Speeches and Lectures
The Modern Bar: Accessible, Adaptable and Relevant
by The Right Honourable Lady Justice Rafferty DBE PC*
You strike me as of widely differing seniority and I know your areas of practice differ too. Not to mention your incomes. Not to mention your genuine level of interest in this keynote speech. Thank goodness for the enduring politeness of today’s legal audience — I very much hope — important to someone like me, who stands before you with so many obvious deficiencies: not native Australian, first visit to the continent, old, boring, a lawyer, no amusing novelty value — really nothing for you to laugh at at all. That of course may shortly change, whether I like it or not. But stay strong, I have one hidden claim to presence here. We’ll come to it in due course. Last October in London the prestigious Kalisher Lecture was given by the actor Martin Shaw. He is both a Bencher of Gray’s Inn and, like me, a Kalisher trustee. Set up in 1996 to commemorate the outstandingly able and irreverently amusing Michael Kalisher QC — he could almost have been Australian — it looks for talent from any background which would otherwise find the costs of training for the Bar prohibitive. The title was ‘Excellence is Through Industry Achieved’ — hands up if you can name the play from which the quotation comes. No, neither could I. His central theme was support for the existence of a top layer of the best, rising through the ranks, recognized by virtue of star quality honed in the arena — the courts. He said: The court is an unforgiving crucible in which the competent survive, the inadequate dissolve, but the good are burnished. You all remember or still experience the toiling into the small hours mastering the brief, slogging to court, coping with someone unappealing, hostile, and less intelligent than you — and as well as the Judge, the defendant. Those are your training grounds. The attritional honing of your individual skills and style, in the arena, against an opponent. The Bar is a profession of competitors. Against one another, against the odds, against the individual’s own notional 100%. Competition is the one sure guarantor of excellence. And Aristotle had a few thoughts: Excellence is an art won by training and habituation. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. We are what we repeatedly do. Excellence, then, is not an act but a habit. It’s so simple to set out. It’s less simple to translate into how the legal profession functions or ought to function in 2013. In England and Wales (Wales is a country with connections to England going back hundreds of years but where what they’re saying is hard for the English to understand. The natives have mixed views on people from England. Sometimes they are
* Lord Justice of Appeal, the Court of Appeal of England and Wales. This paper was the keynote address given at the Bar Association of Queensland Symposium, 8 March 2013.
172 The Modern Bar: Accessible, Adaptable and Relevant 173 welcoming, sometimes not. For the visitor it can be difficult to tell. Nervousness is common. For some reason it brings to mind another country). In England and Wales we confront a time of financial constraint unknown before now. There is little money for the profession and all the indicators are that in 2014 and 2015 there will be less. Consequently, not only are we in the age of instant communication and relentless pursuit of speed of response but also of trying to make those factors redound to our benefit against a backdrop of reduced and dwindling resource. The legal profession is flooded at the incomers’ end with youngsters who can call themselves barristers but who stand little chance of a pupillage, let alone a tenancy. Those who win a permanent place in chambers then face the next precipice: getting work. Those who stay in the profession face yet another: retaining work. In the crucible, the unforgiving now starts from Day One. So, what to do? What advice to give the school-leaver deciding on a next step? There’s this: The cast of mind of a lawyer is useful across the piece. Lawyers think analytically, express themselves clearly, are careful bordering on the pedantic and aim to get it right the first time because they know that clearing it up means the Court of Appeal. And time spent in the Court of Appeal is horrible. I should know. In 2013, when so much of society is dumbed down, the young are at risk of not expressing themselves well, or sometimes at all, let alone attractively — texting and social networking militate against it. But if they can think, write and speak clearly they can skilfully advance or oppose a proposition. It is the mark of the educated mind to be able to entertain a thought without accepting it. Aristotle again. Skills you have at your fingertips, which by now come naturally to you, will help them pass exams, get jobs, and do well in any interview. It means that when they speak they are unconsciously an ambassador for the life they have chosen. I agree with the actor Kevin Spacey. If you’ve been lucky and have made something of yourself within your chosen profession, it’s your duty to send the elevator back down. Additionally, as Mr Shaw explained during the Kalisher lecture, in a small but collegiate profession, the trust and confidence of one advocate in another is crucial. ‘Being as straight as a die’ — is key. The sharp, the dodgy, the ‘don’t turn your back on him’ cannot hide. Everyone relies on this deep-seated tradition of probity, not least the Judges. They have neither opportunity nor time nor inclination to descend into the well of their court to unpick the behaviour of counsel. They must be able to consider the arguments, not concern themselves with what manner of man or woman advances them. We are now in the business of ensuring that the 2013 and onwards legal profession continues to shine against the ordinary and, I’m afraid, there are obstacles. Standards, due to influx of number or other reasons can be lower than one would want, the young potential entrant is arguably paying to join a profession which can’t feed him/her, there is both reducing money and the white noise