News: French CJ’s last words

In Wednesday’s ACCC v Flight Centre Travel Group Limited [2016] HCA 49, concerning whether Flight Centre breached competition laws by seeking a deal with some airlines not to undercut its prices, French CJ’s separate judgment concludes:

In my opinion, Flight Centre was not in competition, in any relevant market, with the airlines for which it sold tickets. Its proposals with respect to the pricing practices of its principals were not proposals offered by it as their competitor but as their agent. I would dismiss the appeal with costs.

These are very likely French CJ’s last words in a court judgment. He did participate in a second judgment on Wednesday, seconds after the ACCC one, but that was a joint judgment with (as is often the case) Kiefel, Bell & Keane JJ, and (as is always the case) no indication of who wrote it. (Austlii’s earliest judgment by French J appears to be this one.) As French CJ has no more reserved judgments (having stopped hearing cases in early October), his only possible remaining judgments would be chambers or special leave matters. His remaining duties on the Court until his resignation on 29th January next year will be almost entirely administrative or ceremonial.

Wednesday’s ACCC judgment was unusual for the outgoing Chief Justice in another respect. In the judgment’s introduction, French CJ writes:

I would answer that question in the negative. In that respect I am in disagreement with the other members of the Court and I would dismiss the appeal.

Disagreeing with his High Court colleagues is a rare event indeed for French CJ. He did not disagree with his colleagues at all from 2008-2010 and in 2015. His other dissents are as follows:

  • British American Tobacco Australia Services Limited v Laurie [2011] HCA 2, a dispute about bias, where he dissented along with Gummow J.
  • Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, a negligence case involving a high pressure hose, where he dissented along with Gummow J.
  • BBH v The Queen [2012] HCA 9  a sexual assault appeal, where he dissented together with Gummow & Hayne JJ.
  • X7 v Australian Crime Commission [2013] HCA 29, concerning powers to compulsorily examine a charged defendant, where he dissented together with Crennan J
  • Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35, on the validity of a NSW consorting offence, where he dissented together with Gageler J
  • Alqudsi v The Queen [2016] HCA 24, on whether state judges can order non-jury trials with the defendant’s consent for federal offences, where he was the sole dissent.

That is seven dissents total – less than one a year! – with just two, both this year, where French CJ was the sole dissent. (Note, that this list excludes around three judgments where the Chief Justice dissented on some particular orders or findings, and also a tied decision where the result was an outcome French CJ disagreed with.)

The Chief Justice has recently been speaking in public, as has become common at the end of a chief justice’s career. Examples include:

  • His public ‘conversation‘ with Melbourne Law School Dean, Carolyn Evans
  • His interview on ABC Radio Nation’s Law Report.
  • An interview with the Fairfax newspapers.

People looking for controversial or even exciting statements in these interviews will be disappointed. Indeed, much of their content concerns French CJ’s pre-High Court career. His comments on the High Court are largely limited to  his preference for non-engagement with the Court’s critics and the Court’s present tilt towards joint judgments. The latter topic was also covered  in his remarks at a ceremonial event last week to honour his retirement, where he concluded:

I turn 70 in March next year. My retirement is mandated upon attaining that age by section 72 of the Constitution. As is apparent, I have decided to jump shortly before being pushed and have tendered my resignation with effect from 29 January 2017. My successor will therefore be able to begin her term of office on the first sitting day of the new year. I have also decided to have this special sitting now rather than closer to my retirement date and there are two reasons for that. One is the selfless desire to give Justice Kiefel and Justice Edelman clear air for their swearings-in and welcomes as the new Chief Justice and Justice of this Court respectively. The other is selfish – to enable me to recapture for a moment the memory from my school days of the December speech night at the end of the school year with the long summer holiday ahead and beyond that the promise of new learning and new experiences.

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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.

2 thoughts on “News: French CJ’s last words

  1. For last word perfectionists, French CJ’s (poignant?) last words in a special leave judgment are:

    In the view of the Court, this application arises out of a protracted interlocutory dispute which involves the exercise of discretion and is not a suitable vehicle for the grant of special leave. Special leave will be refused with costs. The Court will now adjourn to reconstitute.

    At 12.11pm last Friday:

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