Cipla Australia v Novo Nordisk [2024] FCA 1414
E86 reported on Hill v Zuda Pty Ltd, where the High Court said that it expects lower courts to follow ‘seriously considered dicta’ of a majority of that court13. Much has been said about the outworking of this principle since it was reconfirmed in 202214.
Perram J in Cipla (at [185]), with some hesitation in a patent context, declined to follow a statement of the High Court. This was because it was not a ‘considered obiter dictum [emphasis added]’15. Queries – What counts as judicial ‘consideration’ of an issue? When exactly is the threshold level of ‘seriousness’ met? And does this principle invite indelicate second-guessing on the quality of High Court outputs?
This principle is from Episode 116 of interpretation NOW!
Footnotes:
13 Obiter dicta are statements not essential to the reasons for a decision.
14 Catholic [2024] NSWCA 30 [198], Aerotropolis [2023] NSWCCA 195 [60-61].
15 Alphapharm [2014] HCA 42 [23] fn 40, cf Ying [2009] NSWSC 1344 [21-25].