Sydney Law Review
An Address to the 50th Anniversary Sydney Law Review Dinner, 20 November 2003
THE HON JUSTICE R P AUSTIN*
When he invited me to speak you tonight, Professor Shearer suggested that I might consider Professor Michael Tilbury’s address 2002’s dinner, now published in The Sydney Law Review. Professor Tilbury’s remarks are thought provoking and go to the heart of the endeavour that brings us together tonight. As you will recall, he tackled the question, why do we have law reviews? That, he said, is a minor query in the broader search for the raison d’etre of legal scholarship generally. Using as his point of departure Professor Fred Rodell’s famous 1936 journal article, ‘Goodbye to Law Reviews’, Professor Tilbury argued that general academic law reviews have an important function in the institution, maintenance and promotion of a culture that values scholarly writing in law. He said that the scholarly law review is worth preserving ‘if we accept (as I do) that the object of such reviews is to publish writing on and about law that augments the general body of human knowledge, thereby adding to our understanding of law’s operation in the world — an understanding that may assist in the solution of real, even everyday, legal problems.’
As Professor Shearer correctly anticipated, Professor Tilbury’s address has stimulated me to think again about the nature of legal scholarship in my fields of discourse. The thoughts I will convey to you are merely some personal reflections on subjects explored much more fully and competently by many others. I have taken this self-indulgent approach because I am now able to approach the topic from three perspectives.
I have been lucky enough to have three careers in the law, in my life so far — as a legal academic, a commercial solicitor, and a judge. My academic career has been my main enterprise. I began teaching at Sydney Law School, part-time in 1969, the year after I graduated, and took up a full-time academic position in October 1970. When I resigned my full-time position in 1990 to become a commercial solicitor, the Law School invited me to continue teaching in the Master of Laws degree program and gave me the title of Visiting Professor. When I was appointed to my judicial position in 1998, the Chief Justice agreed to my maintaining my teaching role. I have continued to teach in and co-ordinate my two LLM subjects, with wonderful contributions from some generous-spirited and highly able legal practitioners, up to the present time. So I have been teaching and researching in law at the University of Sydney, continuously apart from breaks for sabbatical leave and the like, for 34 years.
The focus of my teaching, and also my research, has been in company law and equity, the fields in which I held my chair. This has placed me at the grubby practical end of the legal academic spectrum, and has led to a sense of insecurity, which (I believe) is shared by many legal academics today. Over my 34 years of post-graduate experience, I have had to reflect often on the relationship between legal academic scholarship, high-level legal practice and judging in a superior court, from the perspectives given to me by my three careers.
Legal scholarship in fields such as jurisprudence, criminology, international law or comparative law has a function and purpose that is self-evident. Reflection about the province and function of law, the causes and effects of, and ways of dealing with crime, the role of law in the resolution of international disputes, and the insights that can be gained by understanding and comparing different national solutions to legal problems, are not only fundamentally important enterprises. They are enterprises to be undertaken principally within an academic institution. Those who do that work ‘belong’ to the community of scholars whose ranks include philosophers, anthropologists, psychologists, sociologists, political scientists, economists and historians. They are occasionally heard to say (quite wrongly, in my experience) that their work is insufficiently appreciated by the legal profession and the wider community, but their security within the academic community is enviable.
In comparison with those subjects, the academic pursuit of company law and equity necessarily involves exposition and analysis of legal principles, activities that some might regard as having a questionable claim to scholarly status. Even Professor Tilbury, who takes a catholic approach to the province of legal scholarship, draws a contrast between ‘scholarly’ and ‘trade’ material. In the eyes of some academics other than him (including, in my experience as a head of department, many of the non-lawyers on promotions committees), any expository and analytical writing on, say, company law, that might be useful to judges and legal practitioners is likely to be discounted as merely ‘trade’ material.
In October 1984, wrestling with my insecurity and claiming to have arrived at an island of assurance, I delivered a seminar paper at Sydney Law School on the nature of the academic enterprise in such fields as company law and equity, formidably entitled ‘The Academic Function in Law’. Permit me to summarise it fairly extensively, since the paper was never published.
