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Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia

Published online by Cambridge University Press:  01 January 2025

Pamela Stewart  and
Anita Stuhmcke
Pamela Stewart*
Affiliation:
University of Technology Sydney (UTS), New South Wales, Australia
Anita Stuhmcke*
Affiliation:
UTS Sydney, New South Wales, Australia
*
The author may be contacted at pam.stewart@uts.edu.au.
The author may be contacted at anita.stuhmcke@uts.edu.au.
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Abstract

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 2 , June 2020 , pp. 186 - 213
Copyright
Copyright © 2020 The Author(s)

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Footnotes

We thank Professor James Brown, ABS Professor of Official Statistics, Dr Adel Rahmani and Dr Tapan Rai, all of UTS for their interest; data scientists Passiona Cottee and Rory Angus for data analysis; Ellen O’Brien for research assistance; and the anonymous reviewers for helpful suggestions. We thank the High Court for cooperation with this study in the provision of electronic data from its annual reports. Any errors are our own.

References

1. The focus of this article is upon special leave to appeal applications (‘SLAs’) rather than leave to appeal. The latter are rare as such appeals concern judgments of Justices exercising the High Court’s original jurisdiction.

2. Note the difference here between administration and the administration of justice. The former is an administrative function and the latter is a judicial function: Hon Justice Kiefel, ‘Judicial Independence’ (Conference Paper, North Queensland Law Association, 30 May 2008) 3.

3. The number of substantive appeals the Court hears annually is around 80: David O’Brien, Special Leave to Appeal (Supreme Court of Queensland Library, 2nd ed, 2007) 233. This number is confirmed by this study. Of the 783 SLAs, 80 or 10% were granted and 703 or 90% refused (see Part V). This is not unique to the High Court: see Roy B Flemming, Tournament of Appeals: Granting Judicial Review in Canada (UBC Press, 2004) for the discussion of the Canadian Supreme Court and 102–4 for a brief overview of other international courts.

4. Ian Callinan, ‘An Over-Mighty Court’ in Upholding the Australian Constitution (Proceedings of the Fourth Conference of the Samuel Griffith Society, 1994) 81–113.

5. Hon Wayne Martin AC, ‘Court Administrators and the Judiciary—Partners in the Delivery of Justice’ (2014) 6(2) International Journal for Court Administration 3.

6. Andrew Phelan, ‘Changes to High Court Procedures for Considering Applications for Special Leave’, Chief Executive and Principal Registrar of the High Court of Australia, <http://www.hcourt.gov.au/assets/corporate/policies/Special_Leave_Changes.pdf>; High Court Amendment (2016 Measures No 1) Rules 2016 (Cth); High Court Amendment (2016 Measures No 2) Rules 2016 (Cth).

7. Section 21(1) of the Judiciary Act 1903 (Cth) provides that special leave will be determined subject to the Rules.

8. This necessity is not new. Almost 60 years ago, Justice McClemens noted that ‘for purely pragmatic reasons some thought may have to be given in the future to some form of limitation of appeals to the High Court from State courts’, Justice McClemens, ‘Judicial Problems in a Growing State’ (1960) 3(2) Sydney Law Review 221, 232.

9. A new form (Form 23) now consolidates the draft Notice of Appeal and the Summary of argument/written case into a single form for both leave to appeal and special leave to appeal.

10. High Court Rules 2004 (Cth) r 44.08.2 and the new form (Form 27F) which states the outline of oral submissions. The High Court may now grant leave without an oral hearing, see Michael Pelly, ‘High Court Decides Leave Applications on Paper’, The Australian (Sydney, 22 July 2016).

11. This article complements other published findings of this study as to the substance of SLAs, including parties, legal representation, nature of cases, main issues on appeal: Pam Stewart and Anita Stuhmcke, ‘Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia’ (2019) 41(1) Sydney Law Review 35.

12. Described as an ‘infant science’, see Hon Murray Gleeson, ‘Current Issues for the Australian Judiciary’ (Conference Paper, 17 January 2000) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_Japanj.htm>.

13. Bathurst CJ, ‘Who Judges the Judges, and How Should They Be Judged?’ (2019 Opening of law term address, 30 January 2019) 15 [45]–[46], 16 [49]–[50].

14. Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001’ (2004) 32(2) Federal Law Review 255.

15. Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years’ (2003) 26(1) University of New South Wales Law Journal 32.

16. Kirby P stated in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 59 that ‘Justice is done in public so that it may be discussed and criticised in public’.

17 Geoffrey de Q Walker, The Rule of Law: Foundation of Constitutional Democracy (Melbourne University Press, 1988) 6–7.

18. While its definition may be contested and varied, it is part of the Commonwealth Constitution: South Australia v Totani (2010) 242 CLR 1, 35 [42] (French CJ).

19. A V Dicey, Introduction to the Study of the Law of the Constitution (Liberty Classics, 8th ed, 1982) 120, 104–273. For further discussion, see Mark D Walters, ‘Dicey on Writing the Law of the Constitution’ (2012) 32(1) Oxford Journal of Legal Studies 21. On the much earlier antecedents of the rule of law, see James Spigelman, ‘Magna Carta: The Rule of Law and Liberty’ (2015) 31(2) Policy: A Journal of Public Policy and Ideas 24 and Friedrich Hayek, ‘The Origins of the Rule of Law’ in The Constitution of Liberty (University of Chicago Press, 1960), 162, attributing the concept to Aristotle; on political and philosophical foundations of the concept, see Judith Shklar, ‘Political Theory and the Rule of Law’ in Allan C Hutchinson and Patrick J Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, 1987) 1, ch 1.

20. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 36 (Brennan, Deane and Dawson JJ).

21. Writing some 50 years earlier than A V Dicey, Governor Forbes wrote of the NSW Supreme Court that ‘the judicial office…stands uncontrolled and independent, and bowing to no power but the supremacy of law’. Cited in Murray Gleeson, ‘Courts and the Rule of Law’ (Rule of Law Series, Melbourne University, 7 November 2001) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_ruleoflaw.htm#_edn13>.

22. Hogan v Hinch (2011) 243 CLR 506 [21] (‘Hinch’); see generally Beverley McLachlin, ‘Openness and the Rule of Law’ (Annual International Rule of Law Lecture, London, 8 January 2014) <https://www.barcouncil.org.uk/media/270848/jan_8__2014_-_12_pt.__rule_of_law_-_annual_international_rule_of_law_lecture.pdf>; Right Honourable Beverley McLachlin, ‘The 21st Century Courts: Old Challenges and New’ (AIJA Oration in Judicial Administration, AIJA, 28 April 2006).

23. Scott v Scott [1913] AC 417, 473 (Lord Shaw) (‘Scott’).

24. Ibid 463 (Lord Atkinson).

25. (1913) 17 CLR 50.

26. X v Australian Prudential Regulation Authority (2007) 226 CLR 630, 655–6 [89] (Kirby J).

27. Re Application by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422, 448 [114] (Kirby J) (citations omitted).

28. Justice Spigelman, ‘Seen to be Done: The Principle of Open Justice’ (Keynote address to the 31st Australian Legal Convention, Canberra, 9 October 1999) 2.

29. Sir Edward Coke traced this to Statute of Marlborough 1267, see Edward Coke, The Second Part of Institutes of Law of England (London, Printed by M Flesher, and R Young, for ED, RM, WL, and DP, 1642) 103–4.

30. High Court Rules 2004 (Cth) r 6.03.

31. Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495, 520 (Gibbs J) (‘Russell’).

32. Hinch (n 22). The limitations are justified, as the open administration of justice serves the interests of society and is not an end in itself: Garth Nettheim, ‘Open Justice Versus Justice’ (1985) 9(4) The Adelaide Law Review 487.

33. See Rinehart v Welker (2011) 93 NSWLR 311 and discussion of s 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) which include: control of public attendance to protect orderly court proceedings; sensitivity to the reputation of trial participants and protection of state security. See also sch 2 of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) as to suppression and non-publication of information.

34. Russell (n 31) determined that the open court rule applied to state courts as per ch III of the Commonwealth Constitution referred to in Williams v Williams (1976) 134 CLR 495, 532 (Stephen J), 505 (Barwick CJ). Cited with approval in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 520–1 [49] (French CJ) discussing state courts and the application of the open court principle.

