Precedent Law, Practice & Trends in Australia

Extract from “Precedent Law, Practice & Trends in Australia” by The Hon Justice Michael Kirby AC CMG:

The binding nature of the ratio decidendi:

“Lower courts in Australia are not bound by everything that is said in a judicial decision or by all of the judicial observations of a higher court. Rather, it is the ratio decidendi of the decision that binds, (1) as determined by analysis of the reasons of the judges in the majority. As I noted in Garcia v National Australia Bank Ltd, (2) the consequence of this approach for the ascertainment of binding precedent is that the opinions of judges in dissent and all judicial remarks of a general character upon tangential, additional or inessential questions or issues (“obiter dicta”), even if included in the reasons of judges who form part of the majority in the decision, will not become part of binding precedent.

Multiple concurring judgments:

Determining the ratio decidendi of a judicial decision becomes a more complex task when multiple concurring reasons are published by several judges for joining in the court’s orders in a given case. In such a case, the ratio must be derived from the essential areas of agreement legally necessary to the decision, found within the reasons of the judges in the majority. Sometimes, as the Privy Council observed of a High Court decision, this can be a doubtful or even impossible exercise. (3)

The application of precedent in State Supreme Courts:

The High Court of Australia has stated that where a ratio decidendi exists in the reasoning of one of its decisions, it is not permissible for any other Australian court, whether in an appeal or at trial, to ignore, doubt or qualify the rule so stated. The rule may be analysed and, where thought appropriate, elaborations suggested or distinctions upheld. But the legal duty of obedience requires that it must be followed and applied. (4)

Whilst State Supreme Courts are bound by authoritative rulings on legal questions appearing in majority opinions of the High Court differing views have been stated as to whether such courts will be bound by their own decisions. The majority of intermediate appellate courts in Australia reserve to themselves the right to reconsider their own earlier decisions, although they will normally not do so unless satisfied that the earlier decision was manifestly wrong. This appears to be the accepted position of the Federal Court of Australia and the majority of State appellate courts.” (5)

1. R Cross and J W Harris, Precedent in English Law, (4th ed, 1991), at 72. Cf A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) at 41 [3.17].

2. Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 417-418 [56]; Federation Insurance Ltd v Wasson (1987) 163 CLR 303, per Mason CJ, Wilson, Dawson and Toohey JJ at 314; D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 79-80 [244][246].

3. Referring to Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 in Candlewood Navigation Corporation v Mitsui OSK Lines [1986] AC 1 at 22.

4. Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403, [17]; contrast 418, [57]-[59].

5. See Nguyen v Nguyen (1990) 169 CLR 245, per Dawson, Toohey and McHugh JJ at 268-269. The only State in which there appeared to be any doubt was Western Australia, see Transport Trading and Agency Co of WA Ltd v Smith (1906) 8 WAR 33. However, the isolation of that decision, and the creation of a new Court of Appeal for Western Australia, makes the former approach seem outdated and out of line with the common Australian practice.”


“Precedent Law, Practice & Trends in Australia” by The Hon Justice Michael Kirby AC CMG

“The author surveys the current operation of the doctrine of precedent in Australia. He describes the changes introduced following the abolition of Privy Council appeals and the consequential alteration in the authority of English judicial decisions. He outlines of the principles for deriving the binding rule established by a judicial decision and relevant areas of uncertainty. He reviews the doctrine of precedent as it applies to the High Court of Australia itself, including the contested procedural rule requiring leave to permit a past holding of the Court to be re-opened and overruled. He describes the debates over “judicial activism” and the rules observed by intermediate courts as to the reopening of their past authority. The article concludes with discussion of the developments that will potentially have an effect upon the operation of the doctrine of precedent: the advent of the internet; the connected increasing use of international judicial authority; and the explosion of statute law for which precedent is often a less important tool than in identifying the common law…”

Click to access 2150-precedent_law.pdf

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