Justice Susan Crennan’s imminent retirement from the High Court inevitably invites reflections on her contribution while on the bench. According to Jane Needham SC, Crennan J ‘delivered 316 judgments’ in her nine years at the national court. However, only five of those judgments (two early judgments on wrongful life actions, and three constitutional judgments on elections and executive power) were mentioned in recent ceremonial sittings to mark her retirement. The key difficulty in assessing Crennan J’s contribution was alluded to in the judge’s own remarks at the Sydney ceremonial sitting:

From time to time, there is speculation about the authorship of joint judgments from this Court. Naturally, it is not always accurate. Earlier this year, Justice Kiefel on my right remarked of judgment writing, “Collegiality is not compromise”. In that spirit, may I take the goodwill expressed toward me this morning as an appreciation of the work of the Court as a whole.

By my count, Crennan J issued 28 sole-authored judgments while on the High Court, easily less than 10% of her total. In an extreme contrast, the last High Court judge to retire, Heydon J, issued twice that many such judgments in a single year on the bench (as part of a seventeen-month period where he never joined a judgment.)

Here is my list of Crennan J’s solo High Court judgments:

• Harriton v Stephens [2006] HCA 15, [209]-[278]
• Waller v James [2006] HCA 16, [67]-[87]
• Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35, [78]-[155]
• Tully v R [2006] HCA 56, [156]-[187]
• Sons of Gwalia Ltd v Margaretic [2007] HCA 1, [265]-[274]
• New South Wales v Fahy [2007] HCA 20, [229]-[268] (dissenting)
• Black v Garnock [2007] HCA 31, [91]-[134] (dissenting)
• WGC v The Queen [2007] HCA 58, [142]-[175]
• Evans v The Queen [2007] HCA 59, [266]-[268] (dissenting)
• Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4, [135]-[194]
• HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16, [398]-[485]
• Shi v Migration Agents Registration Authority [2008] HCA 31, [116]-[118]
• Northern Territory v Collins [2008] HCA 49, [58]-[147]
• Wurridjal v The Commonwealth of Australia [2009] HCA 2, [343]-[447] (her longest sole-authored High Court judgment)
• Tabet v Gett [2010] HCA 12, [100]-[103]
• Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13, [52]-[61]
• Rowe v Electoral Commissioner [2010] HCA 46, [316]-[385]
• SKA v The Queen [2011] HCA 13, [52]-[118] (dissenting)
• Lithgow City Council v Jackson [2011] HCA 36, [83]-[109] (dissenting)
• Williams v Commonwealth of Australia [2012] HCA 23, [450]-[548]
• JT International SA v Commonwealth of Australia [2012] HCA 43, [244]-[307]
• Plaintiff M47-2012 v Director General of Security [2012] HCA 46, [365]-[406]
• Maloney v The Queen [2013] HCA 28, [112]-[139]
• Fortescue Metals Group Limited v The Commonwealth [2013] HCA 34, [145]-[176]
• Lee v New South Wales Crime Commission [2013] HCA 39, [85]-[155]
• Williams v Commonwealth of Australia [2014] HCA 23, [99]-[111]
• Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, [53]-[69] (dissenting)
• CPCF v Minister for Immigration and Border Protection [2015] HCA 1, [165]-[229]

Of course, this list does not include the many joint judgments that Crennan J wrote (a list that will never be public), her  judgments in chambers and her judgments in her two years on the Federal Court.

One remarkable fact I noticed: Crennan J had only one lone dissent in her nine years on the High Court. Lithgow City Council v Jackson, the only decision in this list that I teach to my students, is a tort action against a local council by a man who was found with head injuries after a fall in a poorly lit drain at a local park. The key issue was whether the man simply fell over while walking his dog across the drain or tripped over a (then unfenced) 1.4m side wall. The High Court appeal mainly concerned an ambiguous note made by an attending paramedic suggesting that the man possibly fell from height, which all five judges agreed was inadmissible. The issue where Crennan J differed from her colleagues was whether, absent the note, the plaintiff could prove that he tripped over the side wall. The majority held that he could not (and therefore could not claim damages from the local council), because of the lack of evidence of the man’s position when he was found. Justice Crennan would have found for the plaintiff, holding (rightly, in my view) that, given the severity and nature of the man’s injuries, the drain’s layout and the location of blood from his head wound, a trip over the wall was still the more probable inference. Her painstaking analysis of the evidence demonstrates the care (in both senses of the word) that, in my view, is the most important attribute of any judge.