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Unformatted text preview: ical consistency, experience and values shown by judges in the earlier context. 64 M a c A d a m and P y k e take issue with this position. T h e y assert that it is prevailing social
sentiment in two forms which affects the way cases are used, notably values of strictness
and dominance, as opposed to values of fairness, compassion, or reasonableness.65 In
MacAdam and Pyke's analysis, as these two opposing factor sets shift, the cases decided
will shift as well.66 This may not sit well juxtaposed with the concept of the 'rule of law,'
but is nevertheless a part of the mechanism of the common law. The appointment of
judges, therefore, may have significant impact on the outcome of overtly political cases
where the judges themselves have been appointed with overtly political values.67 It seems that some writers get quite carried away with this aspect of the later case reports. In Australian
Communist Party v The Commonwealth of Australia (1951) 83 C.L.R. 1, the summary of arguments and
headnote consumed 140 pages of a case reported at a total length of 276 pages.
Stone, J. 1964, Legal System and Lawyers' Reasoning, 2 nd printing, 1968 Maitland Publications, p. 210.
M acAdam, A. and Pyke, J. 1998, Judicial Reasoning and the Doctrine of Precedent, Butterworths,
This does not imply that the c o m m o n law changes with each gradient of change in the outer social
sphere. W h e n fundamental changes take place in the society, though, the law takes notice. A most notable
example is the tremendous change in which the indigenous people of Australia have recovered land rights
which where cruelly suppressed by the colonial governments. The change, from 1960 to the present is
starkly manifest, collateral with the rise in social awareness of their plight.
Kirby noted ten factors which he concluded were to bear responsibility for the High Court of Australia,
and notably Mason CJ, choosing to forge new pathways in legal thinking away from the English Appeal
Courts, essentially forming a new Australian common law. Kirby, M . 1996, " A F Mason - From Trigwell
to Teoh"  2 0 M U L R 1087. His Honour's relevant points are noted below. 291 Personal political influences can be seen in the c o m m o n l aw as well. In 1837, in Priestly
v Fowler™ a servant had been injured when the master's carriage had been overloaded
and collapsed through the negligence of a fellow servant, without fault on the part of
servant who was injured. The judgment of Lord Arbinger, whereby relief to the plaintiff
was refused, manifests an attitude of contempt for the claim, where the alternative
consequences would have had a significant impact upon the members of the bench, who
were Barons of the Exchequer. MacAdam suggests that it was simply on the grounds that
each member of the Bench undoubtedly had household servants of his own. Luntz and
Hambly support this view.69 Lord Arbinger's tirade took an absurd consequential
perspective endemic to the common law. He noted that if the master was liable in the
instant case, he would be liable for the negligence of all his inferior servants.
Contemporary judges would have no problems finding that any servant acting in the
performance of his/her duties can render the master liable for actions done, whether a
fellow servant is injured or not. It is questionable whether judges can actually give full fidelity to the doctrine of
precedent in any event. Where there are competing lines of authority over an issue, a judge must choose between them in order to settle the instant case. By choosing one line over the other the judge's fidelity, by definition, can only be partial, and never compl
Lord Tenterden's choice between the competing lines of authority in Page v Newman70
in 1829 shows that where judges have two powerful lines of authority, social policies, 68 (1837) 150 E.R. 1030.
Luntz, H., and Hambly, D., 2002, Torts: Cases and Commentary, 5 edition, Butterworths, p. 377.
(1829) 9 B & C 377; 109 E.R. 140.
69 292 w hich dictate that tedious scrutiny of the legal issues is prohibited, can h ave far reaching
consequences. The doctrine of precedent, then, can be used in a wide discretionary manner. Rather than
interpreting it to be a rigid doctrine, it is more appropriate to characterise it as a
mechanism which can be manipulated by the participants of a case to add weight to a preferred course of action. It is, according to its use, both an inhibiting mechanism and
manipulative tool, used to add social legitimacy to a decision of the courts. The use of
precedent also enables judges to dispose of cases more quickly. An appeal to a
recognised case from which a rule can be drawn gives judges the ability to avoid
meticulous justification in every judgment. This framework also promotes a more
efficient legal process.71 Efficiency
It can be taken from Gibbs J's judgment noted above in Murphy v Houghton & Byrne (1964) that His Honour feared a rise in the inefficient use of the court's resources as a
possible consequence where cases involved conside...
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