A Century of Judicial Style

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A Century of Judicial Style: Changing Patterns in Judgment Writing on th...gh Court 19032001 - [2004] FedLRev 11; (2004) 32 Federal Law Review 255

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q A CENTURY OF JUDICIAL STYLE: CHANGING PATTERNS IN JUDGMENT WRITING

ON THE HIGH COURT 19032001

r Matthew Groves and Russell Smyth#

q INTRODUCTION

r DATA AND METHODOLOGY

r

LENGTH OF HIGH COURT JUDGMENTSs Leave to appeal and caseload

s The High Court as a final court of appeal

s The effect of social change and growing complexity

s The transition from substantial oral argument to substantial written argument

s Increase in the citation of authority

s The role of information technology

s Assistance available to members of the Court

r TRENDS IN DECISION-MAKING IN THE HIGH COURT

s Leadership on the Court

s Institutional features and the decline of the declaratory theory of the law

r THE DECISION-MAKING OF INDIVIDUAL JUSTICES

r CONCLUSION

A CENTURY OF JUDICIAL STYLE: CHANGING

PATTERNS IN JUDGMENT WRITING ON THEHIGH COURT 19032001

Matthew Groves[]

and Russell Smyth[#]

NTRODUCTION

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a recent issue of theAustralian Law Journal Enid Campbell argued that both the length of High C

dgments and the number of multiple separate High Court judgments has increased and that this is

unterproductive.[1]

This view echoes similar concerns expressed by some judges[2]

and others in the profession.[3]

This argument is ba

ral assumptions about the High Court that are widely held among lawyers, but which have not been subject to any detailed empirical research.[4]

Those assumptions are:

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

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

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

his article attempts to test these assumptions using hard data. To do this, we analyse trends in High

ourt judgments using data on all cases reported in the Commonwealth Law Reports over the period

9032001. We present findings on trends in the length of High Court judgments and the proportion

int, concurring and dissenting judgments over this period. We also present statistics on the judgmen

ngth and the number of joint, concurring and dissenting judgments authored by each Justice.

addition to testing speculation about recent trends in judgment writing on the High Court, an

mpirical exercise such as this may assist in appreciating the way in which the work of the Court is

rformed and the complexity of the legal controversies which it faces.[5]

It can also provide insights into ho

dicial reasoning and the Court as a policy-making institution have evolved over time. As Lawrence Friedman and his colleag

plained:

The style of opinions is as good an indicator as we have of what counts as sound legal

reasoning for any given era. ... Moreover, a more policy-oriented conception of thejudicial role arguably could be reflected in another 'objective' facet of appellate opinions

a higher incidence of dissenting and separate concurring opinions.[6]

t the level of individual Justices, statistics on differences in concurrences and dissents could reflect

fferences in ideology or methodology between Justices which, once documented, deserve further

scussion and scrutiny by legal commentators.[7]

ATA AND METHODOLOGY

e use data on all High Court cases in which there were panels of at least three Justices reported in t

ommonwealth LawReports decided between 1903 and 2001. This time period covers all cases repo

the first 205 volumes of the Commonwealth Law Reports. We focus on cases in the Commonwealt

aw Reports for two reasons. First, the Commonwealth Law Reports are the authorised reports of the

igh Court. Secondly, the Commonwealth Law Reports span the whole history of the Court and,

erefore, provide a continuous source of data.



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he data were collected through reading and recording the outcome of each case. While strictly speak

udgment refers to the final orders of the Court, we use the term to refer to the reasons for Justices'

pinions on what the final orders of the Court should be. The judgments in each case were classified

ne of four categories: (a) joint judgments; (b) concurring judgments; (c) short concurring judgments

d (d) dissenting judgments. In adopting this approach we use these terms in a manner consistent w

e recent literature on measuring (dis)agreement on the High Court, particularly the methodology

ggested by Andrew Lynch.

[8]

We classified a judgment as a joint judgment if it was delivered by two or more Justiceho were in the majority, based on the orders of the Court. We divided single or separate judgments into categories (b), (c) an

e classified a separate judgment as a concurring judgment if the Justice agreed with the reasons of

ajority expressed in the orders of the Court, but did not agree with the reasons for reaching that

nclusion. We distinguished between 'concurring judgments' and 'short concurring judgments' to tak

count of short concurring judgments of the form 'I agree', which have been popular at some points

e Court's past. Michael Coper suggests that judgments of the form 'I agree' are 'no different in

bstance from being a party to a joint judgment, although care must be taken to leave no doubt abou

hat it is with which the Justice agrees'.[9]

Because of the potential for confusion Lynch suggests that such judgmen

ated separately to joint judgments.[10]

While we agree with this observation we do not think that short judgments of the form 'I agree' should be bu

h longer concurring judgments either. If the concurring judgment was less than one quarter of a page we classified it as a 'short concurring judgment'. We h

refore, adopted an arbitrary cut-off mark to attempt to capture the characterof decisions that we believe can be rightly regarded as a 'short concurring judg

judgment was classified as dissenting if the Justice disagreed with the result proposed by the major

pressed in the orders of the Court. On this view, a dissent may occur for several reasons. The

ssenting Justice may differ with the majority on the applicable law, or its interpretation, or some as

the facts of the case, or a mixture of fact and law. In most cases determining whether a judgment i

ssent is relatively straightforward. Lynch suggests that, in a small minority of cases, there are shifti

ajority opinions within one case, and that the researcher must make choices in identifying whether

dgment is in dissent.[11]

Where there are multiple issues in the case, one option would be to record a dissent if Justice X

sented on any issue. This approach, though, tends to exaggerate the level of dissent if Justice X agreed in the orders and the

bstance of the reasoning adopted by the majority for the other issues in the case. Therefore, in such cases we made a judgme

l on which was the most important issue or issues before the Court and recorded whether Justice X dissented on this issue o

ues.

nally, we should explain the sense in which we use the term 'judgment'. Although we examined en

cisions, our use of 'judgment' refers to the individual reasons for decisions issued by each Justicether than the Court as a whole. We have not included data that measure changes in the length or oth

atures of the decisions of the Court because the size of the Court did not settle until 1913.[12]

While th

erall size of the High Court has remained stable in recent years, the number of Justices that comprise a Full Court can still v

In our view, it is neither desirable nor statistically sound to attempt to gauge patterns in High Court decisions according to averages that are determined by

erence to the differing number of Justices that preside.

ENGTH OF HIGH COURT JUDGMENTS



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efore considering the breakdown of judgments into joint judgments, concurring judgments and

ssenting judgments, we begin through discussing trends in average judgment length. The page leng

each judgment was recorded to the closest one quarter of a page. Figure 1 traces the average page

ngth of each judgment for all decisions reported in the Commonwealth Law Reports between 1903

001. Up until the beginning of the 1990s the average judgment length for most years was in the rang

ur to seven pages. There are, though, some outliers. In World War I the average judgment length w

w in historical terms, with the all-time low of 3.01 pages in 1915. In the early 1950s and late 1970srly 1980s there were peaks. The average judgment length in 1951 was 7.1 pages, in 1952 it was 7.3

ges and in 1977 and 1983 it was 9.6 pages.

gure 1 shows that from the beginning of the 1990s there was an upward trend in judgment length

nsistent with Campbell's casual observation.[14]

Between 1990 and 2001 the average judgment length was 12.1 p

hile prior to 1990 the average judgment length in any given year was less than 10 pages, from 1991 to 2001 the average

dgment length was 10 pages or more in each year. In 1997 and 2001 the average judgment length was more than 12 pages an

e years (1995, 1996, 1998, 1999 and 2000) the average judgment length was greater than 13 pages, peaking in 1996 at 14.4

ges. There are several factors which may explain changes in the average length of judgments over time.

