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“It is Trite and Ancient Law”: The High Court and the Use of the Obvious

Published online by Cambridge University Press:  24 January 2025

Richard Haigh
Richard Haigh*
Affiliation:
School of Law, Deakin University
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Extract

To be trite is to be worn out by constant use or repetition, or to be hackneyed or commonplace. The word “trite” is derived from the Latin word terere meaning essentially “to rub”. Thus, the word has physical associations, as if a trite remark actually erases its own origins because they are of no use anymore. Obviously the more used something is, the more trite it becomes, or so one would expect. There is even a built-in pejorative connotation, as to overuse a phrase, or resort to trite propositions can, in some cases, “rub” the listener the wrong way.

Since the very humble beginnings of the common law courts, judges have identified law that is trite. In the 15th century, Chief Justice Brian, in a case known only as T Pasch's case, said, in words that have since rung down the centuries:

Moreover…your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is.

Type
Article
Information
Federal Law Review , Volume 28 , Issue 1 , March 2000 , pp. 87 - 102
Copyright
Copyright © 2000 The Australian National University

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Footnotes

I am indebted to an old friend, Graham Law, who first thought of the idea for this paper when we were classmates in law school. Thanks also to Lona Nallengara who did some of the research, and to Charlotte Davis and Myint Zan, who commented on draft versions of the paper.

References

1 Shorter Oxford English Dictionary (3rd ed 1975).

2 (1478) 17 Edw. IV, Yearbooks, 2. This citation is actually taken from _a decision by Lord Blackburn in Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 at 692. I have been unable to locate the original case.

3 (1948) 75 CLR 495. The first High Court case in which “trite” has been found is Federal Commissioner of Taxation v Australian Tesselated Tile Co (1925) 36 CLR 119. However, as the Austlii High Court database begins in 1947, this discussionis restricted to cases from this date onwards.

4 No paper of this type would be complete without acknowledging the vast changes wrought by computers and electronic search tools in the field of legal scholarship. Without the ability to search for specific phrases in the thousands of High Court cases decided since 1947 it would probably have been both soul destroying and mind-numbingly tedious to track down all the references to trite law. But there is caution in every tale, and it should be noted that, whereas electronic searching is unmatched for this kind of precise word or phrase searching, it can be much less effective for conceptually-based research, where arguments for the superiority of paper-based researching are still strong. For more on this debate see E Katsh, Law in a Digital World (1994) and R Haigh, “What Shall I Wear to the Computer Revolution: Some Thoughts on Electronic Researching in Law” (1997) 89 Law Library Journal 245.

5 The Austlii database is stated to include full text High Court judgments from 1947 onwards. In searching the database for thispaper, two full text cases from 1925 were obtained which contained “trite”, Pirrie v McFarlmze (1925) 36 CLR 17 and Federal Commissioner of Taxation v Australian Tcssclatcd Tile Co (1925) 36 CLR 119. These two cases have not been included in the total. Queries to Austlii as to this anomaly resulted in its acknowledgment that some strny pre-1947 cases may be found on the database.

6 The Austlii database returned 69 uses of “trite” since 1947. The same search on the Lexis Australian caselaw database returned an additional 5 cases for a total of 74. This discrepancy is another instructive example of the fallibility of computer databases.

7 This is a strict reading-to qualify, the word “trite” has to modify law or a distinct body of law, so that it ultimately forms a corpus of law characterised as “trite law”. For example, in Cunliffe v Comm01rwealth (1994) 182 CLR 272 at 315, Brennan J stated “All of this is established, if not trite, constitutional law.” Here “trite” is modifying “constitutional law”, so it qualifies as an instance of the body of law known as trite law. Similarly in Thompson vThe Queen (1989) 169 CLR 1 at 19, Brennan J said “it is trite and ancient law...” In this case, his Honour was referring again to that specific corpus of law known as trite law.

8 The two occurrences, where the use of “trite” is arguably meant non-legally or as a form of colloquial speech, rather than a particularly legal usage, are in Bartter's Farms Pty Ltd v Todd (1978) 139 CLR 499 at 510 per Gibbs J: “It is trite to say that the deceptively simple words of s 92 conceal many difficulties ... “ and in commissinor for Railways (NSl V) v Anderson (1961) 105 CLR 42 at 55 per Fullagar J: “A trite example is that of an invitee who walks up a garden path in daylight...”. Even in these examples, however, there is a definite link to a legal proposition.

