Gopal Sri Ram JCA:

[2] Let me take the first point. I begin with the concept of a binding precedent. In the hierarchy of a common law system of judicature, it is a general rule that the decisions of a higher court are binding on all courts below it. So, the decisions of an apex court are binding upon all courts below it. This practice of following the decisions of a higher court is often referred to as the doctrine of binding precedent or of stare decisis Its object is to ensure certainty in the law. But then there are precedents and there are precedents Some decisions of the highest court lay down a principle of common law that alters the position that obtained earlier For example, until Donoghue v. Stevenson [1932] AC 562, the common law did not recognise that the manufacturer of a product owed a duty of care to the ultimate consumer See, Winterbottom v. Wright [1842] 152 ER 402. But the House of Lords in Donoghue v. Stevenson altered that position. Such a decision is, of course, binding because it established a new principle of law. This is an example of a true precedent. But where you have a case which involves the interpretation of a section in an Act of Parliament the doctrine of precedent has a lesser effect. See, Carter v. Bradbeer [1975] 1 WLR 1204, per Lord Diplock.

[3] Gummow J explained the difference between the interpretation of a statute and that of a judgment of a court in Brennan v. Comcare [1994] 122 ALR 615 as follows:-

The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.

The distinction is usefully expressed in the following passage from Judge Posner's work 'The Problems of Jurisprudence', 1990, p 248:-

Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways We are not afraid that we would lose the meaning, of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept.

Statutory law differs in that the statutory text the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision making - is in some important sense not to be revised by the judges, not to be put into their own words They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute - that is, interpret the statute. (There is a sense in which common law judges 'interpret' common law, but it is the sense in which 'interpretation' means 'understanding'.)

[4] It is important to recognise that the Federal court in Adorna Properties was not laying d