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The Judicial Commonwealth
Published online by Cambridge University Press: 16 January 2009
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The theory that the common law is one and indivisible does not now, one would have hoped, attract a great deal of support. But the practice of the English Bar and the decisions of the English Bench continue to raise suspicions that the theory is not entirely outdated. There seems still a tendency to equate common law with English law.
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1 The substance of this article formed part of a Special University Lecture in Laws at Queen Mary College, University of London, delivered on 10 February, 1969.
2 Cf. generally as to the consideration of non-domestic authority in Canada, MacGuigan, “Precedent and Policy in the Supreme Court of Canada” (1967) 44 Can.Bar Rev. 625 at pp. 638–647; in New Zealand, Mathieson, “Australian Precedents in New Zealand Courts,” 1 N.Z.U.L.R. 77. Cf. Gray, “The Development and Function of Tort in the Twentieth Century in Australia and New Zealand” (1965) 14 I.C.L.Q. 390.
3 See infra, p. 272.
4 See infra, p. 267.
5 (1967–68) 117 C.L.R. 185. Cf. its companion case Uren v. J. Fairfax & Co. Ltd. (1967–68) 117 C.L.R. 118.Google Scholar
6 [1964] A.C. 1129.
7 [1969] A.C. 590 at p. 644.
8 McGregor J. in the Supreme Court of New Zealand in Fogg v. McKnight [1968]Google Scholar N.Z.L.R. 330 held that, in view of Uren's case, “the New Zealand courts are not bound by Lord Devlin's decision” (i.e., in Rookes v. Barnard). The learned judge did not follow the decision of the House of Lords holding that “the approach and the policy of judicial decision” in New Zealand recognised grounds for recovery of exemplary damages which may fall outside Lord Devlin's categories. In McKinnon v. F. W. Woolworth Co. Ltd. (1968)Google Scholar 70 D.L.R. (2d) 280 the Appellate Division of the Supreme Court of Alberta, noting Uren's case, did not accept the limitations of Rookes v. Barnard.
9 [1964] A.C. 1054.
10 (1960) 104 C.L.R. 247.
11 [1964] A.C. 1054 at p. 1071.
12 See, e.g., Morrison, W. L., “Trespassers in the Wilderness—Commissioners for Railways v. Quinian” (1964–65)Google Scholar 38 A.L.J. 331.
13 See, e.g., McHale v. Watson (1964) 111 C.L.R. 247Google Scholar (disagreeing with Fowler v. Lanning [1959] 1 Q.B. 426Google Scholar); Comm. of Riys. v. Scott (1958–59) 102 C.L.R. 392Google Scholar (disagreeing with I.R.C. v. Hambrook [1956] 2 Q.B. 641Google Scholar); Cowell v. Rosehill Racecourse Co. (1936) 56 C.L.R. 605Google Scholar (disagreeing with Hurst v. Picture Theatres [1915] 1 K.B. 1Google Scholar).
14 e.g., cf. Re Gestetner's Settlement [1953]Google Scholar Ch. 672 and Re Abrahams Will Trusts [1967] 3 W.L.R. 1198 at pp. 1208–1209Google Scholar with Tatham v. Huxtable (1950) 81 C.L.R. 112Google Scholar; Hughes v. Lord Advocate [1963]Google Scholar A.C. 837 and Chadwick v. British Rlys. Board [1967] 1 W.L.R. 912Google Scholar with Chapman v. Hearse (1961) 106 C.L.R. 112Google Scholar; Long v. Lloyd [1958] 1 W.L.R. 753Google Scholar with McDonald v. Dennys Lascelles Ltd. (1933) 48 C.L.R. 457 at pp. 476–477Google Scholar; Grist v. Bailey [1967]Google Scholar Ch. 532 with Svanosio v. McNamara & Anor. (1956) 96 C.L.R. 186.Google Scholar
15 Gray, op. cit., 14 I.C.L.Q. 390 at p. 408.
16 [1968] A.C. 58.
17 (1966–67) 40 A.L.J.R. 471.
