What does "de facto binding" mean?

What will be the strength of NSW decisions on their Evidence Act 1995 (which is not identical with our new Act) in Victorian courts? Will those cases be binding or merely persuasive?

It’s impossible to argue that they won’t, at the least, be highly persuasive. There’s no point re-inventing the wheel. The decisions of other jurisdictions (and, to a lesser extent, the various reports that preceded the creation of the UEA) will be referred to frequently in legal argument. But will judges and magistrates be obliged to follow interstate precedents, or just be assisted by them?

The Laws of Australia

There’s judicial authority that suggests, in most cases, that they must follow. In Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485 the High Court spoke with one voice in saying [at 4],

…[U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

This extends national uniformity beyond mere judicial comity to a binding legal principle. It’s been applied in a variety of contexts: corporations law (Powell & Duncan v Fryer & Anor [2001] SASC 59) disclosure (Workcover NSW v Law Society NSW [2006] NSWCA 84), property (Anderson v Wilson [2000] FCA 394) and motor traffic law (DPP v Moore (2003) 6 VR 430), just to name a few. There is only one common law in Australia: Lipohar v R (1999) 200 CLR 485.

This point about both statutory interpretation and the common law was made even more expressly in the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 [at 135],

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.

(French CJ had not yet taken up his appointment in the High Court when Farah was handed down. He recently approved this view in extra-judicial remarks in his 2009 State of the Judicature address.)

Apples and Oranges?

This doesn’t mean that NSW and Victoria will become the legal equivalent of conjoined twins, though. I’ve said elsewhere that there are traps involved in blindly relying on Commonwealth or NSW authorities to resolve questions of evidentiary law in this state.

First, because nationally uniform legislation always starts off with the intent of unifying legislation, but it rarely stays that way. The Road Rules are a classic example of this. Often the differences in the various Evidence Acts can be subtle, but important.

The second reason interstate decisions can only be of limited application to our law can be illustrated with a simple example. Say a submission is being made that a court ought to exercise its discretion under s 138 to refuse to admit evidence in the exercise of judicial discretion, cases like R v Fleming [2009] NSWCCA 233, R v Naa [2009] NSWCA 851 or R v Helmhoudt [2001] NSWCCA 372 may assist with understanding how the court might exercise its discretion. But it would be a mistake to rely on the bare facts of any of these cases and attempt to draw non-existent parallels between the NSW cases and the matter under consideration, for the obvious reason that what might be considered unlawful in NSW may be lawful in Victoria, and vice versa.

It’s arguable that what constitutes improper conduct for the purposes of s 138 can be established to a national uniform standard. But it won’t be possible to determine what is lawful or unlawful without reference to the particular laws of the jurisdiction. There will often be these kinds of threshold issues that need to be resolved before the proper application of the Evidence Act even falls to be considered.

No principle of law or comity requires that the distinct statutes of each state be drawn together so that they can be treated as identical, when they are not. It follows that care needs to be taken when comparing factual scenarios from north of the border.

4 thoughts on “What does "de facto binding" mean?

  1. Anonymous

    One reason why comity is difficult (and even meaningless) when it comes to the UEL is because there's already a lack of comity between NSW and the other UEL jurisdictions (notably on the issue of whether credibility should be considered when exercising the probative/prejudice discretion.) Three further matters complicate comity arguments in Victoria. One is that the VCA is more lukewarm on comity than NSW (see, e.g. sex offender detention legislation, where NSW followed Vic, but Vic refused to follow NSW!) Weirdly, there's no comity on comity.The second is s1 of the EA2008, which states that the purpose of the Act is to provide for uniform evidence law with the Cth and NSW (but not, it seems, Tas and NI.) Paradoxically, the Cth and NSW laws lack a similar purpose provision.The third complication is, of course, the Charter, which not only (via s38) changes the meaning of 'lawful' conduct under s138, but also – through its interpretation clause in s32 – means that the EA2008 may well have to be interpreted differently to identical UEL provisions in non-Charter jurisdictions. Query, though, whether the EA2008's purpose clause undermines that possibility

  2. RE French CJ and Farah.In the recent case of C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47 the majority (Gummow, Heydon and Crennan JJ) briefly affirmed and explained Farah (at [49]-[51]).Hayne J specifically stated that he agreed with the majority on that point (at [63]). French CJ agreed with the majority without demur to the Farah discussion. Although a careful investigation of his footnotes shows that he does not specifically endorse that discussion.

  3. Point well taken, Fucius Pratum.I haven't read C.A.L v Motor Accidents Insurance Board before, though I did see the story in the papers at the time of the judgment. There's some interesting stuff in there about stare decesis and judicial comity not being as easy as it looks.And you're right about the implications of the Charter, Jeremy. When required to interpret this legislation uniformly and also consistently with human rights, I think it is clear (in the event of a conflict) which goal the Court of Appeal will consider paramount. In C.A.L the High Court made the point that the plainly wrong test is inapplicable where the present case is simply being distinguished from an earlier one. I wonder how long it will be before the first Victorian case on the new Evidence Act goes up to the High Court?I remember reading the Court of Appeal last year when they set out their new approach. They talked about the huge resources spent staging two slavery trials before it was even known if basic principles of the untested legislation were valid. It seems that we step into an equally uncertain world next year.

  4. Anonymous

    BTW, there is another fairly recent HCA case that is a counterpoint to Farah. In Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5, [31], the HCA appears to endorse an earlier judgment from McHugh J, which held: “Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.” No mention of Farah.

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