Sir Anthony Mason Reflects on Judging in Australia and Hong Kong, Precedent and Judgment Writing

On 18 July 2014, I was able to interview Sir Anthony Mason as we were both attending Obligations VII Conference in Hong Kong.

Sir Anthony was a judge of the High Court of Australia from 1972 to 1987, and Chief Justice of the High Court of Australia from 1987 to 1995. He then became a non-permanent judge of the Hong Kong Court of Final Appeal, a position which he still holds.

We spoke about his roles as a judge in Australia and Hong Kong, significant judgments during his time as a High Court judge, the role of dissenting judgments, the use of academic commentary and overseas judgments, the doctrine of precedent and Farah v Say-Dee, and judgment writing styles.

KB: Thanks so much for agreeing to speak to me today.

AM: It’s a pleasure, Katy.

KB: The first thing I’d like to ask is: how would you view your time on the High Court?

AM: I enjoyed it very much. I suppose I can say I enjoyed being a judge.

KB: Yes.

AM: In one sense I regarded it as great fun. It was of course at times onerous, but I always enjoyed it. The questions were interesting and it was interesting endeavouring to answer the questions.

KB: And on that note, obviously you haven’t still given up being a judge. What about your time on the Hong Kong Court of Final Appeal? (See also The Hon Sir Anthony Mason, ‘The Hong Kong Court of Final Appeal’ (2001) 2 Melbourne Journal of International Law 216.)

AM: Likewise, I’ve enjoyed that very much. There are two different, or two aspects of that that are different from sitting in the High Court. First of all I am sitting on the CFA as a part-time judge. It’s more enjoyable being a part-time judge than a full-time one. Of course you don’t feel that sense of grind which you feel at times if you’re a permanent judge sitting on a court over a long period of time. But the second feature of sitting on the CFA is that I began sitting on that Court at the time when courts began to interpret the provisions of the Basic Law of Hong Kong’s Constitution. And it’s very different interpreting the provisions of a new Constitution at the very beginning from interpreting the provisions of an old Constitution after a lot of, as it were, work has already been done on it. You feel at times in the medium of the High Court that you’ve got to contend with a lot of overburden. You never have that feeling in Hong Kong. And the great thing about it is that it instils in you a sense of history and appreciation of the work done by those great judges who were the first High Court judges. I mean, they were remarkably good judges. They quickly established a reputation for the High Court as one of the leading courts in the world, and what’s more, they stood up to the Privy Council, and in their first big confrontation with the Privy Council they won out, and you should never forget their contribution to the development of Australian democracy and to the Australian Constitution. (See Deakin v Webb [1904] HCA 57.)

KB: I agree.

AM: Good! I’d be annoyed if you didn’t agree.

KB: [laughs] Now I would like to ask: what would you consider to be the significant three or four judgments during your time on the High Court?

AM: Well, that’s not a very easy question to answer because one’s recollection is influenced not only by the significance of judgments but by the interest that one took in the particular judgments. But I suppose the two outstanding judgments in terms of significance were Mabo v Queensland [No 2] [1992] HCA 23 where I and Justice McHugh agreed with Justice Brennan, who wrote a splendid judgment, and Cole v Whitfield [1988] HCA 18 on s 92 which in a sense I take more pride in because I made a greater contribution to that, and I do think that we managed to solve — not completely — but managed to solve in a substantial way the problems that had bedevilled the Court up to that point on s 92.

KB: Yes.

AM: But they are public law cases. Private law cases? My main field of interest has been contract and equity because that’s the sort of work I did when I was at the Bar. In that field, there are a number of a cases, I suppose, that I could mention. Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 where my judgment was a dissenting judgment, though it wasn’t written as a dissenting judgment. At the time I wrote it I thought it could end up as the judgment of the Court or a judgment that formed part of a majority in the Court. But it didn’t turn out that way. So, though not written as a dissenting judgment, it became a dissenting judgment. But I enjoyed writing the judgment in that case. Other contract cases … were Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 — now Codelfa, of course, is in one aspect of it the subject of controversy these days, still to be resolved by the High Court. And the controversy surrounds a statement made in Codelfa as to the circumstances in which extrinsic evidence can be admitted to throw light on the interpretation of a contract, and even to create an ambiguity, and it’ll be interesting to see how that question is resolved later on. When it’s resolved, it will be resolved in the light of developments which have taken place since then. Now apart from Codelfa, Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 was another case that I liked. There are others as well, but they’re the ones that come to mind.

