A Century of Judicial Style

A Century of Judicial Style: Changing Patterns in Judgment Writing on th...
gh Court 19032001 - [2004] FedLRev 11; (2004) 32 Federal Law Review 255
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A CENTURY OF JUDICIAL STYLE: CHANGING PATTERNS IN JUDGMENT WRITING ON THE HIGH COURT 19032001 r Matthew Groves and Russell Smyth# INTRODUCTION r DATA AND METHODOLOGY r LENGTH OF HIGH COURT JUDGMENTS s Leave to appeal and caseload s The High Court as a final court of appeal s The effect of social change and growing complexity s The transition from substantial oral argument to substantial written argument s Increase in the citation of authority s The role of information technology s Assistance available to members of the Court r TRENDS IN DECISION-MAKING IN THE HIGH COURT s Leadership on the Court s Institutional features and the decline of the declaratory theory of the law r THE DECISION-MAKING OF INDIVIDUAL JUSTICES r CONCLUSION
A CENTURY OF JUDICIAL STYLE: CHANGING PATTERNS IN JUDGMENT WRITING ON THE HIGH COURT 19032001
[]
Matthew Groves
and Russell Smyth
[#]
INTRODUCTION
http://www.austlii.edu.au/au/journals/FedLRev/2004/11.html (1 of 30)4/25/2011 09:17:44
A Century of Judicial Style: Changing Patterns in Judgment Writing on th...gh Court 19032001 - [2004] FedLRev 11; (2004) 32 Federal Law Review 255
In a recent issue of the Australian Law Journal Enid Campbell argued that both the length of High Court judgments and the number of multiple separate High Court judgments has increased and that this is
[1]
counterproductive.
This view echoes similar concerns expressed by some judges and others in the profession.
[4]
[2]
[3]
This argument is based on
several assumptions about the High Court that are widely held among lawyers, but which have not been subject to any detailed empirical research. Those assumptions are:
(a) High Court judgments have become significantly longer in recent times. (b) There is an increase in the number of concurring judgments on the High Court. (c) There is an increase in the number of dissenting judgments on the High Court. This article attempts to test these assumptions using hard data. To do this, we analyse trends in High Court judgments using data on all cases reported in the Commonwealth Law Reports over the period 19032001. We present findings on trends in the length of High Court judgments and the proportion of joint, concurring and dissenting judgments over this period. We also present statistics on the judgment length and the number of joint, concurring and dissenting judgments authored by each Justice. In addition to testing speculation about recent trends in judgment writing on the High Court, an empirical exercise such as this may assist in appreciating the way in which the work of the Court is
[5]
performed and the complexity of the legal controversies which it faces.
It can also provide insights into how
judicial reasoning and the Court as a policy-making institution have evolved over time. As Lawrence Friedman and his colleagues explained:
The style of opinions is as good an indicator as we have of what counts as sound legal reasoning for any given era. ... Moreover, a more policy-oriented conception of the judicial role arguably could be reflected in another 'objective' facet of appellate opinions
[6]
a higher incidence of dissenting and separate concurring opinions. At the level of individual Justices, statistics on differences in concurrences and dissents could reflect differences in ideology or methodology between Justices which, once documented, deserve further
[7]
discussion and scrutiny by legal commentators.
DATA AND METHODOLOGY

We use data on all High Court cases in which there were panels of at least three Justices reported in the Commonwealth Law Reports decided between 1903 and 2001. This time period covers all cases reported in the first 205 volumes of the Commonwealth Law Reports. We focus on cases in the Commonwealth Law Reports for two reasons. First, the Commonwealth Law Reports are the authorised reports of the High Court. Secondly, the Commonwealth Law Reports span the whole history of the Court and, therefore, provide a continuous source of data.
The data were collected through reading and recording the outcome of each case. While strictly speaking a judgment refers to the final orders of the Court, we use the term to refer to the reasons for Justices' opinions on what the final orders of the Court should be. The judgments in each case were classified into one of four categories: (a) joint judgments; (b) concurring judgments; (c) short concurring judgments; and (d) dissenting judgments. In adopting this approach we use these terms in a manner consistent with the recent literature on measuring (dis)agreement on the High Court, particularly the methodology
[8]
suggested by Andrew Lynch.
We classified a judgment as a joint judgment if it was delivered by two or more Justices
who were in the majority, based on the orders of the Court. We divided single or separate judgments into categories (b), (c) and (d).
We classified a separate judgment as a concurring judgment if the Justice agreed with the reasons of the majority expressed in the orders of the Court, but did not agree with the reasons for reaching that conclusion. We distinguished between 'concurring judgments' and 'short concurring judgments' to take account of short concurring judgments of the form 'I agree', which have been popular at some points in the Court's past. Michael Coper suggests that judgments of the form 'I agree' are 'no different in substance from being a party to a joint judgment, although care must be taken to leave no doubt about
[9]
what it is with which the Justice agrees'.

[10]
Because of the potential for confusion Lynch suggests that such judgments be
treated separately to joint judgments.
While we agree with this observation we do not think that short judgments of the form 'I agree' should be bundled
with longer concurring judgments either. If the concurring judgment was less than one quarter of a page we classified it as a 'short concurring judgment'. We have, therefore, adopted an arbitrary cut-off mark to attempt to capture the character of decisions that we believe can be rightly regarded as a 'short concurring judgment'.
A judgment was classified as dissenting if the Justice disagreed with the result proposed by the majority expressed in the orders of the Court. On this view, a dissent may occur for several reasons. The dissenting Justice may differ with the majority on the applicable law, or its interpretation, or some aspect of the facts of the case, or a mixture of fact and law. In most cases determining whether a judgment is in dissent is relatively straightforward. Lynch suggests that, in a small minority of cases, there are shifting majority opinions within one case, and that the researcher must make choices in identifying whether a
[11]
judgment is in dissent.
Where there are multiple issues in the case, one option would be to record a dissent if Justice X
dissented on any issue. This approach, though, tends to exaggerate the level of dissent if Justice X agreed in the orders and the substance of the reasoning adopted by the majority for the other issues in the case. Therefore, in such cases we made a judgment call on which was the most important issue or issues before the Court and recorded whether Justice X dissented on this issue or issues.
Finally, we should explain the sense in which we use the term 'judgment'. Although we examined entire decisions, our use of 'judgment' refers to the individual reasons for decisions issued by each Justice rather than the Court as a whole. We have not included data that measure changes in the length or other
[12]
features of the decisions of the Court because the size of the Court did not settle until 1913.
[13]
While the
overall size of the High Court has remained stable in recent years, the number of Justices that comprise a Full Court can still vary.
In our view, it is neither desirable nor statistically sound to attempt to gauge patterns in High Court decisions according to averages that are determined by reference to the differing number of Justices that preside.
LENGTH OF HIGH COURT JUDGMENTS

Before considering the breakdown of judgments into joint judgments, concurring judgments and dissenting judgments, we begin through discussing trends in average judgment length. The page length of each judgment was recorded to the closest one quarter of a page. Figure 1 traces the average page length of each judgment for all decisions reported in the Commonwealth Law Reports between 1903 and 2001. Up until the beginning of the 1990s the average judgment length for most years was in the range four to seven pages. There are, though, some outliers. In World War I the average judgment length was low in historical terms, with the all-time low of 3.01 pages in 1915. In the early 1950s and late 1970s/ early 1980s there were peaks. The average judgment length in 1951 was 7.1 pages, in 1952 it was 7.3 pages and in 1977 and 1983 it was 9.6 pages. Figure 1 shows that from the beginning of the 1990s there was an upward trend in judgment length
[14]
consistent with Campbell's casual observation.
Between 1990 and 2001 the average judgment length was 12.1 pages.
While prior to 1990 the average judgment length in any given year was less than 10 pages, from 1991 to 2001 the average judgment length was 10 pages or more in each year. In 1997 and 2001 the average judgment length was more than 12 pages and in five years (1995, 1996, 1998, 1999 and 2000) the average judgment length was greater than 13 pages, peaking in 1996 at 14.4 pages. There are several factors which may explain changes in the average length of judgments over time.
Leave to appeal and caseload

One factor that has potentially contributed to the increase in the average length of judgments in the second half of the 1980s and in the 1990s was the introduction by statute of a requirement that appeals to
[15]
the High Court not be brought except by special leave of the Court.
The requirement of special leave effectively
grants the Court a discretion to determine the number and type of cases that it will hear and has clearly affected the case load of the
[16]
Court.
Sir Anthony Mason acknowledged that the High Court is naturally inclined to grant special leave sparingly so that it can undertake a 'thorough
[17]
consideration of selected cases leading to closely reasoned judgment'.
The requirement of special leave has, therefore, reduced the constant flow of relatively easy cases which had been
[18]
part of the Court's case load in previous decades. Reduced case loads leave the Justices with more time to deal with each case,
[19]
although special leave has also meant that those cases which the Court does choose to hear are
usually complicated by powerful competing arguments.

