Journal article

OVERRULING IN THE HIGH COURT OF AUSTRALIA IN COMMON LAW CASES

Matthew Harding, Ian Malkin

MELBOURNE UNIVERSITY LAW REVIEW | MELBOURNE UNIV LAW REVIEW ASSOC | Published : 2010

Abstract

Our article aims to identify principles to guide the High Court of Australia when it is considering whether or not to overrule one of its previous decisions in a common law setting. We introduce two accounts of overruling drawn from the scholarly literature on the subject and, in light of those accounts, we evaluate the approach to overruling taken by the Court in the recent common law case of Imbree v McNeilly (2008) 236 CLR 510. We then place Imbree in context by considering it alongside two other relatively recent common law cases in which the Court has considered whether or not to overrule itself: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, and Brod..

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University of Melbourne Researchers