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A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001

Published online by Cambridge University Press:  24 January 2025

Matthew Groves  and
Russell Smyth
Matthew Groves
Affiliation:
Faculty of Law, Monash University
Russell Smyth
Affiliation:
Department of Economics, Faculty of Business & Economics, Monash University
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Extract

In a recent issue of the Australian Law Journal Enid Campbell argued that both the length of High Court judgments and the number of multiple separate High Court judgments has increased and that this is counterproductive. This view echoes similar concerns expressed by some judges and others in the profession. This argument is based on several assumptions about the High Court that are widely held among lawyers, but which have not been subject to any detailed empirical research. Those assumptions are:

  1. (a) High Court judgments have become significantly longer in recent times.

  2. (b) There is an increase in the number of concurring judgments on the High Court.

  3. (c) There is an increase in the number of dissenting judgments on the High Court.

Type
Research Article
Information
Federal Law Review , Volume 32 , Issue 2 , June 2004 , pp. 255 - 226
Copyright
Copyright © 2004 The Australian National University

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Footnotes

The authors are grateful to Enid Campbell and an anonymous referee for helpful comments on this article.

References

1 Campbell, Enid, 'Reasons for Judgment: Some Consumer Perspectives' (2003) 77 Australian Law Journal 62.Google Scholar

2 Justice Beaumont, Brian, 'Contemporary Judgment Writing: The Problem Restated' (1999) 73 Australian Law Journal 743Google Scholar; Chief Justice Doyle, John, 'Judgment Writing: Are There Needs for Change?' (1999) 73 Australian Law Journal 737Google Scholar. The current Chief Justice of the High Court recently remarked '[a]s for style in judgment writing, this is a subject worthy of a paper of its own. By saying nothing about it on this occasion, I hope to set an example of judicial restraint': Chief Justice Murray Gleeson, 'The Centenary of the High Court: Lessons From History' (Speech delivered at the Thirteenth AIJA Oration in Judicial Administration, The Banco Court, Supreme Court of Victoria, Melbourne, Friday 3 October 2003) 11.

3 See Orr, Graeme, 'Verbosity and Richness: Current Trends in the Craft of the High Court' (1998) 6 Torts Law Journal 291.Google Scholar

4 Recently some attempt has been made to document trends in judgment writing over a limited specified period. For example, for a recent study which offers statistics for the Gleeson Court see Lynch, Andrew, 'The Gleeson Court on Constitutional Law: An Empirical Analysis Of Its First Five Years' (2003) 26 University of New South Wales Law Journal 32Google Scholar. However, there are no studies which document trends in judgment writing over the history of the Court.

5 Ibid. See also Jean Goutal, Louis, 'Characteristics of Judicial Style in France, Britain and the USA' (1976) 24 American Journal of Comparative Law 43.CrossRefGoogle Scholar

6 Friedman, Lawrence et al, 'State Supreme Courts: A Century of Style and Citation' (1981) 33 Stanford Law Review 773, 773-4.CrossRefGoogle Scholar

7 Lynch, 'The Gleeson Court on Constitutional Law', above n 4. See also Lynch, Andrew, 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' (2003) 27 Melbourne University Law Review 724.Google Scholar

8 See Lynch, Andrew, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia' (2002) 24 Sydney Law Review 470Google Scholar. See also Lynch, 'The Gleeson Court on Constitutional Law', above n 4; Coper, Michael, 'Concurring Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 129CrossRefGoogle Scholar; Lynch, Andrew, 'Dissenting Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 216Google Scholar; Coper, Michael, 'Joint Judgments and Separate Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 367.CrossRefGoogle Scholar

9 Coper, 'Concurring Judgments', above n 8, 130.

10 Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement', above n 8, 480–1.

11 Ibid 492–502.

12 From 1903 to 1906 there were only three Justices appointed to the Court (Griffith CJ and Barton and O'Connor JJ). The size of the Court grew to five Justices in 1906 with the appointment of Isaacs and Higgins JJ. The Court expanded to seven Justices in 1913.

