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Published online by Cambridge University Press: 01 January 2025
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 autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby 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 1970s. 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 expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.
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: SirDixon, Owen, ‘Concerning Judicial Method’ (1956) 29 Australian Law Journal 468, 472Google Scholar. 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, 39–48Google Scholar.
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 276–9. See also Justice, Kirby, ‘Precedent law, practice and trends in Australia’ (2007) 28 Australian Bar Review 243, 247Google Scholar 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), 590–1 (Gibbs J). See generally Alex, C Castles, An Australian Legal History (Law Book, 1982) 502–10Google Scholar.
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 rule, 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 reception of English unenacted law in the Australian colonies, see generally Castles, above n 3, 497–501; SirVictor, Windeyer, ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) 1(5) University of Tasmania Law Review 635Google Scholar.
6 McHugh, above n 1, 38–42; Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93, 104–5; 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), 178–85Google Scholar.
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 Own Decisions?’ (1978) 52 Australian Law Journal 304Google Scholar; R C, Springall, ‘Stare Decisis as Applied by the High Court to its Previous Decisions’ (1978) 9 Federal Law Review 483Google Scholar; J W, Harris, ‘Towards Principles of Overruling—When Should a Final Court of Appeal Second Guess?’ (1990) 10 Oxford Journal of Legal Studies 135Google Scholar; Bryan, Horrigan, ‘Towards a Jurisprudence of High Court Overruling’ (1992) 66 Australian Law Journal 199Google Scholar; B V, Harris, ‘Final Appellate Courts Overruling Their Own “Wrong” Precedents: The Ongoing Search for Principle’ (2002) 118 Law Quarterly Review 408Google Scholar; Matthew, Harding and Ian, Malkin, ‘Overruling in the High Court of Australia in Common Law Cases’ (2010) 34 Melbourne University Law Review 519Google Scholar. In the last mentioned paper, the authors critique three relatively recent common law overruling decisions of the High Court (Imbree v McNeilly (2008) 236 CLR 510, Brodie v Singleton Shire Council (2001) 206 CLR 512 and Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49), with the aim of identifying normative principles of overruling.
8 SirAnthony, Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash University Law Review 149, 151–4Google Scholar; SirAnthony, Mason, ‘The Common Law in Final Courts of Appeal outside Britain’ (2004) 78 Australian Law Journal 183, 190–1Google Scholar; Justice, Toohey, ‘Towards an Australian Common Law’ (1990) 6 Australian Bar Review 185, 193–5Google Scholar; ChiefJustice, Gleeson, ‘Australia's Contribution to the Common Law’ (2008) 82 Australian Law Journal 247, 254–5Google Scholar. Recently, the capacity of the Australian common law to take a different path to English law was noted in the dicta of French CJ in Paciocco v Australia and New Zealand Banking Group [2016] HCA 28 (27 July 2016) [6]–[10].
9 An attempt has been made to identify the full population of cases where the High Court has explicitly overturned a prior common law rule. The relevant decisions are listed in the Appendix to this paper. The decisions were identified by using appropriate terms to conduct online searches of databases containing High Court case reports, and by examining citations in known overruling decisions and the secondary literature.
10 As to the absolute adherence to English common law decisions during this period, see generally Zelman, Cowen, ‘The Binding Effect of English Decisions upon Australian Courts’ (1944) 60 Law Quarterly Review 378Google Scholar; W N, Harrison, ‘Precedent in Australia’ (1934) 7 Australian Law Journal 405Google Scholar. See also SirGarfield, Barwick, ‘Law and the Courts’ in A F, Madden and W H, Morris-Jones (eds), Australia and Britain: Studies in a Changing Relationship (Frank Cass, 1980) 151–2Google Scholar; Mason, ‘The Common Law in Final Courts of Appeal outside Britain’, above n 8, 186–7; Castles, above n 3, 509–10.
11 Section 74 of the Commonwealth Constitution retained an appeal by special leave from the High Court to the Queen in Council (the Privy Council) in all matters except for questions inter se of the Commonwealth and the States, unless the High Court certified that the matter should be heard by the Privy Council. This provision also provided that the appeal from the High Court to the Queen in Council could be limited by the Commonwealth Parliament.
