Judicial wrongness

Kemp v Medical Board of Australia [2017] VSC 691

When may a court overturn a longstanding decision on interpretation?  There is a reluctance to do so unless the earlier decision is clearly wrong2.  But, it is no part of the judicial role to perpetuate error, even where provisions have been re-enacted3.  Decided cases also should not distract from the text4.

Forrest J in this case (at [100]) declined to follow an earlier decision about the meaning of the word ‘proceeding’ in evidence legislation.  Administrators, however, do not enjoy the same luxury as judges in this regard.  The tax commissioner, for example, has to follow decisions binding on him, even if he thinks they are wrong5.  His job is to apply the tax law.               

This case is from Episode 31 of interpretationNOW!


Aubrey [2017] HCA 18 (at [35]), Babaniaris [1987] HCA 19 (at [13]).

See Episode 8, Pearce & Geddes (at [3.48-3.49]).

Shi [2008] HCA 31 (at [92]), Smith [2009] FCAFC 175 (at [35]).

Indooroopilly [2007] FCAFC 16 (at [4-6]), Obeid [2015] NSWCCA 309.