Subjectivism & the High Court

It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions… It is an entirely different thing for a judge who is discontented with a result held to flow from a long accepted principle deliberately to abandon the principle in the name of justice or of social necessity or of some social convenience. The former accords with the technique of the common law and amounts to no more than an enlightened application of modes of reasoning traditionally respected in the courts… The latter means an abrupt and almost arbitrary change… The objection is that in truth the judge wrests the law to his own authority.[1]

The great vice of the age is subjectivism, the habit of mind that says what matters is not reality, but what I think about reality. Subjectivism is a product of modern philosophy and has its source in the Cartesian cogito ergo sum[2] Once the thinker puts himself first and reality second his perception of reality becomes distorted. He sees the world, not as it is, but through rose coloured glasses. Truth (logical truth) is the identity between what is asserted and what is. The subjectivist variant on this becomes truth is the identity between what is asserted and what I think.

Subjectivism takes innumerable forms. It is at its most virulent in a democratic society, perhaps, in what is known as political correctness, a communal attitude of mind exercised by a substantial body of the citizenry endorsing a standard in respect of some social or moral issue without rational analysis and vigorously opposing any argument, or anyone arguing, against that standard.

When the subjectivist mentality comes to be adopted by someone in a position of power, such as a judge of ultimate appeal, the results are enormously damaging for society.

The task of a judge is to apply the law to the facts before him though the appeal judge is more concerned with the law and its precise application. The subjectivist appeal judge looks for ways to substitute for the law as it is, the law as he thinks it should be. His conduct manifests itself in the phenomenon known as judicial activism. Dyson Heydon, the most recent appointment to the High Court of Australia, in a notable address he gave to the annual Quadrant dinner in October 2002, defined judicial activism as using judicial power for a purpose other than that for which it was granted, namely, doing justice according to law in the particular case.[3]

* *

The High Court, from the accession to the office of Chief Justice of Sir Owen Dixon [18.4.1952] until his retirement in 1964, was regarded as one of the great courts of the common law world[4]. Lord Normand wrote in 1958, for instance: The work of the High Court is, I think, on a higher plane than the work of any court here or in any of the Dominions and demands both a subtlety and a breadth to which very few judges elsewhere are trained.[5] Dixon was followed in the office of Chief Justice by Sir Garfield Barwick [1964-1981] who was followed, in turn, by Sir Harry Gibbs.

The appointment as a member of the High Court of the then Federal Attorney General, Lionel Murphy, by the Whitlam Government on 10 th February 1975 marked the genesis of the incursion of subjectivism into the thinking of its members. For Mr Justice Murphy, as Heydon has remarked––

treated judicial work as an act of uncontrolled personal will and sneered at the doctrine of precedent as ‘one eminently suitable for a nation overwhelmingly populated by sheep’. He said:‘As judges make the law… they are entitled to bring it up to date… [Judges] should not change it by stealth, they should change it openly and not by small degrees. They should change it as much as they think necessary.[6]

Yet the effect of the influence of Murphy J. on the High Court was felt not so much during his tenure of office as after its termination by his premature death in October 1986. Sir Anthony Mason succeeded Sir Harry Gibbs as Chief Justice in 1987 and, thereafter, the approach of the majority of the judges to the doctrine of stare decisis, adherence to legal precedent, changed radically.

This is not the place to set forth in detail the many incidents of judicial activism which characterised the decisions of the High Court during the Chief Justiceship of Sir Anthony Mason and that of his successor, Sir Gerard Brennan [1995-8]. Heydon’s paper addresses a number of them. Perhaps the most notorious are the decisions in Mabo v Queensland (No.2) in 1992 and Wik Peoples v Queensland in 1996.

In Mabo v Queensland (No.2) the Court overturned fundamental propositions underlying real property law in Australia for more than 150 years. One judge only out of the seven, Sir Daryl Dawson, adhered to the doctrine of legal precedent against the clamour for change, driven, be it noted, by political correctness, a view that great injustices had been visited on the aboriginal people in the past, and that the members of the Court should do something to remedy them. Dr Colin Howard, former Professor of Law at the University of Melbourne, characterised the decision this way––

It is almost as if, in 1900 or so, the House of Lords in England had drastically altered the land law of Scotland to atone for the fact that the English victory in the battle of Culloden in 1746 was followed by a merciless policy of driving the native Celtic highland clans from their glens, never to return.[7]

Many evils flowed from this judicial activism, not the least of which was growing uncertainty in this country as to the state of the law generally.

In May 1998 Sir Gerard Brennan retired as Chief Justice and his place was taken by the Chief Justice of the New South Wales Supreme Court, Murray Gleeson. From that moment the subjectivist tide began to turn. Six years on there are two recent decisions of the Court indicative of a return to principle.

In The Law Of Contracts

In Toll (FGCT) Pty Limited v Alphapharm Pty Limited[8] a bench of five High Court judges which included the Chief Justice unanimously re-endorsed after a period of uncertainty the principle of the common law ennunciated by Lord Justice Scrutton in L'Estrange v Graucob[9] in the English Kings Bench Division in 1934, that [w]hen a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. The Judges said––

This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[10]

They also condemned a growing tendency to subjectivism in the conduct of litigation.

