Are the High Court's Reasons for Refusing Special Leave Binding?
(2013) 87 Australian Law Journal 774
10 Pages Posted: 20 Nov 2013
Date Written: November 19, 2013
Abstract
The status in precedent of the High Court’s reasons for refusing special leave has long been apparent. The reasons are not binding but instead offer guidance for lower courts. However, the author submits that, where they are seriously considered, and delivered by an appropriate number of Justices, the reasons can be binding. In other cases, the impact of the reasons will depend on how fully they explain the law. Still, the reasons cannot, as guidance, compel a court to depart from authority that is otherwise binding. The author argues that, to the extent that Western Export Services Inc v. Jireh International Pty Ltd (2011) 86 ALJR 1 fell short of the foregoing, it should be discounted by lower courts.
Keywords: High Court, special leave, reasons, precedent, per incuriam rule
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