KB: Commonwealth v Amann is one of my particular favourites.

AM: Well perhaps I ought to interview you?

KB: Oh, no, no! [laughs] I am a great fan of your dissent in Hospital Products. I always tell my students that it shows the power of a really well-written dissent. What do you think about the power of dissent in the common law?

AM: There’s no doubt that a powerful dissenting judgment can contribute to reformation of the law. You may find in years after the powerful dissent is written, a change in legal opinion in the legal community, in the academic and practising communities, and even among the judiciary which brings about a change. Of course, in talking about Hospital Products, the division of opinion in Hospital Products was largely a division of opinion about a critical point: that is, what place is there for equitable doctrine in commercial transactions. A negative answer would, of course, be returned by English lawyers and English judges. And in Hospital Products, Australian judges returned a negative answer. But the question remains to be finally resolved. And, of course, it can’t be resolved absolutely one way or the other, but it’s still a very interesting question in my opinion.

KB: And in mine.

AM: By the way dissents are also written, so it is said, for the future. I think the biography of Justice Michael Kirby, for example, raises the question of appeal to the future. I don’t think judges really write judgments for the future. They may write judgments in dissent because they think that’s the right approach, and because they think perhaps that that dissent may result in later days in a change in the law. But primarily they are giving expression to what they think is the correct answer to a legal question.

KB: You mentioned [in your speech to Obligations VII on 17 July 2014] that you have been accused of judicial activism but that you would regard yourself as generally cautious. Can you tell me about the shift in your view on the High Court? Do you think you shifted or not?

AM: I don’t know that I accused myself of being a judicial activist. It seems to me that you’re accusing me of being a judicial activist.

KB: Oh, no no no! I thought you said yesterday …

AM: Oh yes I think I did yesterday.

KB: So that’s what I’m referring to.

AM: I think it probably is true to say that in the course of my judicial life I became more creative as time passed. To give you one illustration, when I first joined the court, I thought that ascertaining legislative intention in Parliament is paramount, and to a large extent I think that is still true, but it is all a matter of what is the intention you’re endeavouring to ascertain and how do you ascertain it? And you will notice for example, that I in my day was quite prominent in giving strength to the presumption that statutes are not intended to curtail rights and freedoms, whether common law rights and freedoms or what might be described as fundamental rights and freedoms. Now that’s an illustration of the way in which I think that it’s just a mistake to talk about legislative intention. And the current High Court says there’s no such thing as legislative intention, anyhow. This is a summary statement that may be inaccurate to some extent, but it’s really a construct put upon the text in accordance with the rules of statutory interpretation. It’s an illustration of how my views changed. And I’ve always thought that High Court judges tend to develop when they’re on the High Court. They get more confidence; they get a better understanding of the Constitution; they get a better understanding of the High Court’s place in history, what it should be.

KB: You mentioned interpreting legislation in the light of rights, and in your talk yesterday you mentioned the lack of a Bill of Rights in Australia and you posed a question earlier of whether Australia will lag behind other common law countries. Do you think Australia lags behind other common law countries?

AM: Not at the moment. But I think we ought to give a little more precision to the question you ask because the question was: do people consider that Australia will be left behind other common law countries. Of course we don’t have an entrenched or statutory Bill of Rights, except the Charter in Victoria and the ACT legislation, the Charter in Victoria being in a rather … wounded … condition after Momcilovic v The Queen [2011] HCA 34. When other countries do have entrenched or statutory rights, the foundation for that question is my strong belief is that the common law in other countries will be developed in the light of the human rights and fundamental freedoms recognised in entrenched or statutory provisions. What is going to happen in Australia in the light of that development? We don’t, as it were, have the impetus to generate that development. But will judges in one way or another tend to reflect the jurisprudence overseas, in what I describe as ‘home grown reasons’? Now that, I think, is one of the most interesting questions, legal questions, that exists in Australia today.