[20]
Kirby J, writing extra-judicially, notes: '[v]irtually all of the cases which are chosen involve delicately balanced issues where there are powerful arguments for both sides. Quite frequently they are expressed in the majority and minority opinions of
[21]
the court under appeal'.
Because all of the cases involve difficult issues of law it follows that discussion of the competing considerations is going to take more space.
In a later article, his Honour contrasts the case load pressures on the New South Wales Court of Appeal and the High Court:
I have spoken to people who were Associates to Justices of the [High] Court decades ago. They tell me of what the High Court was like back in the 1960s. Basically, it was like the Court of Appeal of New South Wales now is. It was run off its feet. Absolutely overwhelmed with work which it could not rebuff or deflect. It was desperately busy just getting the decisions out. In the last year of my service as President of the Court of Appeal I wrote 389 opinions. In the High Court of Australia last year I wrote, I think, about 60 opinions. ... But everything
[22]
is hard. In the High Court of Australia ... all of the cases are difficult.
The High Court as a final court of appeal

Accompanying the introduction of special leave to appeal to the High Court in the mid-1980s, the High Court became the final court of appeal for Australia. The Privy Council had long occupied a difficult position in Australian law. Section 74 of the Constitution precluded appeals to the Privy Council upon issues concerning 'the limits inter se' on constitutional issues, unless the High Court had granted leave to
[23]
appeal to the Privy Council.
The precise scope of an inter se matter (a conflict between state and Commonwealth powers)
[24]
for the purposes of s 74 was a longstanding source of uncertainty.

[25]
In some cases, the Privy Council considered issues other than any inter se
question and, therefore, exercised a clearly limited appellate jurisdiction.

[26]
In other cases the reasoning of the Privy Council was equally concerned with its own jurisdiction as the
[27]
[28]
substantive issue.
Whilst various rights of appeal to the Privy Council from the High Court had been abolished by enactments in 1968
and 1975,
it was still possible to appeal to the Privy Council directly from state courts exercising state jurisdiction until the enactment of the Australia Acts
[29]
[30]
in March 1986.
Shortly before the enactment of the Australia Act 1986 (Cth) a member of the Court of Appeal of New South Wales suggested: The evaluation of the effect of the Privy Council upon Australian law has yet to be done. The existence of a superior court has a constricting effect upon a lower court, and this type of constriction by a foreign court offends nationalistic sentiments. On the other hand, the forcible hitching of the legal system of a small State to one of the great legal systems of the world has provided stimulus to us. ... In a relatively provincial country (though very litigious) such as Australia, the tendency to lapse into self-satisfaction has been restrained by the continual presence of a major legal system, not as a distant exemplar, but as a
[31]
continual force for change. A more widely accepted view is that, while only a small portion of High Court decisions were ever
successfully appealed to the Privy Council, the potential for appeal had a chilling effect on the reasoning
[32]
of the High Court.

[33]
One consequence of this view is that the abolition of appeals to the Privy Council has infused the High
Court with a sense of intellectual freedom and the development of a judicial attitude which the constraints of appeals to the Privy Council discouraged.
Sir Anthony Mason has attributed the metamorphosis that occurred on the Court while he was Chief Justice, at least partly, to the abolition of appeals to the Privy Council. He states that
it is unlikely that the long line of landmark judgments delivered by the High Court in the last decade ... would have been delivered if the appeal to the Privy Council had still been on foot or, if they had been given, it is improbable that they all would have survived an
[34]
appeal to that august body. A corollary of this new sense of intellectual freedom is that the Justices are taking more pages to explore
[35]
its boundaries and its nuances.
The effect of social change and growing complexity

The intellectual adventurism of the Mason Court also contributed to growing judgment length in the 1990s through making the law more contestable and, therefore, more open to different approaches and interpretations. It is reasonable to believe that Justices will write longer judgments in cases which are
[36]
legally more difficult or politically controversial or more likely to have a major social impact.
[37]
Jean Louis
Goutal found that judgments in English appellate contract cases had grown longer over the course of the twentieth century as the judges sought to adapt earlier precedents to changed economic and political conditions.
[38]
Graeme Orr develops this argument in the context
of the High Court, suggesting that in the 1990s the law was 'in a state of historically significant flux' where 'its contestability [was] more evident and accepted than ever'.
This contributed to lengthier judgments as the Justices 'competed' to leave their imprint on the law.
The transition from substantial oral argument to substantial written argument

Parties to proceedings in the Court have always been required to file considerable written material, but the amount of written material and its relative importance in proceedings have clearly changed over time. For most of the history of the High Court, proceedings were largely conducted by way of oral argument. Earlier accounts of proceedings before the Court suggest that a significant part of this time was occupied by questions from the bench, which essentially took the form of cross-examination of counsel. While this cross-examination was often onerous for counsel, the extended dialogues between the bench and the bar provided a means to clarify many of the points during the conduct of a hearing that
[39]
might otherwise be addressed in decisions. The Court relied almost entirely on oral argument until 1982, in the sense that submissions of the parties
[40]
were presented orally.
In 1982 the procedure of the Court was amended to require counsel to provide a written outline of
the main points to be made in argument. In 1984 this procedure was revised, so that counsel could also provide a list of principal
authorities on which they sought to rely. The amount of material filed under this procedure steadily increased over time. In 1997 the rules of Court were amended to require parties to file very detailed written submissions in support of all significant points of
[41]
argument. In an oral hearing, each party largely expands on the written submissions filed prior to the hearing.
The increasing role of written submissions has affected judgment writing in the High Court in several ways. First, oral submissions are much more time consuming than written submissions. The increased use of written materials enables parties to place far more material before the Court within a shorter hearing. The increased use of written submissions also enables Justices to work through submissions faster. One American commentator estimated that a judge reviewing written submissions, such as a Justice of the High Court preparing to hear applications for special leave and/or a substantive hearing, can do so up to five times faster than is possible if the material is tendered largely through oral
[42]
submissions.
Secondly, the use of detailed written submissions enables the Court to make more references to judicial
authorities and secondary sources, and include more detail from those references. The increased length of judgments detailed in Figure 1 may, therefore, indicate that Justices are responding to the changing nature of material placed before them.
Increase in the citation of authority

It has been suggested that another reason for the increase in the length of judgments in the 1990s has
[43]
been excessive, or at least greater, citation of previous cases and academic writings.
[44]
Citation studies
suggest that citations of case law and academic authorities in the High Court have increased over time.
[45]
In 1920 in the High Court there
were 6 citations per judgment; in 1980 the comparable figure was 10.6 and in 1996 it was 43.9.
Orr has suggested that 'a multiplication of words, both in the text and in footnotes'
[46]
is '[o]ne inevitable outcome of the twin trends to greater individuality and broader scholarliness' which was a trait of the Mason Court.
Changes in the number and content of citations are not due to radical changes in the format of citations. Footnotes have been the preferred format for citations in the Commonwealth Law Reports from their
[47]
second volume.
The longstanding use of footnotes is a distinct feature of decisions of the High Court of Australia. They are
[48]
still not used in the authorised reports of other courts of final jurisdiction in English speaking nations of the Commonwealth.
member of the House of Lords has commented that the opinions of the High Court of Australia are 'regularly furnished with footnotes which, like academic
[49]
footnotes, contain material that goes beyond mere references but which the author of the opinion does not wish to put in the body of the text'.
included if 'in text' referencing was used.
The increased number
and greater content of citations is almost certainly influenced by the use of footnotes because they are a device that permits authors to include parenthetic and additional references that might not be
Increases in citation are almost certainly due to the relentless expansion of the volume of the law. The volume of statute and case law continues to increase at a hectic pace. Secondary sources are probably expanding at an even greater pace. Although the rate or size of this expansion cannot be easily measured, most observers would agree that there is a continued and significant increase in the volume of law. It is hardly surprising that parties make use of this increased volume of law and place increased amounts of materials before the courts and this is, in turn, reflected in the increased citation of material by the courts.
The role of information technology