of competing public entities baying for their share of the pot. Striking any chords? I wonder if trials need to change their shape? In England and Wales we have modified and are modifying our attitude to the oral tradition, the change amounting to broad highways in civil and administrative procedure, country lanes in crime. There are three things in play: the attitudes of counsel and the mindset of the judge, and the prevailing mood of the meeting. A happy confluence of all three might make a major difference. Is it worth pulling back from the amount of time we spend ventilating issues in court? The first question I’d ask is whether the time we currently spend pays proportionate dividend. Let’s look together at some examples. Economy of expression is always good. The Lord’s Prayer: 65 words. The Gettysburg Address: 258. The European Directive on Duck Egg Production: 12 921. Economy of presentation is good — most of the time. There will always be occasions when some part of the case requires more rather than less and much of that is in the sense, the ‘feel’, of what’s 174 Queensland Legal Yearbook 2013 happening. You know that. And you know when ‘more’ is genuine, not a money-maker for the shyster. Experts. We still, certainly in civil or in crime where we think a jury needs it, take an expert through his/her report in examination in chief. We are better now at translating the technical terms but we still tend to include the technical first and then explain it. It’s a small point but not I think insignificant because it shows mindset. ‘Cut’ not ‘laceration’ and “graze” not ‘abrasion’ is still seen as a graceful concession to progress but really not best practice, more an acceptable second best. Is it? We are increasingly good at locking experts in an airless room and making them reduce to an agreed document the areas in dispute. Do they need to be together? They certainly need to communicate, but it is after all 2013, and there is e mail and the videocon. There are occasions when eyeballing the other chap is the best way but it isn’t always so. What’s wrong with a rebuttable presumption making the physical attendance of more than one expert the exception not the rule? And if experts can do it why not some other category of witness? I am on my guard because I want to keep clear of appearing to suggest a move to an inquisitorial system. But as so often there are aspects of another way of working which might withstand intelligent translation. Many more consequential questions in advance of a hearing? Once again in civil we are streets ahead of administrative law and of crime and exactly this is unexceptionally done. Not often enough, but done nevertheless. In crime if it’s happening at all it is the exception. But quite often, in a robbery or a personal injury fraud, whether the car were parked on the north or the south of the street matters but isn’t crucial. It’s which way it was facing and the line of sight that are important. Three disinterested householders one pedestrian and a passing motorist have to come to court and that may be unavoidable. We all know that setting the scene and settling the witness — or unsettling him, dependent on whom one represents — is often part of the skill and what counsel is paid for. But there are legion instances when either some need not come or, more often I suspect, might still have to come but the time spent in the witness box could be reduced. Trials cost money because time costs money. Reduce the time per contest and the advantage might seem so slight as not to justify the effort. But add up the saving over a year and nationwide and the picture might change. Tablets. We are creeping — unconfidently — towards using tablets. It’s common now to see counsel with their iPads, often alongside their achingly slender designer cutting-edge laptops, and the Court of Appeal Criminal Division is trying a pilot of ipads use instead of or as well as textbooks and reports. You like it or you don’t. You are prepared to try it or you’re not. You’re willing to kidnap a passing eight-year-old and learn how to use the thing, or you’re not. So far so good. One lingering problem is presentational: it’s the label of luxury, a gift to the Luddite, and a gift with ribbons and bells to the Luddite with right wing views. ‘They give these people tablets, when victims wait months to give evidence/they whine about cuts, etc etc. What’s wrong with a pencil?’ It’s first cousin to ‘Prisoners watch television in their cells. Can this be justice?’. It’s hard to shift opinion from perceived but misconceived hedonism towards money- saving good sense. In truth I strongly suspect that photocopying thousands of pages of documents, putting them into unwieldy huge ring-binders — which will break — is relatively quickly upriver of the tablet in cost. And you can wipe and re-use the tablet. Trial after trial jurors can use the same ones. Witnesses can be taken to documents, statements, plans, on them. Experts already rely on them — a FMRI scan can be shown far more effectively on one than in sequential hard copy pages. The only attendant sadness is that we might forget Sedley’s Laws of Documents. The Modern Bar: Accessible, Adaptable and Relevant 175