12 As to the policy of following decisions of the House of Lords, see Piro v W Foster and Co Ltd (1943) 68 CLR 313, 320 (Latham CJ). In relation to following English Court of Appeal decisions, see Sexton v Horton (1926) 38 CLR 240, 244–5 (Knox CJ and Starke J). Court of Appeal decisions were followed where they were regarded as having settled the common law. In Wright v Wright (1948–49) 77 CLR 191 the High Court chose to follow its own view rather than that of the Court of Appeal, but this was in circumstances where Dixon J stated that ‘there is great difficulty in being sure of what has been finally settled in England’: at 210.
13 In more recent times, High Court judges have noted that English common law doctrines were treated as representing the Australian law in an undiscriminating way. Sir Anthony Mason comments that ‘[i]n Australia, at least, there was a disinclination to take into account special local conditions in deciding whether English common law rules should apply’: ‘The Common Law in Final Courts of Appeal outside Britain’, above n 8, 186. To similar effect, see also Toohey, above n 8, 192–3.
14 (1926) 38 CLR 240.
15 (1917) 24 CLR 1.
16 (1921) 2 Ch 469.
17 (1943) 68 CLR 313.
18 (1926) 38 CLR 354.
19 Caswell v Powell Duffryn Associated Collieries Ltd (1940) AC 152; Lewis v Denye (1940) AC 921.
20 The following constitutional cases in this period overruled a prior decision of the Court: Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261; Commonwealth v Brisbane Milling Co Ltd (1916) 21 CLR 559; Duncan v Queensland (1916) 22 CLR 556; W & A McArthur Ltd v Queensland (1920) 28 CLR 530; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers’ Case’); Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528; Clyde Engineering Company Ltd v Cowburn (1926) 37 CLR 466; Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372. (This list of cases was found through conducting searches of online databases and by examining citations in known constitutional overruling decisions).
21 Using the years 1937, 1947 and 1957 as indicative illustrations, the number of constitutional decisions were 6, 8, and 15 respectively, while the number of cases concerning traditional common law matters (principally contract, tort and property) were 18, 9 and 17 respectively (obtained from a perusal of High Court reports available at <http://www.austlii.edu.au>).
22 (1943) 68 CLR 313, 320.
23 Ibid (Latham CJ), 325–6 (Rich J), 326 (Starke J), 335–6 (McTiernan J), 340–2 (Williams J).
24 Peter, Brett, ‘High Court—Conflict with Decisions of Court of Appeal’ (1955) 29 Australian Law Journal 121, 122Google Scholar. In this article, Professor Brett argues that the High Court should not follow English Court of Appeal decisions with which it disagreed, but considered that decisions of the House of Lords stood in a different position.
25 Barwick, ‘Law and the Courts’, above n 10, 151–2; Mason, ‘The Common Law in Final Courts of Appeal outside Britain’, above n 8, 187.
26 The Privy Council had approved of the practice of Australian courts following decisions of the House of Lords and English Court of Appeal. See, eg, the statement in Commissioner of Stamp Duties v Pearse (1953) 89 CLR 51 (PC) 63–4. The House of Lords had also approved of this practice. In Robins v National Trust Co Ltd [1927] AC 515, 519 Viscount Dunedin stated that ‘the House of Lords … is the supreme tribunal to settle English law, and that being settled, the Colonial Court, which is bound by English law, is bound to follow it’. On this point, see also Mason, ‘The Common Law in Final Courts of Appeal outside Britain’, above n 8, 186; Toohey, above n 8, 190–1.
27 Chief Justice Gleeson, ‘The Privy Council—An Australian Perspective’ (Paper presented at a meeting of the Anglo-Australasian Lawyers Society, The Commercial Bar Association, and The Chancery Bar Association, London, 18 June 2008) 18 <http://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-murray-gleeson/>.
28 Ibid.
29 Carl, Bridge, ‘Australia, Britain and the British Commonwealth’ in Alison, Bashford and Stuart, Macintyre (eds), Cambridge History of Australia (Cambridge, 2013) vol 2, 518, 530Google Scholar.
30 (1926) 38 CLR 240, 244.
31 Toohey, above n 8, 191; Castles, above n 3, 510.
32 Gleeson, ‘The Privy Council—An Australian Perspective’, above n 27, 18.
33 Bridge, above n 29, 518–9. Bridge here notess that 98 per cent of (non-indigenous) Australians were of British origin in the decade after Federation, most of them the children and grandchildren of British immigrants.