18 [1968] 1 Q.B. 379.
19 (1962) 108 C.L.R. 177. Cf. Lawrence v. Biddle [1966] 2 Q.B. 504Google Scholar, noting Toohey v. Hollier (1954–55) 92 C.L.R. 618.Google Scholar
20 [1970] A.C. 1.
21 [1969] 1 W.L.R. 475.
22 Ibid.
23 Cf. Conway v. Rimmer [1968]Google Scholar A.C. 910. In the Court of Appeal ([1967] 1 W.L.R. 1031) Lord Denning referred to Commonwealth authorities. The authorities on the question of Crown privilege were also referred to in the same court in Re Grosvenor Hotel Ltd. [1965] 1 Ch. 1210.Google Scholar
24 See 1968 S.L.T. 294.
25 [1970] A.C. 1.
26 Paff v. Speed (1961) 105 C.L.R. 549Google Scholar; National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 C.L.R. 569Google Scholar; Graham v. Baker (1961) 106 C.L.R. 340.Google Scholar
27 [1963] 1. Q.B. 750.
28 Jones v. Gleeson (1965–66) 39 A.L.J.R. 258.Google Scholar
29 [1968] 1 Q.B. 195.
30 Ibid. at p. 206.
30a Cf. Chaplin v. Boys [1969] 3 W.L.R. 322Google Scholar (H.L.).
31 It would seem that State Supreme Courts remain bound by the House of Lords unless there is a decision of the High Court in point. See infra, p. 267.
32 As would those of single judges of the English High Court, although there has never been any theory that such decisions are binding on any Australian court.
33 [1969] A.C. 590.
34 The issue of the case was the construction of a statutory provision identical with an English provision.
35 (1879) Knox 472.
36 (1879) 5 App.Cas. 342 at p. 345. If it is accepted that the decisions of the Court of Appeal have a part to play within the Australian hierarchy one fundamental question is the comparative ranking of state appellate courts and the Court of Appeal. See note 60, infra.
37 [1927] A.C. 515. Cf. Allott, Essays in African Law at pp. 30 et seq.
38 Ibid. at p. 519.
39 (1879) 5 App.Cas. 342. It has been argued that the statement does not impose any binding obligation on Commonwealth courts. See note 65, infra.
40 Brown v. Holloway (1909) 10 C.L.R. 89 at pp. 102–103.Google Scholar O'Connor J.'s views were cited with approval by Isaacs, J. in Davison v. Vickery Motors Ltd.Google Scholar (see note 41, infra).
41 Davison v. Vickery Motors Ltd. (1925) 37 C.L.R. 1 at p. 14.Google Scholar He thought, however, that the High Court should follow the House of Lords (ibid. at p. 17).
42 (1926) 38 C.L.R. 249.
43 (1879) 5 App.Cas. 342. The principle was referred to by Rich, J. in Waghorn v. WaghornGoogle Scholar (infra) when he set out the practice of the High Court of paying the “highest respect” to decisions of the Court of Appeal, and by Isaacs, J. in Webb v. Federal Commissionner of Taxation (1922) 30 C.L.R. 450Google Scholar while discussing the following of House of Lords decisions by the High Court.
44 (1926) 38 C.L.R. 240 at p. 244.
45 (1941–42) 65 C.L.R. 289.
45a ibid. at p. 297. In neither of the decisions followed by the High Court had the Court of Appeal considered the High Court's earlier decision.
46 See Wright v. Wright (1948) 77 C.L.R. 191.Google Scholar It has been argued that this case shows a change of approach (see (1967) 16 I.C.L.Q. 808 at p. 812), but Dixon J. adhered to his view expressed in Waghorn's case (supra). Further, in 1951 in Commissioner for Stamp Duties v. Pearse (1951) 84 C.L.R. 490Google Scholar the majority of the court relied (at p. 522) on the principles propounded in Sexton v. Horton (supra). On appeal the Privy Council approved the approach ( (1953) 89 C.L.R. 51 at p. 64). In Commissioner for Railways v. Scott (1958) 102 C.L.R. 392 at p. 463Google Scholar Windeyer J. differed from the Court of Appeal specifically in the light of Dixon, J.'s views in Wright v. Wright.Google Scholar
47 i.e., in Commissioner for Stamp Duties v. Pearse (see note 46, supra). Cf. note 86a, infra.