13 Strictly speaking a Full Court comprises two or more Justices: Judiciary Act 1903 (Cth) s 19. In practice, however, a Full Court of seven Justices presides in cases involving a constitutional issue or an issue in which it is particularly desirable for the entire Court to rule, such as one in which the Court may be invited to overrule one of its earlier decisions. Such cases may be considered by a full bench comprising six Justices if one member of the Court determines that he or she ought not to preside on the ground that presiding may give rise to a reasonable apprehension of bias. In most other cases a Full Court is most commonly comprised of five Justices.

14 Campbell, above n 1.

15 The requirement of grant of special leave to appeal was introduced in 1984 by s 3(1) of the Judiciary Amendment Act (No 2) 1984 (Cth). See Solomon, David, 'Controlling the High Court's Agenda' (1993) 23 University of Western Australia Law Review 33Google Scholar and Jackson, David, 'The Role of the Chief Justice: A View From the Bar' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 21.Google Scholar

16 Leave is required for appeals from all federal, state and territory courts. The only exception is s 95(b) of the Family Law Act 1975 (Cth), which empowers the Full Court of the Family Court to issue a certificate that a case involves an important question of law or public importance. The issue of such a certificate effectively bypasses the requirement for special leave.

17 Sir Mason, Anthony, 'The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal' (1996) 15 University of Tasmania Law Review 1, 9.Google Scholar

18 For a similar argument in the context of State Supreme Courts in the United States see Friedman et al, above n 6, 778.

19 Callinan J offered a contrary view prior to his appointment to the Court. Callinan QC, as his Honour then was, suggested that the introduction of the requirement of special leave has granted the High Court an unfettered discretion, and that observers often cannot discern any principles governing the exercise of that power: Callinan, Ian, 'An Over-Mighty Court' (1995-6) 51 Refresher: Journal of the Bar Association of Queensland 34, 36-7Google Scholar. It is worth noting that his Honour did not proffer a clear principle or principles to govern the grant of special leave.

20 Justice Michael Kirby, 'Sir Anthony Mason Lecture 1996: A F Mason — From Trigwell to Teoh' (1996) 20 Melbourne University Law Review 1087, 1097.

21 By contrast the Justices of the Court normally dispose of cases in which special leave is refused with a single voice and reasons that convey the view of the Court with utter clarity. For example, a presiding Justice may confer briefly with other members of the Court and simply reply: '[t]he application for special leave in this matter is refused. The Court is of the view that the case has insufficient prospects of success to warrant the grant of special leave.' Callinan QC, as his Honour then was, suggested that such short statements of reasons for the refusal of a grant of special leave 'are usually as inscrutable as the statutory discretionary grounds which may attract special leave': Ian Callinan, above n 19, 37.

22 Justice Kirby, Michael, 'What is it Really Like to be a Justice of the High Court of Australia?: A Conversation Between Law Students and Justice Kirby' (1997) 19 Sydney Law Review 514, 518Google Scholar. Gleeson CJ echoed these sentiments when he suggested that, prior to the introduction of the requirement of special leave, the High Court 'used to get a reasonable number of easy cases. That no longer applies': Chief Justice Gleeson, Murray, 'A Changing Judiciary' (2001) 75 Australian Law Journal 547, 553.Google Scholar

23 Section 74 empowers the High Court to issue a certificate 'if satisfied that for any reason the certificate should be granted'. The Court has only granted one certificate, for the case of Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; Attorney-General (Cth) v Colonial Sugar Refining Co Ltd [1914] AC 237 (PC). The reasoning of the Privy Council was widely regarded as unsatisfactory.

24 Section 74 also essentially excluded the Privy Council's involvement in most intergovernmental disputes, which has been a central question of Australian constitutional law.

25 See, eg, Commonwealth v Bank of New South Wales [1950] AC 235. That case was argued in the High Court on a myriad of grounds, but the Commonwealth appealed to the Privy Council only on a relatively narrow question concerning s 92 of the Constitution. The Privy Council ultimately held that this aspect of the case raised an inter se question and, therefore, could not be heard in the absence of a certificate issued by the High Court under s 74.

26 See, eg, Jones v Commonwealth Court of Conciliation and Arbitration [1917] AC 528.

27 Privy Council (Limitations of Appeals) Act 1968 (Cth).

28 Privy Council (Appeals from the High Court) Act 1975 (Cth).

29 Australia Act 1986 (Cth); Australia (Request and Consent) Act 1985 (Cth); the Australia Acts Request Act 1985 of each state; Australia Act 1986 (UK).