eave to appeal and caseload

ne factor that has potentially contributed to the increase in the average length of judgments in the

cond half of the 1980s and in the 1990s was the introduction by statute of a requirement that appea

e High Court not be brought except by special leave of the Court.[15]

The requirement of special leave effec



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ants the Court a discretion to determine the number and type of cases that it will hear and has clearly affected the case load o

urt.[16]

Sir Anthony Mason acknowledged that the High Court is naturally inclined to grant special leave sparingly so that it can undertake a 'thorough

sideration of selected cases leading to closely reasoned judgment'.[17]

The requirement of special leave has, therefore, reduced the constant flow of relatively easy cases which h

of the Court's case load in previous decades. Reduced case loads leave the Justices with more time to deal with each case,[18]

although special leave has also meant that those cases which the Court does choose t

y complicated by powerful competing arguments.[19]

Kirby J, writing extra-judicially, notes: '[v]irtually all of the cases which are chosen involve delicately balanced issues where there are powerful arguments for both sides. Quite frequently they are expressed in the majority and minority

rt under appeal'.[20]

Because all of the cases involve difficult issues of law it follows that discussion of the competing considerations is going to take more space.[21]

In a later article, his Honour contrasts the case load pressures on the New South Wales Court of Appeal and the High Court:

I have spoken to people who were Associates to Justices of the [High] Court decades ago.

They tell me of what the High Court was like back in the 1960s. Basically, it was like the

Court of Appeal of New South Wales now is. It was run off its feet. Absolutely

overwhelmed with work which it could not rebuff or deflect. It was desperately busy just

getting the decisions out.

In the last year of my service as President of the Court of Appeal I wrote 389 opinions. In

the High Court of Australia last year I wrote, I think, about 60 opinions. ... But everything

is hard. In the High Court of Australia ... all of the cases are difficult.[22]

he High Court as a final court of appeal

ccompanying the introduction of special leave to appeal to the High Court in the mid-1980s, the Hi

ourt became the final court of appeal for Australia. The Privy Council had long occupied a difficult

osition in Australian law. Section 74 of the Constitution precluded appeals to the Privy Council upo

sues concerning 'the limits inter se' on constitutional issues, unless the High Court had granted leav

peal to the Privy Council.[23]

The precise scope of an inter se matter (a conflict between state and Commonwealth po

the purposes ofs 74 was a longstanding source of uncertainty.

[24]

In some cases, the Privy Council considered issues other than any inter

stion and, therefore, exercised a clearly limited appellate jurisdiction.[25]

In other cases the reasoning of the Privy Council was equally concerned with its own jurisdiction as th

tantive issue.[26]

Whilst various rights of appeal to the Privy Council from the High Court had been abolished by enactments in 1968[27]

and 1975,[28]

it was still possible to appeal to the Privy Council directly from state courts exercising state jurisdiction until the enactment of theAustralia Acts

hortly before the enactment of theAustralia Act 1986(Cth) a member of the Court of Appeal of Ne

outh Wales suggested:

The evaluation of the effect of the Privy Council upon Australian law has yet to be done.

The existence of a superior court has a constricting effect upon a lower court, and this type

of constriction by a foreign court offends nationalistic sentiments. On the other hand, the

forcible hitching of the legal system of a small State to one of the great legal systems of

the world has provided stimulus to us. ... In a relatively provincial country (though very

litigious) such as Australia, the tendency to lapse into self-satisfaction has been restrained

by the continual presence of a major legal system, not as a distant exemplar, but as a

continual force for change.[31]

more widely accepted view is that, while only a small portion of High Court decisions were ever

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ccessfully appealed to the Privy Council, thepotential for appeal had a chilling effect on the reason

the High Court.[32]

One consequence of this view is that the abolition of appeals to the Privy Council has infused the Hi

urt with a sense of intellectual freedom and the development of a judicial attitude which the constraints of appeals to the Pr

uncil discouraged.[33]

Sir Anthony Mason has attributed the metamorphosis that occurred on the Court while he was Chief Justice, at least partly, to th

lition of appeals to the Privy Council. He states that

it is unlikely that the long line of landmark judgments delivered by the High Court in the

last decade ... would have been delivered if the appeal to the Privy Council had still been

on foot or, if they had been given, it is improbable that they all would have survived an

appeal to that august body.[34]

corollary of this new sense of intellectual freedom is that the Justices are taking more pages to exp

boundaries and its nuances.[35]

he effect of social change and growing complexity

he intellectual adventurism of the Mason Court also contributed to growing judgment length in the

990s through making the law more contestable and, therefore, more open to different approaches an

terpretations. It is reasonable to believe that Justices will write longer judgments in cases which are

gally more difficult or politically controversial or more likely to have a major social impact.[36]

Jean L

outal found that judgments in English appellate contract cases had grown longer over the course of the twentieth century as t

dges sought to adapt earlier precedents to changed economic and political conditions.[37]

Graeme Orr develops this argument in the co

he High Court, suggesting that in the 1990s the law was 'in a state of historically significant flux' where 'its contestability [was] more evident and accepted

r'.

[38]This contributed to lengthier judgments as the Justices 'competed' to leave their imprint on the law.

he transition from substantial oral argument to substantial writtenrgument

arties to proceedings in the Court have always been required to file considerable written material, b

e amount of written material and its relative importance in proceedings have clearly changed over

me. For most of the history of the High Court, proceedings were largely conducted by way of oral

gument. Earlier accounts of proceedings before the Court suggest that a significant part of this time

as occupied by questions from the bench, which essentially took the form of cross-examination of

unsel. While this cross-examination was often onerous for counsel, the extended dialogues betwee

e bench and the bar provided a means to clarify many of the points during the conduct of a hearing

ight otherwise be addressed in decisions.[39]

he Court relied almost entirely on oral argument until 1982, in the sense that submissions of the par

ere presented orally.[40]

In 1982 the procedure of the Court was amended to require counsel to provide a written outline

e main points to be made in argument. In 1984 this procedure was revised, so that counsel could also provide a list of princip



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thorities on which they sought to rely. The amount of material filed under this procedure steadily increased over time. In 19

e rules of Court were amended to require parties to file very detailed written submissions in support of all significant points

gument. In an oral hearing, each party largely expands on the written submissions filed prior to the hearing.[41]

he increasing role of written submissions has affected judgment writing in the High Court in severa

ays. First, oral submissions are much more time consuming than written submissions. The increase

e of written materials enables parties to place far more material before the Court within a shorter

aring. The increased use of written submissions also enables Justices to work through submissionsster. One American commentator estimated that a judge reviewing written submissions, such as a

stice of the High Court preparing to hear applications for special leave and/or a substantive hearing

n do so up to five times faster than is possible if the material is tendered largely through oral

bmissions.[42]

Secondly, the use of detailed written submissions enables the Court to make more references to judicial

thorities and secondary sources, and include more detail from those references. The increased length of judgments detailed

gure 1 may, therefore, indicate that Justices are responding to the changing nature of material placed before them.

crease in the citation of authority

has been suggested that another reason for the increase in the length of judgments in the 1990s has

en excessive, or at least greater, citation of previous cases and academic writings.[43]

Citation studies

ggest that citations of case law and academic authorities in the High Court have increased over time.[44]

In 1920 in the High Court

re 6 citations per judgment; in 1980 the comparable figure was 10.6 and in 1996 it was 43.9.[45]

Orr has suggested that 'a multiplication of words, both in the text and in fo

o]ne inevitable outcome of the twin trends to greater individuality and broader scholarliness' which was a trait of the Mason Court.[46]

hanges in the number and content of citations are not due to radical changes in the format of citatio

ootnotes have been the preferred format for citations in the Commonwealth Law Reports from their

cond volume.[47]