48 Appeals lie from State Supreme Courts to the High Court. In state matters, appeals also lie to the Privy Council directly from state courts as well as from the High Court after appeal thereto. Cf. note 89 infra.
49 Cf. Brett (1955–56) 29 A.L.J. 121 at pp. 122–123. This omission is to be contrasted with the direction given concerning decisions of the House of Lords (see infra). It may be argued with some justification that the principle itself was never clearly articulated.
50 See, e.g., McAndrew v. Gray (1920) 20 S.R.(N.S.W.) 635 at p. 642.Google ScholarCf. R. v. Wainscot (1899) 1 W.A.L.R. 77 at p. 89.
51 See Woods Radio Exchange v. Marriott [1939] V.L.R. 309 at p. 314.Google ScholarCf. Gannon v. White (1886) 12 V.L.R. 589 at p. 595.
52 Powell v. Powell [1948] V.L.R. 351 at pp. 354–355.Google Scholar The learned judge noted that no unqualified rule had been laid down (see p. 354). The “Full Court” referred to is the State Full Court to which appeals lie from a single judge. On appeal in the Powell case the High Court followed the Court of Appeal. See (1948) 77 C.L.R. 521. Williams J. understood Fullagar J.'s reluctance to depart from High Court decisions “in the absence of a clear lead from this court” (at p. 542).
53 See infra, p. 267.
54 [1964] S.A.S.R. 185. Cf. Barr v. Bucciarelli [1966] 2 N.S.W.R. 737 at p. 740.Google Scholar
55 Ibid. at p. 186. He did find such a contrary indication (see p. 186). The relevant decisions of the Court of Appeal were later disapproved by the High Court in Skelton v. Collins (as to which see infra).
56 R. v. White [1967] S.A.S.R. 184 at p. 190Google Scholar This view has a similar flavour to an expression used in Sexton v. Horton (see supra) by Knox C.J. and Starke J. in relation to the consideration of a previous High Court decision. But the approach is, it is suggested, quite different from that of the Waghorn and Wright cases and, indeed, Trimble v. Hill.
57 Cf. infra.
58 Compare the treatment of Australian authority by the Court of Appeal in Parry v. Cleaver with that by the House of Lords in the same case. See supra.
59 [1944] K.B. 718.
60 [1967] S.A.S.R. 184 at p. 191. This equating of the status of state appellate courts to the Court of Appeal is to be contrasted with the view of the Privy Council in Trimble v. Hill, in which the courts were implicitly equated with a single judge of the English High Court (see note 36, supra).
61 So, e.g., in Parry v. Cleaver [1969] 1 Q.B. 195Google Scholar, where the court was apparently aware of High Court decisions inconsistent with previous decisions of its own, Salmon and Winn L.JJ. held themselves bound by those previous decisions. In Gower v. Gower [1950] 1 All E.R. 27Google Scholar Lord Denning cited inconsistent decisions of the High Court as one of five reasons why the Court of Appeal was not irrevocably bound by Ginesi v. Ginesi [1948]Google Scholar P. 179. But he did not suggest that this entitled the court to overrule its earlier decision.
62 See Gallie v. Lee [1969] 2 W.L.R. 901.Google Scholar
63 [1927] A.C. 515.
