Avoid misleading cases – cite the latest court decisions

With all the numerous decisions being delivered by the higher courts, some attention is needed to ensure the latest case law is relied upon.

Justice Derrington of the Federal Court recently took issue with the lawyers appearing in a matter before him because they relied upon a decision of the SA Supreme Court that had, over a month earlier, been the subject of an appeal decision: see Seaman v Silvia [2018] FCA 97.

“Whilst both parties before the Court referred to the decision of Kourakis CJ in Viscariello v Macks [2014] SASC 189; (2014) 103 ACSR 542, neither referred to the decision of the Full Court (Lovell J, Corboy and Slattery AJJ) on appeal from that decision: Macks v Viscariello [2017] SASSCFC 172 The failure of the parties to address the Court on this important authority was somewhat startling”.

The Judge properly adopted the principle that as the appeal decision in Macks v Viscariello was a decision “of an intermediate Court of Appeal on national scheme legislation” it was binding upon him. The Judge went on to say that “even if it were not, I agree with the substance of the decision and it is far from being “plainly wrong”. It is plainly right”.

To be fair to the lawyers involved in Seaman v Silvia, the appeal decision in Macks took three years to be delivered. Nevertheless, it was reported at Murrays Legal soon after being delivered.

Pending appeal or other court decisions

A relevant court of appeal decision – CA – that is still pending from a single judge decision – SJ – on which another court – AC – relies in giving its judgment raises other issues.  The AC court might defer its decision if a CA appeal decision is imminent; or proceed to deliver judgment, and in the course of that may itself decide that the SJ decision pending appeal is good, or wrong.

Justice Derrington did that in Lane v DCT [2017] FCA 953, in accepting that a trustee’s right of exoneration from trust property was an asset of the trustee. In reaching that conclusion, the Judge declined to follow Re Amerind Pty Ltd (in liq) [2017] VSC 127, that the right of indemnity is trust property

This was noted by Robson J in a later decision in Re Mamounia (No 3) [2018] VSC 65, the Judge noting that “currently, Re Amerind is under appeal to the Court of Appeal”.

But in responding to counsels’ submissions that he should follow the decision in Lane v DCT and not follow Re Amerind, Justice Robson said that

In circumstances where Re Amerind is subject to appeal and I am not satisfied that Re Amerind is clearly wrong, I feel I should apply Re Amerind”.

A related approach was that of Justice Gleeson of the Federal Court in Leighton Scaffolding (in liq) [2018] FCA 34. In referring to the fact that the Corporations Act gives “priority to the outstanding employee entitlements of Leighton Scaffolding, and, with all else equal, would be entitled to treat them as ranking pari passu in distributing the assets of the company”, the Judge said that

“there have been recent challenges to the correctness of the line of authority: judgment has been reserved in an appeal from Re Amerind and by a Full Court of this Court in the matter of Killarnee Civil & Concrete Pty Ltd (in liquidation) (WAD181/2016)”.

The legal issues associated with those two pending decisions is explained at Amerind and Killarnee – ships in convoy, or on a collision course?


We now tend to avoid the problems of the non-technological past, where a higher court decision might take some time to be reported in the law reports; in the meantime, other relevant decisions are delivered on the issues for decision.

In the present day, that should not occur but there can be other combinations of these sort of circumstances where attention is needed; in particular if, between the hearing and before judgment is given, other relevant or binding decisions are delivered.

When courts give decisions that omit referring to relevant case law, later courts tend to excuse them in saying that the case law “was not brought to the court’s attention by counsel”. While that may be so, the ease of access to later decisions on Austlii does allow courts to themselves check that they are giving a judgment based on the latest available authority, as Justice Derrington did in Seaman v Silvia. Also, there is a judicial grapevine.

The issue can then arise whether further submissions need be called for by the deliberating appeal court from the parties on the intervening case law, and a further hearing. For example, the trial decision in Amerind has now been the subject of some subsequent judicial comment in a series of later cases.

We could go on with other permutations, but if some point among many could be made, it is that prompt delivery of appeal decisions is important, as is accessing worthy websites.


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One Response

  1. The problem is that decisions are coming out so frequently and it is hard to keep up. Of course you may say that the advocate should check the usual case citatory! and you would be correct.

    The same thing happened a number of years ago in Sheahan v O’Brien

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