2 December 2005

Stare decisis in New Zealand - the Court of Appeal

R v Chilton Yesterday, the Court of Appeal in R v Chilton reconsidered but affirmed its previous position on whether it can overturn its previous decisions:

This Court has recognised that it is ordinarily bound by its earlier decisions but that it will, in rare cases, be prepared to review and affirm, modify, or overrule an earlier decision… [W]e do not consider the creation of the Supreme Court as our final court of appeal should lead to any change in the way in which this Court approaches its earlier decision.

The Court also commented on the question of whether it is bound by Privy Council decisions in New Zealand cases ("this Court is still bound by existing Privy Council decisions made in respect of appeals from New Zealand (including the transitional phase) unless and until the Supreme Court overrules them") and Privy Council decisions from other jurisdictions ("[a]ny decisions of the Privy Council with regard to jurisdictions made after the advent of the Supreme Court will of course be of persuasive value only"). ("hat-tip" to Geoff McLay for the case)


Graeme Edgeler said...

I thought this was hilarious:

"[94] In addition, any change to this Court’s position as to overruling its previous decisions would in itself be a departure from the long line of cases which have held that this Court may depart from its previous decisions in rare cases."

I must say I was rather surprised when I found out during my first year of practice that Privy Council decisions relating to other jurisdictions were binding on New Zealand courts - something I was told was not the case during LAWS 101 (as it then was)

Dean Knight said...


Of course, there is a genuine debate about the merits of our system of precedent. Ted Thomas being the most prolific advocate against it. I for one share his desire for principle over precedent - although recognise the legal certainty merits of the stare decisis.

I think Thomas hiself suggests it is still the glue that binds our legal system - but the debate is about how strongly the glue should bind...

Anonymous said...

What first year of practice Edge? fucking around in the salient office, hitting on the editor?

Anonymous said...

That would be his second year of practise (althogh I can't confirm the veracity of the 'hitting on the editor' statement). I suspect he was talking about his FIRST year, where he appeared as counsel in (to deal with reported cases only) Brown v AG [2005] 2 NZLR 405 (CA); Clark v AG (2004) 17 PRNZ 554; Clark v AG {2004} 17 PRNZ 161 (HC); and Legal Services Agency v Brown (2004) 17 PRNZ 523. Not a bad swag for the first year out really.

Anonymous said...

Well, personally I agree with you Graeme Edgeler.

I also thought it was hilarious to the extent that I had tears in my eyes trying to read this nonsense.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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