Thursday, June 23, 2011

The curious case of the plurality in the High Court

The word "plurality" has made an appearance more frequently in the judgments of the High Court to describe a judgment in which the majority of the judges forming the majority in the result have joined.

This is a very recent trend.

Of the judgments delivered since the Court's commencement in 1903 the word "plurality" appears in 83 of them.  Originally, it was used to describe more than one person (eg a plurality of voters or creditors) or more than one thing (eg a plurality of purposes, or of ducts) or to describe the grammatical concept of there being more than one thing (ie in contradistinction to singularity).

The word "plurality" does not make an appearance with its modern meaning until December 1999 in the case of Lipohar v R.  There, it is used to describe a plurality in the US Supreme Court where the use of the word in the sense of a judgment in which the majority of the judges forming the majority in the result have joined seems to have a more ancient lineage.  It next appears in its modern sense in 2000 (again in reference to the US Supreme Court).

It does not make a further appearance until 2006 where, in Australian Broadcasting Corporation v O'Neill it is used, perhaps inaccurately, to refer to the judgment of Lord Coleridge CJ in Bonnard v Perryman, a judgment that Lord Esher MR, and Lindley, Bowen and Lopes LJJ did not join, but with which they concurred.

Then, all of a sudden, in 2008 the word is used in its modern sense in 9 judgments, in 8 judgments in 2009 and in 7 judgments in 2010.

Curiously, it is only in its modern sense that the word has been used since 2006.

No comments:

Post a Comment