Correspondence
| Date | 01 July 1965 |
| Published date | 01 July 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01093.x |
CORRESPONDENCE
THE
EDITOR,
Sir,
makes the following observation
:
The
Modern
Law
Re&.
In his note on
Parker
v.
The
&wen
((1965)
28 M.L.R.
104)
L.
H.
Leigh
“
In his dissenting judgment, Dixon C.J. stated, for the High Court, that
in future, when High Court decisions conflicted with those of the House
of
Lords, decisions of the High Court should be followed by the Australian
courts.”
I
suggest that this is somewhat too strong
an
interpretation
of
what the Chief
Justice actually said in that case. Dixon C.J.’s own words were
:
‘‘
Hitherto
I
have thought that we ought to follow decisions of the House
of Lords, at the expense of
our
own opinions and cases decided here, but
having carefully studied
hith’8
Case
I
think we cannot adhere to that
view
or
policy.”
The Chief Justice expresses a negative attitude rather than ’the positive
approach which
Mr.
Leigh attributes to him. There is
a
considerable difference
between saying
‘‘
we will cease to do what we have always done
”
and saying
“
from now on we will do the opposite to that which we have always done.”
Between these extreme8 there is
a
middle course, and I suggest that the Chief
Justice’s words take
us
back only as far
as
the middle course
:
that in future
Australian courts will be free
to
decide whether they will follow House of
Lords decisions rather than High Court decisions, not that they will now
automatically follow High Court decisions
as
they did House of Lords
decisions in the past.
Canberra, Australia.
G.
J.
DAVIES.
THE
EDITOR,
Sir,
I
cannot pretend to expertise on the subjed of precedent in the Australian
courts. The High Court has not considered itself bound by its previous
decisions, and no doubt it will continue to exercise the like freedom in
the
future.
Mr.
Davies’ assertions with respect to state courts seem more questionable.
l’raumably,
Mr.
Davies postulates freedom
of
choice in all state courts
at
whatever level they may function. The result of such freedom could be chaos.
A
situation which Australian lawyers now deplore would be perpetuated.
The High Court, by enunciating such
a
rule, would appear
to
abdicate its
unifying function within the Federation. It is difficult to believe that the
new rule of precedent will ultimately accord to the
state
courts the freedom
of choice for which
Mr.
Davies contends.
London.
The
Modern Law
Review.
L.
H.
LEIGH.
508
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