A striking feature of the evidence at trial, and of the reasoning of the learned primary judge, is the attention that was given to largely irrelevant information about the subjective understanding of the individual participants in the dealings between the parties. Written statements of witnesses, no doubt prepared by lawyers, were received as evidence in chief. Those statements contained a deal of inadmissible material that was received without objection. The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged.[11]

In The Law Respecting The Advocate

In D’Orta-Ekenaike v Victoria Legal Aid & McIvor[12] the High Court reconsidered the longstanding immunity of the court advocate from legal action in the face of recent decisions of the English House of Lords and of the Court of Appeal of New Zealand doing away with such immunity in their respective jurisdictions.

The reasons of the majority of the High Court (six to one) for adhering to its earlier decision of Giannarelli v Wraith[13] and maintaining the immunity are compelling.

In particular, Justices Gleeson, Gummow, Hayne and Heydon put the need for adherence to the immunity on two principles which underpin Australia’s legal system: 1) the integral part played by the judicial system in the structure of government; and, 2) that contained in the maxim interest reipublicae ut sit finis litium, the public interest demands that there be finality in the quelling of disputes by the exercise of judicial power. Judicial power is exercised, they said, as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question… [T]he community at large has a vital interest in the final quelling of that controversy.[14] The judicial branch of government is not, then, just a collocation of words designed to instil respect for the judiciary. The expression goes to the very way in which Australian society is governed.

Advocates, Mr Justice McHugh said in his judgement, play an indispensable part in the administration of justice. No valid analogy can be drawn between the exercise of the calling of advocacy in the common law context and the exercise of other professions.[15] The barrister is part of the judicial system. His duties are not primarily to his client, but to the court, and his duties to his client must ever subserve the interests of justice. His immunity in any court case is part of a threefold immunity, that of witness, advocate and judge. Each person in these three categories must be able to act freely––in testifying, in advocating and in judging––without fear of the consequences, to assist the administration of justice. Advocacy in the courts, McHugh J. insisted, is a unique profession.

There must be an end to litigation, even where it leaves a residue of injustice––and what court case has ever ended with the parties convinced that they have received complete justice? A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances[16]. To allow a suit against an advocate in respect of the conduct of his advocacy must breach this principle for inevitably it would involve re-canvassing the original controversy.

To these reasons of principle against doing away with the immunity, Mr Justice Callinan added another compellingly practical one. It would prejudice the freedom that the advocate must have to carry out his exacting duties if he were exposed to action subsequently over his conduct of a case––

Any advocate who is experienced in trial work before both judges and jurors knows only too well that many decisions have to be made, often on a second by second basis, as to what should be said or asked, and how it should be said or asked. And that which has been said or asked may look quite different, either much better, or worse, than it seemed at the time after all the evidence has been led, the submissions made, and the judgment or verdict given. Few other professions, teaching, psychology and psychiatry are perhaps some, require their practitioners to attempt to see into the minds, and anticipate the thinking, reactions and opinions of other human beings, as does the profession of advocacy.[17]

In his position as upholder of the spirit of Lionel Murphy, a position where he is growing increasingly isolated, Mr Justice Kirby alone held for the doing away of the advocate’s immunity. In doing so he was not beyond some special pleading, citing cases for a proposition which, as McHugh J. was at pains to point out, they did not support[18]. What seemed to motivate Kirby J. was a simplistic egalitarianism larded with populist appeal. The members of every other profession may be sued. Why not barristers? The reason, elaborated so carefully by the majority, is that there is something greater at stake, the interests of the system of justice itself.

Two things are worthy of note. The decision in Giannarelli in 1988 was that of a bare majority, four judges (Mason, Wilson, Brennan and Dawson) to three (Deane, Toohey and Gaudron). That the immunity of the advocate should have been preserved in that case was fortuitous. The decision might easily have gone the other way and the consequential disruption to the country’s legal system have been entrenched.

The decision in D’Orta-Ekenaike, in contrast, is a powerful reaffirmation of the doctrine of precedent buttressed with careful intellectual consideration of issues not of proximate concern, but of ultimate concern.

The precision with which the majority carried out its task gives some reason for hope that the case marks the return of the Court to something approaching the standing it enjoyed in the mid 20 th century.

Michael Baker

Easter Sunday––27 th March 2005

[1]Concerning Judicial Method, Sir Owen Dixon GCMG, 29 ALJ 468,

[2]I think, therefore I am, aphorism of René Descartes [1596-1650] encapsulating the radical change he introduced into philosophy.

[3] Dyson Heydon, Judicial Activism And The Rule Of Law, 47 Quadrant 9 at 10. The article may be viewed on the internet at http://www.quadrant.org.au/php/archive_details_list.php?article_id=277

[4] Cf. Owen Dixon, Phillip Ayres, Melbourne, 2003, pp. 231-2 and associated footnotes.

[5]Owen Dixon, loc cit.

[6] Heydon, op cit, p. 16

[7] Speech to the Council for National Interest, Melbourne, 27.2.1998.

[8] 2004 HCA 52, 11 th November 2004

[9] [1934] 2 KB 394 at 403

[10] 2004 HCA 52 at para 40

[11] 2004 HCA 52 at para 35

[12] 2005 HCA 12, 10 th March 2005

[13] (1988) 165 CLR 543

[14] per Gleeson, Gummow, Hayne & Heydon JJ. at para 32

[15] per McHugh J at para 104

[16] per Gleeson, Gummow, Hayne & Heydon JJ. at para 34

[17] at para 370

[18] cf paras 169 et seq.