The theory underlying this book is that civil dispute resolution (CDR) can be explained by the need to balance four key themes which pervade the resolution of civil disputes. The key themes of civil dispute resolution themselves involve balancing conflicting objectives and, hence, it is the conflicts within the conflict resolution process which drive that process. This chapter will explain each of these key balancing acts and how they are managed by courts and outside courts. The key themes of civil dispute resolution are based upon fundamental moral and societal imperatives. Viewed through this thematic lens, current civil dispute resolution practices, including the rules of civil procedure, are both logical and explicable and their apparent conflicts are shown to be necessary rather than nonsensical.

Judicial life is perhaps one of the most individual – and lonely – of professional callings. On appointment, a judge takes an oath to ‘do right to all manner of people according to law without fear or favour, affection or ill-will.’1 At that moment, she shoulders an individual responsibility to meet the highest expectations of the law.2 This expectation, and concomitant scrutiny, will continue throughout the judge’s career. Legal, political and public commentary may welcome her on appointment, examining the appropriateness of her credentials, experience and political neutrality. There may be ongoing critique of the quality of her judicial conduct in court, her decisions and reasoning, all of which must, subject to few exceptions, be performed in the public eye. Even upon her retirement, her conduct and any transgressions it reveals, may be the subject of critical public comment. In performing her institutional role, the judge is afforded no personal anonymity.

The publication of a dissenting judgment is overt evidence of judicial disagreement and judicial difference. This chapter starts to explore the factors that underpin this judicial difference. Drawing on a method of content analysis of legal judgments grounded in theories and techniques from psychology, this chapter highlights the values that underpin decision making and disagreement in the High Court of Australia. The value analysis provides an insight into division in the High Court reframing the discussion of dissent from differences in understandings of the law to differences in the values espoused and affirmed by the individual decision maker. Rather than a binary decision between one outcome and another, value analysis of the judgments frames judicial decision-making as a nuanced balancing of competing value(s) by the individual Justices. In doing so, the chapter presents a value-decision paradigm with differential patterns of values expression associated with opposing positions in hard cases. Value expression provides an element of consistency in decision making across these difficult cases, but the analysis of values also highlights the complex nature of the High Court decision-making process and the many factors that may influence the final outcome.

What is encompassed by the idea of ‘style’ in judicial reasons and why might this be of value and something worth striving for in a judge’s performance of their role? Through a synthesis of judicial pronouncements on the topic from judges in common law jurisdictions, the author identifies recurring themes and typologies that are used by judges when they reflect upon what is meant by style – and the manifestations of which are to be, respectively, applauded and emulated or lamented and avoided. Lynch frames this discussion in the context of the High Court of Australia’s contemporary practice of ‘joining in’ to a draft opinion any justice who agrees with it, so that individual authorship is obscured from plain view. This practice reveals an interesting dynamic between the individual and institutional conceptions of the judicial role. 'Joining in' , and its consequences for the benefits that are to be obtained by the conscious development of individual judicial style, is contrasted with the modes of collective expression of agreement in the final courts of the United Kingdom and United States.

Many Australian academics and jurists regard Australian High Court Chief Justice Sir Owen Dixon’s judgment in Parker v The Queen (1963) as Australia’s ‘declaration of judicial independence’ from Privy Council precedent and from a unified common law more generally. His expression in Parker is sharp, clear; Dixon makes no apologies for his finding. Nor does he limit the decision to its facts: he states, quite clearly, that he believes that the Australian courts should no longer be beholden to English precedent. Further, he states that has the support of the puisne justices in making this declaration. How had the Court arrived at this point, particularly in the context of its members championing ‘interdependence’ with British institutions, and close adherence to legal precedent, only years earlier? The reasons for this volte-face on the part of both Dixon and his colleagues remain unexplored in Australian legal history. This paper reveals that, notwithstanding the justices’ continuing cultural ties to Britain, their changing views as to the desirability of judicial interdependence were largely a reaction to developments in the English judiciary itself. This chapter argues that the justices’ changing conception of the role of the Australian High Court was shaped in part by a growing sense of a uniquely Australian legal identity, but more pressingly as a reaction to disappointment with the Privy Council in particular. It explores the reasons for this disappointment and suggests that Dixon’s own jurisprudence presaged the Australian Federal Parliament’s actions in the decades that followed to abolish appeals to the Privy Council.