I sought to identify the core activity of my academic professional life, putting aside the incidental functions of teaching, administration, learning and public service. Under the subheading ‘Practice, Theory and the Academic Function’, I contended that although academic scholarly output may be a by-product of a judgment or legal advice by a barrister or solicitor, the work of judges and legal practitioners, even at the highest level, should not be described as wholly or even primarily scholarship of the academic kind. I suggested that the academic lawyer has a focus of relevance, which is different from the judge’s and the practitioner’s, and that this focus of relevance is an essential ingredient of the academic enterprise.
I said that the practitioner’s task is to marshal all legitimate arguments which are relevant to the goal of advancing his or her client’s case (litigious or otherwise). Therefore the scope of the inquiry is determined by the facts of the client’s problem. The practitioner need not necessarily fit that problem into any broader structural fabric. The broader fabric is relevant only to the extent that the practitioner can extract from it some implications, which will help the client. I once heard Hutley JA describe barristers as ‘mercenary soldiers’, and that nicely summarises the point.
I expressed the belief that Australian judges operate within very similar constraints, though they have a discretion to venture further afield. I took Millett v Regent as an illustration. One of the issues in that case was whether acts of repair to and improvement of a house could be taken into account by the court in determining whether there were sufficient acts of part performance of an oral contract for the disposition of interest in land. The repairs and improvements were not required or even authorised by the oral contract. The purchasers were authorised to take possession and they did so, carrying out the repairs and improvements afterwards. Hutley JA took the view that the repairs and improvements could be taken into account because they were done ‘in the execution of’ the oral contract. Glass JA disagreed, saying that only acts required or authorised by the oral contract could be considered. Obviously this difference of opinion went to an important issue regarding the shape and development of the law of part performance. Any academic commentator on the case would be expected to present a point of view on this matter. But the High Court avoided the issue entirely. They held that the act of taking possession, because authorised by the contract, was a sufficient act of part performance; it was unnecessary for the court to determine the broader issue and they declined to do so.
My point was that the court in its judicial capacity was not required to go beyond what was strictly relevant to decide the instant case. Had the court chosen to embark on an explanation of the broader legal doctrinal question, that part of the judicial work product might qualify for the description ‘academic legal scholarship’. But I suggested that the case-focused activities of solicitors, barristers and judges do not merit that title.
While the academic lawyer’s horizons might appear by comparison to be unbounded, I suggested that the academic’s task is really quite specific. Academics of the common law, when addressing decided cases, have the function of assessing the judicial results of litigation, to place them within the existing pattern, or to revise the pattern. The task has static and dynamic elements. Hutley JA once said to me (perhaps at the same party!) that academics are ‘the guardians of the common law’, and that again is a useful summation, provided one remembers that one of the guardian’s tasks is to encourage his or her charge to grow up. Academics in fields governed by legislation have the task of remorselessly exposing its inadequacies and proposing improvements.
But there are other broader, and socially more important roles. Academics frequently undertake to explore the process of law making and the theoretical basis of the legal system, and its interface with economics, politics, sociology and other disciplines, to expose how the law works in society and to consider on a rational basis how it may be improved.
Endeavours of all these kinds have in common the element of placing the products of our legislative, judicial and practitioner colleagues, and the academics and practitioners of other disciplines, within a wider pattern, with a focus on the identification and evaluation of the pattern. In this way, law becomes for academic lawyers a cultural phenomenon rather than simply a process of dispute resolution. The academic does not, qua academic, marshal arguments to advance a particular factual case.
This reasoning implies that the academic function in law is in no way dependent on the practical utility of the product. It is likely that part of the output of a legal academic in company law or equity will be useful in practice, particularly for those practitioners whose work is in the ‘higher reaches’ of legal professional practice. But essentially it does not matter whether that is so, provided the functions I have outlined are performed. Indeed, as Professor Tilbury observed, recent United States literature has been engaged with the phenomenon that very little of the work product of the national law schools of that country, dominated by the economic analysis of law, has any direct practical utility for the courts and the profession. Importantly, as the US experience shows, there are levels of inquiry for academics which are bound to take them far beyond the practitioner’s concerns. Some areas of legal inquiry are necessarily and properly ‘impractical’ from a practitioner’s point of view.
