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Published online by Cambridge University Press: 24 January 2025
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 of Privy Council decisions in the various courts which make up the Australian judicial hierarchy.
1 (1978) 18 A.L.R. 257.
2 19.7.78. Not yet reported.
3 [1963] V.R. 3, 7.
4 [1942] A.C. 624.
5 [1931] A.C. 704.
6 See Prott, , “Refusing to Follow Precedents: Rebellious Lower Courts and the Fading Comity Doctrine” (1977) 51 A.L.J. 288, 290-292.Google Scholar Prott suggested that in Cooper v. Southern Portland Cement Ltd (1972) 128 C.L.R. 427 the High Court had tacitly refused to follow a binding Privy Council precedent.
7 (1906) 4 C.L.R. 356.
8 (1907) 4 C.L.R. 1087.
9 Id. 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.
10 Id. 1102 per Griffith C.J., Barton and O’Connor JJ.; 1147 per Isaacs J. It was conceded by the appellant that a Privy Council decision on an inter se question in relation to which the High Court had issued its certificate under s. 74 was binding (Id. 1101). That was also the opinion of Isaacs J. (Id. 1149). The High Court has only issued a certificate on one occasion, and is unlikely to do so again. Infra p. 435.
11 Barwick, , “The State of the Australian Judicature” (1977) 51 A.L.J. 480, 483.Google Scholar
12 (1956) 94 C.L.R. 254 (H.C.); (1957) 95 C.L.R. 529 (P.C.).
13 R. v. Joske; ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 C.L.R. 87, 90.
14 (1966) 67 S.R. (N.S.W.) 1, 10.
15 Casenote, (1952) 1 International and Comparative Law Quarterly 392; Marshall, , “The Binding Effect of Decisions of the Judicial Committee of the Privy Council” (1968) 17 International and Comparative Law Quarterly 743CrossRefGoogle Scholar; Jackson, , “The Judicial Commonwealth” (1970) 28 Cambridge Law Journal 257.CrossRefGoogle Scholar
16 [1952] A.C. 1, 14.
17 [1968] 2 N.S.W.R. 747.
18 [1967] 1 A.C. 569.
19 Supra n. 17, 752.
20 (1957) 97 C.L.R. 624.
21 Supra n. 15, 273.
22 [1960] 1 W.L.R. 239.
23 (1959) 101 C.L.R. 209.
24 [1965] N.S.W.R. 63, 69-70.
25 [1961] A.C. 945.
26 (1948) 77 C.L.R. 601.
27 In Ethell v. Whalan [1971] 1 N.S.W.L.R. 416, 432-433, Hope J. concluded that in the event that he was wrong to hold the High Court decision distinguishable, he was bound to treat it as overruled by the Privy Council decision; in Hall v. New South Wales Trotting Club Ltd [1976] 1 N.S.W.L.R. 323, 341, Holland J. followed the Privy Council, rather than the High Court decision; and in Calvin v. Carr [1977] 2 N.S.W.L.R. 308,, 342, Rath J. distinguished the Privy Council decision.
28 [1975] A.C. 774. Although this case was decided after the enactment of the 1968 legislation limiting Privy Council appeals from decisions of Australian courts, the issues of precedent dealt with are not affected by that legislation.
29 Id. 787-788.
30 Id. 788. This exception is discussed in Morgan, “Precedent in the Privy Council” [1977] Public Law 209.
31 The extent to which this represents an exception to the binding authority of decisions of other courts is discussed in Morgan, id. 214-215; Paton, , “Decisions Per lncuriam” (1948) 4 Res Judicatae 7, 10-13.Google Scholar
32 Supra n. 28, 788.
33 R. v. Wright (1972) 18 W.I.R. 302, 307-308, by which the Jamaican Court of Appeal considered itself bound in R. v. Baker (1972) 19 W.I.R. 278, 305-306.
34 Id. 307.
35 Supra n. 28, 788.
36 Cross, , Precedent in English Law (2nd ed. 1968) 127.Google Scholar
37 (1965) 112 C.L.R. 517.
38 (1940) 63 C.L.R. 691.
39 [1942] St. R. Qd. 288.
40 [1941] All India Reporter 93.
41 Supra n. 37, 520.
42 (1966) 116 C.L.R. 200.