The full impact of technological changes on the drafting of judgments by members of the High Court over the last century is difficult to measure clearly because the rapid nature of many recent changes has obscured many earlier practices. It is, however, useful to recall how judgments were produced until the early 1980s. The drafting of decisions in these times reflected the physical difficulties in document drafting prior to the electronic age. Kitto J normally worked with just a pencil and paper. Barwick CJ laboured over handwritten drafts, and normally produced seven to eight for each judgment. Windeyer J laboured over his decisions, constantly editing and revising. He used scissors and clag to construct and
[50]
change paragraphs.
judgments.
These work habits would have imposed practical limitations on the ability of Justices to draft and revise
Changes in information technology have dramatically altered both the mechanical aspects of the preparation of judgments and the material available for incorporation in judgments. The advent of free online services such as AustLII and SCALE Plus and the extremely wide range of services provided by commercial publishers enables practitioners and judges to access an enormous amount of information that would not be accessible but for the use of online information services. The increased citation of authorities reflects technological developments which make it easier to access more judgments from a
[51]
range of jurisdictions and the increasing number of journals which contain citable articles.
[52]
These changes
have increased the ability of counsel to draw a greater range of authorities to the attention of the courts. The increased availability of information has led Gleeson CJ to comment that: '[p]rovincialism in the development of the common law is no longer an option.'
It is clear that neither appellate courts nor counsel appearing before them can afford to ignore the law of comparable jurisdictions when it is so easily
[53]
available. Gleeson CJ also cautioned that the increased availability of information requires judges to be able to 'recognise and discard junk.'
His Honour is clearly
correct in the sense that the use judges make of the material provided by the parties must be discriminating, and increasingly so in correlation to the amount of information that is provided. But even the most discriminating judge may feel compelled to address a submission that is well researched and drafted but ultimately does not sway the court, if only to assure the parties and others who read the decision, that the submission was actually considered by the court.
Changes to information technology have also greatly affected the mechanical aspects of judgment writing. While judgment writing will always be influenced significantly by the personal style of each
[54]
judge, all judges now have access to cutting edge facilities to produce and manage their documents.
The ease with which word processed documents can be constructed and amended must provide a corresponding temptation to judges to include detail and additional points that might have been omitted in earlier times.
Assistance available to members of the Court

Justices may gain assistance in the preparation of judgments from a range of court staff including secretarial and other administrative support staff, specialist research officers, library staff and Justices' associates. The High Court has employed Justices' associates from its inception. For a long time Justices employed one associate and one tipstaff, but most Justices dispensed with tipstaff during the late 1980s
[55]
in favour of a second associate.
Associates in the High Court normally conduct research, proofread and provide
[56]
comments on draft decisions, but they do not play a significant role in drafting decisions.
amount of time on substantive work.
The availability of two specialist assistants frees
Justices from the mundane aspects of drafting, such as confirming the accuracy of references and updating citations, which enables them to spend a corresponding
The library and research facilities of the High Court were improved at around the same time that Justices began to employ a second associate. When the High Court moved to Canberra in 1980 the library collection was largely consolidated and the number of library staff began to increase. The Court has also
[57]
employed at least one specialist legal researcher almost continuously since 1976.
Library and research staff
complement the work of Justices associates because they can conduct even more detailed research on behalf of Justices, without distracting Justices from their drafting work.
TRENDS IN DECISION-MAKING IN THE HIGH COURT

Figures 25 show information on the proportion of joint judgments, concurring judgments, short concurring judgments (less than one quarter of a page) and dissenting judgments reported in the Commonwealth Law Reports between 1903 and 2001. Figure 2 suggests that the proportion of joint judgments has fluctuated widely. There were historical highs in the early 1920s, in the 1950s and 1990s and historical lows in the late 1930s to mid-1940s and in the 1970s. The proportion of concurring judgments in Figure 3 also shows wide fluctuation. The proportion of concurring judgments was high in the Griffith and Latham Courts and, to a lesser extent, the Barwick Court, while they were relatively low in the 1950s under the Chief Justiceship of Dixon and again in the late 1980s and 1990s. Figure 4 shows that the proportion of short concurring judgments, of the form 'I agree', have tended to fluctuate between 5 and 15 per 100 judgments delivered. There were periods where the number was higher than this in the Griffith and Barwick Courts, while the proportion of short concurring judgments was lower in the 1990s where joint judgments have been more popular. Figure 5 shows the proportion of dissenting judgments. With the exception of the second half of the 1920s and early 1930s, mid-to-late 1940s and the late 1990s, which were periods of relatively high dissent, and the early Griffith Court, where there was little dissent, the dissent rate has generally hovered between 5 and 15 judgments per 100 judgments delivered. There was a spike in 1944 when dissent peaked at 23.46 per 100 judgments.
1102.wmf
Leadership on the Court

One feature of Figures 3 and 5 is that the proportion of concurring and dissenting judgments has fluctuated substantially under different Chief Justices. This reflects to some extent the ability of the
different Chief Justices to generate consensus and put in place procedures to build a more collegial atmosphere. The state of professional and personal relations between members of the High Court cannot be measured by the same methods that we have used to track the length of judgments and the proportion of joint, concurring and dissenting judgments. There are, however, many biographies and articles about members of the Court. The personal and anecdotal nature of the information contained in these sources can illuminate the workings of the Court.
In the early Griffith Court there was little dissent, but a high proportion of short concurring judgments. The early Griffith Court was dominated by the Chief Justice. Until the appointment of Isaacs and Higgins JJ in 1906, Griffith CJ wrote most of the judgments with the short concurrence of his colleagues.
[58]
However, the unanimity of the Court dissolved following the appointment of Higgins and Isaacs JJ. The decline of Griffith CJ's influence gathered pace with the death of O'Connor J in 1912, his replacement by Gavan Duffy J and the appointment of Powers and Rich JJ as additional Justices in 1913. Reflecting this development there was a sharp increase in concurring judgments following the appointment of Higgins and Isaacs JJ.
Higgins and Isaacs JJ were both committed individualists and Isaacs J, whose knowledge of the law was as comprehensive as Griffith CJ's, differed from Griffith CJ in judicial style and philosophy. While Griffith CJ sought a balanced Constitution that reserved state powers, Isaacs J interpreted Commonwealth powers broadly. The appointment of Isaacs J also sparked off the first bout of personal
[59]
tension between the Justices, which has plagued decision-making on the Court for much of its history.
Historical accounts suggest that Isaacs J was disliked by most of his fellow Justices and that his behaviour made any form of co[60]
operation between Justices difficult.
For example, Isaacs J reputedly would hide cases and play down the significance of issues in argument to give
[61]
himself a perceived advantage when it came to writing judgments.
1104.wmf
The Knox Court (191930) is characterized by a relatively high proportion of joint judgments, while there was a high proportion of dissenting judgments in the second half of the 1920s. The workings of the Knox Court were dominated by strong personality differences between Starke J and Isaacs J and Higgins
[62]
J, and also between Isaacs J and the other Justices.
The level of dissension remained high throughout the Knox

[63]
Court. This seems to reflect the domineering role of Isaacs J rather than the lack of leadership of Knox CJ.
[64]
Graham Fricke and Martha
Rutledge suggest that Knox CJ's strategy for dealing with 'Isaacs' domineering flights of rhetoric, Higgins' prickly independence, and Starke J's pragmatic impatience' was a predilection for participating in joint judgments,
which contributed to the high proportion of joint judgments in the 1920s.
The dissent rate continued to be high in the first half of the 1930s when Gavan Duffy was Chief Justice. The Gavan Duffy Court was generally characterized by a lack of leadership. There were personal tensions between Starke J and Evatt J, between Starke J and McTiernan J and between Gavan Duffy CJ and Starke J. Starke J's animosities toward Evatt and McTiernan JJ were partly because of the political nature of their appointments. Both Evatt and McTiernan JJ had been Labor politicians and had been appointed by the Scullin Labor government in controversial circumstances. Gavan Duffy CJ and Starke J's personal dislike for each other seems to have stemmed from family disputes, with Starke J having
[65]
married a daughter of Gavan Duffy CJ's half brother.
In this difficult atmosphere, Gavan Duffy CJ did little to

[66]
facilitate consensus. Fricke states: '[h]is capacity for effective input was minimal. Weak and ineffectual in administration, he did nothing to facilitate conferences or [the] exchange of draft judgments ... His judicial contribution was scanty in the extreme'.
The proportion of concurring and dissenting judgments was high and the proportion of joint judgments was commensurately low under the leadership of Latham CJ. Prior to 1940 the internal workings of the
[67]
Latham Court were dominated by conflict between Evatt and Starke JJ.
When Evatt J resigned in 1940,