My experience in my second and third careers has led me to a better understanding of the day-to-day interface between academic law and the practice of law, and of the kinds of academic work most likely to be useful to judges and practitioners. The conclusions I have been able to draw from my later experience are not the ones I would have expected to draw when I addressed the problem in 1984. I would like to share this experience with you, without in any way derogating from the fundamental proposition, that academic law has its own justification that does not depend upon its practical utility for judges and practitioners.
My practice as a commercial solicitor was focused almost entirely on transactions and events involving large corporations. While I continued my teaching, research and writing, my main enterprise was to steer corporate clients through the legal thicket towards their commercial objectives. There was no need to justify this activity, whose purpose was self-evident. There was no sense of insecurity. I adopted, of necessity, a utilitarian approach to relevant legal scholarship, except during the limited part of my working week when I could slip again into my comfortable academic cardigan. I found, however, that there was a certain kind of legal academic writing that was of great assistance.
Interestingly, I was not much assisted by expository or even analytical writing. I was forced in my daily role to be completely abreast of the relevant legal materials, and to think about them long and hard, in their practical application. The practical application helped me to understand how the legal principles worked, and ultimately to gain a better understanding of the scope and the impact of legal rules than had been possible through pure academic reflection. While I paid attention to expository and analytical writing, I used it principally to make sure that there were no gaps in my perception of the legal landscape.
What proved to be more important was the academic writing on regulatory policy. On more occasions than I had expected when I was a legal academic, commercial solicitors involved in the structuring and execution of large commercial transactions are required to deal with regulators such as the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission and the Foreign Investments Review Board. It is necessary to invite such bodies to exercise their discretions in circumstances that are anything but standard or routine. The principal issue for the regulators is to ascertain the policy parameters of the problem. Where, on novel issues, is policy to be found? In my experience, the policy debate in these areas is conducted primarily in the academic literature of law, economics and finance. Work in those fields is a resource of great value to the practitioner.
My third career, as a judge, has some equally unexpected facets to it. The function of a judge hearing cases at first instance is well understood, although there is ‘insecurity’ of another kind for a judge at first instance at the bottom of the judicial hierarchy of the superior courts. It is widely assumed that there is not much opportunity to contribute to the development of law by decision-making at first instance, and the really interesting work is therefore reserved to those who have the opportunity to do so, the judges of the Court of Appeal and of the High Court. And the neophyte who might begin a judicial career believing that there will be an opportunity to right every social wrong that comes before the court will promptly encounter ferocious disapproval.
Heydon J’s excoriation of ‘judicial activism’, in his celebrated Quadrant article, warrants (and is no doubt receiving) close consideration by all judges. The paper is a passionate assault on a general approach to judging which his Honour abhores. His Honour says he employs the expression ‘judicial activism’ to mean using judicial power for a purpose other than that for which it was granted, or to serve some function other than what is necessary for the decision of the particular dispute between the parties. The remainder of the article indicates that he has a number of rather more specific vices in mind.
The ‘judicial activism’ criticised by Heydon J, and compared unfavourably with Sir Owen Dixon’s ‘strict and complete legalism’, has the following elements:
(1) using judicial office to further a political, moral or social program;
(2) attempting to right every social wrong, and to achieve some form of immortality in doing so, in order to become a ‘hero judge’;
(3) deliberately altering the law, by freely questioning and changing the common law and re-writing legislation to conform to the judicial worldview, and more generally by ‘the conscious making of new law by radical judicial destruction of the old’;
(4) dealing with issues which, although raised in argument, are not issues which it is necessary for the specific outcome of the case to deal with, or (even worse) dealing with unnecessary issues which have not been raised.