43 [1966] A.C. 629.
44 (1957) 97 C.L.R. 89.
45 Unanimously as to regs. 73(1), (2), Barwick C.J. dissenting as to reg. 73(3).
46 Supra n. 42, 207.
47 Ratcliffe v. Watters (1969) 89 W.N. (Pt 1) (N.S.W.) 497, 503-505 and the comments of Barwick C.J. in Breskvar v. Wall (1971) 126 C.L.R. 376, 386-387.
48 (1968) 119 C.L.R. 222, 233-234.
49 [1951] A.C. 66.
50 (1977) 136 C.L.R. 475, 513.
51 Quinn v. Leathern [1901] A.C. 495, 506. Discussed in Cross, , Precedent in English Law (3rd ed. 1977) 59-66.CrossRefGoogle Scholar
52 Note, (1966) 40 A.L.J. 253.
53 Colonial Sugar Refining Co. Ltd v. Attorney-General for the Commonwealth 15 C.L.R. 182 (H.C.); (1913) 17 C.L.R. 644 (P.C.).
54 Nelungaloo Pty Ltd v. Commonwealth (1952) 85 C.L.R. 545; Whitehouse v. Queensland (1961) 104 C.L.R. 635; Western Australia v, Hamersley Iron Pty Ltd (No. 2) (1969) 120 C.L.R. 74.
55 Mason, , “The Limitation of Appeals to the Privy Council from the High Court of Australia, from Federal Courts other than the High Court, from the Supreme Courts of the Territories and from Courts exercising Federal Jurisdiction” (1968) 3 F.L. Rev. 1.Google Scholar The Act is also explained, and the parliamentary debates on the Bill commented on in John, St., “The High Court and the Privy Council; The New Epoch” (1976) 50 A.L.J. 389, 391-394.Google Scholar
56 The validity of which was upheld by the Privy Council in Kitano v. Common-wealth (1975) 132 C.L.R. 231.
57 H.R. Deb. 1968, Vol. 58, 867-868.
58 The question of appeals to the Privy Council from State courts exercising federal jurisdiction before the 1968 amendment is discussed by Mason, op. cit., 5-14.
59 The validity of which was upheld in Attorney-General of the Commonwealth v. T. & G. Mutual Life Society Ltd (1978) 19 A.L.R. 385. The Act and the parliamentary debates on the bill are discussed by St. John, op. cit., 394-397.
60 H.R. Deb. 1975, Vol. 93, 54.
61 S. Deb. 1975, Vol. 63, 431.
62 S. Deb. 1975, Vol. 65, 187.
63 (1978) 18 A.L.R. 257.
64 (1958) 100 C.L.R. 448.
65 [1971] A.C. 814.
66 Supra n. 63, 260.
67 Id. 282 per Gibbs J.; 289 per Stephen J.; 294 per Mason J.; 306 per Jacobs J.; 318 per Murphy J.; 325 per Aickin J.
68 Id. 260.
69 Id. 282 per Gibbs J.; 289 per Stephen J.; 294 per Mason J.; 306 per Jacobs J.; 317-318 per Murphy J.; 325 per Aickin J.
70 After abolition of Privy Council appeals from Canadian courts in 1949, pre-1949 Privy Council decisions taken on appeal from Canada continued to be binding on the Supreme Court for many years. The difference between this approach and that of the High Court may be explained to some extent by the Canadian Court’s more strict approach towards its own previous decisions. See Joanes, , “Stare Decisis in the Supreme Court of Canada” (1958) 36 Canadian Bar Review 175Google Scholar; MacGuigan, , “Precedent and Policy in the Supreme Court (1967) 45 Canadian Bar Review 627Google Scholar; Laskin, , Chief Justice of Canada, (1977) 51 A.L.J. 345.Google Scholar
71 R. v. Joske; ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 C.L.R. 87, 90.
72 (1976) 8 A.L.R. 649, 658.
73 Supra n. 63, 282.
74 Id. 282-283.
75 Most of the more recent Privy Council appeals from this country on “federal” matters are mentioned in Snelling, “Australian Appeals to the Privy Council: A Twelve Year Survey (1946-1957)” (1958) 2 Sydney Law Review 460; “Memoranda Respecting Appeals, and Applications for Special Leave to Appeal, from the High Court of Australia to the Privy Council” (1971) 123 C.L.R. XX.
