Finality and Certainty in the Integrated National System of Chapter III Courts: Judge Vasta v Stradford

Abstract

Australian authority holds that there is a critical distinction between superior and inferior courts when it comes to the legal force of judicial orders affected by jurisdictional error. It is said that such orders, when made by a superior court, have legal force unless and until set aside but that, when made by an inferior court, they lack legal force from the outset. This distinction — recently consigned to pre-1846 history by the United Kingdom Supreme Court — does not align with the contemporary reality of the integrated system of courts established under Ch III of the Australian Constitution. The appeals in Commonwealth v Stradford, Judge Vasta v Stradford and Queensland v Stradford present an opportunity for the High Court of Australia to set a new approach that reflects the constitutional context for Ch III court operation. Specifically, the appeals may be upheld on the basis that any purported order made by a Ch III court acting as a repository of judicial power has legal force unless and until set aside.