Stare Decisis as Applied by the High Court to its Previous Decisions
| DOI | 10.1177/0067205X7800900404 |
| Date | 01 December 1978 |
| Published date | 01 December 1978 |
| Author | R. C. Springall |
| Subject Matter | Comment |
COMMENT
STARE DECISIS
AS
APPLIED BY
THE
HIGH COURT
TO ITS PREVIOUS DECISIONS
By R. C. SPRINGALL*
In
two recent cases before the High
Court
it has been argued
that
the
Court
should overrule one of its own previous decisions.
In
Viro
v.
R.t
the issue was whether, in circumstances relating to self-defence, the
High
Court
should follow adecision
of
the Privy Counci12
or
its own
decision in
R.
v.
Howe,s while in Queensland
v.
Commonwealth
4the
Court
was asked to reconsider its own previous decision in Western
Australia
v.
Commonwealth.
sThis comment considers the decisions in
which this question has been raised and attempts to determine what
factors have led the
Court
to adhere to the principle of stare decisis
and what factors have been relied upon to justify
an
exception.6
(a)
uManifest
Wrong"
or HFundamental Error"
Afactor influencing the Court to reconsider aprevious decision has
been the presence in
that
decision
of
what has been described as a
"manifest wrong"
or
"fundamental error". The first use of the phrase
"manifest wrong" was by Isaacs J. in Australian Agricultural Co.
v.
Federated
Engine
Drivers
and
Firemen's Association 0/ Australasia7
which,
inter
alia, considered the validity of
an
agreement between
an
organisation
of
employees and
an
employer which purported to prevent
the parties to it
or
either
of
them from instituting proceedings in the
Commonwealth
Court
of
Conciliation and Arbitration.
An
earlier
decision, J.C. Williamson
Ltd
v.
Musicians' Union 0/ Australia,8 had
held
that
such
an
agreement could and ought to
be
enforced by
injunction. Isaacs J. analysed this decision
and
the question of overruling
previous cases, and said
that
where aformer decision was clearly wrong,
and there were no circumstances counterveiling the primary duty
of
giving effect to the law as the
Court
found it, the real opinion
of
the
Court
should be expressed.
He
concluded
that
where the
prior
decision
*B.A. (Hons), LL.B. (Hons) (Melb.).
1(1978)
18
A.L.R. 257.
2Palmer
v.
R.
[1971] A.C. 814.
3(1958) 100 C.L.R. 448.
4(1977) 16 A.L.R. 487.
5(1975) 134 C.L.R. 201.
6
For
some recent journal literature on this topic see: Bennett, "The High Court
of
Australia-Wrong
Turnings" (1977)
51
A.L.I. 5; Prott, "Refusing to Follow
Precedents: Rebellious Lower Courts and the Fading Comity Doctrine" (1977)
51
A.L.J. 288; St. John, "The High Court and the Privy Council; The New Epoch"
(1976) 50 A.L.I. 389.
'1
(1913)
17
C.L.R. 261.
8(1912)
IS
C.L.R. 636.
483
484 Federal Law Review
[VOLUME
9
was "manifestly wrong", then, irrespective of consequences,
"it
[was]
the
paramount
and sworn duty
of
this
Court
to declare the law truly".9
The
other
members of the Court agreed
that
the earlier decision
attempted to oust the jurisdiction of the Conciliation and Arbitration
Court
and
that
it should be overruled on the ground
that
it was contrary
to public policy.lO
The following year in The Tramways' Case11 the High C'ourt
12
was
asked to reconsider its previous decision in
R.
v.
Commonwealth Court
of
Conciliation and Arbitration;
ex
parte Whybrow &
Co.
1S
on
the
issue of whether it had jurisdiction to issue prohibition against the
President
of
the Commonwealth
Court
of Conciliation and Arbitration.
On
the question of overruling the previous decision Griffith C.J. said
that:
it
is
impossible to maintain as
an
abstract proposition
that
the
Court
is
either legally
or
technically bound by previous decisions. Indeed,
it may in aproper case be its duty to disregard them.
But
the rule
should
be
applied with great caution, and only when the previous
decision
is
manifestly wrong, as, for instance, if it proceeded upon
the mistaken assumption of the continuance of arepealed
or
expired Statute,
or
is
contrary to adecision of
another
Court
which this C'ourt
is
bound to follow; not, Ithink, upon amere
suggestion
that
some
or
all of the members of the later
Court
might arrive
at
adifferent conclusion if the matter were res
integra.
14
Similarly Barton J. said
that
the
Court
was always able to listen to
argument as to whether it ought to review aparticular decision and
that
"the
strongest reason for
an
overruling
is
that
adecision is
manifestly wrong, and its maintenance
is
injurious to the public
interest"
.15
The principles enunciated in these decisions were affirmed in Cain
v.
Malone
16
where it was made apparent
that
nothing less
than
amanifest
wrong would suffice if the
Court
was to overrule aformer decision and
in Attorney-General (N.S.W.)
v.
The Perpetual Trustee Co. Ltd.
17
In
the lattercase Dixon J. stressed several reasons for refusing to reconsider
the earlier decision of Commonwealth
v.
Quince.
1S
He said that:
9(1913)
17
C.L.R. 261, 279.
10Id. 288 per Higgins J.; 290 per Gavan Duffy and Rich JJ. Powers J.
at
292-293
agreed the Court had aduty
to
reverse it if it was shown to be wrong, but thought
that in the circumstances
of
this case it was unnecessary
to
do
so.
11
Ex
parte the Brisbane
Tramways
Co.
Ltd
(1914)
18
C.L.R. 54.
12
Griffith C.J., Barton, Isaacs, Gavan Duffy, Powers and Rich JJ.
13
(1910)
11
C.L.R.
1.
14
(1914)
18
C.L.R. 54, 58.
15Id. 69; 70 per Isaacs J.;
83
per
Gavan Duffy and Rich JJ. and 86-87 per
Powers J.
16
(1942) 66 C.L.R. 10,
15
per Latham C.J. and 15-16 per Rich J.
17
(1952) 85 C.L.R. 237.
18
(1944)
68
C.L.R. 227.
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