News: Kiefel J’s last judgment, Kiefel CJ’s first

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

Three other judges (Bell J, Gageler J and Keane J) each gave identical ‘judgments’, while Nettle J and Gordon JJ also commenced each of their judgments with the same words. This is clearly a continuation of an unannounced High Court tradition whenever a new judge writes his or her first judgment, where the new judge writes solo and the remainder write separate judgments simply agreeing. That tradition is the only typical deviation from another High Court tradition – not identifying the author of a judgment that multiple judges agree with – that Kiefel CJ recently explained was a means of discouraging so-called ‘vanity’ judgments:

The effect of the High Court’s practice of “joining in” is to render the author largely anonymous. Some might argue that a reader should know who the author is, although it is difficult to see what the benefit of that knowledge could be. On occasions a justice might wish the practice was otherwise, when it is felt that he or she has written a particularly good judgment, but it is always understood that if the practice were not followed justices would be encouraged to write separately more often, which is what the practice seeks to avoid.

I’ve previously argued against both the joint judgment tradition and its exception for new judges. As it happens, neither judgment yesterday adhered rigidly to these practices. Although both Nettle J and Gordon J each agreed with Edelman J’s order, they nevertheless signaled their disagreement with part of his reasoning, consistently with each of their dissents in the 2016 judgment that Kendirjian was a sequel to.

In the other judgment yesterday, Ecosse, there was a three judge joint judgment (by Kiefel, Bell & Gordon JJ) and a dissent by Nettle J. However, there was also a concurrence by Gageler J. What is curious about this concurrence is that it set out the facts of the case, a description which was endorsed in the first sentence of the joint judgment’s reasons. This is interesting in light of the practice recently described by Kiefel CJ:

If there is a clear majority, at the end of the meeting, one justice is usually assigned the task of producing a first draft for the others…. If there is not a clear majority sometimes a justice nevertheless volunteers to produce a first draft, perhaps hoping to bring his or her colleagues to a point of view…. The principal purpose of a first draft is to have those who are of the same view agree with it and thus avoid unnecessary judgments… This is not to suggest that there may not be perfectly valid reasons why another justice may find it necessary to write… Even if that be so, a first draft is a valuable resource. It should not be necessary for that justice to set out the facts again, at least not completely.

If this practice was followed in Ecosse, then it implies that Gageler J was either assigned or volunteered to write the first draft, only to have no other judge join his judgment. Instead, the other three members of the majority wrote their own judgment (though who wrote it is a secret, so as not to encourage further judgments.) Disappointingly, but as is typical in the current High Court, the joint judgment does not identify where those judges’ reasoning differs from Gageler J’s (and vice versa.) Fortunately, for those who don’t want to puzzle that out, they don’t have to, as the joint judgment is a majority anyway and therefore exclusively sets out the case’s ratio (and its well-considered dicta.) For lawyers, Gageler J’s judgment in Ecosse only matters for its description of the facts.

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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.

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