Overruling in Common Law Cases

The statement of the High Court of Australia in Lange v Australian Broadcasting Corporation is one of the examples for overruling its decisions by itself, and the High Court has made some changes in law by overruling. When overruling the past decisions, High Court Justices have used phrases like “manifestly wrong”, “fundamentally wrong” or “plainly erroneous” to describe them. However, to overrule a precedent decision is sometimes understood as “to depart from” or “to re-express” the rule of the precedent decision. Also, it is noted in theoretical statements on the common law that the courts have various choices for making changes in the law as following:

• Distinguish a precedent case or not to follow a precedent decision because of the changes to the principle which mean effectively that it is already not a precedent;
• Refuse to apply a per incuriam decision;
• “Doubt” and “disapprove” a precedent decision without formally responding to it; and
• Re-interpret a precedent decision.

It is noted by Neil Duxbury that the courts should not follow the previous decisions and a new ruling should be applied to the case if at least the facts are materially identical to it, however, I think it should firstly be clarified that the improvement of the common law by overruling the previous decisions is allowable or not. According to the rule of stare decisis by the House of Lords, overruling has never been permitted and the ratio decidendi of a precedent case is considered as an “exclusionary reason” which is binding for a subsequent court to decide in accordance with it. In my opinion, as the doctrine of precedent is considered as “the hallmark of the common law”, and they focus on the specific areas of law, the case at hand should demonstrate new effective rules for the precedent. This kind of rules comes from the “substantive” reasons which are not the same with “precedential” ones. It is clear that common law generally means the body of law produced by decided cases without the aid of legislation, and the invocation of the common law refers not to previously existing law, but to the power of the judges to create new law under the guise of interpreting it. In my opinion, the overruling should not be understood as completely ignoring the previous cases, in this way, it may cause the comprehensive collisions among the precedent decisions, also the previous cases can lose their importance and logic. Also, if there will not be any effective differences in the precedent, then there is no need for overruling a precedent decision. English scholar Harris notes on this matter that a precedent decision should not be overruled where overruling would make no difference to the outcome of a case. Understanding the improvements in other areas too, I think the application of the same precedent always is not effective. Lionel Smith is also in my position by noting clear contenders would include changed political, social, or economic circumstances since the time when the precedent case was decided, the precedent may no longer be said to have binding force, so that an ‘overruling’ court is in effect making new law where old law has ceased to be. In my opinion, common law generally needs to develop, and the precedents are the major elements for its development.

The cases which the courts choose to overrule the previous decisions in order to achieve changes in the common law are called like “copper-bottomed” overruling cases by Harris. Harris notes that a court’s power to overrule may be invoked only where overruling would bring about some improvement to the law which is in three dimensions:

• Justice: if a legal proposition in a contained in the ratio decidendi of a precedent case would, “in view of the consequence of its universalized application”, fail to do justice to a class affected by it, then to that extent the law would be improved by overruling that proposition;
• Certainty: taking into consideration that overruling brings about unannounced change in the law, however, in a specific sense, the law may be improved if an ambiguous legal rule is replaced with a clear one, and in this way, overruling may serve the value of certainty in the law; and
• Coherence: Harris notes if it would be implausible to imagine any contemporary legislator wishing to enact rules, they are incoherent. In some circumstances, improvement to the law may be achieved by overruling one of the rules in question, thus strengthening the foundations on which the future law may be constructed in an orderly and predictable fashion.

Also, in the view of the plurality, it is noted the decisions of the courts in two cases – Commonwealth v The Hospital Contribution Insurance Fund of Australia and John v Federal Commissioner of Taxation clarified that there are four ‘considerations’ bearing upon the issue of overruling. The first is whether or not the precedent decision ‘rested upon a principle carefully worked out in a significant succession of cases.’ The second is whether or not ‘there were differences in the reasoning that led to the precedent decision.’ The third is whether a precedent decision ‘had achieved no useful result but considerable inconvenience.’ And the fourth is whether or not a precedent decision ‘had been independently acted on in a manner which militated against reconsideration.’ All these considerations can be considered as elements which make clear the needs on the overruling.

In Australia, most of the cases are decided based on the precedent, especially in the trial and intermediate courts. In my opinion, it is allowable act by the courts in common law to overrule the previous decisions. While some other lawyers consider the discursive reasoning of common law courts as messy, imprecise and unfocused, and the presence of dissenting opinions as destabilising, also the doctrine of precedent as obscure in practice and sometimes optional in enforcement, at least in the higher courts. However, I think not only the stability and predictability to the law should be taken into consideration, but also inflexibility should be considered as one of the main elements for bringing the improvement to the common law, which is also important for preventing the collisions among the precedent decisions. I think if inflexibility is provided for the common law, then the overruling will become more usable and effective for it.

Sources

1. Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1970) 122 CLR 504; Baker v Campbell (1983) 153 CLR 52; Street v Queensland Bar Association (1989) 168 CLR 461; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Wurridjal v Commonwealth (2009) 237 CLR 309.
2. Cain v Malone (1942) 66 CLR 10.
3. McGinty v Western Australia (1996) 186 CLR 140.
4. Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1.
5. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
6. Brodie v Singleton Shire Council [2001] HCA 29.
7. Richard H S Tur, Time and Law, 22 Oxford Journal of Legal Studies 463, 2002.
8. J D Heydon, How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?, 9 Oxford University Commonwealth Law Journal 1, 2009.
9. Julius Stone, Precedent and Law: Dynamics of Common Law Growth, Butterworths, 1985.
10. J W Harris, Murphy Makes It Eight – Overruling Comes to Negligence 11 Oxford Journal of Legal Studies 416, 1991.
11. Neil Duxbury, The Nature and Authority of Precedent, Cambridge University Press, 2008.
12. Joseph Raz, Practical Reason and Norms, Oxford University Press, 1975, pp. 35-48.
13. Stephen R Perry, Judicial Obligation, Precedent and the Common Law, 7 Oxford Journal of Legal Studies 215, 1987.
14. The Hon. Sir Anthony Mason, The Use and Abuse of Precedent 4 Australian Bar Review 93, 1988.
15. Bryan Horrigan, Towards a Jurisprudence of High Court Overruling 66 Australian Law Journal 205, 1992.
16. J. Beatson, Has the Common Law a Future?, 56 C.L.J. 291, 1997.
17. J W Harris, Towards Principles of Overruling – When Should a Final Court of Appeal Second Guess?, 10 Oxford Journal of Legal Studies 135, 1990.
18. Cf Lionel Smith, Properties of Law: Essays in Honour of Jim Harris, Oxford University Press 297, 2006.
19. J D Heydon, Limits to the Powers of Ultimate Appellate Courts, 122 Law Quarterly Review 399, 2006.
20. The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49.
21. John v Commissioner of Taxation (Cth) [1989] HCA 5.
22. Imbree v McNeilly (2008) 236 CLR 510.
23. SD Smith, Law’s Quandary, Harvard Law Review, 2004.