The longstanding use of footnotes is a distinct feature of decisions of the High Court of Australia. They

ll not used in the authorised reports of other courts of final jurisdiction in English speaking nations of the Commonwealth.[4

mber of the House of Lords has commented that the opinions of the High Court of Australia are 'regularly furnished with footnotes which, like academic

tnotes, contain material that goes beyond mere references but which the author of the opinion does not wish to put in the body of the text'.[49]

The increased nu

greater content of citations is almost certainly influenced by the use of footnotes because they are a device that permits authors to include parenthetic and additional references that might not be

uded if 'in text' referencing was used.

creases in citation are almost certainly due to the relentless expansion of the volume of the law. Tholume of statute and case law continues to increase at a hectic pace. Secondary sources are probably

panding at an even greater pace. Although the rate or size of this expansion cannot be easily

easured, most observers would agree that there is a continued and significant increase in the volum

w. It is hardly surprising that parties make use of this increased volume of law and place increased

mounts of materials before the courts and this is, in turn, reflected in the increased citation of materi

y the courts.

he role of information technology



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he full impact of technological changes on the drafting of judgments by members of the High Court

ver the last century is difficult to measure clearly because the rapid nature of many recent changes h

bscured many earlier practices. It is, however, useful to recall how judgments were produced until t

rly 1980s. The drafting of decisions in these times reflected the physical difficulties in document

afting prior to the electronic age. Kitto J normally worked with just a pencil and paper. Barwick CJ

boured over handwritten drafts, and normally produced seven to eight for each judgment. Windeye

boured over his decisions, constantly editing and revising. He used scissors and clag to construct an

ange paragraphs.[50]

These work habits would have imposed practical limitations on the ability of Justices to draft and r

dgments.

hanges in information technology have dramatically altered both the mechanical aspects of the

eparation of judgments and the material available for incorporation in judgments. The advent of fre

nline services such as AustLII and SCALE Plus and the extremely wide range of services provided

mmercial publishers enables practitioners and judges to access an enormous amount of information

at would not be accessible but for the use of online information services. The increased citation of

thorities reflects technological developments which make it easier to access more judgments from

nge of jurisdictions and the increasing number of journals which contain citable articles.[51]

These cha

ve increased the ability of counsel to draw a greater range of authorities to the attention of the courts. The increased availab

information has led Gleeson CJ to comment that: '[p]rovincialism in the development of the common law is no longer an

tion.'[52]

It is clear that neither appellate courts nor counsel appearing before them can afford to ignore the law of comparable jurisdictions when it is so ea

ilable. Gleeson CJ also cautioned that the increased availability of information requires judges to be able to 'recognise and discard junk. '[53]

His Honour is clear

ect in the sense that the use judges make of the material provided by the parties must be discriminating, and increasingly so in correlation to the amount of information that is provided. But even

t discriminating judge may feel compelled to address a submission that is well researched and drafted but ultimately does not sway the court, if only to assure the parties and others who read the

sion, that the submission was actually considered by the court.

hanges to information technology have also greatly affected the mechanical aspects of judgment

riting. While judgment writing will always be influenced significantly by the personal style of each

dge, all judges now have access to cutting edge facilities to produce and manage their documents.[5

e ease with which word processed documents can be constructed and amended must provide a corresponding temptation to

dges to include detail and additional points that might have been omitted in earlier times.

ssistance available to members of the Court

stices may gain assistance in the preparation of judgments from a range of court staff including

cretarial and other administrative support staff, specialist research officers, library staff and Justice

sociates. The High Court has employed Justices' associates from its inception. For a long time Justi

mployed one associate and one tipstaff, but most Justices dispensed with tipstaff during the late 198

favour of a second associate.[55]

Associates in the High Court normally conduct research, proofread and provide

mments on draft decisions, but they do not play a significant role in drafting decisions.[56]

The availability of two specialist assistants

tices from the mundane aspects of drafting, such as confirming the accuracy of references and updating citations, which enables them to spend a correspon

ount of time on substantive work.



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he library and research facilities of the High Court were improved at around the same time that Just

gan to employ a second associate. When the High Court moved to Canberra in 1980 the library

llection was largely consolidated and the number of library staff began to increase. The Court has

mployed at least one specialist legal researcher almost continuously since 1976.[57]

Library and research

mplement the work of Justices associates because they can conduct even more detailed research on behalf of Justices, with

tracting Justices from their drafting work.

RENDS IN DECISION-MAKING IN THE HIGH COURT

gures 25 show information on the proportion of joint judgments, concurring judgments, short

ncurring judgments (less than one quarter of a page) and dissenting judgments reported in the

ommonwealth Law Reports between 1903 and 2001. Figure 2 suggests that the proportion of joint

dgments has fluctuated widely. There were historical highs in the early 1920s, in the 1950s and 199

d historical lows in the late 1930s to mid-1940s and in the 1970s. The proportion of concurring

dgments in Figure 3 also shows wide fluctuation. The proportion of concurring judgments was highe Griffith and Latham Courts and, to a lesser extent, the Barwick Court, while they were relatively

the 1950s under the Chief Justiceship of Dixon and again in the late 1980s and 1990s. Figure 4 sho

at the proportion of short concurring judgments, of the form 'I agree', have tended to fluctuate betw

and 15 per 100 judgments delivered. There were periods where the number was higher than this in

riffith and Barwick Courts, while the proportion of short concurring judgments was lower in the 19

here joint judgments have been more popular. Figure 5 shows the proportion of dissenting judgmen

ith the exception of the second half of the 1920s and early 1930s, mid-to-late 1940s and the late

990s, which were periods of relatively high dissent, and the early Griffith Court, where there was lit

ssent, the dissent rate has generally hovered between 5 and 15 judgments per 100 judgments delivehere was a spike in 1944 when dissent peaked at 23.46 per 100 judgments.



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102.wmf

eadership on the Court

ne feature of Figures 3 and 5 is that the proportion of concurring and dissenting judgments has

uctuated substantially under different Chief Justices. This reflects to some extent the ability of the



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fferent Chief Justices to generate consensus and put in place procedures to build a more collegial

mosphere. The state of professional and personal relations between members of the High Court can

measured by the same methods that we have used to track the length of judgments and the proport

joint, concurring and dissenting judgments. There are, however, many biographies and articles abo

embers of the Court. The personal and anecdotal nature of the information contained in these sourc

n illuminate the workings of the Court.

the early Griffith Court there was little dissent, but a high proportion of short concurring judgment

he early Griffith Court was dominated by the Chief Justice. Until the appointment of Isaacs and

iggins JJ in 1906, Griffith CJ wrote most of the judgments with the short concurrence of his colleag

However, the unanimity of the Court dissolved following the appointment of Higgins and Isaacs JJ. The decline of Griffith

luence gathered pace with the death of O'Connor J in 1912, his replacement by Gavan Duffy J and the appointment of Powe

d Rich JJ as additional Justices in 1913. Reflecting this development there was a sharp increase in concurring judgments

lowing the appointment of Higgins and Isaacs JJ.

iggins and Isaacs JJ were both committed individualists and Isaacs J, whose knowledge of the law wcomprehensive as Griffith CJ's, differed from Griffith CJ in judicial style and philosophy. While

riffith CJ sought a balanced Constitution that reserved state powers, Isaacs J interpreted

ommonwealth powers broadly. The appointment of Isaacs J also sparked off the first bout of person

nsion between the Justices, which has plagued decision-making on the Court for much of its historystorical accounts suggest that Isaacs J was disliked by most of his fellow Justices and that his behaviour made any form of c

eration between Justices difficult.[60]