35. Tin Bunjevac, ‘Court Governance: The Challenge of Change’ (2011) 20 Journal of Judicial Administration 201, 208.

36. Cheryl Saunders, ‘Separation of Powers and the Judicial Branch’ (2006) 11(4) Judicial Review 337, 344 [27] citing the Supreme Court of Canada in Valente v The Queen [1985] 2 SCR 673.

37. High Court of Australia, Annual Report 1997–1998 (13 November 1998) 7.

38. There must be separation between executive and judicial functions: Abebe v The Commonwealth (1999) 197 CLR 510, 560–1 [137]–[138] (Gummow and Hayne JJ); Enfield City Council v Development Assessment Commission (2000) 199 CLR 135, 157 [55]–[56] (Gaudron J); Gleeson (n 21).

39. Martin (n 5); Justice Bryan Beaumont, ‘The Self-Administering Court: From Principles to Pragmatism’ (1999) 9 Journal of Judicial Administration 61.

40. (1995) 184 CLR 348, 380 (‘Grollo’).

41. Kimber v Press Association [1893] 1 QB 65 cited in Emma Cunliffe, ‘Open Justice: Concepts and Judicial Approaches’ (2012) 40(3) Federal Law Review 385, 388 n 8.

42. This term is used in the United Kingdom where it is observed as being in tension with open justice, see Lord Chief Justice Bingham in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498.

43. The term is not used by the High Court. In Federal Court judgments, the term is mentioned briefly in obiter: Hinton v Alpha Westmead Private Hospital (2016) 242 FCR 1 [21].

44. See, eg, Ebner v Official Trustee in bankruptcy (M131 of 1999) (2000) 205 CLR 337, 367 [95] (Guadron J).

45. UBS AG v Tyne (as trustee of the Argot Trust) (2018) 360 ALR 184, 203 [70], [72] (Gageler J).

46. Ousley v The Queen (1997) 192 CLR 69, 104 (McHugh J).

47. Giannarelli v Wraith (1988) 165 CLR 543, 557 (Mason CJ).

48. The High Court also hears other matters such as applications under s 75(v) of the Constitution against officers of the Commonwealth, removals from other courts into the High Court under s 40 of the Judiciary Act 1903 (Cth), cases stated, references under s 18, and election petitions.

49. Judiciary Act 1903 (Cth) s 35 (emphasis added).

50. Ben Wickham, ‘The Procedural and Substantive Aspects of Applications for Special Leave to Appeal in the High Court of Australia’ (2007) 28(1) Adelaide Law Review 153, 155.

51. At the same time, the reforms place greater stress on practitioners to prepare an SLA within tightly constrained time frames, and tightly constrained page limits on applications. See Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39.

52. High Court of Australia, Annual Report 2017–2018 (9 October 2018) 21.

53. The provision of appeals as of right was abolished in 1976: Justice Michael Kirby, ‘Law at Century’s End—A Millennial View From the High Court of Australia’ (2001) 1 Macquarie Law Journal 1, 7. Until 1984, litigants to appeal in civil matters had a right, as long as their case was of a certain monetary value, see David Solomon, ‘Controlling the High Court’s Agenda’ (1993) 23(1) Western Australian Law Review 33, 39.

54. Smith Kline & French Laboratories (Australia) Ltd v The Commonwealth (1991) 173 CLR 194 [36] (‘Smith Kline’); see also Hon Sir Anthony Mason, ‘The High Court as Gatekeeper’ (2000) 24(3) Melbourne University Law Review 784.

55. Ibid 218 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

56. Hinch (n 22) 532 [21] (French CJ).

57. North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 643 (McHugh J); Re Sinanovic’s Application (2001) 180 ALR 448, 450 (Kirby J). The principle of finality of litigation applies to SLAs, see Hughes Trueman Pty Ltd v Young [2017] FCCA 468 [18] (Judge Dowdy).

