Overruling in the High Court of Australia in Common Law Cases

[Our article aims to identify principles to guide the High Court of Australia when it is considering whether or not to overrule one of its previous decisions in a common law setting. We introduce two accounts of overruling drawn from the scholarly literature on the subject and, in light of those accounts, we evaluate the approach to overruling taken by the Court in the recent common law case of Imbree v McNeilly (2008) 236 CLR 510. We then place Imbree in context by considering it alongside two other relatively recent common law cases in which the Court has considered whether or not to overrule itself: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, and Brodie v Singleton Shire Council (2001) 206 CLR 512. We conclude that, in some respects, the Court’s approach to overruling in Imbree is problematic. In future common law cases where the Court is invited to overrule itself, the Court should seek to develop a framework of principles bearing on the overruling question. This framework should draw not only on Imbree but also on cases like Esso and Brodie, which in some respects were decided in accordance with sound principles of overruling that were not addressed adequately in Imbree.]