In Australia’s humble beginnings as an Imperial colony, judicial authority was vested overseas. Even after Federation, the fledgling nation’s decisions were subject to appeals to the Privy Council, sitting across two oceans on the near antipodes of Australia’s shores. That all changed with the passing of the Privy Council (Limitation of Appeals) Act 1968 (Cth) and Privy Council (Appeals from the High Court) Act 1975 (Cth), and finally the Australia Act 1979 (Cth).
Since that point, the High Court of Australia has continued to refer to precedent set by the House of Lords and Privy Council, as well as to that of other Commonwealth nations such as Canada and New Zealand. The perception has long been that this was a one-way street, with Australian judges referring to their UK counterparts in a hierarchical flow of precedent. However, it appears that the trend is changing, with a number of top English judges insisting that the process should be reciprocal.
In Customs and Excise Commissioners v Barclays Bank PLC  UKHL 28, Lord Bingham of Cornhill observed (at ) that:
[I]t is a notable feature of this appeal that the commissioners adduce no comparative jurisprudence to support their argument. The House was referred to no material from Commonwealth jurisdiction to show recognition of a duty such as that for which the commissioners contend. One learned author has ventilated the suggestion that a third party with knowledge of a mareva injunction may owe a duty of care to the party in whose favour the order is made … but the same author recognises … that there is no right to sue a contemnor for the contempt alone and acknowledges that there is no civil right to damages and no power for the court to award compensation to another party for the contemnor’s action.
Since then, Lord Neuberger of the Supreme Court of the United Kingdom has made frequent reference to the need to consider other Commonwealth decisions.
In FHR European Ventures LLP v Cedar Capital Partners LLC  UKSC 45, he said (at ) that “it is inevitable that inconsistencies in the common law will develop between different jurisdictions. However, it seems to us highly desirable for all those jurisdictions to learn from each other, and at least to lean in favour of harmonising the development of the common law round the world.”
Later, in Starbucks (HK) Ltd v British Sky Broadcasting Group plc  UKSC 31, Lord Neuberger expanded on this point (at [5o]), saying “it is both important and helpful to consider how the law has developed in other common law jurisdictions – important because it is desirable that the common law jurisdictions have a consistent approach, and helpful because every national common law judiciary can benefit from the experiences and thoughts of other common law judges”.
What does this mean for UK (or, indeed, any Commonwealth) lawyers? It means that trends in other Commonwealth nations are becoming more relevant to UK jurisdictions, and lawyers must remain attentive to the changing circumstances of those other nations’ laws. Commonwealth lawyers advocating at the highest levels of justice must not just be national lawyers, but global lawyers familiar with the various differences in Commonwealth judicial opinions.
Thankfully, this is a task made easier in this digital world with the ability to subscribe online to expansive encyclopaedias and specifically tailored journals. Lawyers can even set up alerts to specific areas of law, or keep an eye on relevant categories of cases, and so keep appraised of any significant changes that may affect their own practice.