What the High Court says…

Hill v Zuda Pty Ltd [2022] HCA 21

In this case (at [25]), 7 judges of the High Court confirmed that an ‘intermediate appellate court should not depart from seriously considered dicta of a majority of this Court’9 – ‘dicta’ are statements which are not part of the reasons for a decision.

Leaving aside the uncertain boundary between ‘considered’ and ‘seriously considered’10, the High Court is saying that ‘when a majority makes a point, we expect you to follow it’11.  This applies as much to administrators as it does to courts, probably more so.  Arguably, it also applies in some special leave situations where the court goes out of its way to clarify the law or make some definitive statement12.  

This principle is from Episode 86 of interpretation NOW!


9 Farah [2007] HCA 22 (at [134]), Harding & Malkin (2012) 34 Sydney LR 239.

10 We should always presume the High Court is serious about what it says.

11 Mason P called this a ‘profound shift’, but there is irony here also.

12 eg Jireh [2011] HCA 45 (at [3-5]), cf Ratu [2021] FCAFC 141 (at [44]).