Set-Precedent from the Case
In June 2013, the High Court held that a casino does not owe special duty to its patrons in cases where they have a gambling problem in the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25. The court’s ruling set a precedent that has since been the subject of controversy, with critics disapproving the precedent. A look on the effect of the decision can aid in learning how the doctrine of judicial precedent works in the Australian court system.
Set-Precedent from the Case
The High Court examined the appellant’s conduct in the case and characterized him as a ‘high roller.’ They explained that there is always the likelihood that high rollers would portray an interest in gambling that is abnormal, one that would be labelled as pathological. The fact that a high roller may sustain significant losses based on his or her passion is always, and obviously on the cards. Whatever motivation they have coming in, these group of persons or class of gamblers are welcomed as people who do not mind losing and for this matter, losing heavily, and for this reason, casino operators are ready to suffer significant expenses in a bid of luring their patronage away from their competitors.
The implication construed from the decision has been criticized for setting a dangerous precedent. It did not just condone the abuse of persons with a pathological psychological condition by casinos just because such exploitation is within the ‘usual course of business’ but also suggested that so called high rollers, since they can ‘afford to lose heavily,’ do not have the right to be protected by equitable principles. It was further stated in the case that the decision was not concerned with a widowed pensioner who had taken the proceeds of her pension into gambling. Therefore, the end-result for a widowed pensioner would be different as she would successfully seek equitable relief, notwithstanding the circumstances, as opposed to the wealthy pathological gambler.
The Operation of the Precedent set by the Case
The doctrine of precedent requires judges to pay proper respect to decisions made in the past when deciding cases. The rationale behind this is to ensure four advantages realized in Telstra v Treloar (2000) 102 FCR 595, 602) namely certainty, efficiency, equality and the appearance of justice on the issues brought before the court (The WritePass Journal, 2014). There is a need to ensure that development of legal principles is fashioned in an incremental and orderly manner (Gerhardt, 2011).
Therefore, consistency is crucial, while also building faith in the judicial system based on the four advantages is key to the success of judicial decision making. It is highly likely that a dangerous precedent will have negative consequences on future decisions and direly incriminate the reputation of the courts. From the foregoing case of Kakavas v Crown Melbourne Ltd [2013] HCA 25, three questions are of significance since the set precedence has been criticized and termed dangerous. First is when and why would the high court decline to follow this decision, secondly is the implication of the precedent set by the case for state and territory courts (more specifically, the Northern Territory Supreme Court) and finally, the possibility of the decision being overruled.
The Operation of the Precedent set by the Case
When and Why the High Court Would Decline to Follow this Decision
The general rule is that the High Court is not restricted to follow decisions it made in the past, but ordinarily, it does so if the cases are raising similar facts (Lindsay, 2017). . It is most likely that the High Court will always follow the reasoning in the case of Kakavas v Crown Melbourne Ltd for similar cases brought before it. However, it may also opt to walk from the reasoning. In the case of Imbree v McNeilly [2008] .
HCA 40, the High Court opted not to follow a precedent set by a previous case of Cook v Cook [1986] HCA 73, which had similar facts. In the latter case, the high court had ruled that a driver providing learning services owed a supervising passenger a higher standard of care compared to the standard owed by a normal driver to a normal passenger. This position was neglected and overruled in the latter case where the question emerging was what standard of care a student driver owes a passenger also administering the student.
Implications of the Case Decision to State and Territory Courts
One notable rule of judicial precedent is that while judges of lower courts are not subject to follow decisions of other judges in the same level of the court hierarchy, they are required to follow those decisions of higher courts (Caminker, 1994). Meaningful is also the fact that a higher court has the power to overrule a lower court’s decision in the same hierarchy if brought before it in appeal. In this case, the higher court imposes its decision on the lower courts.
The highest court in the land is the High Court (Hinchy, 2015). Immediately below the High Court in the tiered system are the state and territory courts of appeal, which are the highest courts of appeal for the various states and territories (Hinchy, 2015). Drawing from the doctrine of precedent, lower courts are bound by the decisions of the higher court, the Northern Territorial Supreme Court will be bound by the High Court’s decision in Kakavas v Crown Melbourne Ltd.
Another valid question would be to what extent the decision in Kakavas v Crown Melbourne Ltd will bind the territorial Supreme Court? Is it just the ratio decidendi or the obiter as well? The binding part of the decision is the reason for the decision which is the ratio decidendi. Therefore, it is notable that not all things said by the high court or judicial decisions binds the lower courts in Australia. Rather, lower courts are bound by the ratio decidendi (Duxbury, 2008). There ought to be no binding precedent created by the obiter dicta. This is to say that inasmuch as judicial remarks of a general character on inessential, tangential or additional issues and opinions made by judges either in dissent or support of the overall decision of the court is not binding as precedent. These passing remarks are persuasive at best.
When and Why the High Court Would Decline to Follow this Decision
However, the consequences of the doctrine of judicial precedent for territory and state courts were explored in the case of Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22. In this case, it was suggested that appellate courts in territories and states were not just bound by the ratio part of High Court decisions, but also seriously considered obiter dicta. As argued by Harding and Malkin (2012), this decision has seen the lower courts tend to look upon themselves (in certain circumstances) as obligated to obey the High Court dicta. The duo have recommended that the High Court ought to guide lower courts in these ways.