64 Ibid. at p. 527. There have been a few Commonwealth judges prepared to follow the House of Lords rather than the Privy Council when faced with conflicting decisions of the two tribunals. See, e.g., Corbett v. Social Security Commission [1962]Google Scholar N.Z.L.R. 878; Will v. Bank of Montreal [1931] 3 D.L.R. 526.Google Scholar But the Supreme Courts of Victoria and New South Wales have emphatically stated that their duty is to follow the Privy Council. See Bruce v. Waldron [1963]Google Scholar V.R. 3; Ex p. Brown; Re Tunstall (1966)Google Scholar 67 S.R.(N.S.W.) 1. It has also been rather faintly argued that it might be the duty of the Privy Council to follow the House of Lords. But see Wright, Lord, “Precedents” (1944) 8 C.L.J. 118 at pp. 135–136.Google Scholar
65 Bartholomew (1952) 1 I.C.L.Q. 392. Cf. Lord Wright, op. cit. Cf. , Roberts-Wray, Commonwealth and Colonical Law, London, Stevens 1966, at p. 567.Google Scholar
66 , Halsbury's Laws of England (3rd ed.), Vol. 22, p. 803Google Scholar, n. (c). Basnayake J. dissented from this proposition in the Supreme Court of Ceylon in Pesona v. Babonchi Baas (1948) 49 N.L.R. 442.Google ScholarCf. Roberts-Wray, op. cit., p. 572.
67 The Board did say that a point of difference between a colonial court and an English appellate court may be settled by the House of Lords or “a judgment of this Board” ([1927] A.C. 515 at p. 519Google Scholar).
68 [1927] A.C. 515.
69 See Morris v. E.S. and A. Bank Ltd. (1957)Google Scholar 97 C.L.R. 624. Cf. infra.
70 (1943) 68 C.L.R. 313.
71 Ibid. at p. 320. The decision approved the action of the South Australian state court ([1943] S.A.S.R. 68) in following a decision of the House of Lords rather than the High Court, and disapproved the contrary view advanced in the New South Wales case of Houston v. Stone (1943) 43 S.R. 118.Google Scholar
72 (1962–63) 111 C.L.R. 610.
73 [1961] A.C. 290.
74 (1962–1963) 111 C.L.R. 610 at p. 632.
75 See the judgment of Kitto, J. in Skelton v. Collins (1966) 115 C.L.R. 94 at p. 104.Google Scholar
76 See Gray, op. cit. (1965) 14 I.C.L.Q. 390 at p. 391.
77 (1962–63) 111 C.L.R. 610.
78 (1943) 68 C.L.R. 313.
79 (1965–66) 115 C.L.R. 94.
80 [1964] A.C. 326. In Uren v. John Fairfax & Sons Pty. Ltd. (1967–68) 117 C.L.R. 118Google Scholar in not following the House of Lords decision in Rookes v. Barnard [1964]Google Scholar A.C. 1129, the High Court affirmed the view expressed in Skelton v. Collins.
81 (1965–66) 115 C.L.R. 94 at p. 138.
82 Ibid. at p. 139. Australian state courts had taken differing views of the effect of the pronouncement in Parker's case. In the Supreme Court of Western Australia Wolff, C.J. in Scutt v. Bailey (No. 2) [1964]Google Scholar W.A.R. 81 thought it entitled him not to follow the majority decision of the House of Lords in West v. Shephard in the face of contrary High Court dicta. Negus J. in the same court, in Scutt v. Bailey (No. 1) [1964]Google Scholar W.A.R. 74 and Gibbs J. in the Supreme Court of Queensland in Hobbelun v. Nunn [1965]Google Scholar Qd.R. 105 thought the duty of a state court was to follow a House of Lords decision in the absence of a contrary decision of the High Court or Privy Council. Gibbs J. thought further that there was no general direction to follow the High Court where there was a conflict. In Skelton v. Collins [1965]Google Scholar W.A.R. 90 Hale J. in the Supreme Court of Western Australia thought that a state court should follow the House of Lords unless the point before the court had been expressly decided by the High Court. In Uren v. John Fairfax & Sons Pty. Ltd. (1965)Google Scholar 66 S.R. (N.S.W.) 223 the majority of the Full Court of New South Wales were prepared to hold that the pronouncement had overruled the previous practice of the High Court; but in 1967 in Evatt v. M.L.C. Assurance Co. Ltd. (1967)Google Scholar 69 S.R.(N.S.W.) 50 the Court of Appeal of N.S.W. considered itself bound by the dicta of the House of Lords in the Hedley Byrne Case [1964]Google Scholar A.C. 465.