76 Supra n. 63, 294.
77 Id. 306.
78 Id. 318. The circumstances in which the High Court will overrule itself are discussed in Springall, , “Stare Decisis as Applied by the High Court to its Previous Decisions” p. 483.CrossRefGoogle Scholar
79 Supra pp. 435-436.
80 E.g. Piro v. W. Foster & Co. Ltd (1943) 68 C.L.R. 313, infra nn. 6-8 and the text thereto.
81 E.g. Public Transport Commission of New South Wales v. I. Murray-More (N.S.W.) Pty. Ltd (1975) 132 C.L.R. 336, 341 in which Barwick C.J. suggested that in the absence of a High Court decision, a Supreme Court should, as a general rule, follow relevant decisions of the English Court of Appeal.
82 E.gs Milirrpum v. Nabalco Pty Ltd (1971) 17 F.L.R. 141, 242 (Northern Territory Supreme Court); Nicholson v. Nicholson (1971) 17 F.L.R. 47, 52 (State court exercising federal jurisdiction).
83 Supra pp. 430-431.
84 Murphy J. does not share this view: Commonwealth v. Queensland (the Queen of Queensland Case) (1975) 134 C.L.R. 298, 336; Viro v. R. (1978) 18 A.L.R. 257, 317. See Blackshield, “The Abolition of Privy Council Appeals: Judicial Responsibility and the Law for Australia” (1978) Adelaide Law Review—Research Paper No. 1, Ch. V.
85 It will be recalled that the inferior courts of the Territories are unaffected by the legislation limiting appeals to the Privy Council: supra p. 436. A theoretical right of appeal by special leave continues. It is doubtful whether any of these courts would contemplate refusing to follow a decision of the Privy Council, but subject to that, the unlikelihood of special leave being granted suggests these courts should approach the question of the authority of Privy Council decisions as though an appeal to the Privy Council is not available.
86 E.g. Senator Greenwood, S. Deb. (1968) Vol. 37, 777; Mr Jacobi, H.R. Deb. (1975) Vol. 93, 390-391; St. John, “The High Court and the Privy Council; The New Epoch” (1976) 50 A.L.J. 389, 394-401, Blackshield, “Judges and the Court System” in Evans (ed.), Labor and the Constitution 1972-1975 (1977) 105, 108-109; Prott, “Refusing to Follow Precedents: Rebellious Lower Courts and the Fading Comity Doctrine” (1977) 51 A.L.J. 288, 293-294.
87 Despite the general nature of the language used by several of the justices when dealing with this problem of conflicting decisions (supra n. 63, 260-261 per Barwick C.J.; 283 per Gibbs J.; 295 per Mason J.; 306 per Jacobs J.; 318-319 per Murphy J.) it is submitted that in the absence of a clear statement that their comments are intended to apply to decisions both of which were given before the Act, it should be assumed that they do not so apply. It would be surprising if the effect of the Act was to revive as authorities decisions which had been overruled or reversed by the Judicial Committee. The assumption which has been made here also appears consistent with the general comments made as to the weight to be given to past Privy Council decisions by the High Court. Supra p. 439. However the New South Wales Court of Appeal, in Waind’s case, appears to have taken a different view of the matter. Infra p. 453. If the assumption made by the writer is correct, any apparent conflict between decisions both of which were given before the Act should be resolved by reference to the principles in Jacob v. Utah Construction and Engineering Pty Ltd. Supra n. 42 and the text thereto.
88 Supra n. 63, 260-261.
89 Id. 306-307.
90 Id. 283.
91 Id. 295.
92 (1976) 11 A.L.R. 142.
93 Supra n. 63, 319.
94 Id. 318-319.
94a Supra n. 84 and the text thereto. Blackshield, supra n. 84, 71.
95 Id. 291.
96 Id. 327.
97 Although in the opinion of Gibbs J. the High Court must have made a deliberate decision not to follow the Privy Council and there must not be a later decision of the Privy Council directing the taking of a different course.
98 Supra n. 63, 261.
99 Barwick, , “The State of the Australian Judicature” (1977) 51 A.L.J. 480, 488.Google Scholar
1 Supra n. 63, 318.
2 [1974] A.C. 810, 820-821. Infra p. 448.
