Dear Colleagues;
While it is a matter of the law of precedent rather than a specific issue of the law of obligations, I thought it might be of interest to note some comments of Basten JA in a medical negligence case on how
precedent operates when the majority in an intermediate appellate court have made comments on a matter, and that decision has then been overturned on appeal (but the final court of appeal did not explicitly refer to the comments in issue.) In short, he says
that the comments are subsequently to be treated in the same way as comments of a dissenter and are not authoritative or binding on subsequent courts.
In Sparks v Hobson; Gray v Hobson
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If that understanding is too restrictive and it is necessary to go further, I would not follow McKenna.
The decision in McKenna
having been overturned in the High Court, [21] the
reasoning of the majority in this Court is no longer binding. As Kirby J noted in Garcia
v National Australia Bank: [22]
“It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon
a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be.”
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When the decision of an intermediate court of appeal is overturned by the High Court, the reasoning of the majority is no longer dispositive, even if the High Court does not directly reject it, as
it did not with respect to the interpretation of s 5O in McKenna,
having determined the appeal on a different point.
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There is some irony in the fact that the primary support for this conclusion is often sourced to a brief statement by Aickin J in dissent in Federal
Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [23] stating:
“I should add that there is no basis on which one point in the judgment of a primary court should be regarded as authoritative where the judgment is reversed on other grounds.”
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Given that the reasons of the intermediate court in a case where the decision has been reversed are no longer dispositive, they are analogous to the reasoning of a dissenting judge. Allsop P explained
in Holmes a Court v Papaconstuntinos [24] that
dissenting judgments “may contain valuable discussions of legal principle”, but that is “a different thing to being taken as an exposition of the common law to be applied.” The same proposition applies with respect to discussion of statutes.
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The position would, of course, be quite different if the High Court, despite reversing the decision in this Court in McKenna,
had approved the reasoning with respect to s 5O. The reasoning would not then form part of the ratio, but it would clearly obtain the authority of dicta of the High Court. However, that did not happen in the present case. The High Court held that the plaintiff
must fail on the basis that there was no duty of care owed to relatives of the deceased. The Court continued: [25]
“Consideration of those other issues, about ss 5B, 5O, 43 and 43A of the [Civil Liability Act],
should await a case in which it is necessary to examine them.”
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While the reasoning of this Court in McKenna as
to the scope and operation of s 5O is not to be disregarded, there is no obligation on this Court, as a matter of precedent, to follow it. For the reasons set out above, in my view it is too restrictive.[26]
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle Law School
Faculty of Business and Law
409 Hunter St
Newcastle
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
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