58. Smith Kline (n 54) 217–18 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (citations omitted).

59. Coulter v The Queen (1988) 164 CLR 350, 356 (Mason CJ, Wilson and Brennan JJ) (‘Coulter’).

60. Ibid 359 (Deane and Gaudron JJ).

61. Neil Andrews, ‘A New Civil Procedural Code for England: Party-Control—“Going, Going, Gone”’ (2000) 19(January) Civil Justice Quarterly 19, 20.

62. Lord Dyson, ‘Delay Too Often Defeats Justice’ (2015) 12(3) Judicial Review 285.

63. Saunders (n 36).

64. These amendments began in 1976 when the Judiciary Amendment Act 1976 (Cth) removed appeals as of right to the High Court.

65. For general observation on vexatious cases and workload, see Commonwealth Trading Bank of Australia v Inglis (1974) 3 ALR 19, 22 (Barwick CJ and McTiernan J). During the second reading speech of the amending legislation (the Judiciary Amendment Bill (No 2) 1984), the Attorney-General, Senator Gareth Evans, pointed out that the justices of the High Court had expressed concern about the effect of the increasing workload of the High Court on its capacity to function effectively as a final appellate court in Australia. See Commonwealth, Parliamentary Debates, Senate, 8 March 1984, 584–5 (Gareth Evans, Attorney-General). See also Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Discussion Paper No 64 (December 2000) 242. Since its inception in 1903, the Australian High Court has been a court of appeal: Nicholas Aroney et al, The Constitution of the Commonwealth of Australia: History, Principle and Interpretation (Cambridge University Press, 2015) 505 citing J M Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980 (Australian Government Publishing Service, 1980) 3.

66. Smith Kline (n 54).

67. Milat v The Queen (2004) 78 ALJR 672, 676 [26] (McHugh J).

68. Smith Kline (n 54) 218. See also Collins v The Queen (1975) 133 CLR 120, 122 (Barwick CJ, Stephen, Mason and Jacobs JJ), where the High Court observed that ‘[i]n the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation’.

69. Wickham (n 50) 155.

70. O’Brien (n 3) 38.

71. Privy Council appeals were abolished in 1986.

72. In 2005–06, 873 matters filed (720 SLAs); 2006–07 945 matters (809 SLAs); 2007–08 692 matters (575 SLAs); 2008–09 692 matters (575 SLAs); 2009–10 680 matters (562 SLAs); 2010–11 715 matters (494 SLAs); 2011–12 728 matters (487 SLAs); 2012–13 618 matters (458 SLAs); 2013–14 630 matters (508 SLAs); 2014–15 698 matters (470 SLAs); 2015–16 795 matters (536 SLAs).

73. David Jackson, ‘The Role of the Chief Justice: A View From the Bar’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press, 1996) 21, 22.

74. David Jackson, ‘The Australian Judicial System: Judicial Power of the Commonwealth’ (2001) 24(3) University of New South Wales Law Journal 737, 738.

75. In 1991, Solomon (n 53) 43 examined 91 cases where the High Court refused special leave in civil matters and observed ‘[t]here is little direct correlation between the formal requirements set out in s 35A of the Judiciary Act 1903 (Cth) for the grant of special leave and the reasons the Court tends to give for refusing special leave’. This remains the case.

76. Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (Judicial College of Victoria, 4 March 2014) 29–30 [118].

77. Jeremy Gans, ‘News: Five New Special Leave Grants Bring the Yearly Total to 35’, High Court Blog (Blog Post, 15 December 2018) <https://blogs.unimelb.edu.au/opinionsonhigh/2018/12/15/news-five-new-special-leave-grants-bring-the-yearly-total-to-35/>.

78. The manner of publication of special leave results meant that machine coding to the extent required by this analysis was not possible. The authors are grateful for the cooperation from the High Court in providing available electronic information which formed the basis of its Annual Reports during the period under study.

79. Analysis of the data was undertaken by the authors with interdisciplinary assistance, with assistance of statisticians and data science research students.

80. Between March 2013 and February 2015, the High Court Justices were French CJ, Kiefel J, Crennan J, Bell J, Gageler J, Keane J and Hayne J.

