Reopening decisions of the NSW Court of Appeal

Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231

Reopening Decisions

  1. The extent to which the highest appellate court in a State regards itself as free to depart from its own decisions is a matter of practice for the court itself to determine. [28] However, the High Court has emphasised that where an appellate court holds itself free to depart from an earlier decision: [29] 

“it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.”

  1. In Gett v Tabet [30] this Court said that the authority to depart from earlier decisions should be exercised only if two preconditions are satisfied. These are:[31] 

“the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred…and

the nature of the error…can be demonstrated with a degree of clarity by the application of correct legal analysis.” [Citation omitted.]

If the preconditions are satisfied, the Court may need to take a variety of other considerations into account in determining whether earlier decisions should be followed. These considerations include the importance placed on certainty and predictability of the law. However, the Court needs to be satisfied that there are “compelling reasons” to depart from the earlier decision. [32] 

  1. The practice of this Court is generally to require a party to obtain leave to challenge the correctness of an earlier decision. [33] The reason is that the Court will not reconsider its own decisions unless a case for review is made out. However, the practice does not necessarily mean that the question of leave is to be dealt with separately from the substantive argument. [34]

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