Litigants who win their ‘day in court’ often have to wait until long afterwards to reap the rewards, because of the mere possibility that the decision might be successfully appealed. An example is a dispute between members of Perth’s Mercanti family about the validity of Michael Mercanti’s 2004 appointment of his son Tyrone in his place as appointer of a trust governing proceeds of the family’s shoe repair business. Although Tyrone first won that battle in October 2015 in Western Australia’s Supreme Court, he has been subject to a series of injunctions concerning his exercise of powers under the trust ever since. First, the Supreme initially issued an injunction in 2013, presumably when the action by Michael, his wife, and two other children, commenced. Second, after ruling in Tyrone’s favour, the same court immediately issued an injunction pending Michael’s appeal to the Court of Appeal, which effectively lasted thirteen months until Michael lost the appeal in late November 2016. Third, the Court of Appeal immediately issued a three-week injunction to allow Michael time to consider an application for special leave to the High Court. Fourth, the Court of Appeal issued a second three-week injunction because Michael (apparently for understandable reasons) was not able to act before the High Court shut for Christmas. Fifth (but perhaps not finally), earlier this month, the High Court’s Kiefel J issued a further injunction against Tyrone, with no end date. That final injunction arose, in part, because the appellants thought the Court of Appeal wouldn’t grant a longer injunction and because Tyrone wouldn’t consent to any further extension of the injunction that had governed his actions for three years.
Justice Kiefel, in the High Court’s first judgment of 2017, addressed the issue of who should decide whether to grant an injunction pending a High Court special leave application: the court being appealed from, or the High Court? In a tax case in 2015, the Western Australian Court of Appeal ruled that, assuming the lower court was satisfied that ‘there is no reasonable prospect of any appeal from this court’s judgment being allowed’, the final decision on the injunction should be the High Court’s (with the lower court, ‘on the contingency that our view may be wrong’, only issuing a three-week injunction to allow the appellant to ask the High Court for a longer one.) However, Kiefel J disagreed, citing the changed procedure for special leave applications that the High Court introduced last year:
The parties’ legal advisers in this matter are aware that, following upon changes made last year by this Court to the procedures respecting applications for special leave, the determination of such applications is able to be made more expeditiously by this Court. In the case of all such applications, including those in which the parties are represented, they are in the first instance referred to a panel of two Justices, who determine whether oral argument is warranted. If the Justices consider at that point that there is no basis for the grant of special leave, they list the matter for orders accordingly. They may also order a grant of leave, without oral argument. In the event that the matter is referred for oral argument, it can usually be heard in a relatively short period of time.
In Kiefel J’s view, this made it clear that lower courts should be ready to issue injunctions ‘until further order’ when litigants are contemplating a special leave application, rather than waiting to see if the High Court thinks such an injunction is worth granting. She expressed the test for granting such injunctions as whether or not there is a ‘not insubstantial’ chance of a grant of special leave, established in this case because it provides ‘an opportunity for clarification or amplification of a principle by reference to the particular facts of the case.’ It will be interesting to see what, if any, planned applications for special leave could ever fail this test.
Justice Kiefel’s description of the Court’s new process for special leave applications is the first by a judge of the court, as opposed to the registrar. But parts of the new process remain unclear. For example, who ‘refers’ the application to two judges, and on what basis? Which two judges? What test do they apply to decide whether or not to list the matter for an oral hearing? What happens if they disagree? What governs when such a matter is listed for oral hearing? Some light on some of these questions was cast in the hearing before Kiefel J, when counsel referred to the following exchange with the registry, presumably in early January:
In communications with the Court Registry, which I have seen and therefore can tell your Honour first hand, the Registrar made that very observation and indicated that it would be possible to get a panel together likely by the end of the month and if an oral hearing was required likely by the end of February.
The outcome of Michael Mercanti’s application has not yet (publicly) emerged. In the Court’s first business list for 2017, issued this week, Mercanti v Mercanti is not one of seven matters listed for oral hearing on February 10th.
“For example, who ‘refers’ the application to two judges, and on what basis? Which two judges?”
I am not sure that those questions take us anywhere as the same issues arise in listed leave applications and,so far as I am aware,have not been explained.Even predicting,in the case of leave applications in Sydney and Melbourne that you will only get locally resident high court judges sometimes comes to grief.
And the question is just as relevant to Full Court benches of less than 7 judges.
No appellate court in Australia publishes, to my knowledge, information concerning how it selects the judges which sit on appeals.
Precisely why it is relevant at all escapes me.
I think it’s relevant because I think that there are many important issues where the outcome depends on which judges decide your case. Not all cases, mind you, but enough. Indeed, the High Court judges themselves acknowledge that at times, e.g. Hayne J in Lee No. 1.
In large courts, e.g. most state appeals courts, there’s inevitably a need to select a bench to decide matters. Ideally, I think this should be an entirely random selection – literally, like a lotto draw – although scheduling and conflicts (and perhaps experience or expertise factors) will inevitably play a role. Personally, I can’t see any justification leaving it to the discretion of any particular judge, be it the chief justice or particular judges expressing an interest (or lack of interest) in a particular matter. If there is such a justification, I’d be happy to hear it. Either way, surely litigants (and others) should know what the process is? What’s the benefit in keeping it secret?
But I think that the makeup of trial and intermediate appellate benches is a lot less important than the makeup of apex court benches, because at least you can appeal a decision if you think you only lost because of an ‘unlucky’ bench. Where you can’t appeal a decision (including a refusal of special leave), I think it’s especially important to be both transparent about how judges are selected to hear a case and, wherever possible, have random selection.
Ultimately, I think the far better approach is to have all final apex court decisions either en banc or appellable to an en banc court, including special leave refusals. At least, that should happen in small apex courts, like our High Court. Indeed, to my mind, the major benefit of abandoning oral hearings would be to make en banc leave decisions possible, as in the United States Supreme Court, which sits en banc on all matters (and allows grants of leave if four out of nine judges agree.) The High Court’s new approach of having few oral hearings but still only having two judges make decisions strikes me as the worst of all possible arrangements, as it removes even the small measure of transparency provided by always having oral hearings, with no benefits in how the leave benches are formed.
The relevant perspective, I think, is that of the unsuccessful litigant. How can, say, an unsuccessful criminal defendant who’s denied special leave on the papers be sure that s/he isn’t spending years in prison simply because of an unlucky (or perhaps even capricious) selection of judges who refused leave?
My (informed) guess would be that allocation of cases is done by the Chief Justice. (And that “referral” is just another word for “allocation”.) In a court where 2-7 judges can sit as a Full Court, and routinely do (ie routinely benches of 2, 3 and 5 judges sit, rather than all 7), it has long been necessary to allocate judges to cases, and this is no different, I would assume.
That is also my (uninformed) guess. But why are we guessing? And why isn’t the Australian public equally as ‘informed’ as some insiders? What is the case for secrecy about the Court’s administrative arrangements?