[68]
personal relations between members of the Court seemed to improve, but the Court did not function as a cohesive social unit until after Rich and Starke JJ were replaced by Fullagar and Kitto JJ following the defeat of the Chifley Labor government.
While Latham CJ attempted to foster consensus through instigating conference procedures to facilitate the exchange of draft judgments, most of the time these did not work and a strong sense of judicial individualism impeded Latham CJ's capacity for effective leadership. During Latham CJ's term Dixon and Evatt JJ were the only
[69]
Justices to write joint judgments with any regularity. Starke J almost always wrote a separate judgment.
The proportion of concurring judgments dropped and the proportion of joint judgments increased under the leadership of Dixon CJ. The dissent rate in the Dixon Court was also lower than it had been for most of the period Latham was Chief Justice. Dixon CJ enjoyed enormous respect among the puisne Justices as a jurist. Colin Howard suggests: He was on the High Court for such a long time, 35-years extending from 1929 to 1964, for twelve of which he was Chief Justice, that he came to have such an intellectual dominance over the Court which towards the end of his career made him seem part of the fabric of
[70]
federation itself. Dixon CJ used his immense reputation as a jurist to forge consensus. According to Sir Douglas Menzies, Dixon CJ's authority was, of course, enormous, and when he was concerned that a decision should go in a particular way, his aim was to get his own judgment out first for circulation to other members of the Court. To differ from him was a course always taken with hesitation and
[71]
never without foreboding. Dixon CJ's task of building consensus was also made much easier because of the fact that the personal
[72]
relations between the Justices were generally harmonious compared with the Latham Court. The proportion of concurring judgments was again high under the leadership of Barwick CJ. Barwick CJ lacked the juristic dominance of Dixon CJ. David Marr's vivid biography of Barwick CJ suggests that he
[73]
stood in Dixon CJ's shadow for many years.
Perhaps in an attempt to distinguish himself from Dixon CJ, Barwick CJ
sought to manage the Court in a quite different manner. While Dixon CJ obtained consensus through being the first to circulate his judgment and then relying on the intellectual respect of the other Justices to hold sway, Barwick CJ tried to impose greater coordination in judgment writing and regular conferencing in a top-down fashion. According to George Winterton the Justices
[74]
resisted 'his bullying attempts to dominate them'
and this resulted in a proliferation of concurring judgments, which did not speak to each other. Tony
[75]
Blackshield suggests that often there were 'seven different judgments [pointing] in seven different directions. It is not [only] that the judgments [gave] different answers, but that too often they [did] not even address themselves to the same questions'.
The proportion of concurring judgments was relatively low and the proportion of joint judgments was relatively high in the 1980s and 1990s, certainly compared with the Barwick Court. The dissent rate for most of this period hovered within the 5 to 15 judgments per 100 judgments delivered range which has predominated for most of the Court's past, although it was at an historically high level, comparable with some years in the Knox and Latham Courts, in the mid-to-late 1990s. It is generally regarded that the workings of the Court improved under the Chief Justiceships of Gibbs, Mason, Brennan and Gleeson. While the Mason Court covered a period of substantial developments in the law the personal relationships on the Court, however, were good and this reflected the leadership of the Court. Writing on the Mason Court, Sir Gerard Brennan states: '[Mason's] relationship with other members of the Court fostered its collegiate spirit. Suggestions for changes in a draft judgment were freely given or received
[76]
with full recognition of the independence and intellectual integrity of other Justices'.
Institutional features and the decline of the declaratory theory of the law
Conferencing might be expected to increase the proportion of joint judgments, though many commentators have questioned the intellectual value of increased joint judgments obtained via routine
[77]
conferencing in the United States.
In contrast to the United States Supreme Court, the High Court has not had a regular
system of conferences for most of its history. The extent to which Justices have conferred on a formal or informal basis, circulated their reasons for judgment and participated in joint opinions has depended on the personal relations on the Court, sitting
[78]
arrangements and the influence of the Chief Justice in fostering a collegiate atmosphere.
Latham, Dixon, and Barwick CJJ all attempted to
revive judicial conferences to facilitate consultation and build consensus. Latham and Barwick CJJ were largely unsuccessful, which is reflected in the high proportion of concurring judgments in their terms. According to the Dixon diaries, under Latham CJ informal meetings were common throughout the 1930s,
[79]
although their effectiveness was tempered by personal animosities between the Justices.
at the conclusion of important cases, such as Bank of NSW v Commonwealth
[83]
In the late 1940s and early 1950s Latham instigated a series of formal judicial conferences
[81]
[82]
[80]
and Communist Party of Australia v Commonwealth

[84]
but these were generally unsuccessful at obtaining consensus.
Sir Garfield Barwick records that while Chief Justice he proposed holding a
conference at the conclusion of hearings, but this suggestion 'found no favour' among the other Justices.
Barwick CJ was so stung by his failed attempt to introduce regular conferencing that he never attempted to do so again.
Compared with Latham and Barwick CJJ, Dixon CJ had some success in reinstating informal conferences at the conclusion of sittings in the 1950s and 1960s. It is likely that this contributed to the relatively higher proportion of joint judgments while Dixon was Chief Justice. According to Troy Simpson, '[i]n the Dixon Court, informal meetings were held regularly during sittings. The conversation often over cups of tea in Dixon's chambers ranged over current cases and judgments in the course
[85]
of preparation.'
In the late 1980s and 1990s informal meetings among the Justices, rather than formal conferences, were held
[86]
in the Mason and Brennan Courts to monitor progress in opinion writing and to determine if joint judgments were feasible.
[87]
Since
1998, under Gleeson CJ, formal conferences have been held, with all Justices participating, in the week following the conclusion of each sitting of the Court, to discuss reserved judgments.
It is also interesting to consider the effect of the introduction of case selecting discretion on the dissent rate. Some previous studies of the United States State Supreme Courts suggest that those states which
[88]
have case selecting discretion tend to have higher rates of dissent.
This is because with case selection discretion
there are more complex cases, increasing the likelihood that reasonable minds can reach different conclusions on the cases which are heard. However, the United States studies are not consistent in finding that low case loads giving judges more time for judgment writing (or hair-splitting) produce higher rates of concurrences and dissents. Some small volume State Supreme Courts
[89]
such as Maine and Rhode Island have strong traditions of consensus.
The period Sir Anthony Mason was Chief Justice not only coincided with the introduction of case selection discretion, but also with the decline of the declaratory theory of the judicial function in
[90]
Australia.
Karl Llewellyn argued that the rise of legal realism in the United States was an important factor in 'killing court
[91]
teamwork' and in explaining the proliferation of concurring and dissenting opinions.

[92]
The findings of Friedman et al and his findings for the
United States State Supreme Courts were consistent with Llewellyn's argument. They found that the California and New Jersey Supreme Courts, which both had reputations as innovative law reformers, also had the highest rates of divided opinions.
Figure 5 shows no discernible upward trend in the proportion of dissenting judgments on the
High Court after the mid-1980s. The proportion of dissenting judgments does spike in the late 1990s, peaking in 1999 at 17.4 per 100 judgments. This is likely to reflect a 'Kirby effect', which is discussed in more detail in the next section, rather than case selection discretion, although to the extent that there is a 'Kirby effect' it may be driven by the greater prominence of legal realism in the Court.
THE DECISION-MAKING OF INDIVIDUAL JUSTICES

Before we analyse our findings about the features of the decision-making of individual Justices, we should clarify a point of principle. We examine the patterns of decision-making of individual Justices in order to gain a better understanding of individual Justices and, in turn, the Court as a whole. Our analysis of the decision-making of individual Justices should not, however, be taken to suggest that variation between judges is undesirable, or that individual judges should somehow attempt to model the discharge of their professional duties according to some sort of 'preferred model'. Sir Anthony Mason recently acknowledged that the number of individual judgments delivered by members of the High Court had led some commentators to call for an increased attempt by the Justices to deliver more joint judgments or to adopt the approach commonly used in American appellate courts, in which the court
[93]
delivers one majority and one dissenting opinion.
Sir Anthony cautioned:
the Justices have been conscious of the desirability of producing joint judgments. But for various reasons that has not always been possible. Justices may disagree about the result, the reasons or even about the role of the Court. The adoption of a convention that there should be a single majority judgment and a single minority judgment would compromise the intellectual integrity of an individual Justice who wishes to express his or her own
[94]
view, even if it coincides to some extent with that of other colleagues. We agree that the duties of judicial office are a responsibility that ultimately falls to each judge on a personal basis. Any method for the formulation and delivery of reasons for decisions that hampers the ability of a judge to properly discharge that responsibility ought to be avoided. But we also believe that the personal nature of these responsibilities affects the decision-making of judges. As a member of the appellate committee of the House of Lords recently observed: since all judges are independent, they are free to choose both the form and language of their opinions. ... This very freedom of judges in English-speaking countries to shape their opinions as they wish means, however, that their form and language are liable to change,
[95]
not only from judge to judge but over time and in different legal contexts. Table 1 provides information on the proportion of joint, concurring, short concurring and dissenting judgments authored by individual Justices of the High Court as well as the average page length of their judgments. The five Justices with the highest dissent rate in the history of the Court are Kirby J (32.6 per cent), Higgins J (20.7 per cent), Murphy J (18.9 per cent), Latham CJ (16.5 per cent) and McHugh J (14.5 per cent). There are a few previous studies which have calculated dissent rates for specific Justices.
[96]
The figures reported in Table 1 are similar, but not exactly the same as reported in these studies. Blackshield et al calculated Murphy J's dissent rate as 137 times in 632 cases (21.6 per cent). This calculation is based on all cases in which Murphy J sat, not just cases reported in the Commonwealth
[97]
Law Reports.
The figures for Murphy J in Table 1 are based only on the 455 judgments he delivered that are reported in the
[98]
Commonwealth Law Reports. The total number of judgments is consistent with the figure suggested by Richard Haigh, who states that there are approximately 460 judgments by Murphy J in the Lexis database.
[99]
The dissent rates for Kirby and McHugh JJ in Table 1 are