3 Supra n. 63, 283.
4 Id. 295.
5 Id. 289-290.
6 Id. 325.
7 Id. 326.
8 (1943) 68 C.L.R. 313.
9 Id. 320.
10 Id. 326 per Rich J.; 336 per McTiernan J.; 342 per Williams J.
11 [1969] 1 A.C. 590.
12 [1964] A.C. 1129.
13 Supra n. 11, p. 447, 641.
14 [1974] A.C. 810.
15 Id. 820-821. However there have been occasions in recent years when a High Court decision has been reversed by the Privy Council. E.g. Commissioner of Stamp Duties (N.S.W.) v. Bone (1976) 135 C.L.R. 223.
16 Supra n. 99.
17 Supra. n. 63, 260. Italics added.
18 Supra pp. 430-431.
19 Supra pp. 433-435.
20 Supra n. 27.
21 Supra n. 11 pp. 447-448 and the text thereto.
22 Supra n. 27, 342.
23 Supra n. 63, 295.
24 Ibid.
25 Supra n. 63, 260. Italics added.
26 Id. 319.
27 Id. 306.
28 Id. 326.
29 N. 15, 279 supra p. 429.
30 19.7.78. Not yet reported.
31 1909 No. 1521.
32 I.e. not covered by Rule 2(a) infra p. 455.
33 (1976) 135 C.L.R. 674.
34 supra pp. 443-444.
35 Transcript of judgment, 10.
36 Stephen and Aickin JJ. refused to give a direction (supra p. 444), whilst the direction of Gibbs J. applied only where the Privy Council had directed State courts not to follow the High Court decision (supra p. 443). Mason J. directed that the High Court decision should be followed unless, after considering that decision, the Privy Council had declined to follow it, in which event the Privy Council decision must be followed. However the High Court decision must be followed if the Privy Council decision was based on considerations not relevant to Australian circumstances or conditions (supra p. 443).
37 Once again, Stephen and Aickin JJ. refused to give a direction, whilst Gibbs J. suggested the High Court’s decision should be binding if it has deliberately decided not to follow the Privy Council decision. Mason J. suggested that the decision of the High Court should be binding.
38 Supra n. 97 and the text thereto.
39 Transcript of judgment, 10-11.
40 Transcript of judgment, 11.
41 Transcript of judgment, 12.
42 Supra p. 443.
43 Transcript of judgment, 14.
44 Transcript of judgment, 15.
45 The conditions and rules relating to appeals as of right and by special leave are dealt with in Bentwich, , The Practice of the Privy Council in Judicial Matters (2nd ed. 1926) 137-151, 152-180.Google Scholar
46 Nettheim, , “The Power to Abolish Appeals to the Privy Council from Australian Courts” (1965) 39 A.L.J. 39Google Scholar; Lumb, , The Constitutions of the Australian States (4th ed. 1977) 93-97Google Scholar; Barwick, , “The State of the Australian Judicature” (1977) 51 A.L.J. 480, 487Google Scholar; Graycar, and McCulloch, , “Gilbertson v. South Australia - The Case For S. 51(xxxviii)?” (1977) 6 Adelaide Law Review 136Google Scholar; Crawford, , “The New Structure of Australian Courts” (1978) 6 Adelaide Law Review 201, 222-224Google Scholar; Blackshield, supra n. 84, Ch. IV.
47 Canberra Times 13.4.78.
48 Sydney Morning Herald 26.6.78.
49 Age 15.4.78.
50 If the amount in dispute is $1000 or more, an appeal as of right to the Privy Council is available, under the Imperial Orders in Council, whilst under the Judiciary Act 1903 (Cth) as amended, s. 35(3), the amount involved for an appeal to the High Court as of right must be not less than $20,000. The Orders in Council governing Privy Council appeals from the States, apart from that applying in New South Wales which has been previously mentioned, are: South Australia: 1909 No. 202; Western Australia: 1909 No. 760; Queensland: 1909 No. 1229; Tasmania: 1910 No. 1186; Victoria: 1911 No. 98. In Victoria and Queensland, Privy Council appeals are governed by State legislation as well: Supreme Court Act 1958 (Vic.), s. 218; Appeals and Special Reference Act 1973 (Qld), s. 2.
51 Supra pp. 440-442.