Bar Practice Course Final Address

The Honourable Justice JA Dowsett AM

The 20th Century — the Courts Quiescent! The 21st Century — the Courts Militant?

Ladies and Gentlemen,

First, I should congratulate those of you who have recently completed the Bar Practice Course. Such a course was unknown when I started at the Bar. If anyone had dared to suggest that there be such a course, he or she would have been told that advocacy, and other skills and values associated with the profession of barrister, could not be taught. That proposition we now know to be untrue. Those matters can be taught, but only after there has been prolonged and serious consideration of the barrister’s function. The problem was that until relatively recently, nobody had really done that.

It is a characteristic of a learned profession that its members actively concern themselves with the training of new entrants and celebrate their entrance as a sign of the profession’s capacity to renew itself, so as to ensure that it will continue to serve the community long after its present members have departed. As I approach the end of my legal career, I am delighted to see so many new recruits to the Bar. I am confident that you will carry on the ideals and traditions which I have valued throughout my professional life.

My topic for tonight is:

The 20th Century — the Courts Quiescent!

The 21st Century — the Courts Militant?

Those of you who are familiar with Bruce McPherson’s book, “The Supreme Court of Queensland”1, will be familiar with the term “Court Quiescent” which is the title of Chapter 10, dealing with the Supreme Court during the years 1941-1960. His book does not deal with events after 1960. The word “quiescent” is one of those words which we know, but about the meaning of which we are a little unclear. The New Shorter Oxford Dictionary gives the meaning as, “motionless, inert, dormant”. I have little doubt that McPherson would have agreed that the Court’s quiescence continued past 1960. As to the years before 1941, my thesis is that there had been little real change in the practices and attitudes of the courts and the profession since the enactment of the Judicature Acts. This is an impression rather than a reasoned conclusion, and I will be able to say only a very little about the way in which I have formed that impression. Although my experience is as a member of the Supreme Court of Queensland and then the Federal Court, I believe that the trends and tendencies to which I refer occurred throughout Australia, at about the same time as in Queensland.

The expression “Court Militant” I have coined, borrowing from ecclesiastical usage of the word “militant” to describe the Church as fighting against sin, the world and the devil and, to quote Wikipedia and the Book of Ephesians, against “the rulers of the darkness of this world, against spiritual wickedness in high places”. Attractive as such a purpose may be to some of my colleagues, I use the word in a more prosaic sense to describe the courts’ ongoing struggle to do justice according to law, and to maintain the independence which is necessary in the effective performance of that task. The title is, of course, largely metaphorical — in other words an attempt to give a fairly pedestrian paper the appearance of intellectual rigour, and to produce a cheap laugh.

In effect, I want to address two themes. First, I want to speak to you about a few changes in the operation of the courts which have occurred during my time in the profession, including two radical changes in the way in which the Federal Court handles its work. I shall endeavour to show how the courts have moved from quiescence to militancy. My second theme addresses changes in the relative power of the courts on the one hand, and the legislative and executive branches of government on the other, in other words, the present position and future prospects of the courts militant.

I commenced articles in 1970 and was admitted to the Bar at the end of 1972. The early 1970s seem, in retrospect, to have marked the beginning of a transformation in litigation in Queensland, and more widely. The transformation started slowly. Prior to commencing at the Bar, I had very little contact with the court system, but I knew that the registry staff had a reputation for being quite rude to practitioners and, particularly, to articled clerks. The staff apparently thought that they were protected by their association with the judges. Until just before I started, associates were still charging practitioners for providing copies of judgments and for organizing special hearings in urgent matters. The associates pocketed the fees. This was the continuation of a practice which had its roots in a time when Judges were not paid salaries but remunerated themselves by charging fees.

On the criminal side the lists were effectively run by the Chief Crown Prosecutor who decided when a matter would be listed for trial. Civil trials were listed at monthly callovers. The cases were largely personal injuries cases. The callovers were run to suit the convenience of a handful of barristers who dominated in that area, often leaving other cases, and other practitioners to fend for themselves. There was a very long list of unheard cases, although there was little desire in the courts or the profession to remedy the situation. Nobody asked the litigants. The solicitors were more or less able to decide the rate at which each case proceeded, and they generally proceeded very slowly. Not infrequently, the solicitor for the plaintiff in a personal injuries case would make demand on the licensed insurer, and then do nothing much, except possibly try to settle it. If there was no settlement, a writ would be issued, often shortly before the limitation period expired, but it would not be served. As I recall, after a year of inactivity, a plaintiff had to give some sort of notice before proceeding. After three years, the plaintiff needed leave to proceed. Such applications were frequently necessary, the only persons to benefit being the junior counsel who appeared.

