The Development of the High Court's Willingness to Overrule Common Law Precedent

AuthorSonali Walpola
DOI10.1177/0067205X1704500206
Published date01 June 2017
Date01 June 2017
Subject MatterArticle
THE DEVELOPMENT OF THE HIGH COURT’S
WILLINGNESS TO OVERRULE COMMON LAW PRECEDENT
Sonali Walpola*
ABSTRACT
In its first 60 years the High Court showed a complete deference to English precedent,
and did not of itself initiate changes to common law doctrines. The High Court took its
first steps towards a utonomy in common law matters only in the 1960s when it
abandoned its polic y of following decisions of the House of Lords, t hereby ending the
practice of automatically incorporating English common law developments into
Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’
common law rules (those of 20th century origin) after the abolition of appeals from the
High Court to the Privy Council in the 197 0s. The elimination of appeals from State
Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range
of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court
has shown its willingness, in compelling circumstances, to overrule ancient common law
doctrines acquired before Federation. This paper gives a detailed account of the
emergence and expans ion of the High Court’s willingness to ove rrule common law
precedent. It reveals how the High Court’s a utonomy in common law matters was
developed in distinct stages that are linked to Australia’s changing legal, political and
socio-economic ties with B ritain, and its growing sense of an independent national
identity.
I INTRODUCTION
The explicit overruling of common law precedent represents one means by which the
High Court of Australia can effect change in the general law.
1
However, in contrast to
* LLB (UQ), B Com (UQ), PhD (ANU College of Law); Lecturer, ANU College of Business and
Economics.
1
More traditionally, change to the common law is implemented subtly by extending the
application of accepted principles to new cases, or by reasoning from settled legal principles
to new conclusions: Sir Owen Dixon, ‘Concerning Judicial Method’ (1956) 29 Australian Law
Journal 468, 472. Additionally, it is possible that modifications to the common law can occur
through the creation of new doctrine that does not conflict with existing principles and
therefore does not necessitate the overruling of existing authorities. As to the various ways
in which the common law can change and develop, see Justice McHugh, ‘The Judicial
Method’ (1999) 73 Australian Law Journal 37, 3948.
292 Federal Law Review Volume 45
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its long-standing receptiveness to reconsidering constitutional precedents ,
2
the Court
has historically shown a marked reluctance to overturn common law doctrine s.
3
This
paper examines the High Court’s willingness to overrule common law precedent from
its inception to the present day.
4
It considers the High Court’s attitude to overturning its
own prior common law decisions as well as settled common law doctrines that form part
of Australian law.
5
To the extent that the High Court’s willingness to overrule common law precedent
has been previously examined, its treatment has be en selective or normative in focus.
For example, Australian judges have noted the overturning of some traditional common
law doctrines in writing on judicial activism and the nature of the High C ourt’s
commitment to the doctrine of preced ent.
6
There is also a body of literature concerning
the High Court’s approach to overruling its own decisions, which has foc used on
formulating normative statements about when the High Court would be justified in
deviating from one of its past decisions.
7
While doctrinal divergences in the modern
2
The High Court overruled its own constitutional decision within a decade of its establishment
in Australian Agricultural Co v Federated Engine-Drivers’ and Firemen’s Association of Australasia
(1913) 17 CLR 261. Isaacs J justifies in detail why the High Court has, and should have, such
a power: at 2769. See also Justice Kirby, ‘Precedent law, practice and trends in Australia’
(2007) 28 Australian Bar Review 243, 247 where Justice Kirby noted that the High Court has
been ‘much more inclined to re-examine its past decisions’ in the constitutional setting.
3
For statements indicating a clear judicial resistance to reconsidering settled common law
doctrine, see State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 623
(Barwick CJ), 626 (Gibbs J), 633 (Mason J); Dugan v Mirror Newspapers (1978) 142 CLR 583, 586
(Barwick CJ), 5901 (Gibbs J). See generally Alex C Castles, An Australian Legal History (Law
Book, 1982) 50210.
4
The defensibility of individual common law overruling decisions (viz, critical examination of
whether the High Court was justified in overruling its prior decision or a rule of the
Australian common law) lies outside the scope of this paper.
5
As shown in the Appendix to this paper, most instances of the High Court explicitly
overturning a common law rule have involved overruling a prior High Court decision that
affirmed the r ule, which in most cases is ultimately sourced to English law. In some cases,
however, the rule was not one explicitly affirmed in a prior High Court decision, but was an
English doctrine regarded as part of the Australian common law because it was either
inherited from England as part of the received law of the Australian colonies , derived from
a Privy Council decision at a time when that tribunal was Australia’s ultimate court of appeal,
or universally accepted by Australian State Supreme Courts: see, eg, the damages rule
reviewed by the High Court in Atlas Tiles Ltd v Briers (1978) 144 CLR 202, which had entered
the Australian common law through State Supreme Courts’ acceptance of the House of
Lords’ decision in British Transport Commission v Gourley [1956] AC 185. As to the receptio n
of English unenacted law in the Australian colonies, see generally Castles, above n 3, 497
501; Sir Victor Windeyer, A Birthright and Inheritance: The Establishment of the Rule of Law
in Australia’ (1962) 1(5) University of Tasmania Law Review 635.
6
McHugh, above n 1, 38–42; Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4
Australian Bar Review 93, 1045; Kirby, above n 2 , 248–9. As to Australian judges’
acknowledgment of a more liberal attitude to precedent in the era of the Mason Court, see
Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed
(Carolina Academic Press, 2006), 17885.
7
The main scholastic analyses that have considered the High Court’s approach to overruling
its past decisions are as follows: Lyndel V Prott, ‘When Will a Superior Court Overrule Its

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