News: The individual judges

Yesterday’s four judgments from the High Court broke with some recent patterns in the Court’s reasons. In one case, involving a compensation claim for lost pensions due to an early death, two judges dissented. That is only mildly unusual, but the dissenting judges’ identity is much more surprising. Chief Justice Kiefel gave her first dissent in over two years, while Keane J gave his first in over a year. It’s been over three-and-a-half years since the only previous matter where both judges dissented, a 2014 case about patent extensions. In a different break with recent tradition, two of the three other unanimous cases had separate concurrences. Again, the identities are the surprise. The main judgment in each case was from Gordon & Edelman JJ,  while the Court’s most routine joiners, Kiefel CJ, Keane & Bell JJ, gave concurrences, yielding one case with three judgments and (in a first, and perhaps last) a Nauru case with a concurrence.

Yesterday’s concurrences are consistent with a recent presentation at the ANU by James Lee, a Reader at King’s College London, where he compared the pattern of concurring judgments in the UK Supreme Court and the High Court of Australia, two courts whose leaders have recently deprecated the overuse of concurrences. His count shows that the UK Supreme Court is far more successful at issuing single judgments for a matter than the High Court, doing so in roughly three-quarters of cases compared to the High Court’s 50% or so. Lee speculated that the UK court’s success (and the High Court’s failure) could be due to a divergence in the Court’s practices on how to identify reasons by author and importance: things like ordering reasons by authority (putting joint judgments first, followed by concurrences and dissents) rather than seniority (where Kiefel CJ’s joint dissents and concurrences yesterday appeared first, ahead of the the joint judgments) and, of course, the High Court’s practice of not identifying the true author of a joint judgment.

Interestingly, yesterday’s judgments do allow room for some rare speculation about the contribution of individual High Court judges. Kiefel CJ and Keane J’s joint dissent contains an unusual footnote to The Wealth of Nations:

The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbour, is a plain violation of this most sacred property.

This is the first quote from Adam Smith’s seminal work in the High Court in 44 years (the third and last occasion when McTiernan J cited the book.) But there is at least one High Court judge who has cited it extra-judicially, where he tellingly used the exact same quote.

Of all of yesterday’s judgments, most attention was directed to the only unanimous joint judgment, which reinstated a defamation suit against Google by a man who’s name came up when anyone searched for Melbourne underworld figures. This was a five-judge judgment, so all we know about it is that it wasn’t written by Gageler J or Edelman J, two of the Court’s three youngest judges. And that means that neither of those judges is responsible for the High Court’s discussion of a point of contention in the case, the meaning of an internet user’s remark that the plaintiff had been ‘Streisand’d’:

The Court of Appeal reasoned by reference to a meaning of “Streisand’d” which their Honours appear to have derived from Wikipedia that “Streisand’d” implied a reference to Mr Trkulja’s earlier successful defamation proceeding against Google. But… even if the use of “Streisand’d” could be regarded as suggesting some sort of connection between Mr Trkulja and a defamation proceeding (which, as the matter stands, is a dubious proposition)…

People wondering who was responsible for that startling parenthetical observation may be interested in one slight clue: the joint judgment commences with an arch comment that “Mr Trkulja’s holograph amended statement of claim… is not an elegant pleading.” Just like Adam Smith, the High Court’s last use of the word ‘holograph’ (a term that here means ‘handwritten’, according to Wikipedia) was nearly fifty years ago by the Court’s oldest ever judge. Only the Court’s current oldest justice has used the term more recently.

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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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