News: Kiefel CJ describes and defends her Court’s judicial method [updated]

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye:

Some years ago I wrote a joint judgment with two colleagues. It was joint in the true sense; each of us wrote a separate part of it. It was to be an important judgment involving commercial law. I would give the citation for the judgment, but it was never published. Our joint judgment was circulated. All but one concurred. We waited for that justice’s judgment but the justice had a backlog of judgments. The parties waited for the Court’s decision. Months passed. Finally the other judgment arrived. We gave notice that we would hand down the Court’s decision in a week’s time. A few days before that date the parties advised the Court that the matter had been settled. It is not difficult to infer that, as time went on, the parties decided to resolve it for themselves. The Court had let them down.

The Chief Justice mentioned the same concern in her earlier speech on ‘The Individual Judge‘ in 2014, referring there to ‘two occasions, in my experience, [where] all but one judge had agreed in a draft and many months were spent waiting for the outstanding judgment’. At the time, I was curious which judgments she referred to. I could only find one candidate from Kiefel J’s time on the High Court: the case of Heperu Pty Ltd v Perpetual Trustees Australia Ltd, where the victims of a fraud sued the financial institution where the fraudulent bank cheques were deposited. The case had the following timeline in the High Court:

  • 23 April 2009: NSWCA finds for the defendant.
  • 2 October 2009: HCA special leave application stood over at the parties’ request due to ongoing litigation in the NSWCA.
  • 21 December 2009: Amended special leave application listed for February
  • 12 February 2010: Special leave granted on 2 grounds, referred to the full court on 11 grounds and dismissed on 30 grounds.
  • 26-27 May 2010: Two day HCA Hearing before five judges. Judgment reserved.
  • 25 August 2010: Matter reported settled for a reported $3M to the plaintiff.
  • 26 August 2010: Date that the HCA had announced for delivering judgment.

I must say that I had doubted that this was one of the cases referred to in Kiefel J’s 2014 speech (and – to be clear – maybe it wasn’t) because it involved a judgment that would have been delivered within three months of the Court’s hearing, which is a modest period by anyone’s measure. Interestingly, one plaintiff told Fairfax a week before the settlement:

”They should have settled with all of these people early on. I was the only one who could afford to take them to court,” he said. ”I don’t think they will want this judgment. I think it will be a banking precedent.”

His explanation is certainly plausible [and fits the pattern set by an earlier case in Queensland, discussed in the comments.] By contrast, if this is the case Kiefel CJ was referring to in her Oration, why would the parties have lost patience and settled in frustration just one day before they knew the High Court judgment would be released?

As near as I can tell, this is the only occasion since Kiefel J joined the Court where the parties settled a matter after the High Court heard the appeal. Nevertheless, any loss of a High Court judgment  is a pity. For Kiefel CJ, the correct solution would have been for the lone holdout judge (whether that was French CJ, Gummow J, Hayne J or Heydon J will forever be a mystery) to have either joined the majority or written his judgment quicker. Another (minor) solution suggested by the timeline of this particular case is that the High Court could simply publish judgments on the day they are ready (19th August on Kiefel CJ’s account, a non-sitting day) rather than wait until the next sitting week. In my view, an even better solution is one Lord Neuberger (heavily cited in Kiefel CJ’s oration) endorsed a year after the Heperu non-decision. At the end of his (separately concurring) reasons in an English judgment on expert determination clauses, he observed:

After Thomas LJ had prepared his judgment in draft, and circulated it to Etherton LJ and me, the parties notified the court that they had reached agreement and effectively requested the court not to give judgment. Where a case has been fully argued, whether at first instance or on appeal, and it then settles or is withdrawn or is in some other way disposed of, the court retains the right to decide whether or not to proceed to give judgment. Where the case raises a point which it is in the public interest to ventilate in a judgment, that would be a powerful reason for proceeding to give judgment despite the matter having been disposed of between the parties. Obvious examples of such cases are where the case raises a point of law of some potential general interest, where an appellate court is differing from the court below, where some wrongdoing or other activity should be exposed, or where the case has attracted some other legitimate public interest. It will also be relevant in most cases to consider how far the preparation of any judgment had got by the time of the request. In the absence of good reason to the contrary, it would be a highly questionable use of judicial time to prepare a judgment on an issue which was no longer live between the parties to the case. On the other hand, where the judgment is complete, it could be said (perhaps with rather less force) that it would be a retrospective waste of judicial time and effort if the judgment was not given. The concerns of the parties to the litigation are obviously also relevant and sometimes very important. If, for their own legitimate interests, they do not wish (or one of them does not wish) a judgment to be given, that request should certainly be given weight by the court. (Of course, in some cases, the parties may request a judgment notwithstanding the fact that there is no longer an issue between them). Where there are competing arguments each way, the court will have to weigh up those arguments: in that connection, the reasons for any desire to avoid a judgment will be highly relevant when deciding what weight to give to that desire.

