‘Courts … can only act on the law as it is, and have no right to … speculate upon alterations in the law that may be made …’

The title of this item is a quote from Starke J, in dissent, in a decision of the High Court 90 years ago in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253. The full quote is as follows:

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.

Starke J’s adjuration was followed by Lockhart and Gummow JJ, in the Full Court of the Federal Court, in Attorney General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267 at [50], [51]. The issue invariably arises in circumstances in which there has been an announcement by government, at some level, of the prospect of legislative amendment, likely of retrospective operation, which would impact upon the subject matter.

Instructive in this regard is the decision of the New South Wales Court of Appeal in Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, in particular in the judgment of Mason P. Instructive also are the reasons for judgment of McHugh J, sitting as a member of the New South Wales Court of Appeal, in Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 258, quoting R V Whiteway; Ex parte: Stevenson [1961] VR 168 at 171.

The authorities concerning the principle were collected, and application thereof exemplified, in the recent decision of Forbes J in Taylor v Trustees of the Christian Brothers [2025] VSC 25 (4 February 2025). Her Honour wrote:

[1] The plaintiff has made an application to vacate the trial listed for 11 February 2025. The application was returnable at the final directions hearing on 31 January 2025. It was opposed by the defendant.

…

[5] Given the absence of formal applications in either matter and the concession of the parties that both matters could be determined prior to the present trial date, the application to vacate rested on the proposed legislative changes in relation to vicarious liability.

[6] The plaintiff’s affidavit in support deposed to a question asked of the Victorian Attorney-General in Parliament on 26 November 2024 as to whether she would actively support legislative reform following the High Court decision in Bird: Plaintiff, ‘Affidavit of Shea Rowell’ affirmed 30 January 2025, Affidavit in Taylor v Trustees of the Christian Brothers [2025] VSC 25, (‘Plaintiff’s affidavit in support’), [22]. In response, Ms Symes indicated that ‘the Standing Committee of Attorneys-General [had met] on Friday, where I raised this matter…I have been tasked with leading the work on bringing some material back to that committee; we meet in February [2025]’: Ibid, extract of the Hansard, Legislative Council, on 26 November 2024, as exhibited to the Plaintiff’s affidavit in support, 26. Other correspondence and news articles from December 2024 were also referred to and exhibited. The proposed legislative amendments were submitted to establish a particular injustice to the claim of the plaintiff which would also affect others matters in the Institutional Liability List. An adjournment to a date not before 1 July 2025 was sought.

[7] There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic (1998) 43 NSWLR 527, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases. It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said (Ibid 529, Sheller and Beazley JJA agreeing.):

In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.

[8] The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on (Ibid 531):

Does the announcement qualify in any way the judicial branch’s obligation to uphold the existing — I emphasis the word ”existing” — law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical “no”.

[9] These comments in turn relied on a line of authority based upon the comments of Starke J (Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253; see also as applied in Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33 at 50 –51, Jupp v Computer Power Group Ltd (1994) 122 ALR 711, Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, McHugh J at 258 quoting R v Whiteway; ex parte Stevenson [1961] VR 168 at 171):

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.

[10] At present there is no Bill before the Victorian Parliament. The Victorian Attorney-General said in the Victorian Parliament on 26 November 2024, legislative amendments are complex and involve considerations of federal laws and retrospectivity, amongst other things. There is a need to consider unintended consequences, and consultation with stakeholders will be required (Plaintiff’s affidavit in support, 26). The effect of proposed legislative change on any individual case is presently speculative.

[11] Since the trial judgment in Bird, delivered on 22 December 2021, cases in the Institutional Liability List have continued to be determined, pending the appeals to the Court of Appeal and then to the High Court in accordance with the law as it stood from that time: DP (pseudonym) v Bird [2021] VSC 850. This is in accordance with the general principle that cases are not delayed because the outcome of a prospective change in the law might have a bearing on the outcome of a particular trial. As Ormiston JA said in Geelong Football Club v Clifford (2002) VSCA 212, [6]-[7], Callaway JA agreeing:

It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. …

Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial.

[12] The general principle may be displaced in an appropriate case. The plaintiff did submit that an injustice would arise because of how the plaintiff intended to put his case at trial. As articulated, this injustice arose because of how the pleadings dealt with the role of Brother Webster against whom abuse is alleged and who was the school principal at the relevant time. The plaintiff submitted that the potential exclusion of liability for Brother Webster’s acts or omissions as principal warranted an adjournment. Whatever the particular factual circumstances, the change to come from potential legislative change remains a matter of general application to many cases. The plaintiff accepted a significant number of pending cases are likely to be similarly impacted by the decision in Bird. I do not accept that this was a basis upon which I ought adjourn this particular trial.

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(emphasis added)

A link to the full decision may be found here.