This is a part of The Worker’s Liens Casebook, by Robert Fenwick Elliott. Copyright © 2010
Copies of text of no more than 500 words may be made, provided they are accompanied by due attribution.
- Apart from the Act itself, there are several sources of law as to its application. These are considered in turn below.
- It is beyond the scope of this book to embark upon a detailed examination of the doctrine of precedent in South Australia. The general principles are as follows:
- Each court must follow the decisions of superior courts;
- The Supreme Court usually follows its own previous decisions, but is not bound to do so[1]. Freedom to depart from previous decisions is exercised cautiously, and only when compelled to the conclusion that the earlier decision is wrong[2]. The Supreme Court has said that it will only depart from a previous decision that is “plainly wrong”[3];
- Courts may be reluctant to depart from long-standing decisions of lower courts[4], but not where they are obviously wrong[5];
- As between states and territories, a principle of comity is sometimes applied, such that decisions of other Australian jurisdictions are of high persuasive value[6].
- In practice, the application of these principles is sometimes clouded in a number of important areas by the utter confusion of prior authorities, such that it is impossible to discern any clear line of reasoning at all. These difficulties are compounded by the fact that the earlier cases were decided in days when the courts were inhibited from looking at the Hansard record, which would have shed at least some light on the intent of parliament. However, and notwithstanding these difficulties, the cases are decided with the benefit, or at least impact, of the doctrine of precedent.
- The principal source of authority as to the Act is the body of South Australian case law.
- The highest South Australian court is the Supreme Court. Appeal from a single judge of the Supreme Court lies to a full court of the Supreme Court.
- There have been several decisions of the Supreme Court of the Northern Territory. Until Jovista, there was a significant divergence of judicial opinion between the two jurisdictions on the effect of the section 10, notwithstanding the similarity of the legislation, but since the legislation now has been repealed in the Northern Territory, that alternative line has some to an end. The different flavour of the Northern Territory decisions may be due in part to the more varied background of the judges there. For example, Austin Asche, the Chief Justice from 1987, had previously practised as a barrister in Queensland and Melbourne and as a Family Court judge in Victoria.
- There have, from time to time, been occasions when the courts have referred to cases decided on the basis of overseas liens legislation, such as New Zealand’s Contractors’ and Workmen’s Liens Act 1892, but the value of these is very limited[7]. But cases from other common law jurisdictions on more general points have often been referred to.
The Artificer’s Lien, RD Elliott
- This work was published[8] in 1967; chapter 10 is devoted to this legislation (then known as the Workmen’s Liens Act). Despite being the only substantial work on the topic for many years, it is now out of print. The author, Ronald Elliott, was a lawyer, a lecturer at the University of Adelaide and a Stipendiary Magistrate. He is not thought to have been any close relative of the author of this casebook.
- Over the years, The Artificer’s Lien has been cited in court a number of times, sometimes approvingly[9] and sometimes less so[10]. Now, however, its value as an authoritative text is limited:
- It is somewhat out of date. There have been a number of important cases in the 40 years since it was published.
- Most of its commentary is unsupported by the authority of decided cases[11].
- The relevant extracts from Hansard’s reports of proceedings in the South Australian Parliament are set out below. See page 835 below as to the admissibility of the Hansard debates.
[1] Jenerce v. Pope (1971) 1 SASR 204
[2] Nguyen v. Nguyen [1990] HCA 9; (1990) 169 CLR 245
[3] Price Waterhouse v Beneficial Finance Corporation [1996] SASC 5964 at paragraph 254; White v The Queen (1967) SASR 184; Devlin v Collins (1984) 37 SASR 98; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 52 SASR 148
and Pashalis v Workcover Corporation [1994] SASC 4803; (1994) 63 SASR 71.
[4] Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133 at 137 per Latham CJ.
[5] Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 22 per Wilson and Dawson JJ
[6] See for example Jovista at page 417 below.
[7] See for example paragraph 34 of the judgment of Angas Parsons J in Miller’s Lime at page 705 below.
[8] Law Book Co (1967) ASIN: B0006BXWTY.
[9] E.g. “useful” in Albert Del Fabbro v Wilckens & Burnside.
[10] E.g. “tactless” in Advanced Civil Engineering v Wyara. See also Blythe Green and Jordain v Sienna and Leichhardt v Pipeline Properties.
[11] The only cases cited are
Hollywood Homes Pty Ltd 1964 SASR 116
Ready Mixed Concrete v Constructions (BH) Pty Ltd 1963 SASR 340
Millers Lime Ltd v Royal Agricultural Society Inc 1936 SASR 306
Pitt v Corporation of Glenelg and Others 1927 SASR 501
Bourne v Kneebone (1896)