83 (1967–68) 117 C.L.R. 118 at p. 161.
84 (1968–69) 42 A.L.J.R. 316.
85 Ibid. at p. 318. The High Court was considering the question of whether an action would lie for negligent misrepresentation, and the Chief Justice made the remarks when considering Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. It is interesting that in 1964Google Scholar (i.e., after Parker v. R. but before Skelton v. Collins) the Court of Appeal of New Zealand treated the Hedley Byrne decision as binding in Smith v. Auckland Hospital Board [1965]Google Scholar N.Z.L.R. 191. In Queen v. Jennings (1966)Google Scholar 57 D.L.R. (2d) 644 the Supreme Court of Canada (with no pronouncement of general principle) refused to follow the decision of the House of Lords in British Transport Commission v. Gourley [1956]Google Scholar A.C. 185. Although in 1959 the court in Fleming v. Atkinson (1959)Google Scholar 18 D.L.R. (2d) 81 had disagreed with Searle v. Wallbank [1947]Google Scholar A.C. 341 this would appear to be the first time it had specifically refused to follow a decision of the House of Lords. Interestingly, in the same case the court followed (with no discussion) West v. Shephard. Cf. generally MacGuigan, op. cit., n. 2, supra.
86 See Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405 at pp. 415–416.Google Scholar The learned judge was supporting his decision to follow the reasoning of the Privy Council in The Wagon Mound [1961]Google Scholar A.C. 388 rather than the decision of the Court of Appeal in Re Polemis [1921] 3 K.B. 560.Google Scholar
86a So the Privy Council thought it beneficial to both Australia and England that the Australian High Court should follow the English Court of Appeal. The Board observed, somewhat oddly, that the practice “will enable the courts of either country to refer to the decisions of the other country for guidance.” See (1953–54) 89 C.L.R. 51 at p. 64.Google ScholarCf. notes 46, 47, supra.
87 Skelton v. Collins (1965–66) 115 C.L.R. 94 at p. 136.Google Scholar
88 (1968–69) 42 A.L.J.R. 316, See supra.
89 The Australian states retain the Privy Council as their ultimate court of appeal but its federal jurisdiction has been almost completely abolished by the Privy Council (Limitation of Appeals) Act (Cmwlth.). Cf. Mason, A. E., “Limitation of Appeals to the Privy Council” (1968)Google Scholar 3 Fed.Law Rev. 1.
90 [1969] A.C. 590.
91 Cf. note 8, supra.
92 See infra.
93 (1879) 5 App.Cas. 342.
94 So, e.g., when the Supreme Courts of New Zealand and Victoria were considering which of two inconsistent decisions of the House of Lords and Privy Council should be followed it was not argued (or apparently even considered) that the decision of the Privy Council was not binding as it was given on appeal from South Australia. See (N.Z.) Corbett v. Social Security Commission [1962]Google Scholar N.Z.L.R. 878; (Vic.) Bruce v. Waldron [1963]Google Scholar V.R. 3. Cf. note 64, supra.
95 Negro v. Pietro's Broad Co. [1933]Google Scholar 1 D.L.R. 490 at p. 496. It would seem, however, that the court's reliance on the fact that the English Court of Appeal was not bound by decisions of the Privy Council necessitated a fairly broad jump in reasoning for it to reach its conclusion. Cf. Marshall, “The Binding Effect of Divisions of the Judicial Committee of the Privy Council” (1968) 17 I.C.L.Q. 743.
96 (1948) 49 N.L.R. 442.
97 Ibid. at p. 449.
98 [1952] A.C. 1.
99 (1957) 97 C.L.R. 624. In Pesona v. Babonchi Baas (supra) Basnayake, J. cited the High Court decision of Baxter v. Commissioner of Taxation (1907)Google Scholar 4 C.L.R. 1087 as an example of a refusal to follow the Privy Council. But the ground for the High Court's action was that the Federal Constitution declared that the High Court was the supreme tribunal in the case.
