'Mutual Borrowing and Judicial Dialogue Between the Apex Courts of Australia and the United Kingdom' by Mary Arden and James Edelman (preprint of (2022) 138 Law Quarterly Review 217) comments
The common law is one of England’s greatest exports. The more common it remains, the more cogent it will be. It is inevitable that common law jurisdictions will diverge in some applications of the common law in areas where local influences, such as the indirect effect of domestic statutes, play a part. But in areas where the common law is concerned with more universal issues, and not substantially affected by local considerations, the interrelationship between common law jurisdictions is a powerful force for the common law to “work itself pure”, to use the expression of Lord Mansfield.
One significant factor in the interrelationship between common law jurisdictions is the interaction of the apex courts in those jurisdictions. However, there has been little study of how the development of the common law is affected by particular relationships between courts or particular differences between courts. This article contributes to that understanding by focusing upon the relationship between the apex courts in the UK and Australia on which each of us sits or has sat: the United Kingdom Supreme Court (UKSC) and the High Court of Australia (HCA). The relationship between, on the one hand, the UKSC or its predecessor, the Appellate Committee of the House of Lords and, on the other hand, the HCA, is one that has evolved over time. In particular, the HCA initially developed the common law in a subordinate role to the House of Lords. But the position has evolved to one in which the HCA and the UKSC now borrow from each other in the development of the common law.
Comparison of the substantive common law developed by our courts is a common matter for academic comment and discussion. The development by each court of the common law has been part of a dialogue between the two courts, sometimes intermediated by important academic comment. What is far less well known is how our courts are similar or different in their conventional practices—those procedures and processes that are not usually set out in statutes or other written rules. A comparison of these conventional practices and procedures is useful for all courts when considering how to develop or improve their own practices. But, perhaps more fundamentally, an understanding of these practices, and particularly the ways in which they differ, can reveal the context in which the dialogue occurs for the separate development of the common law by the apex courts in our two jurisdictions and might further advance dialogue between our courts beyond the substance of the common law to include also the institutional machinery by which the common law is developed by our courts.
Against that background, we begin with a brief account of the evolution of the relationship between the courts before going on to give examples of how they have referred to and borrowed from one another and, importantly, developed a judicial dialogue. We then turn to the area of conventional practices which shape the context in which this dialogue can occur but upon which little has been written, perhaps due to their non-public nature. We describe and compare some of the important conventional practices and analyse how they differ.
