articulate the rule in this direct way. But some cases indicating when a court
should reconsider a rule refer, even if implicitly, to the operating costs and
benefits.
Cases contemplate a change of common law rule in any of three
circumstances. These consists of
the case where a rule is not working well,
where there were problems in making the rule and where there has been a
change in historical circumstances.
Rule Not Working Well
One situation for changing a rule is when a rule is not working well. Examples
are a rule which has achieved no useful result,
351
has led to considerable,
serious or manifest inconvenience,
352
unduly restricts the liberty of the
subject,
353
is out of line with current trends,
354
is unjust,
355
or is “plainly
unreasonable”.
356
Such a rule produces too little benefit or too much cost, so
there may well be a net benefit in changing to a better rule.
Difficulty in Making the Rule
Doubts about the overall benefit of a rule are also manifest in difficulty about
the way in which the rule was made. If the rule was not properly made there
are lingering doubts as to whether it is the best rule
357
either because not all
costs or benefits were fully identified, or because costs and benefits were not
carefully weighed. Defects in rule making take a number of forms:
(1)
Not all relevant arguments were before the court when it made its
decision.
358
A rule is weakened to the extent that a relevant argument or a
matter of decisive importance was not considered.
359
(2)
The earlier court gave insufficient time to decide the
issue and so did
not consider it properly. There are two obvious cases where there will
probably not be time for a proper consideration of the issue – where a quick
___________________
351
John v FCT (1989) 89 ATC 4101 at 4112, 4119-4120
352
John v FCT (1989) 89 ATC 4101 at 4112, 4119-4120, Admiralty Commissioners v
SS Valverda [1938] AC 173 at 194, Mirehouse v Rennell (1833) 1 Cl & F 527 at 546 per
Parke J
353
R v Taylor [1950] 2 KB 368, Nkambul v R [1950] AC 379
354
Connor v Sankey [1976] 2 NSWLR 570
355
Bennett & Wood v Orange City Council
[1967] 1 NSWLR 502, Clutha
Developments v Barry
(1989) 18 NSWLR 86, Admiralty Commissioners v SS Valverda
[1938] AC 173 at 194, Robinson Bros v Houghton Assessment Committee [1937] 2 KB 445
356
Mirehouse v Rennell (1833) 1 Cl & F 527 at 546 per Parke J
357
Connor v Sankey [1976] 2 NSWLR 570 per Street CJ
358
Re Mason [1928] Ch 385 at 400 per Romer J, Tumahole Bereng v R [1949] 1 AC
253 per Lord Denning
359
Rankin v Baldi [1985] 1 NSWLR 274 at 276, R v Taylor [1950] 2 KB 368
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