1 Cf. Bartholomew, op. cit., note 65, supra; Roberts-Wray, op. cit., note 65, supra, pp. 574–575.
2 [1969] A.C. 590.
3 [1963] A.C. 484.
4 [1967] 1 A.C. 569. Cf. the Privy Council decision in Isaacs v. Hotel de Paris [1960]Google Scholar 1 W.L.R. 239 delivered after, but not taking into account, the High Court decision of Radaich v. Smith (1959) 101 C.L.R. 209.Google Scholar The resulting conflict posed a problem for state courts. See, e.g., Cmwlth. of Australia v. Harris [1965]Google Scholar N.S.W.R. 63; General Discounts Pty. Ltd. v. Crosbie [1968]Google Scholar Qd.R. 418.
5 [1963] A.C. 484.
6 Ibid. at p. 497.
7 Four were cited in argument, two of which South Eastern Drainage Board (S.A.) v. Savings Bank of South Australia (1939) 62 C.L.R. 603Google Scholar; Williams v. Robinson (1891) 12 N.S.W.L.R.(Eq.) 34) were specifically concerned with the enforceability of non-registered statutory rights in land under the Torrens system. In the later case, the High Court held, as did the Privy Council in Miller's case, that the rights were outside the system, non-registrable and enforceable. Only two of the judges dealt with the possibility of protecting the rights by caveat (Latham C.J., Starke J.). Both thought a caveat could be lodged (see pp. 617, 622) although Starke J. thought the failure to lodge would not interfere with the statutory rights. The Privy Council could have decided Miller's case in a similar way. Cf. Trieste Investment Pty. Ltd. v. Watson (1963)Google Scholar 64 S.R.(N.S.W.) 98. Of the other two authorities cited one— Gibbs v. Messer [1891] A.C. 248—was concerned with the general principle of indefeasibility and the other— Jobson v. Nankervis (1943)Google Scholar 44 S.R. (N.S.W.), 277—with the registrability of easements.
8 Land Transfer Act 1952 (N.Z.), s. 137; Transfer of Land Act 1958 (Vic.), s. 89 (1); Real Property Act 1900–1967 (N.S.W.), s. 72; Real Property Act 1862 (Tas.), s. 82; Real Property Act 1861 (Q.), s. 98; Real Property Act 1886–1963 (S.A.), s. 191; Transfer of Land Act 1893–1959 (W.A.), s. 137.
9 See, e.g., Land Transfer Act 1952 (N.Z.), s. 128; Transfer of Land Act 1958 (Vic.), s. 37; (W.A.), s. 55; Real Property Act 1900–1967 (N.S.W.), s. 82 (1).
10 Leases for three years or less are unregistrable in Victoria. See Transfer of Land Act 1958, s. 66. A tenant in possession has, however, a paramount (or overriding) interest. See ibid., s. 42 (2) (e).
11 The High Court held in Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd. (1964–65)Google Scholar 113 C.L.R. 265 that such an interest was enforceable against third parties who took with notice of it, but was defeasible by a purchaser of an equitable interest without notice. In other words, it is, in the terms of Phillips v. Phillips (1861) 4 De G.F. & J. 208, “an equity.”
12 (1914) 19 C.L.R. 197.
13 (1917) 23 C.L.R. 78.
14 [1934] A.C. 491.
15 (1914) 19 C.L.R. 197.
16 Ibid. at p. 206.
17 (1917) 23 C.L.R. 78.
18 Ibid. at p. 92.
19 See Ibid. at p. 97.
20 [1934] A.C. 491.