In conclusion, what constitutes the ratio decidendi part of a High Court decision is binding to the lower courts. The territorial supreme courts will have to make decisions that take after the ratio decidendi in the in the High Coourt’s decision in Kakavas v Crown Melbourne Ltd. The obiter dictum in the case will be persuasive at best. However, as evidenced by the case of Farah Constructions Pty Ltd, highly considered obiter dicta in the Kakavas case will be binding to the lower case.
How can the Decision in the case of Kakavas v Crown Melbourne Ltd be Overruled?
There are two ways in which the decision in the case can be overruled. First is through the High Court and through parliament. The High Court can overrule the decision in under a number of circumstances. One of these circumstances is if the court deems the decision to be erroneous. The highest court in the land drawn from the tiered court system is the High Court of Australia. As the uppermost court in the land, the High Court of Australia can override its past decisions, even though it will not do so casually and minus due consideration, except a verdict is unequivocally erroneous or unless it is in the comforts of justice (Meek, 2018).
In the case of Atlas Tiles Ltd. V Briers, the court chose to overrule a two year old decision citing that it was erroneous. Being the court of last resort, erroneous decisions made by the High Court cannot be appealed further in a court of law.
The court can also overrule the decision if it feels that the reasoning of the court needs reconsideration. The need can arise because of certain factors such as an amendment or adoption of a legislation relating to the decision, a change in societal beliefs or perceptions or impracticality of the decision. With the dynamism in the society and ever-growing jurisprudence, it is anticipated that the court will have to reconsider past decisions in future. The law has to adapt with societal changes. Similarly, if a legislation develops with regard to the issue of gambling vis-à-vis the responsibility of casinos as intimated in the case of Kakavas v Crown Melbourne Ltd, then the High Court can revise its reasoning and, in the process, overrule the decision.
After the high court has overruled on a previously decided issue, the ratio decidendi of that particular verdict will cease being binding as a legal precedent (Duxbury, 2008). There is a distinction between the rationale for which the reasoning in a verdict stands and the binding force of the actual order given. However, much as the binding effect on the ratio is lost, the effect and validity of the actual orders and ruling that was made in the case will not be affected.
Implications of the Case Decision to State and Territory Courts
The parliament can also overrule the decision in the case. Through a system of check and balances, parliament is given the authority to keep the judiciary in check and one of the ways it does this is through the review of certain cases (Meek, 2018). However, the checks need not to violate the provisions of the constitution. The person contending the High Court’s decision can petition it before the parliament and legislators will sit down and review it. There being no explicit legislative provision on the issue as cited by the High Court judges, parliament can choose to draft a statute that will give guidance to the court when deciding such cases in future.
The Role of the High Court in Creating Precedents
The high court holds two significant ranks with regard to the role it plays in the judicial arm of governance. It is the final court of appeal in Australia and also a constitutional court (Baier, n.d.). . Going by these two positions, the high court has openly declared that it is no longer strictly bound by the judgments made in its own past decisions. Such was Justice Dixon’s view in the case of Attorney General for New South Wales v Perpetual Trustee Company.
The doctrine of judicial precedent allows judges to formulate law indirectly. Ideally, the duty of making laws is in the hands of the legislative arm of government while the judiciary is tasked with the interpretation of laws already made by the legislators. However, as already proven, judicial precedent allows judges to reach certain decisions by citing the reasoning used in previously decided cases. As a matter of law, every Australian court is bound by the decisions of a court that is on top of it in the same hierarchy (Caminker, 1994). The nature of decisions made by lower courts in the same hierarchy or different hierarchies (and this includes oversea courts) are not binding but are persuasive. Courts lower to the High Court in the court hierarchy utilize decisions and reasoning of the high court in reaching their conclusion to cases thereby utilizing laws not set by the legislators, but by the judiciary.
References
Baier, G. (n.d.). The Courts and Federalism.
Caminker, E. 1994. Why Must Inferior Courts Obey Superior Court Precedents? Stanford Law Review, 46(4), p.817.
Duxbury, N. 2008. The nature and authority of precedent. Leiden: Cambridge University Press.
Gerhardt, M. 2011. The power of precedent. Oxford: Oxford University Press.
Guides.slv.vic.gov.au. 2018. Research Guides: Court cases in Australia: Research a case.
Harding, M. and Malkin, I., 2012. The high court of Australia’s obiter dicta and decision-making in lower courts. Sydney L. Rev., 34, p.239-267.
Harris, B. and Barker, D. 2004. Essential constitutional law. Sydney: Cavendish Pub.
Hinchy, R. 2015. The Australian Legal System. Sydney: Thomson Reuters (Professional) Australia Pty Limited.
Imbree v McNeilly [2008] HCA 40.
Kakavas v Crown Melbourne Ltd [2013] HCA 25.
Lindsay, G. 2017. The “Doctrine of Precedent” in Australian Legal History.
Meek, M. 2018. Applying the law – precedent.
Robinson, L. 2013. The conscience of the king: Kakavas v Crown Melbourne Ltd. 17th ed.
Telstra v Treloar (2000) 102 FCR 595, 602)
The WritePass Journal. 2014. Discuss the role and importance of the doctrine of judicial precedent in English legal system. What are the advantages and disadvantages of the doctrine? – The WritePass Journal.
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