For example, Isaacs J reputedly would hide cases and play down the significance of issues in argument to giv

mself a perceived advantage when it came to writing judgments.[61]

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104.wmf

he Knox Court (191930) is characterized by a relatively high proportion of joint judgments, while

ere was a high proportion of dissenting judgments in the second half of the 1920s. The workings of

nox Court were dominated by strong personality differences between Starke J and Isaacs J and Hig



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and also between Isaacs J and the other Justices.[62]

The level of dissension remained high throughout the Knox

urt. This seems to reflect the domineering role of Isaacs J rather than the lack of leadership of Knox CJ.[63]

Graham Fricke and M

ledge suggest that Knox CJ's strategy for dealing with 'Isaacs' domineering flights of rhetoric, Higgins' prickly independence, and Starke J's pragmatic

patience' was a predilection for participating in joint judgments,[64]

which contributed to the high proportion of joint judgments in the 1920s.

he dissent rate continued to be high in the first half of the 1930s when Gavan Duffy was Chief Justi

he Gavan Duffy Court was generally characterized by a lack of leadership. There were personalnsions between Starke J and Evatt J, between Starke J and McTiernan J and between Gavan Duffy

d Starke J. Starke J's animosities toward Evatt and McTiernan JJ were partly because of the politic

ture of their appointments. Both Evatt and McTiernan JJ had been Labor politicians and had been

pointed by the Scullin Labor government in controversial circumstances. Gavan Duffy CJ and Star

personal dislike for each other seems to have stemmed from family disputes, with Starke J having

arried a daughter of Gavan Duffy CJ's half brother.[65]

In this difficult atmosphere, Gavan Duffy CJ did little to

cilitate consensus. Fricke states: '[h]is capacity for effective input was minimal. Weak and ineffectual in administration, he d

thing to facilitate conferences or [the] exchange of draft judgments ... His judicial contribution was scanty in the extreme'.[66

he proportion of concurring and dissenting judgments was high and the proportion of joint judgmen

as commensurately low under the leadership of Latham CJ. Prior to 1940 the internal workings of t

atham Court were dominated by conflict between Evatt and Starke JJ.[67]

When Evatt J resigned in 1940,

rsonal relations between members of the Court seemed to improve, but the Court did not function as a cohesive social unit u

er Rich and Starke JJ were replaced by Fullagar and Kitto JJ following the defeat of the Chifley Labor government.[68]

While

ham CJ attempted to foster consensus through instigating conference procedures to facilitate the exchange of draft judgments, most of the time these did n

rk and a strong sense of judicial individualism impeded Latham CJ's capacity for effective leadership. During Latham CJ's term Dixon and Evatt JJ were t

tices to write joint judgments with any regularity. Starke J almost always wrote a separate judgment.[69]

he proportion of concurring judgments dropped and the proportion of joint judgments increased und

e leadership of Dixon CJ. The dissent rate in the Dixon Court was also lower than it had been for m

the period Latham was Chief Justice. Dixon CJ enjoyed enormous respect among the puisne Justic

a jurist. Colin Howard suggests:

He was on the High Court for such a long time, 35-years extending from 1929 to 1964, for

twelve of which he was Chief Justice, that he came to have such an intellectual dominance

over the Court which towards the end of his career made him seem part of the fabric of

federation itself.[70]

ixon CJ used his immense reputation as a jurist to forge consensus. According to Sir Douglas Menz

ixon CJ's authority

was, of course, enormous, and when he was concerned that a decision should go in a

particular way, his aim was to get his own judgment out first for circulation to other

members of the Court. To differ from him was a course always taken with hesitation and



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never without foreboding.[71]

ixon CJ's task of building consensus was also made much easier because of the fact that the person

lations between the Justices were generally harmonious compared with the Latham Court.[72]

he proportion of concurring judgments was again high under the leadership of Barwick CJ. Barwick

cked the juristic dominance of Dixon CJ. David Marr's vivid biography of Barwick CJ suggests tha

ood in Dixon CJ's shadow for many years.[73]

Perhaps in an attempt to distinguish himself from Dixon CJ, Barwic

ught to manage the Court in a quite different manner. While Dixon CJ obtained consensus through being the first to circulat

dgment and then relying on the intellectual respect of the other Justices to hold sway, Barwick CJ tried to impose greater

ordination in judgment writing and regular conferencing in a top-down fashion. According to George Winterton the Justices

isted 'his bullying attempts to dominate them'[74]

and this resulted in a proliferation of concurring judgments, which did not speak to each other

ckshield suggests that often there were 'seven different judgments [pointing] in seven different directions. It is not [only] that the judgments [gave] differe

wers, but that too often they [did] not even address themselves to the same questions'.[75]

he proportion of concurring judgments was relatively low and the proportion of joint judgments walatively high in the 1980s and 1990s, certainly compared with the Barwick Court. The dissent rate

ost of this period hovered within the 5 to 15 judgments per 100 judgments delivered range which h

edominated for most of the Court's past, although it was at an historically high level, comparable w

me years in the Knox and Latham Courts, in the mid-to-late 1990s. It is generally regarded that the

orkings of the Court improved under the Chief Justiceships of Gibbs, Mason, Brennan and Gleeson

hile the Mason Court covered a period of substantial developments in the law the personal

lationships on the Court, however, were good and this reflected the leadership of the Court. Writing

e Mason Court, Sir Gerard Brennan states: '[Mason's] relationship with other members of the Cour

stered its collegiate spirit. Suggestions for changes in a draft judgment were freely given or receive

ith full recognition of the independence and intellectual integrity of other Justices'.[76]

stitutional features and the decline of the declaratory theory of the law

onferencing might be expected to increase the proportion of joint judgments, though many

mmentators have questioned the intellectual value of increased joint judgments obtained via routin

nferencing in the United States.[77]

In contrast to the United States Supreme Court, the High Court has not had a reg

stem of conferences for most of its history. The extent to which Justices have conferred on a formal or informal basis, circuleir reasons for judgment and participated in joint opinions has depended on the personal relations on the Court, sitting

angements and the influence of the Chief Justice in fostering a collegiate atmosphere.[78]

Latham, Dixon, and Barwick CJJ all attemp

ive judicial conferences to facilitate consultation and build consensus. Latham and Barwick CJJ were largely unsuccessful, which is reflected in the high

portion of concurring judgments in their terms. According to the Dixon diaries, under Latham CJ informal meetings were common throughout the 1930s,

ough their effectiveness was tempered by personal animosities between the Justices.[79]

In the late 1940s and early 1950s Latham instigated a series of formal judicial confe

e conclusion of important cases, such asBank of NSW v Commonwealth[80]and Communist Party of Australia v Commonwealth

[81]but these were generally unsuccessful at obtaining consensus.[82]

Sir Garfield Barwick records that while Chief Justice he propos

ce at the conclusion of hearings, but this suggestion 'found no favour' among the other Justices.[83]

Barwick CJ was so stung by his failed attempt to introduce r egular conferencing that he never attempted to do so again .[84]



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ompared with Latham and Barwick CJJ, Dixon CJ had some success in reinstating informal

nferences at the conclusion of sittings in the 1950s and 1960s. It is likely that this contributed to th

latively higher proportion of joint judgments while Dixon was Chief Justice. According to Troy

mpson, '[i]n the Dixon Court, informal meetings were held regularly during sittings. The conversat

often over cups of tea in Dixon's chambers ranged over current cases and judgments in the cou

preparation.'[85]

In the late 1980s and 1990s informal meetings among the Justices, rather than formal conferences, were

the Mason and Brennan Courts to monitor progress in opinion writing and to determine if joint judgments were feasible.