Not surprisingly, his Honour saw Murphy J as a prominent exemplar of judicial activism. Murphy J once famously sneered at the doctrine of precedent as one ‘eminently suitable for a nation overwhelmingly populated by sheep’, and claimed that as judges make the law, they are entitled to bring it up to date, not by stealth and by small degrees, but openly and to the extent they consider necessary.
Perhaps more controversially, Heydon J regards Sir Anthony Mason as a judicial activist whose views are to be denounced and whose judicial conduct in the application of those views deplored. He quotes the following observation by Mason CJ:
The ever present danger is that “strict and complete legalism” will be a cloak for undisclosed and unidentified policy values ... As judges who are unaware of the original underlying values subsequently apply that precedent in accordance with the doctrine of stare decisis, those hidden values are reproduced in the new judgment even though the community values may have changed.
In his paper, Heydon J does not single out Kirby J for special treatment, although the reader is left in no doubt that the views and conduct of Kirby J would be seen as an obvious illustration of judicial activism. In this morning’s Sydney Morning Herald, there is an extract of Kirby J’s First Hamlyn Lecture, to be given next week at the University of Exeter. The topic of the address is judicial activism. Kirby J sets out to defend it.
Kirby J attacks Sir Owen Dixon’s approach, arguing that the world of ‘strict and complete legalism’ is now neither possible nor desirable:
It is the world of Brigadoon, a place of smoke and mists that never existed as portrayed, except in metaphor and imagination. If we could re-create it now, it would be a cruel place of indifference to the fact that judges have choices, that such choices are inherent in the common law system itself and that, giving a meaning to uncertain words and phrases, rules and principles is the daily work that judges actually do.
To return to Dixon’s “excessive legalism” would be to take a journey back into a world of deception, where judges pretended to a mechanical function whilst knowing, when they stopped to think about it, that it is inevitable that they play a creative role in making law. Today there is room for legitimate differences over the occasions and scope of creativity proper to judges. But to return to “strict and complete legalism” of the judge-as-mechanic is not the way to go. The judges and lawyers of the common law need to engage intellectually with this issue. Unless they do so, the gains of the past 20 years could be lost.
Judging only from the published extract of Kirby J’s paper, it seems to me that his Honour does not adequately distinguish between Sir Owen Dixon’s approach and the ‘simplistic notion’ or ‘noble lie’ that judges merely declare and apply the law. Sir Owen Dixon did not subscribe to the latter view. He recognised that the law changes through the application of proper judicial techniques. Heydon J makes the point with force:
The mockery to which Sir Owen Dixon’s enlightened critics, on and off the bench, have subjected him obscures an essential truth. He did not think that the common law was frozen and immobile, fashionable though it is to attribute this caricature of a view to him. He contemplated change in the law as entirely legitimate. When new cases arose, existing principles could be extended to deal with them, or limited if their application to the new cases was unsatisfactory. As business or technical conditions changed, the law could be moulded to meet them. As inconveniences came to light, they could be overcome by modifications.
The changes could be affected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rule was first developed. Particular rules might be modified by the detection of more general principles underlying them or more rigorous reformulation of some traditional concept. In Sir Owen Dixon’s lifetime there were numerous judicial changes to private law, particularly the law of tort. He participated in many of them.
As far as I can tell, Heydon J’s propositions (1) to (3) were not intended to apply to any of the judges of the Equity Division of the Supreme Court of New South Wales. I would be amazed if any of us would ever contemplate, in our wildest imaginings, conduct of the kind described in those propositions — albeit, I am sure, that my colleagues generally share the personal qualities of the ‘soigne, fastidious, civilised, cultured and cultivated patricians’ who are the members of the progressive judiciary. I find it a little surprising that proposition (4) appears in the list. Deciding an issue that has been fully argued, that (as it turns out) is not strictly necessary for the court’s decision, seems to me a more venial transgression. Indeed, I believe, with great respect, that there are occasionally circumstances where it is right to do so — for example, where a technical question arises in a case in a specialist list, and it is unlikely to arise again soon for determination, and the issue is one upon which the profession needs judicial guidance. But that is by the way.
