This is because single judge of the high court is not usually hearing an appeal, but original cases.
Last dot point – if the law was incorrectly stated or is no longer relevant.
BHP Billiton case is good example – transparent error (clear for all to see)
Last dot point or if the court applied the wrong case or applied the case in a way that was not open to
be applied.
Viro and the queen case – high court unanimously agreed no longer bound by decisions of the privy
council.
Black left letter method of law – binding precedent. Bind the case in front of the law if it is in the same
hierarchy from a higher court and an issue that’s substantially similar.
Applies = a court is bound to apply the decision that is bounding.
Follow = courts may follow a decision if it is highly persuasive. Can follow it, whilst not applying
Distinguish = difference on facts between past matter and current matter. Point of distinction so not
applicable.
Overrule – past decision which is not strictly binding.
Reverse = courts decision has been upset on appeal and then a court will overrule a past decision
Approve/affirms/disapproves = a court sees the past decision as good law it approves it. Disapprove =
reasoning incorrect.
Consider a previous case = court has considered the case but not bound by it
Cite = just listed a case without saying anything about it
Explain a case = court interprets that decision and what it means
- The HCAFC (high court) is never strictly bounding. It can overrule old precedent decisions,
although it is cautious doing so...
- But the court will on occasion overrule itself because it will find a previous precedent to be
unsatisfactory.
Cases that relate to constitutional matters have their own unique considerations because the Australian
constitution is entrenched so is unable to be changed using ordinary political processes.
Some judges believe that the court should be open to the parting from past decisions – contentious.
Constitution cannot be altered by parliament alone and needs referendum.
When the HC interprets a provision of the constitution this interpretation can only be altered by a
subsequent decision of the high court or the referendum. So, if HC is not open to revising a past decision
regarding the constitution it will often remain unchanged.
- View the precedent case as too wide and therefore decide it should be confined to its facts.
- First dot point (yes binding precedent, but the binding precedent concerns a matter that is
factually dissimilar i.e. important point of distinction.)
- Court may also say that the principle may not be part of the ratio.
- (lord Atkinson neighborhood principle google that)
- This can lead to improvements in common law, otherwise principles become too general which
can lead to situations where principles lead to injustices.
- Determine that the precedent should not be applied due to changed social considerations
(social norms, medical evidence progressing)
- There are a variety of precedents and sometimes in appellate cases there is no binding
authority.
- We want rules that are applied to everyone the same way, but this may lead to individual
injustice. This is one of the reasons for the development of the law of equity.
- Judges may run out of law, no binding authority, case hasn’t been decided on same hierarchy
with same facts.
- And some point the law ends, and the judge needs to create a new law.
- Australian conservation foundation incorporated v minister for resources (1989) 76 LGRA 200.
- Right to life association (NSW) inc. V Secretary Department of human Services and Health (1995)
56 FCR 50.
- Standing is the right to bring that case – reason for threshhold is that anyone could do a case
against the commonwealth – must be personally affected by new law.
- The older case authorities raised problems for public interest litigation where there was no
obvious effect of this kind.
- At the time of the hearing, a relevant case authority was Boyce V Paddington Borough Council
[1903] 1 ch. 109.