34 W D, Borrie, ‘British Immigration to Australia’ in A F, Madden and W H, Morris-Jones (eds), Australia and Britain: Studies in a Changing Relationship (Frank Cass, 1980) 101, 106–7Google Scholar.
35 The Statute of Westminster 1931 (Imp) 22 & 23 Geo 5 had permitted British Dominions to go their separate ways in the event that Britain went to war. However, Australia had deliberately delayed ratifying the Statute of Westminster until 1942. On this point, see Bridge, above n 29, 524–5.
36 A R, Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia’ (University of Adelaide, 1978), 47Google Scholar. To similar effect, see Barwick, ‘Law and the Courts’, above n 10, 151.
37 Trimble v Hill (1879) 5 App Cas 342, 345; Robins v National Trust Co Ltd [1927] AC 515, 519; Commissioner of Stamp Duties (NSW) v Pearse & Ors (1953) 89 CLR 51, 63–4 (PC). On this point, see generally Blackshield, ‘The Abolition of Privy Council Appeals’, above n 36, 50–1.
38 On this point, see Sir Anthony Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’ in Peter Cane (ed), Centenary Essays for the High Court of Australia (LexisNexis Butterworths, 2004) 66, 68–9.
39 (1879) 5 App Cas 342 (This was an appeal from the New South Wales Supreme Court to the Privy Council.).
40 Ibid 345, quoted in Piro v W Foster and Co Ltd (1943) 68 CLR 313, 320.
41 Bridge, above n 29, 528.
42 Ibid 531.
43 Ibid 530–1. On the negative Australian reaction to Britain's attempt to join the European Economic Community, see Scrutator, ‘The Economic Nexus’ in J D B, Miller (ed), Australians and British: Social and Political Connections (Methuen, 1987) 128Google Scholar.
44 Bridge, above n 29, 531.
45 Security Treaty between Australia, New Zealand and the United States of America, opened for signature 1 September 1951, [1952] ATS 2 (entry into force 29 April 1952).
46 As to Australia's developing alliance with the United States, see Hedley, Bull, ‘British and Australia in Foreign Policy’ in J D B, Miller (ed), Australians and British: Social and Political Connections (Methuen, 1987) 103, 109–11Google Scholar; Bridge, above n 29, 531.
47 Scrutator, above n 43, 136–7; Bull, above n 46, 109.
48 Bridge, above n 29, 531.
49 Borrie, above n 34, 110–11.
50 (1963) 111 CLR 610.
51 Ibid 632–3.
52 Editorial, ‘Australia and the English courts’ (1963) 37 Australian Law Journal 1, 1.
53 [1961] AC 290.
54 Editorial, above n 52, 1.
55 (1965) 66 SR (NSW) 223.
56 Ibid 268.
57 Editorial, ‘Parker's Case: A Cloud or a Beacon?’ (1965) 39 Australian Law Journal 149, 151Google Scholar.
58 Edward, St John, ‘Lords Break from Precedent: an Australian View’ (1967) 16 International and Comparative Law Quarterly 808, 815Google Scholar.
59 On this point, see Toohey, above n 8, 191–2; Sir Anthony Mason, ‘The Common Law in Final Courts of Appeal outside Britain’, above n 8, 187–9.
60 (1966) 115 CLR 94.
61 [1964] AC 326.
62 (1966) 117 CLR 118.
63 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497; Williams v Hursey (1959) 103 CLR 30; Fontin v Katapodis (1962) 108 CLR 177.
64 [1964] AC 1129.
65 Ibid 1226 (Lord Devlin). The two categories were offensive conduct by government employees and situations where the defendant's conduct was calculated to make a profit far in excess of the compensation payable to the plaintiff.
66 (1966) 117 CLR 118, 122–3 (McTiernan J), 137–9 (Taylor J), 146–7 (Menzies J), 148 (Windeyer J), 160 (Owen J). Before the House of Lords’ decision in Rookes v Barnard [1964] AC 1129 the common law in England and Australia envisaged that exemplary damages could be given wherever the defendant's conduct had been ‘high handed, insolent, vindictive or malicious’ towards the plaintiff: at 129 (Taylor J).
67 Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 (PC), 238–41. As to the Privy Council's willingness to allow the Australian common law to develop differently to Britain, see Castles, above n 3, 511; Sir Garfield Barwick, ‘Law and the Courts’, above n 10, 155; Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) 178.
