The Authority of Privy Council Decisions in Australian Courts
| Date | 01 December 1978 |
| Author | Robert S. Geddes |
| DOI | 10.1177/0067205X7800900402 |
| Published date | 01 December 1978 |
| Subject Matter | Article |
THE
AUTHORITY
OF
PRIVY COUNCIL DECISIONS
IN
AUSTRALIAN COURTS
By
ROBERT
S.
GEDDES·
During 1978, the High Court
of
Australia and the New South
Wales Court
of
Appeal handed down decisions which announce a
departure from the long-standing rule that decisions
of
the Privy
Council bind all Australian Courts. In this article, Mr Geddes
analyses these decisions and considers their future impact on the
authority 0/ Privy Council decisions in the various courts which
make up the Australian judicial hierarchy.
In
recent years, the Commonwealth Parliament has legislated on
three occasions to limit appeals to the Judicial Committee of the Privy
Council from Australian courts. Whilst it was expected that this legis-
lation would bring about changes in judicial attitudes towards the
authority of Privy Council decisions, it
was
not until recently that the
High Court, in Viro
v.
R.,l and the New South Wales Court of Appeal,
in National Employers' Mutual General Association
Ltd
v.
Waind,2
formally initiated the process.
In
this article the changes in the authority
of Privy Council decisions announced in Viro's and Waind's cases are
discussed, together with further changes which may develop in the
future. But before considering these matters, it will be necessary to
examine the rules of precedent which governed the weight of Privy
Council decisions in Australian courts before appeals were limited,
as
well
as
the legislation which imposed the limitations.
Authority 0/ Privy Council Decisions Before the Limitation 0/ Appeals
By the established rules of judicial precedent, decisions of the
Privy Council,
as
the ultimate court of appeal in the hierarchy to
which our courts belong, have adirect binding authority in our
courts which does not attach to the decisions of any other judicial
tribunal.
Such was the conclusion of the Full Court of the Supreme Court of
Victoria in Bruce
v.
Waldron,3 acase in which the proposition that
courts are strictly bound by higher courts in the same judicial hierarchy
was
put to the test.
In
that case the Court had to determine whether it
must follow the House of Lords' decision in Duncan
v.
Cammell, Laird
&Co.4or the Privy Council decision in Robinson
v.
State
of
South
=Ie
LL.M.
(A.N.U.),
Barrister and Solicitor
of
the Supreme
Court
of
the
Australian Capital Territory; Lecturer in Law, Australian National University.
1(1978) 18 A.L.R. 257.
219.7.78.
Not
yet reported.
3[1963] V.R. 3, 7.
4[1942] A.C. 624.
427
428 Federal Law Review
[VOLUME
9
Australia (No. 2),5 in relation to the conclusiveness
of
aCrown claim
of
privilege for documents. The statement sums
up
the authority
of
Privy Council decisions in all Australian courts before the introduction
of the legislation which limits Privy Council appeals.
It
follows therefore
that
until the decision in Viro's case, the rule
that
Privy Council decisions were strictly binding applied as fully to the
High
Court
as to any
other
court. While it
is
open to argument whether
the High
Court
had always followed the rule faithfully,6 it represented
the formal position. However, there was one decision of the Privy
Council by which the High
Court
explicitly refused to be bound.
That
was Webb
v.
Outtrim,' which involved aquestion as to the limits inter
se
of the constitutional powers of the Commonwealth and aState.
Section 74 of the Constitution provides that no appeal to the Privy
Council from adecision of the High
Court
on
an
inter
se
question shall
be permitted except with the leave of the IIigh Court, in the form of a
document certifying that the question
is
one which ought to be
determined by the Privy Council.
In
Webb
v.
Outtrim, no such certificate
had been obtained, the appeal having been taken to the Privy Council
direct from the Supreme
Court
of Victoria. When, in Baxter
v.
Commissioners
of
Taxation (N.S.W.),8 the High
Court
considered its
position in relation to Webb
v.
Outtrim, amajority of the justices held
that since the purpose
of
the British legislature in enacting the
Commonwealth Constitution had been to permit the High Court,
rather
than
the Privy Council, to have the final say on inter
se
questions, the
case was not binding on the High Court.9
It
was affirmed
that
Privy
Council decisions not falling within section 74 of the Constitution were
binding.
to
Shortly after the decision in Webb
v.
Outtrim,
the
Judiciary Acts
1903-1906 were amended by the Judiciary Act 1907, preventing appeals
to the Privy Council direct from decisions of the Supreme Courts of the
States
on
inter
se
questions. However, this did not remove all oppor-
tunity for the High C'ourt to refuse to be bound by any
other
decisions
5[1931] A.C. 704.
6See Prott, "Refusing to Follow Precedents: Rebellious Lower Courts and the
Fading Comity Doctrine" (1977)
51
A.L.J. 288, 290-292. Prott suggested that in
Cooper
v.
Southern Portland
Cement
Ltd
(1972) 128 C.L.R. 427 the High Court
had tacitly refused to follow abinding Privy Council precedent.
7(1906) 4C.L.R. 356. '
8(1907) 4C.L.R. 1087,
9Id.
1117-1118
per
Griffith C.J., Barton and O'Connor JJ.; 1148-1149 per
Isaacs J. Higgins J., who dissented, considered
Webb
v.
Outtrim
binding: Id.
1176-1177.
10Id.
1102 per Griffith C.J., Barton and O'Connor JJ.; 1147 per Isaacs J.
It
was
conceded by the appellant that aPrivy Council decision
on
an inter se question in
relation
to
which the High
Court
had issued its certificate under
s.74
was binding
(ld.
1101).
That
was also the opinion of Isaacs J. (Id. 1149). The High
Court
has
only issued acertificate on one occasion, and
is
unlikely
to
do so again.
Infra
p.435.
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