Two High Court chief justices may be considered candidates for the title of 'Australia’s Towering Justice’: Sir Owen Dixon and Sir Anthony Mason. Dixon’s claim to the title lies in his articulation of a formalistic doctrinal methodology – ‘Dixonian legalism’ – which held firm for decades. Mason’s claim lies in his unshackling of the Court from legalism, and his reconceptualising of the Court’s role within the Australian system of government. This heralded a form of realism that led to the development of doctrines, some first propounded by Dixon himself, that would progress individual liberties and democratic participation in a constitutional system lacking comprehensive rights protections. This chapter claims that Mason’s legacy is the most important today. His Court’s methodological realism and explicit acknowledgement of values and policy in judicial decision-making, and the doctrinal development that gave the Australian ‘people’ constitutional status and protections, all continue to shape modern constitutional law and debates over the judicial role and method. It is against Mason and the jurisprudence of his Court that modern legalists must now define – and defend – themselves.

Corporate law, like all law, has a context; indeed, it has many contexts. To understand corporate law today, we need to appreciate the forces—social, political, economic, global and local—which shape that law. Modern corporations and contemporary Australian corporate law should be understood as a product of, and a compromise between, various social, economic and legal ideas and philosophies. This is the focus of the first two chapters of this book.

This chapter evaluates the limited function of common law judiciaries in public finance by reference to UK and Australian case studies. It opens by observing and explaining the asymmetrical involvement of judiciaries in public finance law: why disputes concerning tax legislation are more justiciable than disputes concerning appropriation, debt and monetary finance. The chapter then analyses the only modern attempt by a common law judiciary to expand its involvement in disputes concerning public expenditure, Williams v The Commonwealth of Australia, and its aftermath. That Australian case study neatly illustrates the judiciary's inability to effect a meaningful re-distribution of financial authority away from treasury departments and towards parliaments. The chapter then examines the problems with understanding common law courts as systemically reliable mechanisms to enforce parliamentary authority over taxation by reference to the UK judiciary's tax law and tax agency practice. The chapter concludes that the presence of judicial power does not substantially impact the distribution of financial authority between executive governments and parliaments.

This chapter uses transnational law in the Jessup tradition as a lens for examining contemporary debates about the legitimacy and methodology of national courts engaging with foreign and international law. Covering academic and judicial views from a number of countries in the common law world, particularly the USA, UK, and Australia, it offers an Australian perspective on judicial transnationalisation of law, including analysis of decisions of the High Court of Australia over a 25-year period. In outlining features of the landscape of judicial transnationalisation of law in the common law world, it canvasses various jurisprudential, jurisdictional, methodological, and topical challenges for conventional frames of reference about national courts engaging with international and foreign law. Finally, it explores the implications of positioning national courts within a 21st century inter-systemic view of governance, regulation, and democracy.

This chapter picks up the historical story in the middle of the twentieth century. Against a background of an enhanced sense of independence and confidence of people and institutions that developed following World War I and World War II, I argue that it was in the middle of the twentieth century, from the 1930s to 1960s, that Australian criminal law came into its own – measured in terms of an orientation around national coordinates, and in the self-confidence of its practitioners and academics. I demonstrate that, with close reference to the decisions of English courts, and commentaries such as that of Glanville Williams – and, increasingly over the period, to US developments like the Model Penal Code – Australian lawyers and commentators came to forge an independent path for the criminal law in the mid-century. Working over and above developments that occurred within state jurisdictions, and across code and common law modes of criminal law, practitioners and scholars were thoroughly engaged in a global debate about the development and improvement of the law of crime, and in a complex and subtle negotiation between what Australia shared with others, and what might be thought mark it out. In the mid-century, it became possible to think about Australian criminal law as such, to conceptualise Australian criminal law as a meaningful idea.