[100]
consistent with dissent rates recorded by Kirby J. Kirby J has reported his own dissent rate as 32 per cent and cited McHugh J's dissent rate, for comparative purposes, as 15 per cent.
These figures are slightly less than those calculated by Lynch who suggests that Kirby J's dissent rate is 34 per cent and McHugh J's dissent rate is 17.7 per cent.
Friedman and his colleagues suggest that there is a positive correlation between the dissent rate and average judgment length. These authors state: '[s]tylistically, dissents tend to be looser and more
[101]
flamboyant than majority opinions'.
Brennan J of the Supreme Court of the United States suggested that dissenting
[102]
judgments often 'ring with rhetoric...[and] straddle the worlds of literature and law' as part of their contrary analysis.
[103]
Previous
studies for Australia and the United States suggest that dissenting judgments tend to be longer and cite more academic authorities, which reflects the notion that dissenting judgments often contain novel legal doctrine and, therefore, are more likely to make use of non-traditional sources of law.
In general, with the notable
exception of Kirby J, there does not appear to be a direct correlation between average judgment length and the proportion of dissenting judgments for individual Justices. The five Justices who have written
the longest judgments are members of the current High Court (Kirby, Gummow, Callinan, Hayne and McHugh JJ), which is consistent with the trends identified in Figure 1 above.
When comparing dissents with judgment length it is interesting to contrast Kirby and Murphy JJ. While his views are not shared by all judges, Kirby J has been one of the loudest judicial advocates of more
[104]
extensive reasons for judgment, in particular in appellate courts.
Orr describes Kirby J's judgments as having
carried forward to new levels the individualistic and scholarly trends [of the current High Court], and as a result are exemplary of the concomitant virtue of richness and vice of verbosity. His judgments are laden with scholarly references, footnotes to academic
[105]
writing and comparative law ... His judgments are as lengthy as they are weighty.
[106]
Like Kirby J, Murphy J also cited a lot of academic authorities and comparative law,
but stylistically his
approach was very different, stating his reasons in a summary form. As a consequence, Table 1 suggests Murphy J had among the shortest judgments in the history of the Court.
Overall, it is difficult to compare judgment writing of individual Justices across time. Justices who delivered a high proportion of joint judgments relative to their contemporaries in the 1920s would have been just average in the 1980s and 1990s. Therefore, it makes more sense to compare the judgment writing style of individual Justices with their contemporaries on the Court. Of the Justices who served primarily in the first three decades of the Court, Gavan Duffy and Knox CJJ and Powers J stand out as having a relatively high percentage of joint judgments and few concurring judgments. Higgins and Isaacs JJ were the big dissenters on the Griffith and Knox Courts. In the Griffith Court, most of the Justices had a high proportion of short concurring judgments with Barton J topping the list, delivering a short concurring judgment 30 per cent of the time. The exceptions are Griffith CJ, who never delivered a short concurring judgment, and Knox CJ and Isaacs and Higgins JJ who rarely wrote short concurring judgments. Of the Justices who served in the Latham Court, Latham CJ and Starke J had the lowest proportion of joint judgments and the highest proportion of concurring judgments, while Rich and McTiernan JJ wrote the highest proportion of short concurring judgments. The Justices who were on the Dixon Court are relatively uniform, although Menzies and Windeyer JJ wrote an above average (for the Dixon Court) percentage of concurring judgments. The length of Windeyer J's judgments, though, were fairly average for the Dixon Court suggesting that his proclivity for citing secondary authorities and researching the history of issues did not translate into longer judgments. The Justices who served under Barwick CJ mostly have a high proportion of concurring judgments, consistent with the historical trends discussed above. Mason CJ is an exception, but, of course he remained on the Court after Barwick CJ retired. Barwick CJ and Walsh J, together with McTiernan J, who continued on the High Court for most of the period Barwick was Chief Justice, had the highest dissent rates. Aickin and Stephen JJ both have a high percentage of short concurring judgments, rivalling the early Griffith Court. Two features stand out for the Justices who served on the Court in the 1980s and 1990s, which are again consistent with the historical trends identified earlier. One is that most of the Justices have a high percentage of joint judgments (Kirby J is an exception). The other is the low number of short concurring judgments.
Compared with the Griffith and Barwick Courts, this form of judgment has largely disappeared over the 1990s.
CONCLUSION
Lynch has suggested that empirical research into judicial decision-making of a court can provide insights into the operation of the court, subject to important limitations. He suggests that empirical research of the type we have undertaken provides information that 'feeds in to more familiar scholarship
[107]
about the Court, and the legal reasoning of its members.'
Lynch also suggests that empirical research is subject to
important limitations. It must be conducted in a transparent and rigorous manner, and its results must be supplemented by qualitative analysis. We agree that research of this nature cannot replace qualitative legal scholarship, but it does provide insights that other forms of legal research cannot.
Our analysis of decisions of the High Court delivered from 1903 to 2001 has revealed several clear trends. First, the length of reasons for decisions of the Court has certainly increased from the beginning of the 1990s. Prior to the 1990s the average length of decisions of the Court had fluctuated over time, but did not show any significant long term trend. Secondly, although the length of decisions has increased clearly since the start of the 1990s, that trend appears to have peaked in the mid-to-late 1990s. Whether the increase in the length of decisions has peaked in historical terms, and whether it may reverse or resume, can only be established over more time. The trends revealed by our analysis of joint, concurring and dissenting opinions within the High Court are quite different. The level of each form of judgment has varied significantly over time, but the variations do not yield clear trends such as those established for the length of decision. While the variations in levels of joint, concurring and dissenting opinions can be explained by reference to a range of factors, such as relations between individual Justices and the Court as a whole and the manner of leadership that different Chief Justices have managed to forge, the significant variations in the level of joint, concurring and dissenting opinions are almost certainly due to the combined effect of such factors, and variations in the effect of these factors over time. One can also draw a tentative conclusion between our findings on the change over time in the length of decisions of the High Court and changes in the level of joint, concurring and dissenting opinions delivered by individual Justices of the High Court. The length of decisions has clearly increased in recent times. The level of joint, concurring and dissenting opinions has fluctuated significantly over time, but none have changed in apparent response to the recent increase in the average length of judgments. On this view, the increased length of decisions of the High Court has neither assisted nor impeded the forging of consensus in the Court. Whether the same is true in particular areas of law is a question that awaits further investigation. Insert Table 1 here Insert Table 1 (2nd page here)
Table 1: Judgment Writing of Individual Justices Joint Griffith Barton Concurring Short Dissenting Judgments Total Average Concurring Delivered Pages Length 3.8 (262) 2.6 (101) 2.1 (35) (23) (10) 911 874 468 4582 5.03 2909 3.33 1793 3.83 7221 6.04 2187 4.19 1583 2.07 691 3.31 3714 2.63 1611 3.42 3652 3.01 10572 6.22 2303 5.43 5786 3.32 4081 6.67 3773 5.99 2079 4.64
1903 12.8 (117) 83.3 19 1903 16.5 (144) 50.9 20 (73) 60.7
(759) _ (445) 30.0 (284) 21.6 (676) 8.4 (357) 6.1 (18) (16) 22.4 27.8
OConnor 1903 15.6 12 Isaacs Higgins Duffy Powers Rich Knox Starke Dixon Evatt
1906 20.9 (250) 56.6 31 1906 4.8 29 (25) 68.4
(100) 14.1 (169) 1195 (32) 20.7 (108) 522 (172) 8.7 (67) 767 209 1411 471
1913 66.5 (510) 2.3 35 1913 51.7 (108) 7.7 29 1913 35.9 (507) 37.4 50 1919 51.6 (243) 40.1 30 1920 20.0 (242) 59.9 50 1929 41.8 (710) 49.4 64 1930 34.2 (145) 42.2 40
(58) 12.9 (27) (288) 6.2 (9) 6.4 (88) (30)
(528) 20.4 (189) 1.9 (726) 8.0 (840) 3.2 (179) 9.7 (657) 22.8 (461) 0.8 (313) 6.3 (140) 8.9
(97) 12.2 (148) 1213 (55) 5.5 (94) 1699 424
(41) 13.9 (59)
McTiernan 1930 26.7 (466) 37.7 76 Latham Williams Webb 1935 7.4 52 (45) 75.3
(398) 12.8 (224)) 1745 (5) 16.5 (101) 612 (40) 9.7 (61) 630 448
1940 34.3 (216) 49.7 58 1946 48.9 (219) 31.3 58
(40) 10.9 (49)
Fullagar Kitto Taylor Menzies
1950 47.1 (256) 34.4 61 1950 42.1 (393) 36.9 70 1952 49.7 (393) 33.8 69 1958 24.4 (169) 54.7 74
(187) 10.3 (344) 13.6 (267) 11.3 (379) 12.0 (323) 14.6 (170) 20.1 (446) 10.7 (97) 14.9
(56) 8.1 (127) 7.4 (89) 5.2 (83) 8.9 (85) 7.7 (82) 6.9
(44) (69) (41) (62) (45) (28)
543 933 790 693 581 407 723 148 702 983 457 217 455 262 464 743 570 647
3545 6.53 4927 5.29 3852 4.88 2820 4.07 3035 5.22 1423 3.50 4176 5.78 848 5.73 5116 7.29 8050 8.19 2224 4.87 1012 4.66 1811 3.98 1699 6.48 3260 7.03 6802 9.15 5077 8.91 5737 8.87
Windeyer 1958 22.0 (128) 55.6 72 Owen Barwick Walsh Gibbs Mason Stephen Jacobs Murphy Aickin Wilson Brennan Deane Dawson 1961 31.2 (127) 41.8 72 1964 14.4 (104) 61.7 81 1969 6.8 73 (10) 65.5
(77) 13.3 (96) (22) 12.8 (19) (68) 7.0 (132) 4.3 (139) 7.2 (49) (42) (33)
1970 21.4 (150) 62.0 87 1972 49.7 (489) 32.8 95 1973 13.1 82 1974 15.2 79 1975 16.0 86 1976 9.9 82 (60) 49.2 (33) 53.9 (73) 50.3 (26) 34.7
(435) 9.7 (322) 13.4 (225) 30.4 (117) 19.8 (229) 14.7 (91) 43.5
(43) 11.1 (24) (67) 18.9 (86) (114) 11.8 (31) (67) 6.0 (28)
1979 56.9 (264) 22.6 89 1981 45.0 (334) 35.5 98 1982 60.7 (346) 23.5 95 1982 62.9 (407) 19.9 97
(105) 14.4 (264) 6.2 (134) 3.9 (129) 7.4
(46) 13.3 (99) (22) 11.9 (68) (48) 9.6 (62)
Gaudron Toohey McHugh Kirby Callinan Gleeson Hayne
1987 68.0 (389) 17.7 1987 66.0 (284) 20.7 98 1989 56.2 (278) 27.1 1996 25.9 1998 46.2 74.2 (58) 41.5 (60) 41.5 (89) 20.8
(101) 1.9 (89) 2.1
(11) 12.4 (71) (9) 11.2 (48) (11) 14.5 (72) (3) 4.7 (12) _ 32.6 (73)
572 430 495 253 224 130 120 139
5949 10.40 4490 10.44 5875 11.87 3961 15.66 3851 17.19 1663 12.79 1375 11.46 1692 12.17
(134) 2.2 (50) (93) (54) (25) (24) 2.3 1.7 2.2 1.2
Gummow 1995 74.3 (188) 19.8
(3) 10.0 (13) (2) 3.3 (3) 8.6 (4) (12)
71.9 (100) 17.3
Notes: Figures are percentage of total judgments delivered. Figures in parentheses are the number of judgments.
[]
BA LLB (Hons) PhD (Monash), Lecturer, Faculty of Law, Monash University.
[#]
BEc (Hons) LLB (Hons) MEc (Monash), PhD (London), Professor, Department of Economics, Faculty of Business & Economics, Monash University. The authors are grateful to Enid Campbell and an anonymous referee for helpful comments on this article.
[1]
Enid Campbell, 'Reasons for Judgment: Some Consumer Perspectives' (2003) 77 Australian Law Journal 62.
[2]
Justice Brian Beaumont, 'Contemporary Judgment Writing: The Problem Restated' (1999) 73 Australian Law Journal 743; Chief Justice John Doyle, 'Judgment Writing: Are There Needs for Change?' (1999) 73 Australian Law Journal 737. The current Chief
Justice of the High Court recently remarked '[a]s for style in judgment writing, this is a subject worthy of a paper of its own. By saying nothing about it on this occasion, I hope to set an example of judicial restraint': Chief Justice Murray Gleeson, 'The Centenary of the High Court: Lessons From History' (Speech delivered at the Thirteenth AIJA Oration in Judicial Administration, The Banco Court, Supreme Court of Victoria, Melbourne, Friday 3 October 2003) 11.
[3]
See Graeme Orr, 'Verbosity and Richness: Current Trends in the Craft of the High Court' (1998) 6 Torts Law Journal 291.
Recently some attempt has been made to document trends in judgment writing over a limited specified period. For example, for a recent study which offers statistics for the Gleeson Court see Andrew Lynch, 'The Gleeson Court on Constitutional Law: An Empirical Analysis Of Its First Five Years' (2003) 26 University of New South Wales Law Journal 32. However, there are no studies which document trends in judgment writing over the history of the Court.
[5]
[4]
Ibid. See also Jean Louis Goutal, 'Characteristics of Judicial Style in France, Britain and the USA' (1976) 24 American Journal
of Comparative Law 43.

