![handle is hein.journals/oxuclwj9 and id is 1 raw text is: Oxford University Commonwealth Law Journal
HOW FAR CAN TRIAL COURTS AND INTERMEDIATE
APPELLATE COURTS DEVELOP THE LAW?*
J D HEYDON**
A INTRODUCTION
MrJustice Walsh's career in the High Court of Australia illustrates one aspect of
the present problem. He served there from 1969 until his relatively early death
from multiple myeloma in 1973-the shortest tenure in the history of the court.
He had been a judge of the Supreme Court of New South Wales from 1954, first
as a trial judge, then as a member of the Court of Appeal. He may be best known
as the trial judge in The Wagon Mound (No 2).' In his era, a trial judge in New South
Wales was bound by the intermediate appellate court in New South Wales, by the
High Court of Australia and by the Privy Council. More surprisingly, perhaps,
the High Court had repeatedly made it plain that, even if not strictly bound,2
Australian trial and appellate courts-including the High Court-should as a
general rule follow decisions of the English Court of Appea3 and the House of
Lords.4 That was so even though appeals did not lie from New South Wales courts
to those courts.
Why was this stance taken? Partly because the membership of the House of
Lords substantially overlapped with the Privy Council, to which appeals did lie.
More fundamentally, Australian courts viewed the common law as something
which was, or ought to be, uniform throughout the jurisdictions of the Empire and
then the Commonwealth, at least so far as it had been received in them. That,
* This is a revised version of a lecture delivered in Cambridge on 26January 2009, and repeated in
Oxford on 27January 2009 and at the London office of Herbert Smith LLP on 28January 2009.
I am greatly indebted to Sarah Elliott, Belinda McRae, Thomas Prince and Aparna Rao for their
assistance in preparing it.
** Justice of the High Court of Australia.
1 [1963] 1 Lloyd's Rep 402 (Supreme Court of New South Wales), discussed in Overseas Tankship (UI)
Ltd v The Miller Steamship Co Ply (The Wagon Mound (No 2)) [1967] 1 AC 617 (PC) ('Overseas Tankship').
2 Lord Wright, 'Precedents' (1943) 8 Cambridge LJ 118, 135.
3 Waghorn v Waghorn (1942) 65 CLR 289 (High Court of Australia (HCA)) 292 ('pay the highest
respect to decisions of the English Appeal Court and to those of the Supreme Courts of the other
Dominions and to the judgments of the Supreme Court of the United States of America on points
of law common to the respective countries'), 297. In that case it followed an English Court of
Appeal decision in preference to one of its own decisions, which it overruled. However, on occasion
it refused to follow English Court of Appeal decisions (eg Hurst v Picture Theatres Ltd [1915] 1 KB 1
(CA) in Cowell v The Rosehill Racecourse Co Ltd (1937) 56 CLR 605 (HCA)).
4 Piro v WFoster & Co Ltd (1943) 68 CLR 313 (HCA) 320. Similarly in Canada: PB Mignault, 'The
Authority of Decided Cases' (1925) 3 Canadian Bar Rev 1, 9.
SUMMER 2009](ViewImageLocal?handle=hein.journals/oxuclwj9&div=1&collection=&method=preview&ext=.png&size=3)
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