81. High Court of Australia <http://www.hcourt.gov.au/registry/special-leave-applications-results-2016>.

82. The four sources used to obtain and cross-check the data: High Court Bulletins listing applications granted and refused (available on High Court website and AustLII); Dispositions (available on High Court website and AustLII); SLA transcripts (available on AustLII); High Court lists (available on the High Court website). See Appendix 1.

83. Justice Michael Kirby, ‘The Future of Appellate Advocacy’ (2006) 27(2) Australian Bar Review 141, 144.

84. High Court of Australia, Annual Report 2003–2004 (29 October 2004) 8 (the relevant new rules commenced in January 2005).

85. In 2005–06, 50% of SLAs heard on the papers; 2006–07, more than 50%; 2007–08, 73%; 2008–09, 66%; 2009–10, 59%; 2010–11, 50%; 2011–12, 49%; 2012–13, 53%; 2013–14, 47%; 2014–15, 60%; 2015–16, (new rules on 7 June 2016) 65%; 2016–17, 75%; 2017–18, 77%.

86. High Court of Australia, Annual Report 2005–2006 (23 November 2006) 33. See below Meador (n 88).

87. Gans (n 77) 29 July 2016. Jeremy Gans, ‘News: Five New Special Leave Grants Bring the Yearly Total to 35’, High Court Blog (Comment Reply on Blog Post, 3 August 2016) <https://blogs.unimelb.edu.au/opinionsonhigh/2016/07/29/news-5-new-appeals-under-amended-high-court-rules/>.

88. Meador has observed this process in the United States: Daniel J Meador, ‘Toward Orallity and Visibility in the Appellate Process’ (1983) 42(4) Maryland Law Review 732, 736.

89. Justice Michael Kirby, ‘Maximising Special Leave Performance in the High Court of Australia’ (2007) 30(3) University of New South Wales Law Journal 731, 742.

90. In 2007, Justice Kirby observed that this development had halved the days in the Court sitting year dedicated to special leave: Ibid 740.

91. Immigration is separated from civil law due to the significant numbers of these applications where the applicant was self-represented. Accordingly, they were almost all determined on the papers.

92. See also Stewart and Stuhmcke (n 11) 44.

93. Burton M Atkins, ‘Alternative Models of Appeal Mobilization in Judicial Hierarchies’ (1993) 37(3) American Journal of Political Science 780, 790.

94. This role is performed by the Justices themselves and not the officers of the Court or clerks: Kirby (n 89) 738.

95. There are exceptions to this—such as the rules around self-represented litigants.

96. Kirby (n 90) 741.

97. Ibid 742.

98. Ibid.

99. Marco Fabri and Philip M Langbroek, ‘Is There a Right Judge for Each Case? A Comparative Study of Case Assignment in Six European Countries’ (2007) 1(2) European Journal of Legal Studies 293.

100. Petra Butler, ‘The Assignment of Cases to Judges’ (2003) 1 New Zealand Journal of Public and International Law 83, 84.

101. Ibid.

102. Also discretionary is the work practice of individual Justices: some Justices have their associates prepare memoranda on special leave cases. See Andrew Leigh, ‘Behind the Bench: Associates in the High Court of Australia’ (2000) 25(6) Alternative Law Journal 295, 296. Kirby J notes that this is an individual preference that he never followed: see Kirby (n 89) 740.

103. For discussion of lower court caseload allocation and specialisations, see Kathy Mack, Sharyn Roach Anleu and Anne Wallace, ‘Caseload Allocation and Special Judicial Skills: Finding the “Right Judge”?’ (2012) 4(3) International Journal for Court Administration 68.

104. Note, ‘The Supreme Court, 1948 Term’ (1949) 63(1) Harvard Law Review 119.

105. Keane J (2013); Gageler J (2012); Bell J (2009); Kiefel J (2007); Crennan J (2005); Hayne J (1997); for an explanation, see Kirby (n 89) 741.

106. See Transcript of Proceedings, Patel v Minister for Immigration and Citizenship [2013] HCATrans 240.

107. Kieran Pender, ‘The “Price” of Justice? Costs-Conditional Special Leave in the High Court’ (2018) 42(1) Melbourne University Law Review 149, 187.