[6]
Lawrence Friedman et al, 'State Supreme Courts: A Century of Style and Citation' (1981) 33 Stanford Law Review 773, 773-4.
Lynch, 'The Gleeson Court on Constitutional Law', above n 4. See also Andrew Lynch, 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' (2003) 27 Melbourne University Law Review 724.
[8]
[7]
See Andrew Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia' (2002) 24 Sydney Law Review 470. See also Lynch, 'The Gleeson Court on Constitutional Law', above n 4; Michael Coper, 'Concurring Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 129; Andrew Lynch, 'Dissenting Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 216; Michael Coper, 'Joint Judgments and Separate Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 367.
[9]
Coper, 'Concurring Judgments', above n 8, 130.
[10]
Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement', above n 8, 4801.
[11]
Ibid 492502.
[12]
From 1903 to 1906 there were only three Justices appointed to the Court (Griffith CJ and Barton and O'Connor JJ). The size of the Court grew to five Justices in 1906 with the appointment of Isaacs and Higgins JJ. The Court expanded to seven Justices in 1913.
[13]
Judiciary Act 1903 Strictly speaking a Full Court comprises two or more Justices: (Cth) s 19. In practice, however, a Full Court of seven Justices presides in cases involving a constitutional issue or an issue in which it is particularly desirable for the entire Court to rule, such as one in which the Court may be invited to overrule one of its earlier decisions. Such cases may be considered by a full bench comprising six Justices if one member of the Court determines that he or she ought not to preside on the ground that presiding may give rise to a reasonable apprehension of bias. In most other cases a Full Court is most commonly comprised of five Justices.
[14]
Campbell, above n 1.
Judiciary Amendment Act (No 2) The requirement of grant of special leave to appeal was introduced in 1984 by s 3(1) of the 1984 (Cth). See David Solomon, 'Controlling the High Court's Agenda' (1993) 23 University of Western Australia Law Review 33 and David Jackson, 'The Role of the Chief Justice: A View From the Bar' in Cheryl Saunders (ed), Courts of Final Jurisdiction:
[15]
The Mason Court in Australia (1996) 21.

