advert to an earlier inconsistent decision,
345
especially where this decision has
some binding force, that is, it is a decision of the court itself, a coordinate
court or a court of higher authority.
346
(In such a case the decision is given per
incuriam, literally through carelessness,
347
although the phrase is also used to
mean through ignorance.
348
)
In all of these cases the particular precedent generates equality costs. This
provides good justification for a court to change it.
Operating Costs and Benefits
[I]t takes 7,500 litres of water to produce $1 worth of rice in the husk and
1600 litres to produce $1 worth of seed cotton.
349
Introduction
Operating costs and benefits are distinguished from changeover costs and
benefits. Operating costs and benefits, as their label indicates, are the costs
and benefits that ensue after a law or an interpretation of a law is operative.
Operating costs consist of running costs, while operating benefits are
constituted by the inflow of returns.
Legislature
Statutes can be very elaborate in their scope. Examples are statutes that
regulate large areas of activity such as health, education, environmental
protection and industrial relations. Consequently, the operating costs and
benefits can be both diverse and large. Moreover, in a federation, where a
matter falls within the province of the regional legislature as distinct from the
central legislature, transactions costs are increased, because each region has to
administer a separate scheme –
hence the fixed costs (but not the variable
costs) of administration are duplicated.
350
Court
A rational court should change an interpretation or a common law rule when
there is net gain in making the change. Typically, though, courts do not
___________________
345
Young v Bristol Aeroplane Co
[1944] 1 KB 718, Boys v Chaplin
[1968] 2 QB 1
and see Farrell v Alexander [1976] 2 All ER 345
346
Young v Bristol Aeroplane Co [1944] 1 KB 718
347
Lord Justice Scarman said in Farrell v Alexander [1976] 2 All ER 345, 359 that
it means when “Homer nodded”.
348
Young v Bristol Aeroplane Co [1944] 1 KB 718
349
Rick Farley, a former head of the National Farmers Federation, commenting
on an impending water shortage with consequent rise in cost, quoted in Stephanie
Peatling "Water crisis deepens as experts call for control" The Sydney Morning
Herald 6 March 2003, p 5
350
See Hall (1998), McConvill and Smith (2001).
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