Date: Fri, 30 Jun 2006 09:47:05 +1000

From: Neil Foster

Subject: Question from John Murphy

Dear John;

No, I can't think of a remark of this sort in Australia. But (to answer a question you didn't ask!) it is interesting that there seems often to be an "unspoken" reluctance on the part of judges to over-rule even decisions which are fairly clearly wrong when they have been handed down by "iconic" judges of the past. (I now see Vaughan's note about Horton v Sadler which is the sort of thing I mean.) Two examples I can think of in Australia:

(1) The NSW Court of Appeal has tied itself in knots for a number of years over the proper test for the tort of malicious prosecution, because of a very significant judgement of Sir Frederick Jordan, former Chief Justice of NSW, which on reflection seems clearly to have been wrong because it just ignored a High Court decision on the same point. The conflict of authority is well summarised in the judgement in A v NSW [2005] NSWCA 292. That decision has been granted special leave by the High Court. (Sir Frederick Jordan is highly respected and one of those judges most people think should clearly have been appointed to the High Court.)

(2) In the High Court itself the history of the law of vicarious liability over the last few years could almost be described as the ongoing attempt of the court to define the law while not actually over-ruling the judgement of Dixon J in CML Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australasia Ltd (1931) 46 CLR 41 (which found vicarious liability for the acts of an agent who was not an employee) - see the dissenting judgement of McHugh J in Scott v Davis [2000] HCA 52 and Hollis v Vabu [2001] HCA 44 and the dissenting judgement of Kirby J in Sweeney v Boylan Nominees [2006] HCA 19.

And now that Australia is out of the World Cup (we wuz robbed!) I'll be cheering for England tonight!

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> John R Murphy 29/06/06 10:18:29 >>>

Dear all,

I got the following question put to me by a colleague:

"Can you think of any cases in which a judge has said something to the effect that: "The court would have liked to have overruled this precedent some years ago but felt unable to do so while the judge responsible for the precedent was still alive"? Obviously there can't have been anything so brutally worded, and in English law I suppose it could only happen after 1966, but basically I'm looking for examples of where judges have clearly been unwilling to disturb a precedent until the precedent-setting judge was no longer around".

I couldn't think of any case off the top of my head. Is there anyone out there who knows of any such statement?

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