It is evident from our judgments that the judges of the Equity Division approach the law much in the manner described by Sir Owen Dixon. But there is one aspect of Heydon J’s analysis that does not completely accord with my own experience or, I suggest, the approach and practices of my colleagues in the Division.
His Honour says in his paper that there are relatively few areas where a trial court can legitimately make new law. Clearly the possibilities of doing so are wider in an intermediate appellate court, and wider still in the High Court, as his Honour acknowledges. But judges at first instance are not infrequently invited to decide questions of law. Normally (though certainly not always), when a point of law arises, plausible arguments are advanced in favour of the competing contentions, such that it may fairly be inferred that the existing law provides no definitive answer. The judge must decide the issue if it is squarely before the court. In doing so, he or she will apply the techniques of strict and complete legalism, but in a manner that inevitably develops the law. This is because decisions at first instance have some value as precedents, although obviously not bearing the weight of appellate decisions.
Importantly for present purposes, the judge at first instance reaches a decision on the basis that it is final. That is in fact likely to be the case, at any rate in the court in which I sit. For example, in the nine months to 30 September 2003, I published 53 reserved judgments. Many of them, probably too many, have already been reported. I estimate that a point of law would have arisen for determination in at least half of them. The ratio may be a little higher for me than other judges of the Equity Division, to the extent that (with Barrett J) I administer the Corporations List, in which nuggetty legal points often arise for determination, perhaps more often than in the General List. As far as I am aware (and this would be typical in the Division) appeals have been launched in no more than half a dozen of these cases. And so, unless the legal proposition that I have decided comes under challenge in another case, my decision will stand as the law on the subject.
It follows that, without subscribing to any form of judicial activism, a judge at first instance in a superior court in Australia may be asked to determine uncertain points of law fairly often, and will need to obtain such assistance as is available. Occasionally, but infrequently, there will be competing lines of authority. More often, the question will be whether to distinguish a proposition formulated in the course of solving an arguably different problem. Sometimes, not as infrequently as one might imagine, new problems arise for decision because of legislative change, or because developing commercial activity tests the scope of a law or the principle upon which it is based.
In my experience over the last five years, such as it is, I have noticed that some kinds of academic work are distinctly more helpful than others. Mere exposition of a line of cases is, as you would expect, less helpful than analysis. Professor Tilbury aptly cites Lord Goff’s observation that a crumb of analysis is worth more than a loaf of opinion. But even good analytical work tends to be superseded by counsel’s submissions, which are likely to adopt what is pertinent from the academic analysis.
I find that three kinds of academic work are particularly useful. The first is academic work that places the issue for determination in its wider social and economic context. One can see, again and again, the influence of such work in the important judgments of appellate courts. A recent and enlightening example is the judgment of Spigelman CJ in Deputy Commissioner of Taxation v Clark  relating to the liability of a wife to indemnify the Commissioner, after she had agreed at her husband’s request to become a director of his carpentry company, and signed papers ‘with a pen in one hand and a frying pan in the other’. The judgment of the Chief Justice is an excellent example of the way in which legal academic literature may be used to advantage in judgment writing. His Honour took into account, for example, the responses in academic literature to an earlier decision in which a ‘sleeping director’ was held not to be liable for the company’s insolvent trading, and referred more generally to the academic literature on ‘sexually transmitted debt’.
The second kind of academic work takes up a categorically new legal development, and explores its implications and outworkings. This is particularly helpful for the judge who is required to make a decision in the new area. The judge must always beware of making a determination which may have unforeseen consequences. Rigorous academic literature will assist to identify the pitfalls.
There are many examples. One that is currently on my mind is the introduction by statute, in the Trade Practices Act and then in the corporations legislation, of civil penalty provisions for statutory contravention. A trial of a civil penalty case might be said to have some of the features of a criminal trial, although essentially a civil proceeding. The outcome may be an order that the defendant pay a pecuniary penalty, or compensation, or that a defendant be disqualified for a time from managing a corporation. Arguably, the latter is a ‘punitive’ aspect.