KB: I would agree with you. I’ve watched with interest, for example, Giller v Procopets [2008] VSCA 236 where they take the English law with regard to breach of confidence, which is interpreted in light of human rights statutes, and they actually apply it in a Victorian context, which I find absolutely fascinating.

AM: On the other hand, there is a judgment, I think it is a joint judgment of Justice Gummow and Justice McHugh, and I can’t remember the name of the case … certainly Justice Gummow was a part of it … where the view is put forward that Australia is the repository of the true common law. And if, as it were, our common law didn’t develop in the light of the developments we have discussed, then it might be true to say that the Australian common law is the only true common law.

KB: It’s a very interesting question. What do you think is the value of academic critique and input on the High Court?

AM: I think it’s highly valuable. When I was a judge, I always took considerable interest in, and my colleagues did as well, academic articles, both Australian and overseas. Now, of course, you need to be selective about them, you can’t read them all, and to some extent I relied on associates and other people to put me in touch with some of the ones that I ought to be looking at. But I also have made a point of reading, say, half a dozen law journals which I knew would have materials that would be of interest and value to me. So I think highly of academic commentary and I think highly also of the use a court can make of academic commentary.

KB: That’s excellent for me to hear as an academic! My next question is: how do you see the value of cases from other jurisdictions?

AM: Now, early on, I was inclined to think that cases from other jurisdictions had very high value and I must say that as time has passed, my view has qualified to some extent.  There are a number of reasons for that. One is the sheer volume of cases from overseas jurisdictions. Another is the fact that, in order to understand the significance of an overseas decision and its value to Australian jurisprudence, you have to have a very good understanding of the milieu in which that decision came into existence. This is particularly true of public law decisions. It’s more true of public law decisions than private law decisions. And you can make a very big mistake by, as it were, relying on or taking advantage of, an overseas decision if you don’t  have sufficient background knowledge. You can find that the decision was dictated by some consideration that is not expressed in the judgments but really is foreign to Australian circumstances. And these two considerations have rather qualified the high worth view that I had of cases decided overseas. But when it first came into vogue, that is, the use of comparative law, I did on one occasion say to counsel that I thought he was appearing before the Canadian Supreme Court in Ottawa rather than the Australian High Court in Canberra.

KB: Was that a fiduciary duty case, dare I ask?

AM: No, but it could well have been!

KB: I was interested in your views expressed yesterday on Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 and the notion of ‘one common law’? Could you speak a little bit more on that, including the intermediate court doctrine — the idea that intermediate courts are bound — and the seriously considered dicta.

AM: Well, there are three separate questions?

KB: Okay, yeah, sorry!

AM: The Farah v Say-Dee was a decision that was based on the view [expressed in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10] that historically Equity had never awarded exemplary damages as a remedy. Now it reflected a continuation of the old view that I encountered when I was an Equity and commercial practitioner in New South Wales at the Bar, where often it was said that there was no jurisdiction to award particular relief in Equity. That was largely founded on history. Equity hadn’t granted relief. And I also think the view is founded on a belief that the law is rigid and static and unalterable in the hands of the judges, a view that I don’t agree with. Now, to me, the question whether exemplary damages ought to be ordered in a case  where an equitable view of the case  indicates that a remedy ought to be available, is a question of policy — should exemplary damages be awarded for breach of fiduciary duty? Should exemplary damages be awarded against a trustee who has breached his trust? Now, if you’re thinking of cases in which exemplary damages ought to be awarded for deterrent and other reasons, why wouldn’t you say they are prime examples of cases that would attract exemplary damages? That’s my view about Harris v Digital Pulse. Except to say this, I am no fan of exemplary damages and therefore my reservations about exemplary damages in equity are really a reservation about exemplary damages generally. But I don’t feel all that strongly about it. So that’s the first question.

KB: Yes. The second question is the intermediate court doctrine?

AM: This is the new view of precedent?