In 1910, the Queensland Parliament had enacted the Commercial Causes Act2, based on legislation in other jurisdictions. I do not know how frequently it was used between 1910 and the early 1970s, but it is safe to say that in the early 1970s, nobody had any recollection of a time when it was in common use. However, at that time, E.S Williams (later Sir Edward Williams) was appointed as the Commercial Causes Judge. I do not know why the Act was resurrected. There may have been a perception that the volume of commercial work was increasing. Sir Edward was succeeded by Peter Connolly, an intellectual giant, and a very hard and quick worker. He could also be very direct with anybody who wasted his time. The Commercial Causes Court was not a place for the faint-hearted, but the work was done quickly and well. Connolly was succeeded by Bruce McPherson who had talents equal to those of Connolly but was much less direct, if I may again use that euphemism. By this time, the Commercial Causes List was well-established and it continues to flourish.

In my view the success of the Commercial Causes List encouraged Judges and the profession to think more about the relatively casual approach which was still being taken to other work. In the early 1980s there were a number of new, and relatively young appointments to the Court, including McPherson, Glen Williams and Jim Thomas. They all had a keen interest in matters of practice and had substantial commercial experience. In my view they, with Connolly, were responsible for a change in the Court’s attitude to all of its work. 

Shortly before I joined the Supreme Court in 1985, the Court had appointed a judge to manage the criminal list. It was Bill Carter. My impression was that the Director of Prosecutions (now the Director of Public Prosecutions) who had effectively replaced the Chief Crown Prosecutor, was not particularly keen about the change, but the Court persisted, and so the list took on a more streamlined profile. The non-commercial causes list civil cases, however, continued to languish for a few more years. Eventually, we decided that the list had to be cleared out, and so we called over, I think, about 500 or so cases, the so-called “thousand bomber raid”. Many cases were discontinued as a result of the callover. The rest were set down and settled or were heard. Of course most of those cases were personal injuries cases, an area of work which hardly exists today. This thumbnail sketch may seem a little superficial, but the way in which a court manages its cases reflects judicial and professional attitudes and is fundamental to the way in which the court works.

The courts have become very innovative in their case management techniques. An example is the time and effort which has been put into the reform of the discovery process. I am not sure that the outcome justifies our efforts, but others may think differently. Another example is our experimentation with the use of witness statements or affidavits in place of oral evidence-in-chief. Again, the outcome has not been entirely satisfactory. Many judges consider that it has led to longer, rather than shorter trials. The judge is deprived of the opportunity to ease into the case, so that he or she is less likely to be fully in command of it at the end of the evidence, and therefore less likely to be able, fully to understand the addresses. Further, evidence-in-chief gives a better guide to credibility than does cross-examination. There is a perception that barristers are losing, or not acquiring the skill necessary in leading evidence and quite strong support amongst judges for an at least partial return to oral evidence-in-chief. One major reform which has been an unqualified success is the blending of mediation into the case management process.

In summary, the courts are now very much in control of their own process. They are committed to the efficient conduct of litigation and are increasingly concerned about inefficiency and the resulting cost to litigants – a far cry from attitudes which prevailed throughout most of the 20th century.

I would now like to say a little about two radical changes which the Federal Court has made to the way in which cases have been traditionally managed. First, in late 1998 or early 1999, it adopted what is called the “individual docket system”. Instead of allocating cases to judges when the cases are ready for trial, they are assigned shortly after the initiating application is filed. Generally, the assigned judge will hear all interlocutory applications and ensure that the matter comes to trial as quickly as is practicable. This process seems to be popular with both the judges and the profession. It is not without disadvantages. First, it does not apply to appeals. We must set aside all of February, May, August and November for Full Courts, leaving only six months for first instance work, if one disregards the December-January period. Each judge is entitled to a further four weeks’ leave, and any judge who has served for five years will frequently be taking long leave. There is not that much time for first instance work. Further, as cases were, until recently, generally assigned in strict rotation, the workload was not necessarily distributed in an equitable and effective way. Nonetheless, as I say, the system works and is popular.

It has, however, been significantly modified over the last year or two. The Federal Court was set up initially to deal with matters arising under federal legislation, but not all federal legislation. Subject matter jurisdiction had to be conferred by the legislation in question. The Court’s foundation more or less coincided with the enactment of the Trade Practices Act3. Section 52, the misleading or deceptive conduct section, was about to revolutionize the laws of tort and contract and, initially, the Federal Court had exclusive jurisdiction with respect to s 524. The Federal Court was also popular with the profession. It tried to suit the convenience of practitioners and was thought to offer a more streamlined service. It also did not have the delays accumulated over a century or more. At a very early stage it was established that the Court’s jurisdiction, once engaged, extended to the whole of the dispute, including aspects which were not otherwise within its jurisdiction. Over the years more jurisdiction has been conferred under various statutes. Now, almost any civil matter arising under a federal statute is included. With the continuing trend towards uniform legislation in areas previously within the legislative provinces of the States and Territories, the Federal Court has also acquired jurisdiction which was previously exercised by the State and Territory courts.