A recurring theme for courts, in hearing civil penalty proceedings, is whether special rules are needed, and special protections should be afforded, with respect to matters of procedure and evidence. Professor C R Williams has considered one aspect of this, whether it is necessary to develop an intermediate standard of proof between the normal civil standard and the criminal. Some other aspects of the problem have been explored by Mr Tom Middleton.
Thirdly, I value academic writing that brings into focus legal developments in other countries, particularly the United Kingdom, Canada, New Zealand and the United States, countries whose judicial experience is most likely to be helpful to judges here. The pressure of judicial work is such that we cannot keep abreast of overseas academic developments in all of the areas in which we are required to make decisions. As Heydon J notes in his paper, the English common law had a dominant influence on the Australian common law at the time of the Dixon Court. The continuing utility of some parts of English law in this country is qualified by the United Kingdom’s entry into the European Community in 1972, and subsequently the increasing influence of European Union law. More obviously, the utility to us of United States and Canadian law is qualified by various factors including the absence here of a Bill of Rights and the associated jurisprudence. Nevertheless judicial and academic developments in some fields, including most of equity and important parts of company law in those countries, are likely to be relevant here.
My impression is that, in the 40 years following the glory days of the Dixon Court, we have moved from a situation in which English law dominated Australian decisions, to one in which English cases are given much less significance than they deserve, and the case law in other countries is very seldom cited at first instance. I wonder if this is partly due to a form of insularity and parochialism within the bar (a characteristic demonstrated in Sydney, by the fact that so few barristers undertake postgraduate commercial courses at the Law School metres away from where they work, compared with the vast number of commercial solicitors who do so). Sometimes one observes a tendency for counsel to cite the most recent New South Wales case procured from the Internet, with no discernible regard for whether there is a better and more helpful precedent elsewhere.
It is appropriate for Australian law to develop as an independent body of principle. It has well and truly done so, over the last 40 years. My point is that its further development is likely to be assisted if relevant experience in these other countries is identified and taken into account. Australian academic literature will assist judges and counsel in this process. That is why the publication of Professor Charles Rickett’s paper, which pays attention to the burgeoning overseas and especially English scholarship and case law in equity, is so important.
Thank you for giving me the opportunity to offer these few remarks. I know what I have said does not do justice to the subject. I agree with Professor Tilbury’s endorsement of the role performed by Australian law reviews, and the special role of the Sydney Law Review as one of the most venerable. It is a pleasure to have the opportunity to support this important work and to do so on the auspicious occasion of our Law Review’s 50th anniversary.
* BA, LLM (Syd), D Phil (Oxon)[.]
1 Michael Tilbury, ‘Why Law Reviews’ (2003) 25(1) Syd LR 21.
Fred Rodell, ‘Goodbye to Law Reviews’ (1936) 23 Va LR 38.
Tilbury, above n1 at 24.
Millet v Regent  1 NSWLR 62.
Regent v Millet  HCA 40; (1976) 133 CLR 679.
JD Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9.
Id at 16.
Id at 21.
Michael Kirby, ‘Justice Lies in the Wisdom of Choice’ Sydney Morning Herald (20 Nov 2003) at 15. The full lecture has subsequently become available: The First Hamlyn Lecture 2003 (shortened version), The Hamlyn Lectures, Fifty Fifth Series, ‘Judicial Activism – Authority, Principle and Policy in Judicial Method’, delivered 19 November 2003, University of Exeter, UK, <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj-19nov.html> (9 March 2004).
Heydon, above n5 at 12.
Id at 21.
Tilbury, above n1 at 29.
Deputy Commissioner of Taxation v Clark  NSWCA 91; (2003) 45 ACSR 332.
Id at 348.
Id at 344.
Rich v ASIC  NSWCA 342; (2003) 203 ALR 671.
C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25 Syd L R 167.
Tom Middleton, ‘The Difficulties of Applying Civil Evidence and Procedure Rules in ASIC’s Civil Penalty Proceedings Under the Corporations Act’ (2003) 8 C & S L J 507.
Charles Rickett, ‘Equitable Compensation: Towards a Blueprint?’  SydLawRw 3; (2003) 25 Syd LR 31.