Have the High Court of Australia’s Directions in Farah Constructions Regarding “Seriously Considered Dicta” Needlessly Undermined the Doctrine of Precedent and Legal Certainty?

Abstract

In the 2007 decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, the High Court of Australia criticized the New South Wales Court of Appeal’s recognition of a new cause of action as inappropriate since it departed from “long-established authority and seriously considered dicta of a majority of” the High Court. The High Court’s statement concerning “seriously considered dicta” apparently introduced a new rule of precedent that a species of judicial dicta could be binding on lower courts. This article analyses the impact of the statement on the doctrine of precedent and legal certainty. It argues that the statement undermines the doctrine’s function in maintaining the legitimacy of judge-made law and the balance achieved by the doctrine between certainty and flexibility. The statement also introduces considerable uncertainty. It is unclear what constitutes a ‘seriously considered’ dictum and its relationship to ‘long-established authority’. Given the negative effect of the statement, the High Court should clarify the doctrine of precedent by declaring that dicta cannot be binding.