In that case, he held that the Court of Appeal’s judgment should be published despite the parties’ settlement, because the leading draft was already prepared, the case was of general significance, the law stated below needed clarification, the matters addressed were in the public domain and ‘no good reason was advanced’ not to issue a judgment.

[UPDATE: See the comment below (by me, but thanks to an earlier comment) concerning an earlier Queensland decision, which I think confirms that Heperu was settled for tactical, not impatience, reasons, and that the High Court’s decision not to issue a judgment was a quite unfortunate one.]

This entry was posted in News, Opinions by Jeremy Gans. Bookmark the permalink.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

17 thoughts on “News: Kiefel CJ describes and defends her Court’s judicial method [updated]

  1. Methodological note: I went through every High Court bulletin back to 2006, looking at the ‘cases withdrawn or dismissed’ item and checking each. However, the HCB has been inconsistent about this topic. I also checked with a few former HCA associates I knew and googled as much as I could (which is how I found the EWCA case.) A fuller approach would be to check every hearing to see whether a judgment was delivered, but I didn’t do that, so it’s possible I’ve missed whatever case Kiefel CJ was referring to.

  2. From my own personal perspective as a private lawyer, I am very upset that Heperu never resulted in a decision from the High Court. I can understand Kiefel CJ’s frustration. It must be awful to have put all that work into a judgment and then…kaput!

  3. Thanks again to JJWPB, whose link has led me to a Qld instance of a post-settlement judgment which the NZSC mentioned in its 2014 case. The case is Voss v Suncorp Metway and its Austlii version is here: http://www.austlii.edu.au/au/cases/qld/QCA/2003/252.html. Interestingly, it’s on more-or-less the same issue as Heperu – whether a financial institution can be sued for cashing a fraudulent cheque. Indeed, it was mentioned during the hearing in Heperu. The QCA held that it was liable in this case.
    But here’s the really interesting thing: the QCA gave a separate judgment that doesn’t seem to be on Austlii or Jade, but is in the Queensland Reports as Voss v Suncorp-Metway Limited (No. 1) [2004] 1 Qd R 212. Here is how it opens:

    This appeal was heard by this Court on 14 May 2003. Following that hearing the parties made written submissions on costs on the assumption that the appeal would be allowed, the appellants having made an offer to settle which had not been accepted by the respondent. The appellants’ written submissions on costs were received by this Court on 20 May 2003; the respondent’s on 19 June 2003. On 19 June this Court notified the parties that judgment would be delivered on 20 June. On the same day, but after that notification, the respondent’s solicitors advised the Registrar that the parties might be compromising the appeal and asked if the Court would delay delivering its judgment.

    That’s exactly what happened in Heperu, except that the HCA gave the parties a week’s notice there.
    Unlike the HCA, the QCA (although it agreed to a brief adjournment for further argument) released its judgment anyway. Its reasons are especially interesting:

    [N]othing which we say should be construed as discouraging parties from settling appeals, whether before or after they have been heard. But that should not prevent this Court from refusing to accede to such a request where, for example, it appears to be made as a last minute attempt to suppress a likely judgment on a matter of importance because of some adverse effect which the publicity of that likely judgment may have on one of the parties…
    From remarks of members of the Court during the course of argument on the appeal the parties might reasonably have had the impression that there was a strong possibility that the Court would conclude that the respondent had not received that cheque without negligence and consequently was liable to the appellants for the amount which the appellants had claimed.The question which we must now decide is whether, in those circumstances, we should accede to a request to make the order sought, by consent, that the appeal be dismissed or whether, in the exercise of our discretion, we should take the somewhat unusual course of declining to do so and proceed to deliver the judgment of the Court as the Court indicated it would by the notification to the parties on 19 June.There are a number of factors which, taken together, persuade us that we should decline the request and proceed to give judgment. The first of these is that such an order would apparently perpetuate errors of the learned trial judge which, by the time the parties had filed their memorandum, this Court had concluded it should correct. Secondly, those errors involve questions of principle of general importance beyond the interests of the immediate parties. And thirdly, the compromise reached at this stage has the appearance of one reached at the last minute in the perceived likelihood of a judgment allowing the appeal, with a view to suppressing that judgment because of the likely effect which its publication would have on the respondent (cf. Prudential Assurance Co. Ltd v. McBains Cooper (a firm) and Others [2001] 3 All E.R. 1014).For those reasons we decline to make the order sought and propose instead to deliver judgment in the appeal.