[86]S

8, under Gleeson CJ, formal conferences have been held, with all Justices participating, in the week following the conclusion of each sitting of the Court,

cuss reserved judgments.[87]

is also interesting to consider the effect of the introduction of case selecting discretion on the disse

te. Some previous studies of the United States State Supreme Courts suggest that those states which

ve case selecting discretion tend to have higher rates of dissent.[88]

This is because with case selection discr

ere are more complex cases, increasing the likelihood that reasonable minds can reach different conclusions on the cases wh

e heard. However, the United States studies are not consistent in finding that low case loads giving judges more time for

dgment writing (or hair-splitting) produce higher rates of concurrences and dissents. Some small volume State Supreme Couch as Maine and Rhode Island have strong traditions of consensus.

[89]

he period Sir Anthony Mason was Chief Justice not only coincided with the introduction of case

lection discretion, but also with the decline of the declaratory theory of the judicial function in

ustralia.[90]

Karl Llewellyn argued that the rise of legal realism in the United States was an important factor in 'killing cour

mwork' and in explaining the proliferation of concurring and dissenting opinions.[91]

The findings of Friedman et al and his findings fo

ted States State Supreme Courts were consistent with Llewellyn's argument. They found that the California and New Jersey Supreme Courts, which both h

utations as innovative law reformers, also had the highest rates of divided opinions.[92]

Figure 5 shows no discernible upward trend in the proportion of dissenting judgment

h Court after the mid-1980s. The proportion of dissenting judgments does spike in the late 1990s, peaking in 1999 at 17.4 per 100 judgments. This is likely to reflect a 'Kirby effect', which is dis

ore detail in the next section, rather than case selection discretion, although to the extent that there is a 'Kirby effect' it may be driven by the greater prominence of legal realism in the Court.

HE DECISION-MAKING OF INDIVIDUAL JUSTICES

efore we analyse our findings about the features of the decision-making of individual Justices, we

ould clarify a point of principle. We examine the patterns of decision-making of individual Justice

der to gain a better understanding of individual Justices and, in turn, the Court as a whole. Our

alysis of the decision-making of individual Justices should not, however, be taken to suggest thatriation between judges is undesirable, or that individual judges should somehow attempt to model

scharge of their professional duties according to some sort of 'preferred model'. Sir Anthony Mason

cently acknowledged that the number of individual judgments delivered by members of the High

ourt had led some commentators to call for an increased attempt by the Justices to deliver more join

dgments or to adopt the approach commonly used in American appellate courts, in which the court

livers one majority and one dissenting opinion.[93]

Sir Anthony cautioned:



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the Justices have been conscious of the desirability of producing joint judgments. But for

various reasons that has not always been possible. Justices may disagree about the result,

the reasons or even about the role of the Court. The adoption of a convention that there

should be a single majority judgment and a single minority judgment would compromise

the intellectual integrity of an individual Justice who wishes to express his or her own

view, even if it coincides to some extent with that of other colleagues.[94]

e agree that the duties of judicial office are a responsibility that ultimately falls to each judge on a

rsonal basis. Any method for the formulation and delivery of reasons for decisions that hampers th

ility of a judge to properly discharge that responsibility ought to be avoided. But we also believe th

e personal nature of these responsibilities affects the decision-making of judges. As a member of th

pellate committee of the House of Lords recently observed:

since all judges are independent, they are free to choose both the form and language of

their opinions. ... This very freedom of judges in English-speaking countries to shape their

opinions as they wish means, however, that their form and language are liable to change,

not only from judge to judge but over time and in different legal contexts.[95]

able 1 provides information on the proportion of joint, concurring, short concurring and dissenting

dgments authored by individual Justices of the High Court as well as the average page length of the

dgments. The five Justices with the highest dissent rate in the history of the Court are Kirby J (32.6

nt), Higgins J (20.7 per cent), Murphy J (18.9 per cent), Latham CJ (16.5 per cent) and McHugh J

4.5 per cent). There are a few previous studies which have calculated dissent rates for specific Justi

he figures reported in Table 1 are similar, but not exactly the same as reported in these studies.[96]

ackshield et al calculated Murphy J's dissent rate as 137 times in 632 cases (21.6 per cent). This

lculation is based on all cases in which Murphy J sat, not just cases reported in the Commonwealth

aw Reports.[97]

The figures for Murphy J in Table 1 are based only on the 455 judgments he delivered that are reported in

mmonwealth Law Reports. The total number of judgments is consistent with the figure suggested by Richard Haigh, who st

at there are approximately 460 judgments by Murphy J in the Lexis database.[98]

The dissent rates for Kirby and McHugh JJ in Table 1 a

sistent with dissent rates recorded by Kirby J. Kirby J has reported his own dissent rate as 32 per cent and cited McHugh J's dissent rate, for comparative

poses, as 15 per cent.[99]

These figures are slightly less than those calculated by Lynch who suggests that Kirby J's dissent rate is 34 per cent and McHugh J's dissent rate is 17.7 per cent.[10

iedman and his colleagues suggest that there is a positive correlation between the dissent rate and

erage judgment length. These authors state: '[s]tylistically, dissents tend to be looser and more

amboyant than majority opinions'.[101]

Brennan J of the Supreme Court of the United States suggested that dissentin

dgments often 'ring with rhetoric...[and] straddle the worlds of literature and law' as part of their contrary analysis.[102]

Previou

dies for Australia and the United States suggest that dissenting judgments tend to be longer and cite more academic authorities, which reflects the notion th

senting judgments often contain novel legal doctrine and, therefore, are more likely to make use of non-traditional sources of law.[103]

In general, with the notable

ption of Kirby J, there does not appear to be a direct correlation between average judgment length and the proportion of dissenting judgments for individual Justices. The five Justices who have



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ongest judgments are members of the current High Court (Kirby, Gummow, Callinan, Hayne and McHugh JJ), which is consistent with the trends identified in Figure 1 above.

hen comparing dissents with judgment length it is interesting to contrast Kirby and Murphy JJ. Wh

s views are not shared by all judges, Kirby J has been one of the loudest judicial advocates of more

tensive reasons for judgment, in particular in appellate courts.[104]

Orr describes Kirby J's judgments as havi

carried forward to new levels the individualistic and scholarly trends [of the current High

Court], and as a result are exemplary of the concomitant virtue of richness and vice of

verbosity. His judgments are laden with scholarly references, footnotes to academic

writing and comparative law ... His judgments are as lengthy as they are weighty.[105]

ke Kirby J, Murphy J also cited a lot of academic authorities and comparative law,[106]

but stylistically

proach was very different, stating his reasons in a summary form. As a consequence, Table 1 suggests Murphy J had among

ortest judgments in the history of the Court.

verall, it is difficult to compare judgment writing of individual Justices across time. Justices wholivered a high proportion of joint judgments relative to their contemporaries in the 1920s would ha

en just average in the 1980s and 1990s. Therefore, it makes more sense to compare the judgment

riting style of individual Justices with their contemporaries on the Court. Of the Justices who serve

imarily in the first three decades of the Court, Gavan Duffy and Knox CJJ and Powers J stand out a

ving a relatively high percentage of joint judgments and few concurring judgments. Higgins and

aacs JJ were the big dissenters on the Griffith and Knox Courts. In the Griffith Court, most of the

stices had a high proportion of short concurring judgments with Barton J topping the list, deliverin

ort concurring judgment 30 per cent of the time. The exceptions are Griffith CJ, who never deliver

ort concurring judgment, and Knox CJ and Isaacs and Higgins JJ who rarely wrote short concurrindgments.

f the Justices who served in the Latham Court, Latham CJ and Starke J had the lowest proportion o

int judgments and the highest proportion of concurring judgments, while Rich and McTiernan JJ w

e highest proportion of short concurring judgments. The Justices who were on the Dixon Court are

latively uniform, although Menzies and Windeyer JJ wrote an above average (for the Dixon Court)

rcentage of concurring judgments. The length of Windeyer J's judgments, though, were fairly aver

r the Dixon Court suggesting that his proclivity for citing secondary authorities and researching the

story of issues did not translate into longer judgments. The Justices who served under Barwick CJostly have a high proportion of concurring judgments, consistent with the historical trends discusse

ove. Mason CJ is an exception, but, of course he remained on the Court after Barwick CJ retired.

arwick CJ and Walsh J, together with McTiernan J, who continued on the High Court for most of th

riod Barwick was Chief Justice, had the highest dissent rates. Aickin and Stephen JJ both have a h

rcentage of short concurring judgments, rivalling the early Griffith Court. Two features stand out f

e Justices who served on the Court in the 1980s and 1990s, which are again consistent with the

storical trends identified earlier. One is that most of the Justices have a high percentage of joint

dgments (Kirby J is an exception). The other is the low number of short concurring judgments.