[16]
Leave is required for appeals from all federal, state and territory courts. The only exception is s 95(b) of the
Family Law Act
1975
(Cth), which empowers the Full Court of the Family Court to issue a certificate that a case involves an important question of law or public importance. The issue of such a certificate effectively bypasses the requirement for special leave.
[17]
Sir Anthony Mason, 'The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal' (1996) 15 University of Tasmania Law Review 1, 9.
[18]
For a similar argument in the context of State Supreme Courts in the United States see Friedman et al, above n 6, 778.
[19]
Callinan J offered a contrary view prior to his appointment to the Court. Callinan QC, as his Honour then was, suggested that the introduction of the requirement of special leave has granted the High Court an unfettered discretion, and that observers often cannot discern any principles governing the exercise of that power: Ian Callinan, 'An Over-Mighty Court' (1995-6) 51 Refresher:
Journal of the Bar Association of Queensland 34, 367. It is worth noting that his Honour did not proffer a clear principle or principles to govern the grant of special leave. Justice Michael Kirby, 'Sir Anthony Mason Lecture 1996: A F Mason From Trigwell to Teoh' (1996) 20 Melbourne University Law Review 1087, 1097.
[21] [20]
By contrast the Justices of the Court normally dispose of cases in which special leave is refused with a single voice and reasons that convey the view of the Court with utter clarity. For example, a presiding Justice may confer briefly with other members of the Court and simply reply: '[t]he application for special leave in this matter is refused. The Court is of the view that the case has insufficient prospects of success to warrant the grant of special leave.' Callinan QC, as his Honour then was, suggested that such short statements of reasons for the refusal of a grant of special leave 'are usually as inscrutable as the statutory discretionary grounds which may attract special leave': Ian Callinan, above n 19, 37.
[22]
Justice Michael Kirby, 'What is it Really Like to be a Justice of the High Court of Australia?: A Conversation Between Law Students and Justice Kirby' (1997) 19 Sydney Law Review 514, 518. Gleeson CJ echoed these sentiments when he suggested that,
prior to the introduction of the requirement of special leave, the High Court 'used to get a reasonable number of easy cases. That no longer applies': Chief Justice Murray Gleeson, 'A Changing Judiciary' (2001) 75 Australian Law Journal 547, 553.
[23]
Section 74 empowers the High Court to issue a certificate 'if satisfied that for any reason the certificate should be granted'. The [1912] HCA 94; Court has only granted one certificate, for the case of Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; Attorney-General (Cth) v Colonial Sugar Refining Co Ltd [1914] AC 237 (PC). The reasoning of the Privy Council was widely regarded as unsatisfactory.
[24]
Section 74 also essentially excluded the Privy Council's involvement in most intergovernmental disputes, which has been a central question of Australian constitutional law.
See, eg, Commonwealth v Bank of New South Wales [1950] AC 235. That case was argued in the High Court on a myriad of grounds, but the Commonwealth appealed to the Privy Council only on a relatively narrow question concerning s 92 of the Constitution . The Privy Council ultimately held that this aspect of the case raised an inter se question and, therefore, could not be heard in the absence of a certificate issued by the High Court under s 74.
[25]
[26]
See, eg, Jones v Commonwealth Court of Conciliation and Arbitration [1917] AC 528. Privy Council (Limitations of Appeals) Act 1968 (Cth). Privy Council (Appeals from the High Court) Act 1975 (Cth). Australia Act 1986 Australia (Request and Consent) Act 1985 (Cth); the Australia Acts Request Act 1985 of each state;
[27]
[28]
[29]
(Cth);
Australia Act 1986 (UK).

[30]
See David Jackson, 'Leave to Appeal' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 425. Strictly speaking, appeals to the Privy Council remain possible, but the High Court has
Constitution referred to its jurisdiction under s 74 of the to grant a certificate to appeal to the Privy Council as 'obsolete': Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27; (1985) 159 CLR 461, 465 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
[31]
Justice F C Hutley, 'The Legal Traditions of Australia as Contrasted with Those of the United States' (1981) 55 Australian Law Journal 63, 69.
[1968] Perhaps the most notable of later cases in which this occurred was Mutual Life & Citizens' Assurance Co Ltd v Evatt HCA 74; (1968) 122 CLR 556. The reasoning of the High Court in that case made notable advances in the law governing liability for negligent misstatements. Barwick CJ, at 563, stressed the role of the High Court in declaring and advancing the common law of Australia. The decision was overruled by a majority of the Privy Council: [1971] AC 793.
[32] [33]
Kirby, 'A F Mason From Trigwell to Teoh', above n 20, 10956. See also Jackson, 'The Role of the Chief Justice', above n 15.
Sir Anthony Mason, 'Reflections on the High Court of Australia' (1995) 20 Melbourne University Law Review 273, 280. Sir Gerard Brennan, who succeeded Mason as Chief Justice of the High Court, recently contributed to a volume in honour of the centenary of the first sitting of the High Court. Brennan's paper addressed the role of the Privy Council in constitutional law but, notably, did not address Mason's thesis: Sir Gerard Brennan, 'The Privy Council and the Constitution' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 312.
[35]
[34]
By contrast, a judge of the Supreme Court of Canada has suggested that the abolition of appeals to the Privy Council in that jurisdiction influenced the Court's decision to adopt regular conferencing, which has greatly reduced the level of multiple opinions in the Court. The Court was anxious to ensure that its decisions as the court of final jurisdiction provided a level of certainty: Justice Claire L'Heureux-Dub, 'The Dissenting Opinion: Voice of the Future?' (2000) 38 Osgoode Hall Law Journal 495, 500.
[36]
Friedman et al, above n 6, 777.
[37]
Goutal, above n 5, 614.
[38]
Orr, above n 3, 292.
[39]
Sir Owen Dixon seemed mindful of the disadvantages of this practice when sworn in as Chief Justice. He recalled his own appearances as an advocate when the Court observed a 'process by which arguments were torn to shreds before they were fully admitted to the mind': Sir Owen Dixon, 'Swearing In of Sir Owen Dixon as Chief Justice' (1952) 85 CLR xi, xiv.
[40]
Individual Justices could, of course, always seek research assistance from associates and conduct their own research.
[41]
These changes in procedure are summarised by Sir Gerard Brennan in 'Decision-Making Process' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 197. The most recent Practice
Direction governing this aspect of procedure is Practice Direction No 1 of 2000. Clauses 7(a) and 9(a) of that direction respectively provide that the submissions of appellants and respondents shall not exceed 20 pages without the leave of a member of the Court.
[42]
Henry Perritt, 'Changing Litigation With Science and TechnologyVideo Depositions, Transcripts and Trials' (1994) 43 Emory Law Journal 1071, 10878. Perritt bases this conclusion largely on the different amounts of material that a judge may
receive by oral testimony (which is limited by the speed a witness speaks at) as opposed to reading written materials. Kirby J has cited Perritt's estimation of the differing amount of information that can be absorbed through oral and written submission, with apparent agreement, in 'The Future of CourtsDo They Have One?' (1999) 8 Journal of Judicial Administration 185, 189. His Honour also noted that during his time on the bench the structure of written submissions had changed 'from virtually nothing to bare skeletal outlines and now to substantive text': at 189.
[43]
Campbell, above n 1, 63; Doyle, above n 2, 7389; Orr, above n 3, 293.
[44]
Russell Smyth, 'Other than "Accepted Sources of Law"?: A Quantitative Study of Secondary Source Citations in the High Court' (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, 'Citations by Court' in Tony Blackshield,
Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 98.
[45]
Smyth, 'Citations by Court', above n 44, 98.
[46]
Orr, above n 3, 294.
No footnotes are contained in the decisions reported in volume 1 of the Commonwealth Law Reports. There is no apparent reason for this, except the obvious point that no Justices used footnotes in the decisions reported in the first volume.
[48]
[47]
The authorized reports of the Privy Council, the House of Lords, the Supreme Court of Canada and the Court of Appeal of New Zealand do not include footnotes. Lord Rodger, 'The Form and Language of Judicial Opinions' (2002) 118 Law Quarterly Review 226, 235.
[49]
[50]
See David Marr, Barwick (1980) 222.
[51]
See Beaumont, above n 2, 747; Orr, above n 3, 294. Gleeson, 'The Centenary of the High Court', above n 2, 8.
[52]
[53]
Gleeson, 'A Changing Judiciary', above n 22, 553. Gleeson CJ suggested that this increasing information overload 'commenced with the photocopier.' The ALRC also warned against information overload when it cautioned against the increased use of computer generated materials such as lists of citations: Australian Law Reform Commission, Technology What it Means for Federal Dispute Resolution, Issues Paper No 23 (1998) [2.38].
[54]
Gleeson CJ has noted that Justices of the High Court are now provided such a range of electronic assistance, from video links, electronically filed material and on-line research facilities that Justices could perform all of their duties from home if they wished: Gleeson, 'A Changing Judiciary', above n 22, 553.
[55]
One former associate suggested this change led to 'more thoroughly footnoted judgments and more poorly maintained law reports': Andrew Leigh, 'Associates' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to
the High Court of Australia (2001) 34, 35.