68 (1968) 122 CLR 556.
69 Ibid 563.
70 See Mutual Life and Citizens’ Assurance Co v Evatt (1970) 122 CLR 628 (PC).
71 (1974) 129 CLR 576 (PC).
72 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504.
73 Townsville Harbour Board v Scottish Shire Line (1914) 18 CLR 306.
74 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576 (PC), 585.
75 Enid, M Campbell, ‘The Decline of the Jurisdiction of the Judicial Committee of the Privy Council’ (1959) 33 Australian Law Journal 196, 205Google Scholar.
76 Commonwealth, Parliamentary Debates, House of Representatives, 23 September 1965, 1197. See generally Gough Whitlam's speech at 1197–202 where the case for abolition is made in some detail.
77 Editorial, ‘The Privy Council—Abolishing Appeals’ (1966) 39 Australian Law Journal 358, 358. For arguments in favour of abolition, see St. John, ‘Lords Break from Precedent: an Australian View’, above n 58, 814–16; G Sawer, ‘Appeals to the Privy Council—Australia’ (1969) 2 Otago Law Review 138. For a detailed treatment, see F R Beasley, ‘Appeals to the Judicial Committee: The Case for Abolition’ (1955) Res Judicatae 401, which was referred to by Gough Whitlam in his 1965 motion to abolish Privy Council appeals (ibid 1202).
78 This was effected by the Privy Council (Limitation of Appeals) Act (Cth) 1968, based on the power given in s 74 of the Commonwealth Constitution.
79 Edward, St John, ‘The High Court and the Privy Council; The New Epoch’ (1976) 50 Australian Law Journal 389, 393Google Scholar.
80 Commonwealth, Parliamentary Debates, House of Representatives, 4 April 1968, 860.
81 Ibid 861.
82 St John, ‘The High Court and the Privy Council; The New Epoch’, above n 79, 398.
83 Ibid.
84 (1978) 141 CLR 88.
85 Ibid 93 (Barwick CJ), 120 (Gibbs J), 129 (Stephen J), 135 (Mason J), 150–1 (Jacobs J), 166 (Murphy J), 174 (Aickin J).
86 The relevant decisions are Sexton v Horton (1926) 38 CLR 240 and Piro v W Foster Co Ltd (1943) 68 CLR 313, which were discussed earlier in Part II.
87 See above n 9, which briefly describes how these cases were found.
88 Sir Anthony Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law,’ above n 38, 71.
89 Sir Anthony Mason, ‘Future Directions in Australian Law’ above n 8, 151.
90 For a detailed discussion, see SirGarfield, Barwick, ‘The State of the Australian Judicature’ (1977) 51 Australian Law Journal 480, 485–8Google Scholar.
91 (1978) 141 CLR 88.
92 (1987) 162 CLR 645.
93 (1991) 171 CLR 468.
94 (1978) 144 CLR 202.
95 (1980) 146 CLR 1.
96 (2008) 236 CLR 510.
97 (1995) 185 CLR 307. This case overturned the High Court's earlier decision in Beaudesert Shire Council v Smith (1966) 120 CLR 145 (‘Beaudesert’) that had recognised tortious liability (in the absence of negligence or the intentional infliction of harm) for losses caused by the unauthorised actions of another. Unusual for the time, Beaudesert provides an instance of the High Court formulating a novel doctrine: McHugh, above n 1, 47.
98 (1983) 153 CLR 52.
99 (1999) 201 CLR 49.
100 (2009) 239 CLR 175.
101 (1978) 141 CLR 88 (‘Viro’).
102 [1971] AC 814. This was an appeal to the Privy Council from Jamaica. Prior to 1975 when the appeal from the High Court to the Privy Council was removed, the High Court regarded itself as bound by Privy Council decisions on matters of general law, not only from Australian courts but also from the courts of other Commonwealth countries: Viro (1978) 141 CLR 88, 119 (Gibbs J).
103 (1978) 141 CLR 88, 146–7 (Mason J). Stephen and Aickin JJ agreed with Mason J. Gibbs, Jacobs and Murphy JJ concurred with the jury direction in Mason J's judgment. Barwick CJ dissented. Later in Zecevic v DPP (1987) 162 CLR 645 the High Court reinstated the view in Palmer v The Queen [1971] AC 814.
104 (1980) 146 CLR 1.
