A month ago (or so), the High Court’s registrar announced changes to the Court’s practice on special leave applications, including filtering all applications (rather than just applications by unrepresented litigants) first on the papers, and only proceeding to an oral hearing with some of them. The Court’s announcement was short on details and none have been forthcoming, but there is now a month of practice to consider. The headline is that there are now far fewer oral special leave hearings. Just four were listed for Friday’s special leave day, all in the Court’s Melbourne registry (although two were heard by video link.) And only one of those matters was granted special leave. By comparison, there were eighteen cases (with six grants) heard on March’s special leave day (although some were multiple applications concerning the same matter) and seventeen (with five grants) this time a year ago.
So, what has happened to all the other special leave matters? The Court does not publish a list of lodged applications, but instead only lists pending oral hearings and the results of all applications. On four separate days over the past two weeks, the High Court published the results of fifty-nine applications for special leave decided without hearings, respectively over three times and twice the numbers of such matters determined last month (19) and a year ago (38). The Court does not identify which of this month’s matters were governed by its new policy, but its published ‘dispositions‘ identify whether the matters were determined under rule 41.10.5 (which only governs ‘unrepresented applications’) or 41.11.1 (which generally governs disposing of applications with oral argument). Of the fifty-nine matters, 35 were disposed of as ‘unrepresented applications’, with the remaining 24 resolved without an oral hearing as a matter of discretion. That compares to just 3 out of the 19 matters resolved last month under rule 41.11.1 and 11 of the 38 resolved that way a year ago. All up, these numbers are broadly consistent with the Court continuing to consider and resolve the same amount of represented special leave applications, but determining most (roughly 80%) on the papers instead of orally, as in the past.The published dispositions do not reveal how the Court chose which matters would receive an oral hearing. It appears that the non-oral case-load was divided roughly into thirds, with Bell & Gageler JJ determining 22 matters (across two days), Nettle & Gordon JJ determining 14 and Kiefel & Keane determining 23. The Chief Justice didn’t resolve any special leave applications on the papers in April, but on Friday he heard some election matters as well as what appears to be yet another application about complicity law.
What were the results of the applications? Of the 59 matters decided on the papers, only one was granted leave and that one appears to be a related action to a series of cases granted leave on the papers last month. As discussed here, in R v Stakaj & N, H  SASCFC 139, a majority of the South Australian Court of Criminal Appeal quashed verdicts of not guilty of murder, after it emerged that the jury foreman may have misunderstood the trial judge’s question about whether 10 or more of them voted to acquit them of murder. Wednesday’s further grant of an application for special leave to Stakaj is listed by the registry as concerning the same judgment, but may actually relate to a later decision by the South Australian court barring any appeal from the guilty verdict for manslaughter the jury also reached, on the basis that those verdicts were also rendered invalid by the foreperson’s error. Alas, because the matter was decided on the papers, we won’t know what this latest application is actually about until the parties’ submissions are published in advance of the full court hearing. The one matter where leave was granted in Friday’s oral hearings is also from South Australia and involves a topic of considerable current interest: the ability of a victim of child sexual abuse in an institutional context to bring a civil action against that institution. In A, DC v Prince Alfred College Inc  SASCFC 161, the full court of the Supreme Court of South Australia overturned a trial judge’s dismissal of such an action, ruling that Adelaide’s Prince Alfred College was vicariously liable (but not otherwise liable in negligence) for the abuse perpetrated by its boarding house master and extending the limitation period for a student to sue for damages for negligence due to a delayed diagnosis of his post-traumatic stress disorder, the horrific nature of the events and the college’s own failure to act earlier or preserve the evidence.
I’ve just read a very interesting book: Final Judgment: The Last Law Lords and the Supreme Court, which talks about the shifting dialogues in the House of Lords/UKSC. There is apparently a greater tendency to do things on the papers there too. The author conducts interviews with judges, and discusses whether oral arguments make a difference (they seem to in some instances, but not all – and a well-written argument on the papers can be very influential).
It will be interesting to see if the approval/disapproval rate of special leave applications changes with the new procedure before the HCA.
Yes, it will be interesting. This months’ approvals are low, but not historically unprecedented. They may be due to an unappealing set of applications this month, or perhaps just the Court’s concern that it has enough things on its plate at the moment with, amongst other things, election challenges. We will know more about approval rates (and also whether or not approvals on the papers, as opposed to rejections, will be a significant part of the new process) in a few months, perhaps.