Many areas of our jurisdiction are highly specialized. Examples are intellectual property, competition law, admiralty, Native Title, trade practices and company law. Not all of these areas are exclusively within the Federal Court’s jurisdiction. In some areas, the State courts have concurrent jurisdiction. In a few areas, the State courts have jurisdiction at first instance, with appeals to the Federal Court. Historically, the Federal Court has not had criminal jurisdiction, save to hear prosecutions for some minor statutory offences. However we now have jurisdiction to hear trials on indictment where cartel offences are charged.

These specialized areas have their own peculiarities. The volume of work in a particular area may not be sufficient to enable all members of the Court to develop the necessary expertize. Further, the profession is becoming increasingly oriented towards specialization, and the specialist practitioners seem to favour greater specialization amongst the judges. The Court has therefore divided its work into areas of specialization, known as National Practice Areas (NPAs). The list of NPAs is, in some respects, complicated. You should have received copies of it.

Judges are assigned to various NPAs, each assignment being based on the professional background of the Judge in question. Many of the longer serving Judges have had experience across the whole range of the Court’s work. Many of them have been assigned to most, if not all NPAs. With newer Judges we have tried to assess their experience in practice, as well as during their time on the Court. For the future, Judges wishing to join a particular NPA will have to demonstrate significant prior professional experience in the area, or a genuine desire to develop the necessary expertize. They might do this by attending relevant conferences or courses, or by writing articles. A Judge seeking to be assigned to a particular NPA might be assigned to Full Court appeals in the relevant area, sitting with Judges who are already assigned to that NPA, in order to assist in developing the necessary expertize.

Eventually, each NPA will have its own practice notes. There will also be an overarching Central Practice Note. Most of these documents are still being developed. There has been substantial consultation with the profession. The practice notes will appear in a more or less standard format, although the content will obviously vary to reflect different practices in different NPAs. It is not our intention that individual NPAs develop unique practices. Variations are more likely to reflect existing differences in practice.

The system may sound complex and, in a sense, it is. However it is a bit like going to a large international airport. Once you know where you’re going, you simply follow the signs. Specialization in the profession is well-established in Sydney and Melbourne. I suspect that it will become more common in Brisbane. I have previously not been a supporter of specialization, either for the profession or the judiciary. There are downsides. Specialist groups become elitist and resent new participants. They develop their own folk lore which, not infrequently, leads them into error. There can sometimes be an unhealthy relationship between specialist judges and specialist practitioners. We simply have to guard against such problems. Despite my long opposition to specialization, the stress of having to re-educate myself whenever I have a tax case, a patents case or a competition case has led me to accept it as inevitable.

The final matter I want to address concerns the standing of the courts, their place in our system of governance and the way we, and others, see us.

It has been common for judges to depict the judiciary as the weakest of the three arms of government, having no influence over the sword or the purse, as Alexander Hamilton put it. In a paper given at the Centre for European Studies at the Australian National University in 20115, I challenged the current correctness of that proposition. In the course of writing tonight’s paper, I discovered that Michael McHugh advanced a similar theory in a paper given in Florence in 20046, I suspect at the Australian Bar Association Conference at which Australian photographers shamelessly pursued attendees through the streets of that city, taking pictures of them in moments of relaxation. McHugh’s paper is well worth reading. My reasons are similar to his, but not identical.

To explain my theory, I go back to the Courts Quiescent. In the mid-to late 1960s and early 1970s when I was at University, we were effectively taught that there was very little room for the operation of the prerogative writs, now, at least at Federal level, called “constitutional writs”. When I went into practice, that seemed to be very much the case. A writ of habeas corpus was occasionally sought and sometimes, granted. One of the other writs might occasionally be sent to an industrial court or commission, a magistrate or an administrative body. At State level, judicial consideration of the validity of State legislation was rare, save where the issue arose under the Australian Constitution.

