The High Court heard ten oral special leave hearings this month (with three grants, which I will summarise in my – now – quarterly grants post.) Of interest in the most recent batch is a phrase spoken at the end of eight of the ten hearings on Friday:
BELL J: Thank you, Mr Boyce, we do not need to hear from you.
BELL J: Mr Heaton, we do not need to hear from you.
BELL J: Thank you, Mr Boccabella. We do not need to hear from you, Mr McGlade.
BELL J: Yes, thank you, Ms Farnden. We do not need to hear from you.
GAGELER J: Thank you. We do not need to hear from you, Mr Crawshaw.
GAGELER J: Thank you, Mr Toomey. We do not need to hear from you, Mr Kirk.
GAGELER J: Thank you. Mr Lenehan, we do not need to call on you.
GAGELER J: Mr Walker, we do not need to hear from you, thank you.
This is the Court’s typical practice whenever it is minded to rule against one party after hearings its arguments, a practice it also follows in some full court hearings. It saves the other party the tedium preaching to the choir and permits the Court’s justices to get on with their busy special leave morning (or whatever they do in the afternoon.) As I noted in an earlier post, it is allied to a practice used in jury trials in England, Hong Kong and Australia that the Court declared contrary to law in this country last month, but it differs because judges hear arguments, not evidence, and do not require a direction on how to apply the law.
But it is surprising to see it featuring in contemporary special leave hearings, because the Court never has to hear special leave matters. Rather, it’s now over three years since the High Court changed its approach to special leave applications, interposing a new determination ‘on the papers’ as to whether any application will proceed to an oral hearing. The Court has never revealed what test it applies in making that determination, but it seems likely that one of the Court’s goals is to weed out applications where the outcome (either a grant or – more often – a refusal) is inevitable. Of course, it could still happen that a matter whose outcome seems uncertain on the papers becomes inevitable during one side’s (presumably unsatisfactory) oral presentation, but it seems unlikely that that would occur in eight out of ten applications. (The Court is yet to announce any non-oral determinations this month, but that may come when it sits at its Canberra HQ this week.)
There are, of course, other reasons to hold an oral hearing. The only one of the above eight matters where a grant was made gave the applicant a chance to inform the court (after leave was granted) hat other jurisdictions may well intervene because (contrary to the respondent’s argument) they had similar provisions to the one at issue. Moreover, a ninth matter last Friday began like this:
GAGELER J: We do not want to dissuade anyone from putting any argument that they wish to against the grant of special leave, but we do feel it is appropriate to indicate that we have a strong preliminary disposition towards granting special leave to appeal in this matter.
Nevertheless, much of the hearing was spent refining (and expanding) the appellant’s grounds of appeal, before the NSW Director of Public Prosecutions was allowed time for a desultory (and, of course, unsuccessful) argument against the grant. Holding an oral hearing here also gave the public an opportunity to learn some of what this largely anonymous matter is about (a contrast to the fully anonymous Lawyer X case where leave was granted on the papers and never mentioned again until after special leave was later revoked.) Not that oral hearings are always that illuminating. In the sole case on Friday where leave was granted without apparent predetermination – perhaps because the applicant’s argument was more convincing than expected? – the grant was limited to one of two grounds:
BELL J: Yes, all right. The Court will adjourn briefly to consider the future course of this matter.
At 10:28 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.31 AM:
BELL J: Yes, there will be a grant of special leave in this matter. The estimate as to the time, Mr Callaghan?
MR CALLAGHAN: Is leave to be granted on ground 2?
BELL J: Confined to ground 1, Mr Callaghan.
However, the public remains somewhat in the dark for now about the content of the successful appeal ground, because special leave applications – including the grounds – are never published on the Court’s website. (Here, as is often but now always the case, it is possible for an experienced reader to piece together the issues under consideration by reference to the judgment below.)