108. As the former High Court Chief Justice Gleeson observes, ‘[o]ne of the most important issues facing the Court concerns applications for special leave to appeal. This is a topic that is of keen interest to legal practitioners and other judges, but appears to be off the radar screen of most commentators.’ Chief Justice Murray Gleeson, ‘The High Court of Australia: Challenges for its New Century’ (Speech, Constitutional Law Conference, 20 February 2004).

109. Jeremy Gans, ‘News: Court Announces Fewer Oral Hearings for Special Leave Applications’, High Court Blog (Blog Post, 16 March 2016) <https://blogs.unimelb.edu.au/opinionsonhigh/2016/03/16/news-court-announces-fewer-oral-hearings-for-special-leave-applications/>; Luke Beck, ‘The Constitutional Duty to Give Reasons for Judicial Decisions’ (2017) 40(3) University of New South Wales Law Journal 923.

110. Pelly (n 10).

111. Wickham (n 50); Denise Wybury, ‘Self-Represented Litigants in the High Court of Australia: A Statistical Analysis’ (Conference Paper, Australasian Institute of Judicial Administration Conference, 15–17 April 2014).

112. Sir Anthony Mason, ‘The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal’ (1996) 15(1) University of Tasmania Law Review 1; Justice Geoffrey Nettle, ‘Applications for Special Leave in Tax Matters’ (Speech, Tax Bar Association Annual Dinner, 29 October 2015); Justice Hayne, ‘Advocacy and Special Leave Applications in the High Court of Australia’ (Speech, The Victorian Bar—Continuing Legal Education, 22 November 2004); Kirby (n 53).

113. Solomon (n 53); D F Jackson, ‘Practice in the High Court of Australia’ (1996–97) 15(3) Australian Bar Review 187; Maree Kennedy, ‘Applications for Special Leave to the High Court’ (2005) 1(1) High Court Quarterly Review 1; Practice Note, ‘High Court Appeals—Objections to Competency and Applications for Special Leave to Appeal’ (1982) 56(11) Australian Law Journal 608; O’Brien (n 3); Bennett (n 65).

114. As to loss of information such as the nature of the parties and their legal representation, see pt 41 of the High Court Rules 2004 (Cth) inserted by High Court Amendment (2016 Measures No 1) Rules 2016 (Cth). See also Stewart and Stuhmcke (n 11). For example, the only record of self-representation will now be the Annual Reports which record only the number of self-represented applicants as a percentage of all applicants or where an SLA is heard orally: see High Court of Australia, Annual Report 2016–17 (30 November 2017) 21, which recorded that 42% of SLAs during 2016–17 were filed by self-represented litigants.

115. Scott (n 23) 477–8 (Lord Shaw of Dunfermline), commenting on the growing tendency of the Court to hear cases in camera.

116. SLAs are not alone in this debate, the tension between efficient justice and open justice has been discussed with respect to the preparation of skeleton arguments, and Justices pre-reading material before the hearing. See Lord Bingham CJ later in SmithKline Beecham Biologicals Special Advocate v Connaught Laboratories [1999] 4 All ER 498, 511–12.

117. Jeremy Bentham, The Works of Jeremy Bentham, ed John Bowring (William Tait, 1843) vol 4, 316.

118. McPherson v McPherson [1936] AC 177, 200; see also Russell (n 31) 520 (Gibbs J).

119. Grollo (n 40) 380 (McHugh J) (commenting upon the judicial exercise of police powers).

120. Richard Mohr et al, ‘Performance Measurement for Australian Courts’ (1996) 6 Journal of Judicial Administration 156; Aaron Patrick, ‘With Respect, the Federal Court is Not Above Public Scrutiny’ Australian Financial Review (Sydney), 5 November 2018; Michael Moore, ‘Judicial Independence—Breaking Free From the Executive Branch’ [2010] Federal Judicial Scholarship 27.

121. It has been the subject of a large amount of literature: Justice T H Smith, ‘Court Governance and the Executive Model’ (Conference Paper, Judicial Conference of Australia Annual Colloquium, 6 October 2006) (see especially 20 n 31 and app C). This balance is also managed in a variety of ways, such as by the judicial adoption of guidelines: Guidelines for Communications and Relationships between the Judicial Branch of Government and the Legislative and Executive Branches 2014 cited in Robert French, ‘The State of the Australian Judicature’ (2017) 13(2) The Judicial Review 153.

