News: Spry on High

I recently had cause to consult the new ninth edition of ICF Spry’s Equitable Remedies, a tome which I have found very helpful and learned on the topics of specific performance and injunctions in particular. After finding what I needed, I idly browsed through the Preface, as I have difficulty writing Prefaces and I like to see how other authors manage it. However, I do not think I will be taking my Preface-writing tips from Dr Spry. At xi – xii, he criticises the High Court and certain of its judges.

His observations appear to be coloured by the High Court’s decision in Kennon v Spry [2008] HCA 56, where it was decided that Dr Spry would have to pay his ex-wife $2.2 million, and that trust assets were part of the matrimonial property. Indeed, when talking of “eccentric judgments” by the High Court, in footnote 3 on page xi, Dr Spry refers to a judgment of Justice Strickland made in 2005 where he held ‘obviously incorrectly, both that a multilateral release under seal is able to be disregarded unilaterally by the releasor and, moreover, that assets controlled by the releasor in his fiduciary capacity as trustee are to be treated as his personal property.’ Although he does not note it, this was the first instance judgment made in relation to Dr Spry’s family trust which the High Court later upheld. Notoriously, Dr Spry wrote a series of letters to the High Court protesting the decision, letters which he acknowledged had been widely read in the legal profession.

It is unfortunate when personal animus is expressed in this way. Dr Spry is not alone in allowing personal views to colour the way in which an issue or a case is presented in a textbook. A debate arose between Mason P (once of the New South Wales Court of Appeal) and Heydon J (once of the New South Wales Court of Appeal and of the High Court) in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 over comments in the fourth edition of Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (of which Heydon J was one of the authors). In that text, there was a summary of Palmer J’s first instance judgment in Digital Pulse v Harris [2002] NSWSC 33 which was highly critical of the decision:

Palmer J (‘the poor man’s Robin Cooke’) has disregarded all this learning and principle, and decided that damages [can] be awarded in a claim for equitable compensation … but one hopes that this is a decision that will never be followed.

(See R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) at 839.)

In Harris, Mason P said at [106] about the above extract ‘the reasons are stated with customary trenchantness, but marred by an unscholarly descent into personal abuse.’ However, although Mason P disagreed with the ultimate conclusion made by Heydon JA in Harris, he did not descend into personal abuse, and indeed, he said at [165]:

I am indebted to Heydon JA’s analysis of these matters. The profound learning in that judgment reveals why his Honour will be greatly missed when he leaves this Court to take up office as a Justice of the High Court of Australia.

That is a professional and appropriate response, in my opinion.

In conclusion, whether we are academics, barristers or judges, I think it is important not to let personal views about the law, particular judges or particular strands of thought get in the way of sound judgement. It is something against which we all must guard.

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

2 thoughts on “News: Spry on High

  1. I agree. And I also agree that the same sentiments can and ought to apply to Solicitors (as well as Counsel) in relation to their conduct of cases on behalf of their clients. Too often we see animosity built up surrounding litigation matters becoming personal.

    • Yes, I totally agree, Paul. My personal view is that a solicitor must keep a somewhat dispassionate approach and hose down any unrealistic or unfair expectations on the part of the client. I don’t think argument should become personal (although as one of my former bosses tipped me off, “If someone’s attacking your personally, it’s probably a sign that they don’t have the law on their side…”)

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