9 Source: Lexis, English and Wales cases file.

10 The Supreme Court of Canada web-based database gives full text judgments from 1989 only, pointing to the superiority of Austlii's internet system. This could be due to the earlier development in North America of private electronic databases such as Lexis and Quicklaw, which began in the late 1960s and quickly developed a monopoly over electronic case reports. These private databases generally cover the entire history of the court: in the SCC's case, from 1876, and the USSC from 1705.

11 Source: Lexis, Australia High Court Decisions and Austlii's Commonwealth: High Court of Australia decisions file.

12 Austlii's and Lexis' High Court Decisions files begin in 1947.

13 [1992] 3 SCR 87.

14 (1969) 121 CLR 432 at 441 per Taylor J (5 March 1%9).

15 (1969) 120 CLR 365 at 386 per Windeyer J (28 Feb 1969).

16 Of course, standard categorisation can itself be problematical-see R Delgado and J Stefancic, “Why do we Tell the Same Stories? Law Reform, Critical Librarianship and .the Triple Helix Dilemma” (1989) 42 Stanford LR 207; R Haigh, above n 4.

17 Due to some overlap of categories, the total adds up to more than 69.

18 This includes interpretation of all statutes as well as the Constitution.

19 Ignoring, of course, Gleeson CJ and Callinan JJ, who have not referred to it as yet, but are still active and too new to render a decisive opinion on the point.

20 Source: Lexis and Austlii files, above n 11.

21 The total is greater than 74 due to multiple counting of individual judgments.

22 Perhaps the last word on this point should lie with JK Galbraith, who should have said, “In any great organization, it is far, far safer to be wrong with the majority than to be trite alone.”

23 The following are the cases in which Justice Gibbs used trite, listed chronologically: Buckley u Tutty (1971) 125 CLR 353; Australian Broadcasting Commission u Australasian Performing Right Association Ltd (1973) 129 CLR 99; Sharpe u Smail (1975) 5 ALR 377; Barca v The Queen (1975) 133 CLR 82; Lewis Co11stn1ction (Engineering) Pty Ltd z, Southern Electric Alltlzorif-:t of Queensland (1976) 11 ALR 305; B & M Auto Sab Pty Ltd z, Budget Rent-A-Car Systems PtyLtd (1976) 12 ALR 363; Griffiths u Kerkcmeyer (1977) 139 CLR 161; Bartter's Farms Pty Ltd v fodd (1978) 139 CLR 499; Cullen v Trappell (1980) 146 CLR 1; Redding v Lee (1983) 151 CLR 117; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; Denn v lv1idland Brick Company Pty Ltd (1985) 157 CLR 398; Kioa v west (1985) 159 CLR 550; Brown v The Queen (1986) 160 CLR 171; Boughey v The Queen (1986) 161 CLR 10; Re F; ex parte F (1986) 161 CLR 376; and Van Den Hoek v The Queen (1986) 161 CLR 158.

24 (1971) 125 CLR 353.

25 Ibid at 371.

26 In fact, up to the date of that judgment, those words of Lord Atkin had only been relied upon by the High Court on that one occasion! See discussion below text at n 65 as to when a principle actually becomes trite.

27 See S Fish, ls There a Text in this Class? (1980), especially ch 14 for a good source on this debate.

28 (1978) 139 CLR 499 at 510.

29 (1973) 129 CLR 99 at 109.

30 (1971) 125 CLR 353 at 372.

31 (1986) 160 CLR 171 at 183.

32 Sir H Gibbs, “Eleventh Wilfred Fullagar Memorial Lecture: The Constitutional Protection of Human Rights” (1982) 9 Monash LR 1 at 6.

33 J Priest, Sir Harry Gibbs: Without Fear or Favour (1995).

34 Ibid at 11.

35 Sir H Gibbs, 11 The Decline of Federalism” (1994) 18 U Queensland LJ 1 at 7.

36 Sir H Gibbs, “Appellate Advocacy” (1986) 60 ALJ 496.

37 Ibid.

38 Sir H Gibbs, “Judgment Writing” (1993) 67 ALJ 494.

39 Ibid at 498.

40 A search under Lexis revealed approximately 460 judgments rendered by Murphy J. This includes instances where he rendered a decision as a single judge, and others where his judgment may consist of a simple sentence such as “I agree”. According to AR Blackshield et al, The Judgments of Justice Lionel Murphy (1986) at xix, Murphy J rendered 404 decisions of substance during his 11 years.