122. Denise Cooney, ‘An Absence of Reason: Why the Supreme Court of Canada Should Justify Dismissing Applications for Leave to Appeal’ (2012) 70(1) University of Toronto Faculty of Law Review 41.

123. Ibid 48.

124. (2017) 91 ALJR 258.

125. Ibid 260 [10].

126. Luke Beck, ‘High Court Special Leave Decisions: Constitutional Problems with the Lack of Reasons, AUSPUBLAW (Blog Post, 20 November 2017) <https://auspublaw.org/2017/11/high-court-special-leave-decisions/>; Beck (n 109).

127. Coulter (n 59) 359 (Deane and Gaudron JJ).

128. Mason (n 54).

129. See Supreme Court of Canada website: <https://www.scc-csc.ca/home-accueil/index-eng.asx> and ‘Applications for Leave’: <https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/nav_date.do>.

130. Established by pt 3 of the Constitutional Reform Act 2005 (UK) and which came into being in 2009 under the United Kingdom Supreme Court, Practice Direction No 3: Applications for Permission to Appeal, 10 December 2018. Rule 3.3.3 states that ‘The reasons given for refusing permission to appeal should not be regarded as having any value as a precedent’. The amount of information published by the High Court is significantly greater than its Anglo-Commonwealth counterparts, seemingly confirming Sallmann’s 2007 observation that in relation to court governance reform Australia is a ‘pacesetter and luminary in the field by international standards’: Peter A Sallmann, ‘Courts’ Governance: A Thorn in the Crown of Judicial Independence?’ (2007)16 Journal of Judicial Administration 139, 145.

131. Emmett Macfarlane, ‘Administration at the Supreme Court of Canada: Challenges and Change in the Charter Era’ (2009) 52(1) Canadian Public Administration 1.

132. Ibid 13.

133. Bruce Ryder and Taufiq Hashmani, ‘Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appel Applications in Section 15 Cases, 1989–2010’ (2010)51 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 505.

134. See Appendix 1.

135. Judge Jan-Marie Doogue, Judge Colin Doherty, Jeff Simpson, ‘Accountability for the Administration and Organisation of the Judiciary: How Should the Judiciary be Accountable for Their Work Beyond the Courtroom?’ (Conference Paper, Asia Pacific Conference, 7 March 2013).

136. Caryn Devins et al, ‘The Law and Big Data’ (2017) 27 Cornell Journal of Law and Public Policy 357.

137. It is perhaps instructive that the very first reported decision of the High Court concerned special leave to appeal. Dalgarno v Hannah (1903) 1 CLR 1 records a motion to rescind an order granting special leave to appeal which had been made before the passage of the Judiciary Act 1903 (Cth). Today, given the changes in the manner of Court work, such a level of public information is unthinkable and unworkable.

138. ‘Cases Decided’, High Court of Australia <http://www.hcourt.gov.au/cases/cases-heard>.

139. John Alford, Royston Gustavson and Philip Williams, The Governance of Australia’s Courts: A Managerial Perspective (Australian Institute of Judicial Administration Incorporated, 2004) 19–20. For further discussion of the public and courts, see Stephen Parker, Courts and the Public (Australian Institute of Judicial Administration Incorporated, 1998).

140. Federal Court Rules 1979 (Cth) ord 46 rr 6(1)–(2).

141. The High Court has said that ‘[t]he rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances’: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 (French CJ, Hayne, Kiefel, Bell and Keane JJ).

142. High Court, Annual Report 2011–2012 (September 2012) 14.

143. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259.

144. Murray Gleeson, ‘The Centenary of the High Court: Lessons from History’ (Speech, Australian Institute of Judicial Administration Incorporated, 3 October 2003) 10.

145. Sharon Roderick, ‘Opportunities and Challenges for Open Justice in Light of the Changing Nature of Judicial Proceedings’ (2017) 26 Journal of Judicial Administration 76, 78.