21 Ibid. at p. 500.
22 It shows a willingness to separate the statutory provisions of the Torrens scheme from general law concepts. Even if the scheme is based so far as “interest in land” are concerned on the general law, there is no reason in principle, or as a matter of interpretation, to clutter it up with general law consequences. It merely confuses to insist on their continued application. But see I.A.C. (Finance) Pty. Ltd. v. Courtenay (1962–63) 110 C.L.R. 550 at pp. 572–573Google Scholar, per Kitto J.; Svingen v. Bruntnell (1946)Google Scholar 47 S.R. (N.S.W.) 252. Compare the attitudes of the Privy Council and Court of Appeal of New Zealand in Farrier-Waimak Ltd. v. Bank of New Zealand [1964]Google Scholar N.Z.L.R. 9 (C.A.); [1965] A.C. 377 (P.C.).
23 [1967] 1 A.C. 569.
24 See Assets Co. Ltd. v. Mere Roihi [1905]Google Scholar A.C. 176; Boyd v. Mayor of Wellington [1924]Google Scholar N.Z.L.R. 1174.
25 Gibbs v. Messer [1891] A.C. 248; Clements v. Ellis (1934)Google Scholar 51 C.L.R. 217; Davies v. Ryan [1951]Google Scholar V.L.R. 283. Cf. Caldwell v. Rural Bank of N.S.W. (1951)Google Scholar 53 S.R. (N.S.W.) 415. In Clements v. Ellis the court was equally divided. The judgment of Rich J. comes nearest to the view of the Privy Council in Frazer's case although he seems to except title obtained by forgery from the protection of indefeasibility. Evatt J. distinguished the issue before the court—the discharge of a mortgage by forgery and therefore the acquisition of an unencumbered title by forgery—from the acquisition of a title as such by forgery. McTiernan J., on the facts, thought there had been no acquisition of an unencumbered title. For Dixon J.'s view, see the text.
26 (1934) 51 C.L.R. 217.
27 [1891] A.C. 248.
28 [1967] 1 A.C. 569. The High Court decision in Clements v. Ellis was cited in argument before the Privy Council.
29 [1924] N.Z.L.R. 1174.
30 [1966] N.Z.L.R. 331 at p. 333.
31 [1966] N.Z.L.R. 331 at p. 341.
32 Ibid. at pp. 342–348.
33 [1891] A.C. 248.
34 See Clements v. Ellis (1934)Google Scholar 51 C.L.R. 217 at p. 245. In Frazer v. Walker North P. thought the ratio of Gibbs v. Messer “turns on the fact that in a case of a forged document the person taking under it is not dealing with the registered propietor…” (see [1966] N.Z.L.R. 331 at p. 347).
35 See [1967] 1 A.C. 569 at p. 584.
36 Cf. the comments of the President of the N.S.W. Court of Appeal in Halsbauer v. Nominal Defendant [1966]Google Scholar 2 N.S.W.R. 90 at p. 91; Cornish v. Lloyd [1965]Google Scholar N.S.W.R. 458 at p. 460.
37 (1968) 88 W.N. (Pt. 1) N.S.W. 459. Cf. Jonray v. Paitridge Bros. [1969]Google Scholar 1 N.S.W.R. 621 at p. 626 (C.A. of N.S.W.).
38 [1952] A.C. 1. See supra.
39 [1967] 1 A.C. 569. The learned judge thought that the Privy Council must have had the Australian authorities in mind as Clements v. Ellis was cited in argument and the lower courts had examined the authorities in their judgments.
40 [1969] A.C. 590.
41 The duty of a state court faced with conflicting decisions of the Privy Council and High Court was referred to by the High Court in Jacob v. Utah Construction and Engineering Pty. Ltd. (1966)Google Scholar 116 C.L.R. 200. “It is not in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. If the decision of this Court is to be overruled, it must be by the Judicial Committee or by this Court itself. It cannot be treated by the Supreme Court as if it were overruled” (Ibid. at p. 207, per Barwick C.J.). But it was also said that the matter was different where the High Court's decision was not precisely in point and comparison had to be made between two lines of reasoning. Such an instruction emphasies the difficulties following from the adoption by the Privy Council of principles inconsistent with those adopted in a Commonwealth territory without reference to those that are inconsistent. Cf. 40 A.L.J. 253.
42 [1969] A.C. 590.
43 [1952] A.C. 1.
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