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ompared with the Griffith and Barwick Courts, this form of judgment has largely disappeared over

990s.

ONCLUSION

ynch has suggested that empirical research into judicial decision-making of a court can provide

sights into the operation of the court, subject to important limitations. He suggests that empirical

search of the type we have undertaken provides information that 'feeds in to more familiar scholars

out the Court, and the legal reasoning of its members.'[107]

Lynch also suggests that empirical research is subje

portant limitations. It must be conducted in a transparent and rigorous manner, and its results must be supplemented by

alitative analysis. We agree that research of this nature cannot replace qualitative legal scholarship, but it does provide insig

at other forms of legal research cannot.

ur analysis of decisions of the High Court delivered from 1903 to 2001 has revealed several clear

ends. First, the length of reasons for decisions of the Court has certainly increased from the beginni

the 1990s. Prior to the 1990s the average length of decisions of the Court had fluctuated over time

ut did not show any significant long term trend. Secondly, although the length of decisions has

creased clearly since the start of the 1990s, that trend appears to have peaked in the mid-to-late 199

hether the increase in the length of decisions has peaked in historical terms, and whether it may

verse or resume, can only be established over more time.

he trends revealed by our analysis of joint, concurring and dissenting opinions within the High Cou

e quite different. The level of each form of judgment has varied significantly over time, but the

riations do not yield clear trends such as those established for the length of decision. While the

riations in levels of joint, concurring and dissenting opinions can be explained by reference to a ranfactors, such as relations between individual Justices and the Court as a whole and the manner of

adership that different Chief Justices have managed to forge, the significant variations in the level o

int, concurring and dissenting opinions are almost certainly due to the combined effect of such fact

d variations in the effect of these factors over time.

ne can also draw a tentative conclusion between our findings on the change over time in the length

cisions of the High Court and changes in the level of joint, concurring and dissenting opinions

livered by individual Justices of the High Court. The length of decisions has clearly increased in

cent times. The level of joint, concurring and dissenting opinions has fluctuated significantly overme, but none have changed in apparent response to the recent increase in the average length of

dgments. On this view, the increased length of decisions of the High Court has neither assisted nor

mpeded the forging of consensus in the Court. Whether the same is true in particular areas of law is

uestion that awaits further investigation.

sert Table 1 here

sert Table 1 (2nd page here)



19/30


20/30


ullagar 1950

61

47.1 (256) 34.4 (187) 10.3 (56) 8.1 (44) 543 3545 6.53

Kitto 1950

70

42.1 (393) 36.9 (344) 13.6 (127) 7.4 (69) 933 4927 5.29

aylor 1952

69

49.7 (393) 33.8 (267) 11.3 (89) 5.2 (41) 790 3852 4.88

Menzies 195874

24.4 (169) 54.7 (379) 12.0 (83) 8.9 (62) 693 2820 4.07

Windeyer 1958

72

22.0 (128) 55.6 (323) 14.6 (85) 7.7 (45) 581 3035 5.22

Owen 1961

72

31.2 (127) 41.8 (170) 20.1 (82) 6.9 (28) 407 1423 3.50

arwick 1964

81

14.4 (104) 61.7 (446) 10.7 (77) 13.3 (96) 723 4176 5.78

Walsh 1969

73

6.8 (10) 65.5 (97) 14.9 (22) 12.8 (19) 148 848 5.73

Gibbs 1970

87

21.4 (150) 62.0 (435) 9.7 (68) 7.0 (49) 702 5116 7.29

Mason 1972

95

49.7 (489) 32.8 (322) 13.4 (132) 4.3 (42) 983 8050 8.19

tephen 1973

82

13.1 (60) 49.2 (225) 30.4 (139) 7.2 (33) 457 2224 4.87

acobs 1974

79

15.2 (33) 53.9 (117) 19.8 (43) 11.1 (24) 217 1012 4.66

Murphy 1975

86

16.0 (73) 50.3 (229) 14.7 (67) 18.9 (86) 455 1811 3.98

Aickin 1976

82

9.9 (26) 34.7 (91) 43.5 (114) 11.8 (31) 262 1699 6.48

Wilson 1979

89

56.9 (264) 22.6 (105) 14.4 (67) 6.0 (28) 464 3260 7.03

rennan 1981

98

45.0 (334) 35.5 (264) 6.2 (46) 13.3 (99) 743 6802 9.15

Deane 1982

95

60.7 (346) 23.5 (134) 3.9 (22) 11.9 (68) 570 5077 8.91

Dawson 1982

97

62.9 (407) 19.9 (129) 7.4 (48) 9.6 (62) 647 5737 8.87



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Gaudron 1987 68.0 (389) 17.7 (101) 1.9 (11) 12.4 (71) 572 5949 10.4

oohey 1987

98

66.0 (284) 20.7 (89) 2.1 (9) 11.2 (48) 430 4490 10.4

McHugh 1989 56.2 (278) 27.1 (134) 2.2 (11) 14.5 (72) 495 5875 11.8

Gummow 1995 74.3 (188) 19.8 (50) 1.2 (3) 4.7 (12) 253 3961 15.6

Kirby 1996 25.9 (58) 41.5 (93) _ 32.6 (73) 224 3851 17.1allinan 1998 46.2 (60) 41.5 (54) 2.3 (3) 10.0 (13) 130 1663 12.7

Gleeson 74.2 (89) 20.8 (25) 1.7 (2) 3.3 (4) 120 1375 11.4

Hayne 71.9 (100) 17.3 (24) 2.2 (3) 8.6 (12) 139 1692 12.1

otes: Figures are percentage of total judgments delivered. Figures in parentheses are the number of

dgments.

BA LLB (Hons) PhD (Monash), Lecturer, Faculty of Law, Monash University.

BEc (Hons) LLB (Hons) MEc (Monash), PhD (London), Professor, Department of Economics,

aculty of Business & Economics, Monash University. The authors are grateful to Enid Campbell an

anonymous referee for helpful comments on this article.

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

Justice Brian Beaumont, 'Contemporary Judgment Writing: The Problem Restated' (1999) 73Australian Law Journal 743;

stice John Doyle, 'Judgment Writing: Are There Needs for Change?' (1999) 73Australian Law Journal 737. The current Ch

stice of the High Court recently remarked '[a]s for style in judgment writing, this is a subject worthy of a paper of its own. B

ying nothing about it on this occasion, I hope to set an example of judicial restraint': Chief Justice Murray Gleeson, 'The

ntenary of the High Court: Lessons From History'(Speech delivered at the Thirteenth AIJA Oration in Judicial Administra

e Banco Court, Supreme Court of Victoria, Melbourne, Friday 3 October 2003) 11.

