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The Court, in a joint judgement, upheld the decision of the primary judge stating In the absence of a relevant legislative provision, there is no general duty upon a casino to protect gamblers from themselves.

1.Does the Northern Territory Supreme Court have to follow this decision?

2.What would be required for this decision to be overruled?

In your answer, explain how the Australian courts employ the doctrine of precedent in reaching their decisions. Refer particularly to the role of decisions of the High Court in the development of the law in Australia.

Application of the Doctrine of Precedent in Australia

The doctrine of precedent is a principle of the judicial system which has been introduced so that the judicial structure becomes more efficient, certain and consistent with respect to the application of law. The doctrine is a fundamental constraint on the way in which judicial decisions are made in Australia. The primary idea behind the doctrine is that when the judges are deciding a case they have to give respect to the judicial decisions which have been made in the past. In other words the doctrine of precedent asks to follow the decisions which have been provided in the past when the court is addressing a issue which has similar facts. It may sometimes signify that the resonating of the past judges have to be taken seriously in the present even where they have no obligation of following the reasoning.  In its moral value the doctrine of precedent serves the political idea of the rule of law according to which the institution of the states such as the courts have to strive to ensure the application and development of law in a predictable and consistent manner. This will ensure that the citizens would work in confident manner as they have knowledge about their rights and duties.

The purpose of this research essay is to identity that whether the decision made by the HCA in the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25 would have a binding effect on any judgement which is to be made in the Northern Territory Supreme Court. The essay provides the situation in which the decision can be overruled referring to the role of the HCA in developing the national law.


The doctrine of precedents operates in a vertical manner. The judgement made by a court which is placed above in the court hierarchy system will have a binding effect on the judgement which is to be made by a court placed below in the Hierarchy system. The court hierarchy system in Australia places the HCA at the peak, the HCA is followed by the Supreme Courts of the different states such as the SC of NSW or the SC of NT. The SCs are followed down the hierarchy by the district courts of the states. The district courts are followed by the Magistrate court which renders them as the court of first instance and the lowest courts in the system. Thus the application of the doctrine of precedent in the situation will signify that the judgement provided by the HCA would have a binding effect on the way in which the SCs of the different states.  The decision provided by the SCs of the different states has a binding effect on the district courts. This binding effect signifies that when the subordinate courts are subjected to an issue which is related to a similar issue which has been addressed by a superior court.

Hierarchy of Courts in Australia

However a number of specific questions have been raised by the application of doctrine of precedent in Australia. Many of these questions have direct implications on the HCA. These questions include when the HCA reject the notion of following its own precedent and what are the implications of the decision on the state and territory courts.  The high court being the highest court in Australia is not bound to follow the decision of any other court. Thus it is also not bound to follow the decision made by its own judges as these decisions are a mere persuasive precedent. This situation has been elaborated through using the example of the case of Imbree v McNeilly [2008] HCA 40. In this case the HC had to address an issue which came up as a driver had an accident and injured a passenger. The question before the court was that whether the driver had a duty of care to the passenger who is instructing or supervising the learner. In Cook v Cook [1986] HCA 73, the HCA stated that a driver has a standard of care to a passenger supervising him which is not as much as a general driver would have to a general passenger. In the former case the HCA rejected its own reasoning made in the past in cook v cook. The decision of the court had been subjected to significant criticism as it did not follow its own reasoning and defied the doctrine of precedent while creating inconsistency. The discussion to the second question can be done in the light of the case of Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22. The primary question in this case was related to the duty of a property developer in a joint venture and the consequences of the breach of their liability to any third party. This case created significant doubts over two previously settled provisions which confused the lower courts as which proposition has to be taken into consideration to address similar issues. Thus the HCA has a significant role in developing the law of the nation and it should be very careful while making a judgement taking into consideration its implications.


The issue in hand states that whether the judgement made by the HCA in the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25 that “casino does not owe special duty to its patrons in cases where they have a gambling problem” would bind the Northern Territory Supreme Court. The prima facie and the correct answer to this question are yes. This is because according to the doctrine of precedent the judgement of the HCA will bind the judgement of any subordinate court and the NTSC being a subordinate court has to follow the judgement of the high court when addressing similar issue. The doctrine of precedent has been criticised by Assel (2016) which asked the question that is its good reasoning to side by what has been decided rather than what is right and in the ends of justice. To the contrary it has been stated by Ronald (2015) the doctrine does not prevent a judge from taking a decision which is right if the judge is able to provide proper and justified legal reasons.