30 See Jackson, David, 'Leave to Appeal' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 425Google Scholar. Strictly speaking, appeals to the Privy Council remain possible, but the High Court has referred to its jurisdiction under s 74 of the Constitution to grant a certificate to appeal to the Privy Council as 'obsolete': Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461, 465 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

31 Justice Hutley, F C, 'The Legal Traditions of Australia as Contrasted with Those of the United States' (1981) 55 Australian Law Journal 63, 69.Google Scholar

32 Perhaps the most notable of later cases in which this occurred was Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556. The reasoning of the High Court in that case made notable advances in the law governing liability for negligent misstatements. Barwick CJ, at 563, stressed the role of the High Court in declaring and advancing the common law of Australia. The decision was overruled by a majority of the Privy Council: [1971] AC 793.

33 Kirby, 'A F Mason – From Trigwell to Teoh', above n 20, 1095–6. See also Jackson, 'The Role of the Chief Justice', above n 15.

34 Sir Mason, Anthony, 'Reflections on the High Court of Australia' (1995) 20 Melbourne University Law Review 273, 280Google Scholar. Sir Gerard Brennan, who succeeded Mason as Chief Justice of the High Court, recently contributed to a volume in honour of the centenary of the first sitting of the High Court. Brennan's paper addressed the role of the Privy Council in constitutional law but, notably, did not address Mason's thesis: Sir Brennan, Gerard, 'The Privy Council and the Constitution' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 312.CrossRefGoogle Scholar

35 By contrast, a judge of the Supreme Court of Canada has suggested that the abolition of appeals to the Privy Council in that jurisdiction influenced the Court's decision to adopt regular conferencing, which has greatly reduced the level of multiple opinions in the Court. The Court was anxious to ensure that its decisions as the court of final jurisdiction provided a level of certainty: Justice L'Heureux-Dubê, Claire;, 'The Dissenting Opinion: Voice of the Future?' (2000) 38 Osgoode Hall Law Journal 495, 500.CrossRefGoogle Scholar

36 Friedman et al, above n 6, 777.

37 Goutal, above n 5, 61–4.

38 Orr, above n 3, 292.

39 Sir Owen Dixon seemed mindful of the disadvantages of this practice when sworn in as Chief Justice. He recalled his own appearances as an advocate when the Court observed a 'process by which arguments were torn to shreds before they were fully admitted to the mind': Sir Dixon, Owen, 'Swearing In of Sir Owen Dixon as Chief Justice' (1952) 85 CLR xi, xiv.Google Scholar

40 Individual Justices could, of course, always seek research assistance from associates and conduct their own research.

41 These changes in procedure are summarised by Sir Gerard Brennan in 'Decision-Making Process' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 197. The most recent Practice Direction governing this aspect of procedure is Practice Direction No 1 of 2000. Clauses 7(a) and 9(a) of that direction respectively provide that the submissions of appellants and respondents shall not exceed 20 pages without the leave of a member of the Court.

42 Perritt, Henry, 'Changing Litigation With Science and Technology—Video Depositions, Transcripts and Trials' (1994) 43 Emory Law Journal 1071, 1087-8Google Scholar. Perritt bases this conclusion largely on the different amounts of material that a judge may receive by oral testimony (which is limited by the speed a witness speaks at) as opposed to reading written materials. Kirby J has cited Perritt's estimation of the differing amount of information that can be absorbed through oral and written submission, with apparent agreement, in 'The Future of Courts—Do They Have One?' (1999) 8 Journal of Judicial Administration 185, 189. His Honour also noted that during his time on the bench the structure of written submissions had changed 'from virtually nothing to bare skeletal outlines and now to substantive text': at 189.

43 Campbell, above n 1, 63; Doyle, above n 2, 738–9; Orr, above n 3, 293.

44 Russell Smyth, 'Other than “Accepted Sources of Law"?: A Quantitative Study of Secondary Source Citations in the High Court' (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, 'Citations by Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 98.