    How interesting is that? The more I look at these events, the more it seems to me that, if Heperu is indeed the case Kiefel CJ was referring to, then she drew the entirely wrong lesson from the lost opportunity it represented.

    • WOW! That’s fascinating, Jeremy. From my days working for a trial judge, I think there are a few moments of truth for litigants: the day before the trial starts (amazing how many cases settle then), the first day of trial (also a common settlement date), the final day of trial and then of course, judgment day. Psychologically interesting. Anyway, I totally understand why the QCA did what it did here.

    • You’re not the only one to ask this. Maybe not, I suppose, but the border of what counts as a ‘matter’ has always been fuzzy. It’s weird to me that the parties can deprive a court of judicial power at any moment, even after a date for judgment has been announced. Kiefel CJ’s approach of the judges rushing to judgment to beat the parties strikes me as very non-judicial. But who knows?

    • The spoken speech sounded to me identical to the written one – it is clearly simply read verbatim – except that she clearly identified Kirby J as (unsurprisingly) the very wordy concurring judge mentioned in one anecdote.

  4. If we take Kiefel CJ at her word – how likely do you think it is that there could be a drift away from the seriatim tradition?

    • That is an interesting question. Kiefel CJ’s speech makes it clear that the current approach is due at least in part to her own preferences and procedural changes within the Court. She doesn’t reveal who else supports this approach. It is clear that it had majority support in the French Court for at least some years (as well as the obvious dissent of Heydon), possibly dating to Heperu or whatever the trigger case was. But the big question is whether it continues to have the support of the majority of this Court, given that the three junior judges of the French Court (Gageler, Nettle & Gordon) seem less inclined to join judgments than (say) French and Crennan, and that Edelman is new. The Chief Justice is, after all, not even a ‘first amongst equals’. She concedes as much in the conclusion of her speech:

      One cannot say that this method is here to stay. Much will depend upon the continued acceptance of the benefits it produces. Views can change and with them judicial methods.

      But I guess any changes won’t be officially announced.

  5. A similar issue arose in Attorney-General (Cth) v Alinta Ltd, about the validity of the Takeovers Panel. The corporate dispute between Alinta and APT was resolved after the grant of special leave but before hearing. In part because it had intervened below, the Commonwealth was allowed to proceed, and had to fund a contradictor (an increasingly common practice), see http://www.austlii.edu.au/au/cases/cth/HCATrans/2007/552.html

  6. Just a thought – the Federal Court occasionally sits benches of 5 judges for certain matters, usually where it is examining the correctness of a previous decision.

    Is there a possibility that Kiefel CJ is referring to a case from her time on the Federal Court?

    Perhaps unlikely given that she referred to it as a case of significance in the commercial law which is less likely to arise in the Federal Court than in the High Court hearing appeal from State Supreme Courts.

    • Good point Jason. Kiefel CJ refers to ‘the Court’ in her example, and earlier parts of the speech mention ‘the Court’ in a context that clearly is about the High Court. But I had wondered this with respect to her earlier 2014 speech – that speech refers to ‘the Court’, but its republication in the ALJ refers to ‘the court’, for what that’s worth. Kiefel CJ spent 13 years on the Federal Court and it certainly gives commercial judgments. But there’s no record I know of of hearings in the Federal Court, so there’s no way to check other than googling for five-judge settled matters or the like.

      The need for this detective (or guess-) work is a bit unfortunate, though I imagine that Kiefel CJ was loathe to name the case at the same time as she gave away confidential information about the court’s deliberations in relation to that case (e.g. that she was in the majority.) I appreciate her candour in giving us even this much insight into her concerns about concurring judgments. But it does force us into speculation.

Leave a Reply

Your email address will not be published. Required fields are marked *