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Stare decisis

Allianz Australia Insurance Limited v Mackenzie and Anor [2012] NSWSC 1458. Johnson J.

116. His Honour's conclusions on issues of construction and matters of law should, as a matter of judicial comity, be followed by me unless I am convinced that the decision was wrong: Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812 at 820; Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 at 193 [57].


Andy's Earth Works PL v Verey [2012] NSWCA 32Macfarlan JA

[59] Whilst not strictly binding, the decision in Doumit, being a previous decision of this Court, should be followed unless the Court as presently constituted is convinced that the earlier decision is wrong: see Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268 - 9; Clutha Developments PL v Barry (1989) 18 NSWLR 86 at 99 - 101). I am not so convinced. In fact I consider the decision to be correct.


Grosso v Deaton [2012] NSWCA 101. Young JA

83 I realise that Thompson v Mandla [1976] 2 NSWLR 307 was cited, apparently with some approval, by Deane J in Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 255, but just because a Justice of the High Court mentions a case with approval in his judgment, does not carry with it the full endorsement of the High Court so that the case has to be followed as if it were a decision of the High Court.


Knight v Maclean [2002] NSWCA 314Heydon JA

61 It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision.

In Tidy v Battman [1934] 1 KB 319 at 322 Lord Wright said: "It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts."

In Teubner v Humble [1963] HCA 11(1963) 108 CLR 491 at 503 Windeyer J said:

"decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essential flexible and general concept of negligence."


Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219. McDougall J.

91. Further, and contrary to Mr Corsaro's submission, I do not think that it is appropriate for a judge of first instance to identify and impose a novel duty of care. If that is within the province of the courts, it is in my view a matter to be dealt with at a higher (or the highest) appellate level.

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