45 Smyth, 'Citations by Court', above n 44, 98.

46 Orr, above n 3, 294.

47 No footnotes are contained in the decisions reported in volume 1 of the Commonwealth Law Reports. There is no apparent reason for this, except the obvious point that no Justices used footnotes in the decisions reported in the first volume.

48 The authorized reports of the Privy Council, the House of Lords, the Supreme Court of Canada and the Court of Appeal of New Zealand do not include footnotes.

49 Rodger, Lord, 'The Form and Language of Judicial Opinions' (2002) 118 Law Quarterly Review 226, 235.Google Scholar

50 See Marr, David, Barwick (1980) 222.Google Scholar

51 See Beaumont, above n 2, 747; Orr, above n 3, 294.

52 Gleeson, 'The Centenary of the High Court', above n 2, 8.

53 Gleeson, 'A Changing Judiciary', above n 22, 553. Gleeson CJ suggested that this increasing information overload 'commenced with the photocopier.' The ALRC also warned against information overload when it cautioned against the increased use of computer generated materials such as lists of citations: Australian Law Reform Commission, Technology — What it Means for Federal Dispute Resolution, Issues Paper No 23 (1998) [2.38].

54 Gleeson CJ has noted that Justices of the High Court are now provided such a range of electronic assistance, from video links, electronically filed material and online research facilities that Justices could perform all of their duties from home if they wished: Gleeson, 'A Changing Judiciary', above n 22, 553.

55 One former associate suggested this change led to 'more thoroughly footnoted judgments and more poorly maintained law reports': Leigh, Andrew, 'Associates' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 34, 35.Google Scholar

56 See Leigh, Andrew, 'Behind the Bench: Associates in the High Court of Australia' (2000) 25 Alternative Law Journal 295.CrossRefGoogle Scholar

57 Simpson, Amelia, 'Research Assistance' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 600.Google Scholar

58 Sir Mason, Anthony, 'Griffith Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 311.Google Scholar

59 Troy Simpson and Amelia Simpson, 'Personal Relations' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 528.

60 See the discussion in Cowen, Zelman, Isaac Isaacs (1967) 116-17Google Scholar; Rickard, John, Higgins: The Rebel as Judge (1984) 266-79.Google Scholar

61 Cowen, above n 60, 124–5.

62 Simpson and Simpson, above n 59, 529.

63 Smyth, Russell, 'Explaining Historical Dissent Rates in the High Court of Australia' (2003) 41 Journal of Commonwealth and Comparative Politics 83, 90.CrossRefGoogle Scholar

64 Graham Fricke and Martha Rutledge, 'Knox, Adrian' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 400. See also Fricke, Graham, 'The Knox Court: Exposition Unnecessary' (1999) 27 Federal Law Review 121.CrossRefGoogle Scholar

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66 Fricke, Graham, 'Gavan Duffy, Frank' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 296.Google Scholar

67 See Lloyd, Clem, 'Not Peace But a Sword! – The High Court Under J.G. Latham' (1987) 11 Adelaide Law Review 175.Google Scholar

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69 See Smyth, Russell, 'Explaining Voting Patterns on the Latham High Court 1935–50' (2002) 26 Melbourne University Law Review 88.Google Scholar

70 Howard, Colin, 'Sir Owen Dixon and the Constitution' (1973) 9 Melbourne University Law Review 5, 5.Google Scholar

71 Sir Menzies, Douglas, 'Sir Owen Dixon' (1973) 9 Melbourne University Law Review 1, 3.Google Scholar

72 Simpson and Simpson, above n 59, 530; Leslie Zines, 'Dixon Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 220.

73 Marr, above n 50, 213.

74 Winterton, George, 'Barwick the Judge' (1998) 21 University of New South Wales Journal 109, 114.Google Scholar

75 Blackshield, Tony, 'The High Court: Change and Decay' (1980) 5 Legal Service Bulletin 107, 108 (emphasis in original).Google Scholar

76 Sir Brennan, Gerard, 'A Tribute to Sir Anthony Mason' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 13Google Scholar. On the effect of leadership on variation in the proportion of concurring and dissenting judgments in the High Court, see also Russell Smyth and Paresh Kumar Narayan, 'Hail to the Chief! Leadership and Structural Change in the Level of Consensus on the High Court of Australia' Journal of Empirical Legal Studies (forthcoming).

