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

2017 ◽  
Vol 45 (2) ◽  
pp. 291-314
Author(s):  
Sonali Walpola
Keyword(s):  
National Identity ◽  
Common Law ◽  
Detailed Account ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
House Of Lords ◽  
The 1960S ◽  
Economic Ties

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.

Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts

1978 ◽  
Vol 9 (3) ◽  
pp. 348-374
Author(s):  
Christopher D. Gilbert
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
State Courts ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
Federal Constitutional ◽  
Recent Statement ◽  
The Subject

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court's recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr Justice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.

scholarly journals Bibliometric Study in the Heartland: Comparative and Electronic Citation Practices of the Indiana, Kentucky, Michigan and Ohio Supreme Courts (1994–2004)

2007 ◽  
Vol 7 (3) ◽  
pp. 207-221 ◽  
Author(s):  
Dragomir Cosanici
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
The State ◽  
Bibliometric Study ◽  
State Supreme Courts ◽  
Supreme Courts ◽  
Secondary Sources ◽  
The Common ◽  
Citation Practices

AbstractThis study by Dragomir Cosanici provides a bibliometric, comparative study of the citation practices of the state supreme courts in the common law jurisdictions of Indiana, Kentucky, Michigan and Ohio, USA during a recent ten-year span (1994–2004). It focuses on the type of legal materials most frequently cited as authority, examining the importance of both primary and secondary sources. It specifically analyses the growing usage of electronic citations by the four supreme courts.

scholarly journals ACCESSORY LIABILITY: PERSISTING IN ERROR

2017 ◽  
Vol 76 (01) ◽  
pp. 7-11
Author(s):  
Beatrice Krebs
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
South Australia ◽  
Privy Council ◽  
Criminal Enterprise ◽  
High Court ◽  
Joint Criminal Enterprise ◽  
Bodily Injury ◽  
Uk Supreme Court ◽  
High Court Of Australia

IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.

scholarly journals A Question of Seduction: The Case of MacMillan v. Brownlee

1969 ◽  
pp. 447
Author(s):  
Thomas Thorner ◽  
G. N. Reddekopp
Keyword(s):  
Social History ◽  
Common Law ◽  
Detailed Account ◽  
Legal Issue ◽  
Privy Council ◽  
Administration Of Justice ◽  
The Common ◽  
The Law

In a detailed account of the action for seduction involving a former premier of Alberta and his stenographer, the authors review the decisions of the courts from trial level to Privy Council The common law and the effect of statute are discussed in an explanation and analysis of the law of seduction. By reviewing newspaper accounts of public reac tion to the lawsuit, the authors are able to provide both an interesting perspective on Alberta's social history and also a glimpse at an important yet often neglected legal issue: the public's perception of the administration of justice.

The Active Irish Peers in the Early Eighteenth Century

1979 ◽  
Vol 18 (2) ◽  
pp. 52-69 ◽  
Author(s):  
F. G. James
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Privy Council ◽  
High Court ◽  
Judicial Decisions ◽  
House Of Lords ◽  
Irish Government ◽  
The Commons ◽  
Early Eighteenth Century ◽  
The Prestige

At the close of the seventeenth century the English House of Lords played an important role in government. It was the highest court in the kingdom as well as the upper house of the legislature; and, as A. S. Turberville observed, the Lords still considered themselves the “hereditary counsellors” of the crown. The prestige of the peerage was such that well into George I's reign most leading ministers were, or sought to become, peers. Although over twice as large as a century earlier, the English House of Lords retained its exclusive character with a total membership of only 165-169 lay peers plus twenty-six bishops. Furthermore, thanks to William III's bipartisan creations, the upper house remained more or less evenly balanced between Whig and Tory sympathizers so that it acted as a counterweight to party fluctuations in the Commons. In addition, a number of peers exerted extensive control over elections to the Commons.The Irish House of Lords between 1692 and 1727 did not constitute so influential a part of the Irish government, yet in most respects it resembled its English counterpart. It too served as a high court, with all members (as in England) joining the law lords in considering and rendering judicial decisions. As counsellors to the lord lieutenant (viceroy) Irish peers and bishops were, in fact, more active since they provided about half the membership of the Irish privy council. Unlike the English privy council, that in Ireland was a relatively small functioning body, meeting regularly with the lord lieutenant to review all proposed legislation.

Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

Retreating to the History of Judicial Review?

2019 ◽  
Vol 47 (2) ◽  
pp. 179-202
Author(s):  
Mark Aronson
Keyword(s):  
Judicial Review ◽  
New South ◽  
New South Wales ◽  
State Supreme Courts ◽  
Supreme Courts ◽  
High Court ◽  
South Wales ◽  
History Of ◽  
Court Of Appeal ◽  
Two Bodies

Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales and questions both the history and its importance.

In Defence of Trade-Unionism: Bill Wedderburn and Rookes v. Barnard

2021 ◽  
Vol 42 (1) ◽  
pp. 75-110
Author(s):  
Paul Smith
Keyword(s):  
Trade Unions ◽  
Common Law ◽  
Labour Law ◽  
Trade Disputes ◽  
High Court ◽  
Labour Relations ◽  
Trade Unionism ◽  
House Of Lords ◽  
The Right

Bill Wedderburn (1927-2012) - from 1977, Lord Wedderburn of Charlton - was a towering figure in the world of labour law. His commitment to trade-unionism and the right of workers to take industrial action, given the asymmetrical nature of the employment relationship, ran deep, pervading every aspect of his forensic, sometimes biting, analysis of labour law and the role of the common law. Prompted by the Rookes decision in the High Court, 1961, and the subsequent decision of the House of Lords Judicial Committee, 1964, Wedderburn launched a wide-ranging defence - academic and public - of trade unions’ freedom to strike and the Trade Disputes Act (TDA) 1906. He argued that the House of Lords’ decision had created a new common law liability which evaded the protections in the TDA 1906. This was neutralized by the Trade Disputes Act 1965, but a new wider version of the TDA had to wait for the passage of the Trade Union and Labour Relations Act, as amended in 1976.

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