All four oral hearing transcripts are now online. Unsurprisingly, all four were heard before three judges (Bell, Nettle & Gordon JJ.) What is surprising, though, is that one of the four was nevertheless decided on the papers (apparently because the defendant’s representative was given leave to withdraw, leaving the applicant unrepresented) and another was refused without hearing from the respondent. So, it is somewhat unclear why these matters were listed to be heard orally in the first place (and why, if the unrepresented matter was originally thought to merit an oral hearing, why it was then considered appropriate to determine it on the papers.) Both unsuccessful represented matters were dismissed with costs, which presumably include the other side’s costs of appearing in Melbourne. All the unsuccessful matters were dismissed with pro forma statements, indicating that the days of substantive comments at special leave determinations may be well and truly over.
It should also be noted that the written decision denying special leave now no longer contain any summary of the case or the arguments for the appellant as they previously did. They now simply contain a statement that special leave is denied for one of the usual, generic reasons.
What does the author of the article and the above comments think about these ‘pro forma statements’ refusing special leave – does a court not have an obligation to give reasons? Usually a short statement without substantive comment would be an appellable error.
I think it’s unfortunate from a number of perspectives that the Court is not giving meaningful reasons for its refusals of special leave. One problem is that there is no information on the record as to what arguments the applicants (and respondents, if any) made – this problem could perhaps be solved by placing the applications themselves online (at least where those applications are written by lawyers.) Absent such information, there is simply no transparency in the Court’s decision-making. Also, although special leave determinations are not strictly precedents, they are nevertheless noted in discussions of lower court cases, but such notes would have to be made in ignorance of what grounds were actually raised for the Court’s consideration.
Another problem is that the Court’s approach to whether or not to grant leave is opaque, which makes it difficult for future applicants to predict their likely chances of success – I imagine that the Court’s staff do some internal work on each and every application, presumably including written assessments of each; if so, it’s a pity that some version of that work could not be included in the public record. And a third problem is that, especially as the Court now issues fewer substantive judgments than ever, the lack of reasons denies a useful, albeit brief, opportunity for the Court to further guide the development of Australian law, which also causes costs down the track.
But I disagree that the High Court is obliged to give reasons in special leave applications or that the failure to do so is an appealable error. Reasons are not required for every decision a court makes, and there are reasonable arguments that reasons are not decided for decisions about leave (especially as there are no appeals as of right to the High Court.) Moreover, there is no procedure for appealing against a refusal of special leave (although also nothing, other than virtually inevitable failure, to stop an applicant from simply making a second application if dissatisfied with the refusal), so the concept of ‘appealable error’ isn’t really applicable. My view is that the issue is one of policy, not law.
Thanks for your response Jeremy. I agree with your point – it would be good if they put even at least the parties written submissions, or applications, similar to the way they currently do with cases to be heard where leave is granted. Your second point is also interesting – it’s clear that people do listen to the view expressed in special leave transcripts, e.g. Western Export Services v Jireh had a pretty big impact.
In terms of the reasons point, I meant it more in the sense that as Courts are usually bound to give reasonable reasons, they should also give more detailed reasons from a policy perspective – as you point out. (I also wonder if there ever has been two applications for special leave on the same matter – could be estopped though..)
I did wonder whether the High Court’s move to not state any reasons beyond bland statements of it not raising an appropriate point or not being a suitable vehicle may have been to avoid the sort of situation created by the Jireh special leave decision. That statement – which has no precedent value because special leave was denied – has probably created more issues than it has solved and perhaps the present High Court judges want to avoid situations in which lower courts spend a lot of time determining the meaning and effect of a few paragraphs in a denial of special leave.
Yes, that is certainly a downside of brief reasons. That being said, the downside remains (or is even worse, given the ‘precedent value’) when the Court gives brief reasons in a full appeal. On the other hand, in the Mason court and earlier, the Court routinely gave detailed reasons for refusing special leave; while, these are technically not precedent, they were certainly influential (and, at least sometimes, genuinely helpful); I wonder whether, under today’s parlance, they could be described as ‘seriously considered dicta of a majority of this Court‘?
I think I recall a couple of cases where a second application for special leave has been made — one quite recently. Usually where there is some reason for the second application, eg a subsequent change in the law.
Yes, I discuss one such application here.
These post gives us motivation to work.