[56]
See Andrew Leigh, 'Behind the Bench: Associates in the High Court of Australia' (2000) 25 Alternative Law Journal 295.
Amelia Simpson, 'Research Assistance' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 600.
[58]
[57]
Sir Anthony Mason, 'Griffith Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 311. Troy Simpson and Amelia Simpson, 'Personal Relations' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 528. See the discussion in Zelman Cowen, Isaac Isaacs (1967) 11617; John Rickard, Higgins: The Rebel as Judge (1984) 26679.
[59]
[60]
[61]
Cowen, above n 60, 1245. Simpson and Simpson, above n 59, 529.
[62]
[63]
Russell Smyth, 'Explaining Historical Dissent Rates in the High Court of Australia' (2003) 41 Journal of Commonwealth and Comparative Politics 83, 90.
[64]
Graham Fricke and Martha Rutledge, 'Knox, Adrian' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 400. See also Graham Fricke, 'The Knox Court: Exposition Unnecessary' (1999) 27 Federal Law Review 121.
[65]
Simpson and Simpson, above n 59, 529.
[66]
Graham Fricke, 'Gavan Duffy, Frank' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 296. See Clem Lloyd, 'Not Peace But a Sword! The High Court Under J.G. Latham' (1987) 11 Adelaide Law Review 175.
[67]
[68]
Roger Douglas, 'Latham Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 421.
[69]
See Russell Smyth, 'Explaining Voting Patterns on the Latham High Court 193550' (2002) 26 Melbourne University Law Review 88. Colin Howard, 'Sir Owen Dixon and the Constitution' (1973) 9 Melbourne University Law Review 5, 5. Sir Douglas Menzies, 'Sir Owen Dixon' (1973) 9 Melbourne University Law Review 1, 3.
[70]
[71]
Simpson and Simpson, above n 59, 530; Leslie Zines, 'Dixon Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 220.
[73]
[72]
Marr, above n 50, 213. George Winterton, 'Barwick the Judge' (1998) 21 University of New South Wales Journal 109, 114. Tony Blackshield, 'The High Court: Change and Decay' (1980) 5 Legal Service Bulletin 107, 108 (emphasis in original).
[74]
[75]
Sir Gerard Brennan, 'A Tribute to Sir Anthony Mason' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 13. On the effect of leadership on variation in the proportion of concurring and dissenting judgments in the High Court, see also Russell Smyth and Paresh Kumar Narayan, 'Hail to the Chief! Leadership and Structural Change in the Level of Consensus on the High Court of Australia' Journal of Empirical Legal Studies (forthcoming). The system of conferencing in the United States Supreme Court is explained in detail in Del Dickson (ed), The Supreme Court in Conference (19401985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001). Marr describes the American system as one of 'perfunctory oral argument, horsetrading in decision-making, and a lack of clarity in the legal reasoning
[77]
[76]
of its decisions.': above n 50, 235. See Troy Simpson, 'Conferences' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 130; G P J McGinley, 'The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts' (1987) 11 Adelaide Law Review 203.
[79] [78]
Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 222. [1948] HCA 7; (1948) 76 CLR 1 (the 'Bank Nationalisation case'). [1951] HCA 5; (1951) 83 CLR 1 (the 'Communist Party case'). Troy Simpson, above n 78, 131; Zelman Cowen, Sir John Latham and Other Papers (1967) 345. Sir Garfield Barwick, A Radical Tory: Garfield Barwick's Reflections and Recollections (1995) 223.
[80]
[81]
[82]
[83]
[84]
Marr, above n 50, 233. Marr suggests that the resistance of some Justices was based on their belief that Barwick himself was not suited to conferencing because of his inflexibility. Troy Simpson, above n 78, 131.
[85]
[86]
Ibid 132.
[87]
Ibid.
[88]
See, eg, B Canon and D Jaros, 'External Variables, Institutional Structure and Dissent on State Supreme Courts' (1970) 3 Polity 175.
[89]
Friedman et al, above n 6, 789. For an empirical study that attempts to measure the effect of case selecting discretion, as well as other institutional features of the High Court on dissent rates using multiple regression analysis see Russell Smyth, 'What Explains Variations in Dissent Rates? Time Series Evidence from the High Court' Sydney Law Review (forthcoming). See the discussion in Kirby, 'A F Mason From Trigwell to Teoh', above n 20, 10989. Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) 462.
[90]
[91]
[92]
Friedman et al, above n 6, 7912.
[93]
Sir Anthony Mason, 'The High Court of Australia: A Personal Impression of its First 100 Years' (2003) 27 Melbourne University Law Review 864, 888.
[94]
Ibid. Rodger, above n 49, 227.
[95]
[96]
See, eg, the studies cited above n 8. Anthony Blackshield et al (eds) The Judgments of Justice Lionel Murphy (1986) xviixix. Richard Haigh, '"It is Trite and Ancient Law": The High Court and the Use of the Obvious' (2000) 28 Federal Law Review 87,
[97]
[98]
95.
[99]
Justice Michael Kirby, 'Law at Century's End -- A Millennial View From the High Court of Australia' (2001) 1 Macquarie Law Journal 1, 13.
Lynch, 'The Gleeson Court on Constitutional Law', above n 4. Lynch also provides figures on dissent rates for other members of the current High Court in all cases and constitutional cases, some of which differ from the figures reported here. We use the same methodology as Lynch. There appears to be two main reasons for the differences. First, Lynch's figures are based on all cases reported in the Australian Law Reports, while our figures are based on the Commonwealth Law Reports. Second, we include all cases up to the end of 2001, while Lynch covers the period May 1998 to February 2003. Overall, for most of the members of the current High Court, this means that Lynch's figures are based on a larger number of cases.
[101]
[100]
Friedman et al, above n 6, 785. Hunter Clark, Justice Brennan: The Great Conciliator (1995) 256.
[102]
For the United States see Wes Daniels, '"Far Beyond the Law Reports": Secondary Source Citations in United States Supreme Court Opinions: October Terms 1900, 1940 and 1978' (1983) 76 Law Library Journal 1. For the High Court, see Smyth, 'Other than "Accepted Sources of Law"?', above n 44.
[104]
[103]
See Justice Michael Kirby, 'Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory' (1994) 12 Australian Bar Review 121. For a contrary view by another judge see Beaumont, above n 2.
[105]
Orr, above n 3, 300. See Smyth, 'Other than "Accepted Sources of Law"?', above n 44.
[106]
[107]
Lynch, 'The Gleeson Court on Constitutional Law', above n 4, 35.
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A Century of Judicial Style

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A Century of Judicial Style: Changing Patterns in Judgment Writing on th...

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and Russell Smyth

This argument is based on

performed and the complexity of the legal controversies which it faces.

It can also provide insights into how

discussion and scrutiny by legal commentators.

DATA AND METHODOLOGY

suggested by Andrew Lynch.

We classified a judgment as a joint judgment if it was delivered by two or more Justices

what it is with which the Justice agrees'.

treated separately to joint judgments.

LENGTH OF HIGH COURT JUDGMENTS

consistent with Campbell's casual observation.

Leave to appeal and caseload

The requirement of special leave effectively

consideration of selected cases leading to closely reasoned judgment'.

usually complicated by powerful competing arguments.

the court under appeal'.

The High Court as a final court of appeal

appeal to the Privy Council.

for the purposes of s 74 was a longstanding source of uncertainty.

question and, therefore, exercised a clearly limited appellate jurisdiction.

of the High Court.

its boundaries and its nuances.

The effect of social change and growing complexity

Graeme Orr develops this argument in the context

The transition from substantial oral argument to substantial written argument

were presented orally.

Increase in the citation of authority

In 1920 in the High Court there

The increased number

The role of information technology

His Honour is clearly

Assistance available to members of the Court

in favour of a second associate.

The availability of two specialist assistants frees

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Library and research staff

TRENDS IN DECISION-MAKING IN THE HIGH COURT

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Leadership on the Court

operation between Justices difficult.

himself a perceived advantage when it came to writing judgments.

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J, and also between Isaacs J and the other Justices.

The level of dissension remained high throughout the Knox

Graham Fricke and Martha

married a daughter of Gavan Duffy CJ's half brother.

In this difficult atmosphere, Gavan Duffy CJ did little to

When Evatt J resigned in 1940,

stood in Dixon CJ's shadow for many years.

Perhaps in an attempt to distinguish himself from Dixon CJ, Barwick CJ

resisted 'his bullying attempts to dominate them'

conferencing in the United States.

Latham, Dixon, and Barwick CJJ all attempted to

and Communist Party of Australia v Commonwealth

but these were generally unsuccessful at obtaining consensus.

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have case selecting discretion tend to have higher rates of dissent.

This is because with case selection discretion