In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, and again in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court pronounced that Australian courts must follow the decisions of appellate courts across Australia unless convinced that those decisions are ‘plainly wrong’. This article seeks to track the development and application of this rule in both a historical and modern context. It first examines the state of the law prior to Marlborough and then engages in an empirical analysis of the use of the rule since Marlborough in 1993, tracking how often the rule has been used and where divergence between jurisdictions has emerged. The results confirm the existence of a judicial system with an increased focus on, and practice of, internal consistency. This replaces the 20th century paradigm in which loyalty to Britain was prioritised over intra-Australian uniformity.
Glover argues
In what has become a seminal statement, in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (‘Farah’), the High Court directed that on questions of law of national operation (ie the common law, uniform national legislation and Commonwealth legislation), the decisions of intermediate appellate courts (‘IACs’) must be followed by courts in other Australian jurisdictions unless the latter court is convinced that the IAC decision in question is plainly wrong (the ‘Farah plainly wrong rule’).
The statement in Farah was in large part a restatement of the High Court’s earlier pronouncement in Australian Securities Commission v Marlborough Gold Mines Ltd (‘Marlborough’), where the High Court expounded an identical rule but omitted reference to the common law. Marlborough was the first instance in Australia’s history where the High Court had sought to clearly address the question of inter-jurisdictional Australian precedent. The preceding 92 years of a federated Australia had been marked by a quiet uncertainty on the subject.
The Farah plainly wrong rule has significant implications for the nature of Australia’s judicial federation. It creates formal and tight bonds between Australia’s numerous, distinct judicial hierarchies in respect of the increasingly broad domain of law of national operation. Despite its importance, there is a degree of uncertainty and confusion as to whether Farah marks a significant departure from the past, and how exactly it is being applied in the present. This article seeks to address that gap by tracking the development and practical application of the to address that gap by tracking the development and practical application of the rule in both a historical and modern context. It proceeds in two primary parts. The first part is qualitative. It examines how the complex question of inter- jurisdictional precedent was approached in the century which preceded Marlborough. An analysis of this history demonstrates that the standardisation of the rules of precedent for extra-hierarchical Australian authority evident in Marlborough and Farah is the culmination of, and a product of, the severance of judicial ties with Britain and the abandonment of the ideal of pan-British Commonwealth uniformity.
The second part is quantitative. It examines exactly how courts have applied and relied on the Farah plainly wrong rule since Marlborough was handed down in 1993. The empirical analysis conducted examines how frequently courts have made reference to the rule, how frequently they have elected to diverge from prior authority on the basis that it is ‘plainly wrong’, and where exactly that divergence has emerged. The results show, as one would expect from a rule which imposes a general standard of uniformity with a limited exception, that the practice of courts has been to largely follow each other’s decisions except in restricted and careful circumstances. Only 20 decisions over the 25 years surveyed involved a court deeming a prior IAC decision to be plainly wrong. These decisions emanated from both single judges and IACs, and stemmed most strongly from the New South Wales (‘NSW’) Supreme Court (with 50% of the cases involving a finding that a prior decision was plainly wrong coming from NSW). The rate at which courts engaged with the language of the rule rose considerably over the studied period.
Taken cumulatively, this article seeks to demonstrate how, as Australia has severed ties with Britain and its Commonwealth neighbours, it has developed a new focus on, and practice of, internal consistency, with internal divergence carefully regulated by a High Court which sees jurisdiction-specific innovation as contrary to the system devised by the Constitution. The corollary of that trend has been, as James Stellios has remarked, the amplification of the national features of the federal judicial system and a marginalisation of the features that preserve the distinctiveness of the state and territory judicial systems. This in turn has allowed courts such as the NSW Supreme Court to gain an even greater voice within the national judicial conversation.
Part II of the article provides background to the Farah plainly wrong rule and an explanation of its scope. Part III sets out the history of inter-jurisdictional precedent pre-Marlborough and Part IV sets out the results of the empirical study. Part V then offers some overarching conclusions.