105 Gibbs, Stephen, Mason and Wilson JJ (Barwick CJ and Murphy and Aickin JJ dissented).
106 (1978) 144 CLR 202. This was a decision of five judges. Barwick CJ and Jacobs and Murphy JJ comprised the majority (Gibbs and Stephen JJ dissented).
107 In practice, Australian and Imperial courts have (in the past) taken a liberal approach to the doctrines that could be regarded as part of the received common law inherited from England. While the date of settlement was critical to the application of Imperial statutes, it was not considered so important in relation to common law doctrines. In State Government Insurance v Trigwell (1979) 142 CLR 617, Gibbs J stated that the content of the received common law could be determined by recourse to ‘the common law rules as expounded from time to time’: at 625. The Privy Council had also held that English common law doctrines unsuitable to the circumstances of an Australian colony in its infancy could ‘gradually be attracted to it’ with the advancement of social and economic conditions: Cooper v Stuart (1889) 14 App Cas 286, 292 (Lord Watson). See generally, Castles, above n 3, 505–7; W Harrison, Moore, ‘A Century of Victorian Law’ (1934) Journal of Comparative Legislation and International Law 16 (4) 175, 180–3Google Scholar.
108 This description is consistent with that used in Castles, above n 3, 509. English unenacted law received by the colonies in core areas (criminal law, contract, tort, property, trusts) is here described as ‘part of the foundation law applying around Australia around the 19th century.’
109 (1978) 142 CLR 583 (‘Dugan’).
110 (1979) 142 CLR 617 (‘Trigwell’).
111 In Dugan, which was a decision of the Full Court, the majority comprised Barwick CJ and Gibbs, Stephen, Mason, Jacobs and Aickin JJ. In Trigwell, which was a decision of six judges, the majority comprised Barwick CJ and Gibbs, Stephen, Mason, and Aickin JJ.
112 Dugan (1978) 142 CLR 583, 586 (Barwick CJ), 590–1 (Gibbs J); Trigwell (1979) 142 CLR 617, 623 (Barwick CJ), 627 (Gibbs J), 633–4 (Mason J). On this point, see Castles, above n 3, 503 where the author noted that ‘Australian courts have a marked reluctance to alter received unenacted law by judicial action.’
113 (1979) 142 CLR 617, 623.
114 (1968) 122 CLR 556, 563. The relevant statement of the High Court is quoted earlier, in Part III.
115 A R, Blackshield, ‘The High Court: Change and Decay’ (1980) 5 Legal Service Bulletin 107, 110Google Scholar.
116 Dugan (1978) 142 CLR 583, 609–11; Trigwell (1979) 142 CLR 617, 648–52.
117 The ‘Australia Acts’ comprised the Australia (Request and Consent) Act 1985 (Cth), the Australia Acts (Request) Act 1985 (passed by each State), and the Australia Act 1986 (UK).
118 Since the Australia Acts, the High Court has been emphatic that there is one common law of Australia rather than separate common law systems for each State: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562–3 (Brennan CJ and Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ); Lipohar v R (1999) 200 CLR 485, 505 (Gaudron, Gummow and Hayne JJ). On the entrenchment of this notion, see Leslie, Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (2004) 32 Federal Law Review 337, 344–5Google Scholar. Earlier in Australian history, the alternate view of separate common law systems in each State had been theorised by some: Castles, above n 3, 511–2 cites, inter alia, Quick and Garran, Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), 785 for this view.
119 See generally, SirAnthony, Mason, ‘Jurisdictional and Procedural Constraints on the Evolution of Australian Law’ (1984) 10 Sydney Law Review 253Google Scholar.
120 Gleeson, ‘Australia's Contribution to the Common Law’, above n 8, 248.
121 Barwick, ‘The State of the Australian Judicature’, above n 90, 485. On this point, see also Viro v The Queen (1978) 141 CLR 88, where Aickin J comments that if ‘the decisions of this Court and the Privy Council are in conflict, the Supreme Courts are placed in a position of great difficulty, a difficulty which cannot be resolved by any general direction from this Court’: at 175. For a detailed analysis of the precedential difficulties faced by State Supreme Courts in this period, see Blackshield, ‘The Abolition of Privy Council Appeals’, above n 36, 64–78.
