subject: Re: [RDG] Mason P retirement

Dear all,

Neil said,

If 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. Hence they are entitled to say that an intermediate appellate court must (1) now observe what would otherwise be regarded as "dicta" from previous decisions of the High Court, and (2) follow previous decisions of other intermediate appellate courts. And when they say that, it will be part of the ratio of the High Court decision (necessary for them in coming to a view on whether the intermediate court was correct), and hence it will indeed be binding on future intermediate courts.

Surely not. The English Court of Appeal (not sure whether the High Court of Australia gets to overrule itself; I assume it can though) make a decision in a case - A. That decision is appealed to the House of Lords on the basis that the HL had previously said B - i.e. the CA ignored a HL decision exactly on point. The HL (and by extension any final appellate court) has to decide what the substantive law is - is it A or B. To decide that they do not need to decide whether the CA was or was not bound by statements in the previous HL decision; they only need decide whether they are going to follow that HL decision. If they do, they overrule the CA; if they don't they don't. If they overrule it - it's because the CA was substantively wrong on the merits - not because they failed to follow the rules of precedent; if they don't want to follow the prior HL decision, they won't overrule the CA - irrespective of whether the CA says about following HL decisions. The Court of Appeal may get a ticking-off, but it will make no difference to the decision on the merits, and cannot be ratio.

As it happens, it seems to me that what Say-Dee says at [135] is a reasonably sensible rule, but not one the HCA can lay down as ratio, any more than they can lay down a ratio rule about "seriously considered dicta" which is one reason why I wish they'd actually done the question justice rather than simply trying to slap the NSWCA down, and put together a proper argument for their conclusion that knowing receipt is nothing to do with unjust enrichment. In the end though I also agree with Neil about the rather peculiar application of the rule (and the correctness of Macquarie).