The case Kakavas V Crown Melbourne Limited (Acn 006 973 262) & Ors [2013] Hca 25, was considered to be a significant case as it established the fact that, casinos are not at the duty to protect the interests of the gamblers. It is worth mentioning that, the Gaming Control Act 1993 has implemented provisions of its own for the purpose of emphasizing upon the contravention of code of practices related to the interests of the gamblers (Rintoul, Deblaquiere and Thomas 2017). In this regard, the provisions of Section 79A of the Gaming Control Act 1993, states that if a licensee contravenes the code of practices after the approval of the Minister, then it causes a serious offence. The Northern Territory has implemented the Gaming Control Act 1993 and therefore; the decision of the High Court should be followed by the Northern Territory Supreme Court. It is noteworthy to mention here that, presently there is no legal principle under the Australian Law that protecting the interests of the gamblers and in preventing issues related to economic loss (Arzandeh 2016). In case of gambling, individuals generally suffer pure economic losses and as a result of this it has been difficult for the Courts to recognize the related issues due to the existence of policy grounds (Buchanan and Elliott 2017). It can be observed that, from the very beginning, the Courts were circumspect in imposing liability which may create uncertainty in the distribution of amounts and shall remain limited towards an undefined class of people (Bateman and McDonald 2017).
The decision of the High Courts can be overruled by emphasizing much upon the principles of doctrine of precedent. It is worthwhile to refer here that, since time immemorial, the High Court of Australia has made necessary changes in regard to the application of law by overruling its previous decisions (Bateman and McDonald 2017). It is worth noting that, the decision of the High Court to overrule its previous decisions merely depends upon the existence of fundamental issues. However, the decision of the Court in overruling its previous decisions on matters involving constitutional validity can be difficult and different as well. This is due to the reason that, the wordings of the constitutional documents are formulated in such a way that judges may find it difficult to interpret (Gutman 2017). Therefore, the power of the Courts in overruling the constitutional matters is often difficult and involves complexity due to the presence of different statutory interpretations.
The doctrine of precedent is a theoretical concept based upon the process of decision making in Australia. From the very beginning, the doctrine of precedent is related to the fact that, judges during the process of judicial decision making sometimes relies upon the decision of a previous case (Rintoul, Deblaquiere and Thomas 2017). This principle is referred to as the doctrine of precedent. However, the nature of the present case has to be such that the issues of the case are similar to the previous case. The doctrine of precedent is not a new concept in Australia. The High Courts of Australia has relied upon the decision of previous cases while deciding a present matter of dispute. In the case of Cook v Cook [1986] HCA 73 the High Court of Australia did not rely upon its previous decision and in turn overruled such decision. Similarly, in the case of Imbree v McNeilly [2008] HCA 40 the reasoning of a past case was rejected by the High Court. From the very beginning, the Courts of Australia are arranged in regard to hierarchy and in such process the High Court of Australia attains the topmost position. Below the High Court there exists Courts of Appeal and courts of other states and territories.
The implications of the doctrine of precedent in relation to the state and territory courts can be emphasized by relying upon the case of Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22. In this case, it was established that there are implications in regard to the doctrine of precedent in case of the Court of Appeals of both the states and the territories. However, the matter was settled differently. It was established that the Courts of Appeal should follow the decisions of the High Court with the application of various elements of reasoning. Judicial reasoning can be explained by emphasizing upon two examples. In the first instance, judicial reasoning is given utmost importance and judges apply proper reasoning for the purpose of reaching a final decision that is referred to as “rationes decidendi.” In the second, not always judges depend upon the concept of proper reasoning when reaching a final conclusion known as “obiter dicta”. It is evident that employing the concept of doctrine of precedent while reaching at a final decision is related to the efficiency on the part of the judges to make decisions and not upon the age old practice of paying tribute to past decisions (Saunders and Stone 2014). Sometimes, the reasoning of a previous decision can be escaped by the judges when the facts of the present matter in dispute are distinguished from that of a past case (Bateman and McDonald 2017). In this regard, the principle of overruling can be emphasized which is usually vested upon a higher authority when the decision on the part of a tribunal seems to be unconstitutional (Smartt 2018).