122 Barwick, ‘Law and the Courts’, above n 10, 159.
123 Mason, ‘Jurisdictional and Procedural Constraints on the Evolution of Australian Law’, above n 119, 256.
124 Pierce, above n 6, 230. This was the overwhelming sentiment expressed by the Australian judges interviewed by Pierce. See generally at 224–31.
125 Ibid 230.
126 ‘Privy Council’ in Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia (Oxford, 2002) 560, 563.
127 SirAnthony, Mason, ‘Reflections on the High Court of Australia’ (1995) 20 Melbourne University Law Review 273, 280Google Scholar.
128 Pierce, above n 6, 209.
129 Ibid ch 4, especially 81–91 and ch 5, especially 178–189. See also McHugh, above n 1, 39; Justice, Kirby, ‘Ten Years in the High Court: Continuity and Change’ (2005) 27 Australian Bar Review 4, 8–10Google Scholar.
130 Pierce, above n 6, 203; Kercher, above n 67, 189.
131 SirAnthony, Mason, ‘The Australian Judiciary in the 1990s—Address to the Sydney Institute’ (1994) 6 Sydney Papers 110, 114Google Scholar.
132 SirAnthony, Mason, ‘An Australian Common Law?’ (1996) 14 Law in Context: A Socio-Legal Journal 81, 82–Google Scholar.
133 (1988) 165 CLR 107.
134 Ibid 123–4 (Mason CJ and Wilson J), 172 (Toohey J).
135 (1992) 175 CLR 1.
136 Ibid 109 (Deane and Gaudron JJ).
137 Ibid 48 (Brennan J), 109 (Deane and Gaudron JJ), 182 (Toohey J). Mason CJ and McHugh J agreed with the reasons of Brennan J. Dawson J dissented.
138 Ibid 102: Deane and Gaudron JJ identified the most significant earlier Australian authorities in support of the propositions that were rejected in Mabo as AG (NSW) v Brown (1847) 1 Legge 312, Cooper v Stuart (1889) 14 App Cas 286 (PC), Williams v AG (NSW) (1913) 16 CLR 404 and Randwick Corporation v Rutledge (1959) 102 CLR 54.
139 (1992) 175 CLR 1, 57 (Brennan J), 109–10 (Deane and Gaudron JJ). The nature of the common law concept of native title was elaborated on and clarified in Wik Peoples v State of Queensland (1996) 187 CLR 1. In that decision, a High Court majority (Toohey, Gaudron, Gummow and Kirby JJ) held that native title was not necessarily extinguished by the grant of a pastoral lease (Brennan CJ, Dawson and McHugh JJ dissented).
140 (1992) 175 CLR 1, 29.
141 McHugh, above n 1, 40–1. The same point is made in Pierce, above n 6, 151–2.
142 (1992) 175 CLR 1, 109.
143 The relevant decisions are: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 (that overturned the traditional rule precluding recovery of money paid under a mistake of law (as opposed to a mistake of fact)); John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (that modified tort choice of law rules and is discussed in the text above); Brodie v Singleton Shire Council (2001) 206 CLR 512 (that overturned the ‘highway rule’ immunity in tort, and is discussed in the text above); Beckett v New South Wales (2013) 248 CLR 432 (regarding the requirements for the tort of malicious prosecution, this decision overturned traditional doctrine to hold that termination of criminal proceedings by nolle prosequi (rather than acquittal) was sufficient to show that criminal proceedings had terminated in the plaintiff's favour).
144 (2000) 203 CLR 503.
145 (2001) 206 CLR 512.
146 (2000) 203 CLR 503, 520 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 562–3 (Kirby J). Details of the previous High Court decisions overruled on this point are listed in the Appendix to this paper. Callinan J concurred in the orders of the Court, but did not agree that the double actionability rule should be discarded: at 576–7.
147 Ibid 546.
148 Ibid 536–7, 541, 544 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). In Pfeiffer, where the plaintiff's injury was inflicted in New South Wales, the Court held that New South Wales legislation limiting the damages available in personal injury actions applied even though proceedings were brought in the Australian Capital Territory.
149 (2001) 206 CLR 512, 540 (Gaudron, McHugh and Gummow JJ), 604 (Kirby J). Gleeson CJ and Callinan and Hayne JJ dissented.
150 Ibid 543–4 (Gaudron, McHugh and Gummow JJ).
151 Ibid 543 (Gaudron, McHugh and Gummow JJ).
152 Ibid. Kirby J makes a similar statement at 589.