The High Court of Australia's Obiter Dicta and Decision-Making in Lower Courts

This article explores the effect of the High Court of Australia's obiter dicta on decision-making in lower courts around Australia. First, we consider in what sense, and to what extent, the High Court's decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd ('Farah') represents what Keith Mason has called a 'profound shift in the rules of judicial engagement' when it comes to the precedential effect of High Court dicta. We argue that, since Farah was decided, lower courts have tended to regard themselves (in certain circumstances) as under a duty of obedience to High Court dicta, a tendency which was not present in the case law before Farah. We also argue that Farah has generated ambiguities concerning the scope of this duty of obedience to High Court dicta. In our view, these developments vindicate Mason's assessment of the impact of Farah. Second, we argue that the High Court may forestall anxiety and uncertainty around the treatment of its dicta in a post-Farah world in at least two ways: by issuing general guidance to lower courts on the precedential effect of its obiter dicta, especially on the circumstances in which lower courts should regard its dicta as 'seriously considered'; and by making more explicit its views regarding the scope, weight and relevance of the dicta that it issues from case to case. We conclude by arguing that the High Court ought to guide lower courts in these ways, in light of the value of its dicta, the circumstances that surround its decision-making, and its unique position as the ultimate judicial authority in the Australian legal system.