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

Recently some attempt has been made to document trends in judgment writing over a limited specified period. For example

ecent study which offers statistics for the Gleeson Court see Andrew Lynch, 'The Gleeson Court on Constitutional Law: An

mpirical Analysis Of Its First Five Years' (2003) 26 University of New South Wales Law Journal 32. However, there are no

dies which document trends in judgment writing over the history of the Court.

Ibid. See also Jean Louis Goutal, 'Characteristics of Judicial Style in France, Britain and the USA' (1976) 24American Jour



22/30


Comparative Law 43.

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

Lynch, 'The Gleeson Court on Constitutional Law', above n 4. See also Andrew Lynch, 'Dissent: The Rewards and Risks of

dicial Disagreement in the High Court of Australia' (2003) 27Melbourne University Law Review 724.

See Andrew Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of

ustralia' (2002) 24 Sydney Law Review 470. See also Lynch, 'The Gleeson Court on Constitutional Law', above n 4; Michael

per, 'Concurring Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to th

gh Court of Australia (2001) 129; Andrew Lynch, 'Dissenting Judgments' in Tony Blackshield, Michael Coper and George

illiams (eds), The Oxford Companion to the High Court of Australia (2001) 216; Michael Coper, 'Joint Judgments and Sepa

dgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of

stralia (2001) 367.

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

Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement', above n 8, 4801.

Ibid 492502.

From 1903 to 1906 there were only three Justices appointed to the Court (Griffith CJ and Barton and O'Connor JJ). The siz

e Court grew to five Justices in 1906 with the appointment of Isaacs and Higgins JJ. The Court expanded to seven Justices in

13.

Strictly speaking a Full Court comprises two or more Justices:Judiciary Act 1903

(Cth) s 19. In practice, however, a Full C

seven Justices presides in cases involving a constitutional issue or an issue in which it is particularly desirable for the entire

urt to rule, such as one in which the Court may be invited to overrule one of its earlier decisions. Such cases may be consid

a full bench comprising six Justices if one member of the Court determines that he or she ought not to preside on the groun

at presiding may give rise to a reasonable apprehension of bias. In most other cases a Full Court is most commonly comprise

e Justices.

Campbell, above n 1.

The requirement of grant of special leave to appeal was introduced in 1984 by s 3(1) of theJudiciaryAmendment Act (No 2

84(Cth). See David Solomon, 'Controlling the High Court's Agenda' (1993) 23 University of Western Australia Law Review

d David Jackson, 'The Role of the Chief Justice: A View From the Bar' in Cheryl Saunders (ed), Courts of Final Jurisdictio

e Mason Court in Australia (1996) 21.

Leave is required for appeals from all federal, state and territory courts. The only exception is s 95(b) of theFamily Law A

http://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/http://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s19.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/s3.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s95.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s95.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/http://www.austlii.edu.au/au/legis/cth/num_act/jaa21984219/s3.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s19.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/


23/30


75(Cth), which empowers the Full Court of the Family Court to issue a certificate that a case involves an important questio

w or public importance. The issue of such a certificate effectively bypasses the requirement for special leave.

Sir Anthony Mason, 'The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to

ppeal' (1996) 15 University of Tasmania Law Review 1, 9.

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

Callinan J offered a contrary view prior to his appointment to the Court. Callinan QC, as his Honour then was, suggested th

e introduction of the requirement of special leave has granted the High Court an unfettered discretion, and that observers oft

nnot discern any principles governing the exercise of that power: Ian Callinan, 'An Over-Mighty Court' (1995-6) 51Refresh

urnal of the Bar Association of Queensland34, 367. It is worth noting that his Honour did not proffer a clear principle or

nciples to govern the grant of special leave.

Justice Michael Kirby, 'Sir Anthony Mason Lecture 1996: A F Mason From Trigwell to Teoh' (1996) 20Melbourne

iversity Law Review 1087, 1097.

By contrast the Justices of the Court normally dispose of cases in which special leave is refused with a single voice and rea

at convey the view of the Court with utter clarity. For example, a presiding Justice may confer briefly with other members o

urt and simply reply: '[t]he application for special leave in this matter is refused. The Court is of the view that the case has

ufficient prospects of success to warrant the grant of special leave.' Callinan QC, as his Honour then was, suggested that su

ort statements of reasons for the refusal of a grant of special leave 'are usually as inscrutable as the statutory discretionary

ounds which may attract special leave': Ian Callinan, above n 19, 37.

Justice Michael Kirby, 'What is it Really Like to be a Justice of the High Court of Australia?: A Conversation Between Lawudents and Justice Kirby' (1997) 19 Sydney Law Review 514, 518. Gleeson CJ echoed these sentiments when he suggested th

or to the introduction of the requirement of special leave, the High Court 'used to get a reasonable number of easy cases. Th

nger applies': Chief Justice Murray Gleeson, 'A Changing Judiciary' (2001) 75Australian Law Journal 547, 553.

Section 74 empowers the High Court to issue a certificate 'if satisfied that for any reason the certificate should be granted'.

urt has only granted one certificate, for the case ofColonial Sugar Refining Co Ltd v Attorney-General (Cth)[1912] HCA 9

912) 15 CLR 182;Attorney-General (Cth) v Colonial Sugar Refining Co Ltd[1914] AC 237 (PC). The reasoning of the Priv

uncil was widely regarded as unsatisfactory.

Section 74 also essentially excluded the Privy Council's involvement in most intergovernmental disputes, which has been a

ntral question of Australian constitutional law.

See, eg, Commonwealth v Bank of New South Wales [1950] AC 235. That case was argued in the High Court on a myriad o

ounds, but the Commonwealth appealed to the Privy Council only on a relatively narrow question concerning s 92 of the

nstitution. The Privy Council ultimately held that this aspect of the case raised an inter se question and, therefore, could not

ard in the absence of a certificate issued by the High Court under s 74.

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

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

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

Australia Act 1986(Cth);

Australia (Request and Consent) Act 1985(Cth); theAustralia Acts Request Act 1985 of each sta

stralia Act 1986(UK).

See David Jackson, 'Leave to Appeal' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Compa

the High Court of Australia (2001) 425. Strictly speaking, appeals to the Privy Council remain possible, but the High Court

erred to its jurisdiction under s 74 of theConstitutionto grant a certificate to appeal to the Privy Council as 'obsolete': Kirm

ptain Cook Cruises Pty Ltd (No 2) [1985] HCA 27; (1985) 159 CLR 461, 465 (Gibbs CJ, Mason, Wilson, Brennan, Deane

wson JJ).

Justice F C Hutley, 'The Legal Traditions of Australia as Contrasted with Those of the United States' (1981) 55Australian

urnal 63, 69.

Perhaps the most notable of later cases in which this occurred wasMutual Life & Citizens' Assurance Co Ltd v Evatt[1968

CA 74; (1968) 122 CLR 556. The reasoning of the High Court in that case made notable advances in the law governing liabi

negligent misstatements. Barwick CJ, at 563, stressed the role of the High Court in declaring and advancing the common la

ustralia. The decision was overruled by a majority of the Privy Council: [1971] AC 793.

Kirby, 'A F Mason From Trigwell to Teoh', above n 20, 10956. See also Jackson, 'The Role of the Chief Justice', above

Sir Anthony Mason, 'Reflections on the High Court of Australia' (1995) 20Melbourne University Law Review 273, 280. S

rard Brennan, who succeeded Mason as Chief Justice of the High Court, recently contributed to a volume in honour of the

ntenary of the first sitting of the High Court. Brennan's paper addressed the role of the Privy Council in constitutional law bu

tably, did not address Mason's thesis: Sir Gerard Brennan, 'The Privy Council and the Constitution' in H P Lee and George

interton (eds),Australian Constitutional Landmarks (2003) 312.