41 J Hocking, Lionel Murplzy: A Political Biography (1997) especially chs 1-3.

42 Walsh J rendered only 142 judgments in his 4 years at the Court; however, this is ample time to establish one's talent for triteness-compare with Kirby and Hayne JJ, who in 109 and 27 judgments, respectively, have already confirmed a trend.

43 Source: Lexis. Does not include unreported decisions, or reasons given for leave applications, etc.

44 R Cross and JW Harris, Precedent in English Law (4th ed, 1991).

45 See, for example, Sir E Coke, First Part of institutes of the Laws of England (1628); Sir W Blackstone, Commentaries on the Laws of England, vol 1 (reprinted 1982). A good overview is provided by J Evans, “Change in the Doctrineof Precedent During the Nineteenth Century”in L Goldstein (ed), Precedent in Law (1987) ch 2.

46 For a good overview, see K Llewellyn, The Common Law Tradition (1960). Of course, this mutated into even more radical movements such as Critical Legal Studies-see R Unger, “The Critical Legal Studies Movement” (1983) 96 Harvard LR 563.

47 (1994) 179 CLR 520.

48 Ibid at 592-593.

49 Justice, M McHugh, “The Law-Making Function of the Judicial Process” (1988) 62 ALJ 116 at 124Google Scholar

50 Compare, for example, State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633-634 with “Changing Law in a Changing Society” (1993) 67 ALJ 568 at 572.

51 (1984) 158 CLR447 at484 per DawsonJ.

52 (1991) 172 CLR 501 at 718 per McHugh J.

53 M Galanter, “Law Abounding: Legalisation Around the North Atlantic” (1992) 55 MLR 1.

54 D Weisbrot, Australian Lawyers (1990).

55 (1978) 21 ALR 435.

56 Ibid at 4-B-444.

57 (1959) 101 CLR 298.

58 Ibid at 314-315.

59 (1994) 182 CLR 272.

60 Ibid at 315 (footnote omitted).

61 (1968) 121 CLR 659.

62 Ibid at 662 (footnotes omitted).

63 See, for example, the various opinions rendered in such cases as Dennis Hotels Pty Ltd v Victoria (1960) 104CLR 529, Hematite Petroleum Ply Ltd v Victoria (1983) 151 CLR 599 and Ha v New South Wales ( 1997) 189 CLR 465 and the whole debate surrounding the “criterion of liability” test first formulated by Kitto J in Dennis Hotels.

64 A MacAdam and J Pyke, Judicial Reasoning and t!ze Doctrine of Precedent in Australia (1998).

65 See above text at nn 25-26.

66 (1947) 77 CLR 574.

67 (1991) 100 ALR 479.

68 (1901) AC 495 at 506.

69 (1947) 74 CLR 148 at 179.

70 Australian Case Citator: 1825-1959 Vol M-Z (1989).

71 [1932] AC 562.

72 Again, the wonders of the internet and electronic searching make this observation possible. For the complete works of Shakespeare on the internet, see http://www.library.upenn.edu/etext/fumess; for Melville see http:/ /www.melville.org or gopher://spinaltap.micro.umn.edu:70/11/Gutenberg. For classical writers and other philosophers, see http://www.msu.org or http://classics.mit.edu.

73 The following sources were reviewed without success: JS James, Stroud's Judicial Dictionary (5th ed 1986); PE Nygh and P Butt (eds), Buttenvorths Australian Legal Dictionary (1997); J Nolan and J Nolan-Haley, Black's Law Dictionary (6th ed 1990); Australian Legal Words and Phrases (1996); J Saunders (ed), Words and Phrases Legally Defined (3rd ed 1990); A Dictionary of Legal Quotations (1987); D Walker, Oxford Companion to Law (1980); and JA Ballentine, Ballentine's Law Dictionary (3rd ed 1969).

74 J-F Lyotard, The Postmodern Condition: A Report on Knowledge (1984) at 3.