KB: Yes.

AM: Well, it’s clear, isn’t it, that a lower court is not bound, historically is not bound by, anything except the ratio of a decision in the High Court? Dicta can be persuasive, but they don’t get to the point that a judge of a lower court is bound to follow dicta. So the new view is a departure from the traditional view. But I wouldn’t say it’s wrong for that reason. I’m inclined to think that to say that lower courts should follow considered dicta in the High Court, at least by a majority of the High Court, and possibly in the one case too, because it  promotes certainty in the law, and therefore I would go along with this new view. I think there’s a lot to be said for it.

KB: So my next question is, what is your view of the High Court’s statement that there is ‘one common law’?

AM: I think that in theory is a debatable question, but I think it’s so entrenched in High Court judgments now that it’s difficult to think that it’s going to shift. And on its own, I don’t regard it as something that is really harmful or wrong, so to speak. The theoretical difficulty is that the inherited law in each of the States arrived at different points in time, and therefore one would think that theoretically there must be a difference in the content of the law that was inherited in the earliest Australian jurisdictions. But the question then would be: is the variation in that content significant? And my … my guess is that it’s not significant. But the objection to the one common law theory that I was voicing yesterday was the extension of the view to support the inference or conclusion that courts should not, as it were, develop the common law by reference to a State statute if that State statute was not, as it were, followed or enacted in other jurisdictions. Of course, as I say, to do that would undermine the theory of the one common law. Now that seems to me to be a very large step, and one can only say that there is a bit of question about whether the slender foundation, the existence of the appeal to the High Court from all the courts in Australia, is a sufficient foundation for it when the result is to deprive the States of an element of autonomy in developing their law in the way law has hitherto been developed. That’s the problem I have with it.

KB: Yes. I think you are certainly not alone there. My final question is: do you have any views on judgment writing? I have noticed that styles differ significantly between judges. What was your own style, and can you talk about some styles of other judges?

AM: Oh well, I wouldn’t talk about my own style of judgment writing. I’m only given to praising myself not to criticising myself. I mean, one thing you do notice, for example, is that for quite a long time, certainly going back to the days of Sir Owen Dixon, the High Court judgment writing style is more dense than the judgment writing style of other jurisdictions, particularly the United Kingdom. The United Kingdom seems to generate judges who have an attractive, almost scintillating, literary style and we haven’t succeeded in doing that. I thought Sir Ninian Stephen had an excellent literary style. Very elegant.

KB: I would agree.

AM: I must make a point that sometimes you can write elegant nonsense, but I’m not making that accusation against him: he was a very good judge. But he had a very elegant writing style. And when you mention judgment writing style, I recall that when Justice Gummow was interviewed for the Melbourne Law School blog, he criticised Sir Garfield Barwick’s writing style. And I think Justice Gummow was justified, certainly to some extent, because he said that Sir Garfield didn’t have a good writing style. Now I agree that Sir Garfield didn’t have an attractive writing style. He used very long sentences and he tended to be repetitive, to repeat the essence of his proposition. If you knew Sir Garfield you could understand that, because at heart Sir Garfield was an advocate. He had been an outstanding advocate, probably the best advocate in his day at the Australian Bar, and you only had to talk to him to realise he was an advocate. But Justice Gummow went on to say that his writing style wasn’t clear. Now, I very much disagree with that. I thought Sir Garfield’s style was clear. The flaws, to the extent that there were flaws, lay in other directions, not in that regard.

KB: Excellent. Well, thank you so very much for agreeing to talk to me today, it has been such a pleasure and so interesting, and I very much appreciate it.

AM: Well you must be given the opportunity of saying that again!

KB: Thank you so much!

Dr Katy Barnett is a Senior Lecturer at Melbourne Law School.

AGLC3 Citation: Katy Barnett, ‘Sir Anthony Mason Reflects on Judging in Australia and Hong Kong, Precedent and Judgment Writing’ on Opinions on High (28 July 2014) <http://blogs.unimelb.edu.au/opinionsonhigh/2014/07/28/barnett-mason/>.

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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.

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