By contrast, a judge of the Supreme Court of Canada has suggested that the abolition of appeals to the Privy Council in tha

isdiction influenced the Court's decision to adopt regular conferencing, which has greatly reduced the level of multiple opin

the Court. The Court was anxious to ensure that its decisions as the court of final jurisdiction provided a level of certainty:

stice Claire L'Heureux-Dub, 'The Dissenting Opinion: Voice of the Future?' (2000) 38 Osgoode Hall Law Journal 495, 50

Friedman et al, aboven 6, 777.

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Goutal, above n 5, 614.

Orr, above n 3, 292.

Sir Owen Dixon seemed mindful of the disadvantages of this practice when sworn in as Chief Justice. He recalled his own

pearances as an advocate when the Court observed a 'process by which arguments were torn to shreds before they were fully

mitted to the mind': Sir Owen Dixon, 'Swearing In of Sir Owen Dixon as Chief Justice' (1952) 85 CLR xi, xiv.

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

These changes in procedure are summarised by Sir Gerard Brennan in 'Decision-Making Process' in Tony Blackshield, Mi

per and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 197. The most recent Practic

rection governing this aspect of procedure is Practice Direction No 1 of 2000. Clauses 7(a) and 9(a) of that direction

pectively provide that the submissions of appellants and respondents shall not exceed 20 pages without the leave of a memb

e Court.

Henry Perritt, 'Changing Litigation With Science and TechnologyVideo Depositions, Transcripts and Trials' (1994) 43

mory Law Journal 1071, 10878. Perritt bases this conclusion largely on the different amounts of material that a judge may

ceive by oral testimony (which is limited by the speed a witness speaks at) as opposed to reading written materials. Kirby J h

ed Perritt's estimation of the differing amount of information that can be absorbed through oral and written submission, with

parent agreement, in 'The Future of CourtsDo They Have One?' (1999) 8Journal of Judicial Administration 185, 189. Hi

onour also noted that during his time on the bench the structure of written submissions had changed 'from virtually nothing t

re skeletal outlines and now to substantive text': at 189.

Campbell, above n 1, 63; Doyle, above n 2, 7389; Orr, above n 3, 293.

Russell Smyth, 'Other than "Accepted Sources of Law"?: A Quantitative Study of Secondary Source Citations in the High

urt' (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, 'Citations by Court' in Tony Blackshield,

chael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 98.

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

Orr, above n 3, 294.

No footnotes are contained in the decisions reported in volume 1 of the Commonwealth Law Reports. There is no apparent

ason for this, except the obvious point that no Justices used footnotes in the decisions reported in the first volume.

The authorized reports of the Privy Council, the House of Lords, the Supreme Court of Canada and the Court of Appeal of

aland do not include footnotes.

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



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See David Marr,Barwick(1980) 222.

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

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

Gleeson, 'A Changing Judiciary', above n 22, 553. Gleeson CJ suggested that this increasing information overload 'commen

th the photocopier.' The ALRC also warned against information overload when it cautioned against the increased use of

mputer generated materials such as lists of citations: Australian Law Reform Commission, Technology What it Means fo

deral Dispute Resolution, Issues Paper No 23 (1998) [2.38].

Gleeson CJ has noted that Justices of the High Court are now provided such a range of electronic assistance, from video lin

ctronically filed material and on-line research facilities that Justices could perform all of their duties from home if they wis

eeson, 'A Changing Judiciary', above n 22, 553.

One former associate suggested this change led to 'more thoroughly footnoted judgments and more poorly maintained law

ports': Andrew Leigh, 'Associates' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion

High Court of Australia (2001) 34, 35.

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

Amelia Simpson, 'Research Assistance' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford

mpanion to the High Court of Australia (2001) 600.

Sir Anthony Mason, 'Griffith Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Compan

High Court of Australia (2001) 311.

Troy Simpson and Amelia Simpson, 'Personal Relations' in Tony Blackshield, Michael Coper and George Williams (eds),

ford Companion to the High Court of Australia (2001) 528.

See the discussion in Zelman Cowen,Isaac Isaacs (1967) 11617; John Rickard,Higgins: The Rebel as Judge (1984) 266

Cowen, above n 60, 1245.

Simpson and Simpson, above n 59, 529.

Russell Smyth, 'Explaining Historical Dissent Rates in the High Court of Australia' (2003) 41Journal of Commonwealth a

mparative Politics 83, 90.



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Graham Fricke and Martha Rutledge, 'Knox, Adrian' in Tony Blackshield, Michael Coper and George Williams (eds), The

ford Companion to the High Court of Australia (2001) 400. See also Graham Fricke, 'The Knox Court: Exposition

nnecessary' (1999) 27 Federal Law Review 121.

Simpson and Simpson, above n 59, 529.

Graham Fricke, 'Gavan Duffy, Frank' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Compa

the High Court of Australia (2001) 296.

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

Roger Douglas, 'Latham Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to

gh Court of Australia (2001) 421.

See Russell Smyth, 'Explaining Voting Patterns on the Latham High Court 193550' (2002) 26 Melbourne University Law

view 88.

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

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

Simpson and Simpson, above n 59, 530; Leslie Zines, 'Dixon Court' in Tony Blackshield, Michael Coper and George Willi

ds), The Oxford Companion to the High Court of Australia (2001) 220.

Marr, above n 50, 213.

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

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

Sir Gerard Brennan, 'A Tribute to Sir Anthony Mason' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason C

Australia (1996) 13. On the effect of leadership on variation in the proportion of concurring and dissenting judgments in the

gh Court, see also Russell Smyth and Paresh Kumar Narayan, 'Hail to the Chief! Leadership and Structural Change in the L

Consensus on the High Court of Australia'Journal of Empirical Legal Studies (forthcoming).

The system of conferencing in the United States Supreme Court is explained in detail in Del Dickson (ed), The Supreme C

Conference (19401985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001). Marr describes the

merican system as one of 'perfunctory oral argument, horsetrading in decision-making, and a lack of clarity in the legal reaso

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its decisions.': above n 50, 235.

See Troy Simpson, 'Conferences' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion

High Court of Australia (2001) 130; G P J McGinley, 'The Search for Unity: The Impact of Consensus Seeking Procedure

ppellate Courts' (1987) 11Adelaide Law Review 203.

Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to t

gh Court of Australia (2001) 222.

[1948] HCA 7; (1948) 76 CLR 1 (the 'Bank Nationalisation case').

[1951] HCA 5; (1951) 83 CLR 1 (the 'Communist Party case').

Troy Simpson, above n 78, 131; Zelman Cowen, Sir John Latham and Other Papers (1967) 345.

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

Marr, above n 50, 233. Marr suggests that the resistance of some Justices was based on their belief that Barwick himself w

t suited to conferencing because of his inflexibility.

Troy Simpson, above n 78, 131.

Ibid 132.

Ibid.

See, eg, B Canon and D Jaros, 'External Variables, Institutional Structure and Dissent on State Supreme Courts' (1970) 3 P

5.

Friedman et al, above n 6, 789. For an empirical study that attempts to measure the effect of case selecting discretion, as w

her institutional features of the High Court on dissent rates using multiple regression analysis see Russell Smyth, 'What Exp

riations in Dissent Rates? Time Series Evidence from the High Court'

Sydney Law Review

(forthcoming).

See the discussion in Kirby, 'A F Mason From Trigwell to Teoh', above n 20, 10989.

Karl Llewellyn, The Comm

A Century of Judicial Style

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