With Smiler, Kirbs and Dice sitting stony faced in the front row of the gallery, Keith Mason (pic) let the High Court have it right between the eyes in his farewell address today (May 30) as President of the NSW Court of Appeal.
He accused the High Court of being “haughty”; adopting “blinkered methods”; asserting a “monopoly in the essential development of aspects of the common law”; trying to prevent intermediate appellate courts from “venturing contributions that may push the odd envelope”; shutting off “the oxygen of fresh ideas”; having “changing orthodoxies”; and an “unduly inward focus”.
It was marvellous stuff. Dice Heydon, in particular, deserved every word of it.
Here’s the guts of Mason’s rebuke:
“In 2007, when exercising its constitutional functions of correcting error and declaring the common law, the High Court signalled a departure from these principles. The topic does not matter, but the profound shift in the rules of judicial engagement does. New and now binding rules of precedent that were ushered in on this occasion declare that the earlier decision of any intermediate appellate court in Australia is now generally binding on all others. So too are the ‘seriously considered dicta’ of a majority of the High Court in any case, regardless of its age. These rules and the High Court’s response to this Court of Appeal’s erroneous though genuine attempt to develop legal principle go well beyond giving effect to the principle of a unitary common law of Australia. They have been read throughout the country as the assertion of a High Court monopoly in the essential developmental aspect of the common law.
“In the same appeal, the High Court resolved an issue of controversial legal principle with a haughty declaration that it did not propose to examine a recently published critique on point emanating from a current English Law Lord or to examine other legal writing which ‘might offer support’ for the legal proposition suggested by the Court of Appeal that the High Court proceeded to reject in categorical terms.
“In combination, these discouraging rules of process for inferior courts and this adopted methodology for the High Court itself will have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence. In my respectful opinion, decision-making by these blinkered methods will be stunted unnecessarily, whether it proceeds in the particular to the affirmation of older rules of law or to their principled development. If lower courts are excluded from venturing contributions that may push the odd envelope, then the law will be the poorer for it.
“In short, my plea to the High Court is to keep other appellate Courts in Australia in the loop.”
“The statements referred to by the Court of Appeal in these cases either do not support the restitutionary approach, or were uttered in circumstances where no appropriate issue was presented or relevant argument advanced, or were otherwise entirely unnecessary for the decision of the cases in which they were uttered.”
“There are, however, several matters of principle pointing against the course taken by the Court of Appeal, none of which it dealt with, which is a state of affairs more likely to arise when courts make pronouncements without hearing argument than when they do so after argument.”
This has been a deeply felt bone of contention with Mason and was one of the factors that led him to retire early.
It is widely accepted that Dice wrote the nasty High Court judgment. He looked particularly glacial during Mason’s au revoir on Friday.
Last October Keith Maon delivered a paper to a conference of judges on this very issue. See: Throwing stones: A cost/benefit analysis of judges being offensive to each other.
There he said:
“I suggest that most Australian judges will know at once what I am talking about. The High Court and intermediate courts of appeal occasionally adopt personally offensive language when detecting and correcting error below.”
Speaking for the NSW bar at the farewell Anna Katzmann reminded everyone that at his swearing in Mason P cautioned: “that the air at ceremonial sittings of this court can become ‘thick and sweet with flattery so that it may be best not to inhale’.”
“Someone may therefore need to alert me when your honour starts to turn the same colour as Justice Young.”
She went on:
“Your honour was a great mentor to junior barristers. Once you provided some useful advice to a young woman whom you had generously allowed to use your chambers for six weeks while you were off overseas. As your honour departed, alluding to the barrister’s need to continuously robe and disrobe, your honour uttered the reassuring words: ‘Well, if you dont make it at the bar you will have had a lot of practice as a stripper’.”
In an earlier edition of this story we said that Justice Kiefel was present at Justice Mason’s swearing out ceremony. This was incorrect. She was not and she was not stony faced.