Forum Assessment 2

Can the High Court of Australia decline to follow its own prior decisions? If so, can you provide ex- amples of the High Court overruling its own prior decisions? Established in 1901 in Section 71 of the Constitution, the High Court of Australia is the apex court in the Australian judicial system.(1) Operations of High Court of Australia consist of interpreting and applying law in Australia. Cases in which the High Court of Australia undertake include those which involve the interpretation of the Constitution, the overruling of prior decisions, appeals in opposition to those of the Supreme Courts, the Federal Court of Australia, and the Federal Circuit and Family Court of Australia, and 'where the Court considers the principle of law involved to be one of major public importance'.(2) It is the responsibility of the courts, in the judicial decision-making process, to 'ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties'.(3) However, the exception to the rule is the High Court, in a common law system, which has the ability to discard it's prior rulings by rejecting the ratio decidendi - reasoning for decision.(4) An example of this can be seen in the case of Imbree v McNeilly, which dealt with the legal subject of negligence in regards to standard of care.(5) In this case 'the supervising passenger is owed the same objective standard of care by the learner driver as that which the learner driver has always owed other road users'.(6) The court judgement, that of which the precedent established in Cook v Cook, stating that the expected standard of driving of an inexperienced driver and the potential con- sequences should be considered as a passenger was denounced.(7) It can be seen in the Imbrue v McNielly case that the court no longer supported the ratio decidendi of the precedent as it was in- doctrinated in contributory negligence, a defence based on negligence.(8) REFERENCES: 1. 'Role of the High Court', High Court of Australia (Web Page, 2020) < https://www.hcourt.gov - .au/about/role-of-the-high-court >. 2. 'Operation of the High Court', High Court of Australia (Web Page, 2020) < https://www.h - court.gov.au/about/operation >. 3. Matthew Harding, 'The High Court and the Doctrine of Precedent', Opinions on High (Blog Post, 18 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding- precedent/>. 4. ibid 5. Imbree v McNeilly [2008] HCA 40 6. 'The Standard of Care of the Learner Driver - A Victory for Common Sense', Cooper Grace Ward Lawyers (Web Page, 4 September 2008) <https://cgw.com.au/publication/the-stan - dard-of-care-of-the-learner-driver-a-victory-for-common-sense/ >. 7. Cook v Cook (1986) 162 CLR 376 8. Peter Hunt, 'Curwoods Case Notes - High Court Overturns Cook v Cook', Mondaq (Case Notes, 3 September 2008) <https://www.mondaq.com/australia/Litigation-Mediation- Arbitration/65698/Curwoods-Case-Notes-High-Court-Overturns-Cook-v-Cook >.