Role of High Court in Developing National Law

Callander, Steve and Clark (2017) have identified a few specific circumstances where the judgement of the HCA would be subjected to being overruled a subordinate court.  These situations have to be applied in relation to issue in hand to determine whether the NTSC would be able to overrule the decision of the HCA provided in the case of Kakavas v Crown Melbourne Ltd.  There are two types of laws which exists in the Australian legal system. these are legislative law or statue law and equity law or common law. Where two laws have been identified addressing the same issue it is evident that dispute may arise. Thus in case there is inconsistency between the application of common law and statue law in relation to a specific situation than as per the principles of law statute law will always prevail over the principles of common or case law.  

In the given situation the precedent set out by the HCA is a case law or a common law as it has been made by the judges and not the legislature. Thus in case there is a statutory law present in the state of NT or at commonwealth level which provides a contradictory principle to what has been stated by the HCA, than the rules provided by the HCA will be overruled or superseded by the statute law. in this situation the NTSC will have full right to ignore the running provided in the case of Kakavas v Crown Melbourne Ltd by the HCA and strict to the rules of the statue as the doctrine of precedent would no longer be applicable. In addition to this situation if the decision of the high court has been overruled by another judge of the high court then in this situation also the NTSC will have the right to implement the law which has been provided in the subsequent case.  


The effectiveness of the doctrine of precedent depends upon not only the judges ensuring a general practice of respecting the judicial decisions taken in the past, but also on carefully and conscientiously articulating the ingredients of the practice and making sure that the practice is in compliance with the moral foundations of the rule of law while not overreaching. In the light of such considerations, a few decisions which have been taken by the HCA have not lived up to expectations. The HCA has a very important role to play in the development of law in Australia. The judgement of the HCA made in the absence of specific legislative provisions becomes the law of the land. In addition in certain areas like torts and contract law there legal system largely depends upon common law. The court being the highest judicial institution in the country also has the responsibility of providing proper meaning to legislative provisions. The provisions a legislation are implemented in the way in which meaning is provided to them by the courts. When a high court interprets a statue the meaning provided by it becomes a law. Thus the court should take into consideration the principles of statutory interpretation strictly when providing meaning to a statute. It also is the protector of the commonwealth constitution signifying that it can declare a law which is not consistent to it as invalid. The parliament has the duty to make laws under the powers provided by section 51 of the constitution and thus the HC prevents any unconstitutional law from being created.


Whether or not the doctrine of precedent is used in an effective way depends upon not only the judges ensuring a general practice of respecting the judicial decisions taken in the past, but also on carefully and conscientiously articulating the ingredients of the practice and making sure that the practice is in compliance with the moral foundations of the rule of law while not overreaching. In the light of such considerations, a few decisions which have been taken by the HCA have not lived up to expectations. The HCA has a very important role to play in the development of law in Australia. the judgement made by the HCA in the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25 that “casino does not owe special duty to its patrons in cases where they have a gambling problem” would bind the Northern Territory Supreme Court because of the application of the doctrine. However it can be overruled where it is inconsistent with statute law or the HCA itself overrules the decision in another case.

References

Bankowski, Zenon, D. Neil MacCormick, and Geoffrey Marshall. "Precedent in the United Kingdom." Interpreting Precedents. (Routledge, 2016). 315-354.

Callander, Steven, and Tom S. Clark. "Precedent and doctrine in a complicated world." American Political Science Review (111.1 2017): 184-203.

Cook v Cook [1986] HCA 73

Craig, Paul. "Formal and substantive conceptions of the rule of law: an analytical framework." The Rule of Law and the Separation of Powers. (Routledge, 2017). 95-115.

Dworkin, Ronald. "How law is like literature." Law and Literature. (Routledge, 2015). 45-62.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA

Imbree v McNeilly [2008] HCA 40

Kakavas v Crown Melbourne Ltd [2013] HCA 25

Kozel, Randy J. Settled Versus Right: A Theory of Precedent.(Cambridge University Press, 2017).

Mousavi, S. Z. "THE RULE OF LAW." Journal of Fundamental and Applied Sciences 8.2S (2016): 1088-1119.

Radin, Margaret Jane. "Reconsidering the rule of law." The Rule of Law and the Separation of Powers. (Routledge, 2017). 37-76.

Raz, Joseph. "The rule of law and its virtue." The Rule of Law and the Separation of Powers. (Routledge, 2017). 77-94.

Tutumlu, Assel. "The Rule by Law." Kazakhstan in the Making: Legitimacy, Symbols, and Social Changes (2016): 1.

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