State Government Insurance Commission (SA) v Trigwell [1979] HCA 40

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, and Aickin JJ. State Government Insurance Commission (SA) v Trigwell [1979] HCA 40

ORDER Appeal dismissed with costs. Cross-appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1979, Sept. 19 Barwick C.J.

The relevant evidence and findings of fact given and made at the trial of the action out of which this appeal arises, as well as the submissions of the parties, are fully recounted in the reasons for judgment prepared by my brother Mason which I have had the advantage of reading. I have no need to supplement my brother's recital.

I am of opinion that Searle v. Wallbank [34] was correctly decided and that the common law as so laid down became on settlement part of the law of the province of South Australia. I agree with the reasons expressed by my brother Mason for these conclusions.

1. [1947] A.C. 341.

In my opinion, the common law as to the liability of a landowner for stock straying from his land on to the highway should be decided in the same sense as Searle v. Wallbank if it had to be decided in the conditions of today. Being of that opinion, a discussion as to the possibility of reaching a different conclusion as to the common law because of changed circumstances is not strictly necessary. Recently, in Dugan v. Mirror Newspapers Ltd. [1] , I expressed myself as to the limited nature of the Court's function in the declaration of the common law. Where the law has been declared by a court of high authority, this Court, if it agrees that that declaration was correct when made, cannot alter the common law because the Court may think that changes in the society make or tend to make that declaration of the common law inappropriate to the times. The maxim that when the reason for its making has ceased the law itself ceases to bind has no application in such circumstances. The maxim is limited in its use to cases of the kind exhausted in Broom's Legal Maxims, 10th ed. (1939), pp. 97-99. It can, of course, decide that that declaration was erroneous when made and itself declare what the common law ought properly be held to be. If there is no authority upon a point, the court may decide what the law is: see Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt [2] .