77 The system of conferencing in the United States Supreme Court is explained in detail in Del Dickson (ed), The Supreme Court in Conference (1940–1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001). Marr describes the American system as one of 'perfunctory oral argument, horsetrading in decision-making, and a lack of clarity in the legal reasoning of its decisions.': above n 50, 235.

78 See Simpson, Troy, 'Conferences' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 130Google Scholar; McGinley, G P J, 'The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts' (1987) 11 Adelaide Law Review 203.Google Scholar

79 Ayres, Philip, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 222.Google Scholar

80 (1948) 76 CLR 1 (the 'Bank Nationalisation case').

81 (1951) 83 CLR 1 (the 'Communist Party case').

82 Troy Simpson, above n 78, 131; Cowen, Zelman, Sir John Latham and Other Papers (1967) 34-5.Google Scholar

83 Sir Barwick, Garfield, A Radical Tory: Garfield Barwick's Reflections and Recollections (1995) 223.Google Scholar

84 Marr, above n 50, 233. Marr suggests that the resistance of some Justices was based on their belief that Barwick himself was not suited to conferencing because of his inflexibility.

85 Troy Simpson, above n 78, 131.

86 Ibid 132.

87 Ibid.

88 See, eg, Canon, B and Jaros, D, 'External Variables, Institutional Structure and Dissent on State Supreme Courts' (1970) 3 Polity 175.CrossRefGoogle Scholar

89 Friedman et al, above n 6, 789. For an empirical study that attempts to measure the effect of case selecting discretion, as well as other institutional features of the High Court on dissent rates using multiple regression analysis see Russell Smyth, 'What Explains Variations in Dissent Rates? Time Series Evidence from the High Court' Sydney Law Review (forthcoming).

90 See the discussion in Kirby, 'A F Mason – From Trigwell to Teoh', above n 20, 1098–9.

91 Llewellyn, Karl, The Common Law Tradition: Deciding Appeals (1960) 462.Google Scholar

92 Friedman et al, above n 6, 791–2.

93 Sir Mason, Anthony, 'The High Court of Australia: A Personal Impression of its First 100 Years' (2003) 27 Melbourne University Law Review 864, 888.Google Scholar

94 Ibid.

95 Rodger, above n 49, 227.

96 See, eg, the studies cited above n 8.

97 Anthony Blackshield et al (eds) The Judgments of Justice Lionel Murphy (1986) xvii–xix.

98 Haigh, Richard, '"It is Trite and Ancient Law”: The High Court and the Use of the Obvious' (2000) 28 Federal Law Review 87, 95.CrossRefGoogle Scholar

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100 Lynch, 'The Gleeson Court on Constitutional Law', above n 4. Lynch also provides figures on dissent rates for other members of the current High Court in all cases and constitutional cases, some of which differ from the figures reported here. We use the same methodology as Lynch. There appears to be two main reasons for the differences. First, Lynch's figures are based on all cases reported in the Australian Law Reports, while our figures are based on the Commonwealth Law Reports. Second, we include all cases up to the end of 2001, while Lynch covers the period May 1998 to February 2003. Overall, for most of the members of the current High Court, this means that Lynch's figures are based on a larger number of cases.

101 Friedman et al, above n 6, 785.

102 Clark, Hunter, Justice Brennan: The Great Conciliator (1995) 256.Google Scholar

103 For the United States see Daniels, Wes, '"Far Beyond the Law Reports”: Secondary Source Citations in United States Supreme Court Opinions: October Terms 1900, 1940 and 1978' (1983) 76 Law Library Journal 1Google Scholar. For the High Court, see Smyth, 'Other than “Accepted Sources of Law"?', above n 44.

104 See Justice Kirby, Michael, 'Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory' (1994) 12 Australian Bar Review 121Google Scholar. For a contrary view by another judge see Beaumont, above n 2.

105 Orr, above n 3, 300.

106 See Smyth, 'Other than “Accepted Sources of Law"?', above n 44.

107 Lynch, 'The Gleeson Court on Constitutional Law', above n 4, 35.