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.]