The Use of Policy in Negligence Cases in the High Court of Australia

U of Melbourne Legal Studies Research Paper No. 264

PRIVATE LAW IN THEORY AND PRACTICE, Michael Bryan, ed., Routledge-Cavendish, 2007

25 Pages Posted: 15 Oct 2007

See all articles by Harold Luntz

Harold Luntz

University of Melbourne - Law School

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Abstract

The theme of the conference at which the paper on which this chapter is based was originally presented was Principle and Policy in Private Law. It is not always easy to distinguish principle from policy, as Jane Stapleton has shown in her address to the High Court of Australia on the occasion of its centenary. Nevertheless, this chapter contends that the High Court must make use of policy, since principle alone will seldom be sufficient, to enable it to decide the cases that come before it. At the outset the chapter refers briefly to the controversy as to whether courts do or do not make law. In agreement with most judges and commentators today, it accepts that they do. It recognises, however, that there are differences between judicial and legislative powers in this regard and that there are limits on what judges can do in this respect. Nonetheless, the High Court, like all appellate courts, has leeways of choice open to it.

Keywords: negligence, High Court of Australia, policy

JEL Classification: K13

Suggested Citation

Luntz, Harold, The Use of Policy in Negligence Cases in the High Court of Australia. U of Melbourne Legal Studies Research Paper No. 264, PRIVATE LAW IN THEORY AND PRACTICE, Michael Bryan, ed., Routledge-Cavendish, 2007, Available at SSRN: https://ssrn.com/abstract=1021629

Harold Luntz (Contact Author)

University of Melbourne - Law School ( email )

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185 Pelham Street, Carlton
Victoria, Victoria 3010
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