decision is needed (and this fact will usually be stated in the judgment), and
where a matter is interlocutory.
360
(3)
Even if judges in an earlier case reached the same conclusion, that is,
finding for one party or the other, they may have done so by reference to
different rules.
361
Consequently they disagree on their reasons for the
decision
362
and
hence on the relevant costs and benefits or on how these
should be weighed.
(4)
The original decision was based on an extreme possibility, and a court
used this to introduce a new rule or to vary substantially an existing rule. This
is the genesis of the saying among lawyers that hard cases make bad law.
363
These cases are a problem because they are made on account of a defect in
the former law, which is or may not be fully representative of how the rule
worked overall.
364
Change in Circumstances
One of the ways in which a court may assess the relative merits of the old and
new rule is by reference to the historical circumstances of the old rule.
365
These are relevant because “law is the product of its own period and
environment and it cannot remain static”.
366
Over time there will be change in
“social circumstances” and changes and developments in “human
knowledge”.
367
Consequently, the older a precedent is, the more ready a court
should be to review it because the more likely it is that the policy behind rule is
not now desirable. There will be two aspects - causation and evaluation. Does
___________________
360
Boys v Chaplin [1968] 2 QB 1
361
See for example the High Court decision in Trident v McNiece (1988) 80 ALR
574.
362
Rankin v Baldi [1985] 1 NSWLR 274 at 276, John v FCT (1989) 89 ATC 4101 at
4112, 4119-4120
363
A famous statement of this maxim comes from Justice Oliver Wendell
Holmes in Northern Securities Co v United States
193 US 197, pp 400-401 (1904):
“Great cases, like hard cases, make bad law. For great cases are called great, not
by reason of their real importance in shaping the law of the future, but because of
some accident of immediate overwhelming interest which appeals to the feelings
and distorts the judgment. These immediate interests exercise a kind of hydraulic
pressure which makes what previously was clear seem doubtful, and before
which even well settled principles of law will bend”. See also Nixon v
Administrator of General Services 433 US 425, 439-55 (1977).
364
See Maher and Evans (1984-86).
365
Tumahole Bereng v R [1949] 1 AC 253 per Lord Denning
366
Allen (1964) p 300
367
Allen (1964) p 299, and see for example M-T v M-T [1949] P 331 where the
court took into account changes to gynaecological knowledge to alter its approach
to determining legitimacy.
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