The decision of the High Court has a significant role to play in the development of law in Australia. It is worth mentioning that, from the very beginning, the High Court of Australia has been regarded as the final Court of Appeal and was successful in attaining the position as a constitutional court (Rintoul, Deblaquiere and Thomas 2017). It is noteworthy to mention here that, by relying upon these abovementioned facts, it has been rejected by the High Court of Australia that it is bound to follow the decisions of its previous cases. It was held by the judge in the case of Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2, the past decisions of the High Court of Australia is not likely to be overruled as it did not follow the existing and precise rules in this regard. It was established due to the fact that, in most of the cases, the judges have rejected the reasoning of previous decisions merely on the ground of disagreement. The judges while overruling the decisions of the precedent cases were of the opinion that, the legal reasoning used in these cases was fundamentally wrong (Walpola 2017).
Therefore, emphasis can be laid on the fact that, the High Court of Australia can only overrule its previous decisions in exceptional cases. However, the power to overrule the previous decisions should not be exercised in abuse of discretionary power. It is worthwhile to mention here that, in most of the cases involving the question of constitutional validity; the past decisions were re-examined by the High Court (Bateman and McDonald 2017). This is because the decisions involving constitutional issues cannot be overruled however; it can be corrected with further amendments. The decisions involving constitutional invalidity can be challenged before the Court for making appropriate changes as well (Skaik, Coggins and Mills 2016). In this regard, various obligations can be observed on the part of the judges of the High Court to follow the principles of the doctrine of precedent. In cases involving constitutional validity, the matter is dispute are given much preference (Walpola 2017). It is worth mentioning that, the matters involving constitutional issues are given much priority when the matter in concern is related to the protection of human rights and the freedom of individuals.
In accordance to the existence of the principle of ratio-decidendi, it is important that the High Court of Australia must comply with the rule of law. However, the nature of the rule must be such that it must be analyzed to the highest extent. In this context, mention can be made about the duty of obedience which signifies that the rule of law it such that it must be followed thoroughly (Skaik, Coggins and Mills 2016). It is true that, the Supreme Courts of the States are bound to follow the principles of authoritative rulings by keeping in consideration the legal reasoning that has been applied by the majority of judges of the High Court however; question arises that whether these judges are bound to adhere to their own decisions (Saunders and Stone2014). In relation to this, it is important to mention about the powers of the appellate courts of Australia as these courts are authorized to preserve their rights in order to reconsider their own decisions in the future (Rintoul, Deblaquiere and Thomas 2017). It is worthwhile to mention here that, the High Court of Australia, usually do not rely upon the decision made in a previous matter when deciding a present matter of dispute (Bateman and McDonald 2017). However, if the previous decision cannot be relied upon if it is considered to be manifestly wrong. The Federal Court of Australia and the State Appellate Courts has accepted such concept.
It can be finally concluded that, both the concept of precedent and hierarchy exists in inter-relation with each other. From the very beginning, the Australian Court system has been arranged in regard to hierarchy and as a result of which the lower courts are bound to follow the decisions of the higher courts. Therefore, the concept of doctrine of precedent is binding upon the judges and proper reasoning can be made with the application of ratio-decidendi and the obiter dicta.
References:
Cases:
Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2.
Cook v Cook [1986] HCA 73.
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22.
Imbree v McNeilly [2008] HCA 40.
Kakavas V Crown Melbourne Limited (Acn 006 973 262) & Ors [2013] Hca 25.
Journals:
Arzandeh, A., 2016. Reconsidering the Australian forum (non) conveniens doctrine. International & Comparative Law Quarterly, 65(2), pp.475-491.
Bateman, W. and McDonald, L., 2017. The Normative Structure of Australian Administrative Law. Fed. L. Rev., 45, p.153.
Buchanan, J.S.C. and Elliott, G., 2017. Moderate Risk and Problem Slot Machine Gamblers: A Typology of Gambling-Related Cognitions. Journal of Gambling Issues, (35).
Gutman, J., 2017. Mediation and its uses in the legal process. Legaldate, 29(2), p.3.
Rintoul, A., Deblaquiere, J. and Thomas, A., 2017. Responsible gambling codes of conduct: lack of harm minimisation intervention in the context of venue self-regulation. Addiction Research & Theory, 25(6), pp.451-461.
Saunders, C. and Stone, A., 2014. Reference to foreign precedents by the Australian high court: a matter of method.
Skaik, S., Coggins, J. and Mills, A., 2016. The big picture: causes of compromised outcome of complex statutory adjudications in Australia. International construction law review, 33(Part 2), pp.123-147.
Smartt, T., 2018. The doctrine of extended joint criminal enterprise: A’wrong turn”in Australian common law. Melbourne University Law Review, 41(3), p.1324.
Walpola, S., 2017. The Development of the High Court’s Willingness to Overrule Common Law Precedent. Fed. L. Rev., 45, p.291.
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