This situation may be explained by a theory articulated by an English barrister and scholar, Robert Stevens, in his book, “The English Judges”7. He advances two rather surprising propositions. First that, “as at 1997, one could have said categorically that in England, the judges were not a separate or co-equal branch of government”. That proposition would have been surprising to an Australian lawyer in 1977, let alone in 1997, if advanced in connection with the Australian judiciary. Stevens’ second proposition is that during the first half of the 20th century the English judges had effectively withdrawn, or had been excluded from the exercise of judicial functions in connection with areas which were becoming socially important, such as industrial law and welfare legislation. The reason may have been a desire to keep the judges out of political disputes, or it may have been that the judges had demonstrated an inability to deal with such issues. Stevens says a lot more about these matters, but I shall not do so. It was certainly the case that prior to the mid-1970s the Australian courts were much less enthusiastic about getting involved in the business of government than is now the case. The Queensland courts, in particular, were largely excluded from the area of industrial law. Litigation concerning welfare legislation was, as far as I can recall, not common prior to the introduction of statutory administrative and judicial review in the mid-1970s.

It may well be that the Australian courts’ inactivity reflected the attitudes of the English courts. Until the 1960s the Australian courts paid great deference to English decisions. Those decisions no doubt reflected the position of the English courts in the constitutional arrangements of the United Kingdom, and the attitudes of the English judges to their role in those arrangements. In 1966, in the case of Skelton v Collins8, the High Court effectively ended the de facto position of authority held by the House of Lords. Statutory limitation, and then virtual abolition of appeals to the Privy Council from the High Court occurred in 1968 and 1975. Subsequently, the States abolished such appeals from the State courts. This history, too, suggests that the early 1970s witnessed a distinct change in the role and organization of the Australian judicial system and the attitudes of the courts and the profession.

One could hardly now accuse any Australian court of being reluctant to become involved in determining the legality of legislative or administrative action. If anything, the contrary is the case. McHugh considers that the strength of the judiciary depends upon the capacity and willingness to review legislative and administrative action. In my view that proposition is correct and central to my thesis. He also points to the importance of the economic and social matters in which the courts, especially the Commonwealth courts, are frequently engaged, and to the public confidence in the integrity, impartiality and capacity of the courts. Those matters are important, but another factor is more important. It is the High Court’s steadfast maintenance of the distinction between the judicial function on the one hand, and the legislative and administrative functions on the other, together with its insistence that the judicial function be exercised only by the courts. The at least partial extension of the operation of Ch 3 of the Constitution to the State courts has also been part of a process by which the judiciary’s position has been greatly strengthened.

Judicial authority may be undermined by either legitimate or illegitimate means. The threat may come from government or from special interest groups, the so-called civil society. However misconceived particular criticisms may be, they have the capacity to reduce public confidence. A general loss of confidence in the courts would likely lead to a loss of authority.

There will always be tension between the courts and the legislative and administrative branches. However, for as long as the courts retain public confidence, political considerations will discourage inappropriate attempts by government to limit judicial authority by legitimate means. The greater risk is that community groups may, intentionally or unintentionally, in pursuing their goals, bring about a general loss of community confidence in the courts. It is also possible that governments might use such groups to attack the courts by proxy. Some of these groups exist to serve worthy purposes, but their methods may cause concern. Whilst I think that, for example, victims of crime organizations have a worthy purpose, there is a real risk that they are seeking to bring about some quite inappropriate changes to our criminal law. Public comments by police officers about high profile cases do not help. Widespread and inaccurate attacks on the legitimate practices of banks and other large institutions also cause concern. Anti-discrimination legislation may have unforeseen and unfortunate consequences. There is a tendency to attack judicial decisions in these, and other areas on the basis of unpopular or unfavourable outcomes, without regard to the reasons for such outcomes.

In short, the future loss of public support is a real risk. Our task, that is the task of the courts and the profession, is to ensure that such public support is maintained. We must do all that we can to maintain our integrity, impartiality, and capacity and to ensure that these qualities are seen and valued by the Australian community. It is in this respect that the courts and the profession must be militant.

Shakespeare’s lines, “The first thing we do, let’s kill all the lawyers” are frequently quoted as evidencing an ancient and justified dislike of lawyers. But, in fact, they describe a step in a process intended to upset the established social and political order, by force.

Footnotes

1. McPherson B, The Supreme Court of Queensland 1859-1960 : history, jurisdiction, procedure (Sydney : Butterworths, 1989)
2. 1910 (Qld)
3. 1974 (Cth)
4. See Trade Practices Act 1974 (Cth) ss 3, 86, Act No. 51, 1974 as amended by the Federal Court of Australia (Consequential Privisions) Act 1976 (Cth) s 3, sch ,3 Act No 157, 1976.
5. Dowsett J, “The Australian Judges – Who do they think they are?” (Centre for European Studies at the Australian National University, Canberra, 14 February 2011)
6. McHugh J, “The Strengths Of The Weakest Arm” (Australian Bar Association Conference, Florence, 2 July 2004)
7. Stevens R, The English Judges: Their Role in the Changing constitution (Hart Publishing, 2005)
8. (1966) 115 CLR 94