First Law: Documents may be assembled in any order provided it is not chronological, numerical or alphabetic. Second Law: Documents shall in no circumstances be paginated continuously. Third Law: No two copies of any bundle shall have the same pagination. Fourth Law: Every document shall carry at least three numbers in different places. Fifth Law: Any important documents shall be omitted. Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle. Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped. Eighth Law: Significant passages shall be marked with a highlighter that goes black when photocopied. Ninth Law: At least 80 percent of the documents shall be irrelevant. Tenth Law: Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate. Addendum: Transcriptions of tapes (inclusive of videotapes) shall omit all relevant material or, if that is not possible, all material adverse to the interests of the transcribing party. However, insertion of spurious evidence in favour of the transcribing party is permitted on condition the party’s solicitor is not informed or forgets to alert Counsel. Eleventh Law: Only one side of any double-sided document shall be reproduced. Twelfth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original. Thirteenth Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: 1. a steel pin sharp enough to injure the reader, 2. a staple too short to penetrate the full thickness of the bundle. 3. tape binding so stitched that the bundle cannot be fully opened, or, 4. a ring or arch-binder, so damaged that the two arcs do not meet Back to my current theme — use of time. Deference — I love it, perhaps because I’m at the right end of the telescope. Titles — I love those too. Sometimes the full majesty of my position is unaccountably overlooked. You’d think that one glance at me and the only two words to come to mind are ‘Your Ladyship’. But I’ve had most appellations over the years. Your Honour (wrong) Your Lordship (wrong but less wrong) Madam (wrong) Sir (wronger) Your Eminence (wrong but encouraging) and my personal favourite, Darlin’ Should we be shedding words which add nothing? Or at least reducing how often we insert them? ‘I wonder if your Ladyship would be good enough to turn to Volume 1? If I might take the court to page 3 I respectfully suggest we shall find the fortification for the submission to which I now turn’ — which one could convey, with perfect politeness ‘My next submission: Vol 1 page 3’. Summings-up. We’ve let these run away with us. We sum up the law, we distill the facts. The law we have to sum up is itself pointlessly complex, layered and stratified. But it shouldn’t take sixteen pages of written directions. And Routes to Verdict should surely fit on one page. We really must grasp the Oscar Wilde danger: I had to write a long letter because I didn’t have time to write a short letter. 176 Queensland Legal Yearbook 2013
Sometimes a sentencing exercise, if some counts on the indictment are pleaded as happening ages ago, then a while ago, then nearly present day, then present day, can require us to use four past editions of the relevant textbook. I’d rip up the whole lot, and I’d codify it. Jury research. There is no need to panic. We could retain the protection for individual trials but still secure good quality information. For example: ‘Are summings up useful?’ If 10 000 jurors said they aren’t, might it tell you something? ‘Did you understand the experts? If no, did you understand once the Judge had explained things ?’ Those answers might be illuminating, and that’s all I’m interested in. What is the point of dissipating energy hand- wringing if you’re wringing about the wrong thing? So my aim has been to leave you thinking. What shape should the Bar of 2013 onwards be? Are we still entitled to educate thousands of beginners for a career as practising professionals knowing what we know of their likely prospects, or should we simply tell them that the lawyer has an approach which is of wide benefit and leave them to it? What’s wrong with a rigorous analysis of what nowadays does us no service? Gobbledegook, too many statutes, prolixity. (That’s ‘wordiness’ until you reach the Court of Appeal.) Should we find out what we do well and what we do less well? And should we be actively aiming to harness tradition and convention so that those two old chums are our servants as much as they are our masters? This is not an easy one. Like making the profession shine against the ordinary it’s a phrase with which no-one would argue. It’s the implementation which requires balance, otherwise a good deal of convention and received orthodoxy might disappear, disguised as a necessary sacrifice to progress. I wouldn’t like to see robes go. I like very formal terms of address. I don’t want a conversation with counsel though I welcome a dialogue. I don’t want to see anything more than courtesy and compassionate efficiency in the way we deal with witnesses — I am not their friend, and neither is counsel. We are there to get the nearest to 100% accuracy out of them in a fashion which recognises their frailties and that of the system. Parties are entitled to leave a court disappointed, but not aggrieved. I’ve opted in these few words for a consideration of the general via a starting point rooted in the particular. I’ve tried to avoid landscape but to persuade you to ask where an adaptable profession centres its relevance by reference only to the day-to-day. Theory is a joyous but not exclusive route to progress. We remind ourselves — because we’re all Aristotelians now — that we are what we repeatedly do. Excellence is not an act but a habit. That surely is the clue to how we test whether the Bar is readying itself both for today and for the future. We forget at our peril to whom the Bar needs to be relevant and for whose benefit it needs constantly to adapt. The answer is not solely you, and it’s certainly not me. It’s the man or woman who never wants to see any of us again. From his and her I suggest the question is “Are you, in 2013, with all that is available to you, doing your best — in my interests?” Now, we must revisit the title of the Kalisher Lecture ‘Excellence is through industry achieved’. William Shakespeare, Two Gentlemen of Verona. And how do I seek to hold up my head here in Australia? Like all good little middle- class English girls, my companion of choice was my Teddy bear. But unlike my peers I had another, very close to Teddy in my affections. My aunt brought him back for me when I was really tiny. I hold him very carefully so as not to hurt him. He’s a koala. I pondered bringing him, but realised that a return to his homeland for the only time in 61 years might prompt him to stay. I understand, now I’ve met you, how tempting that could be, so he’s at home in Sussex, with Teddy. Better not to take the risk. Thank you so much for letting me come and see you. Thank you even more, assuming that you were, for listening to me. Developments in England & Wales Criminal Practice and Procedure
by His Honour Judge Brian Barker QC*
I am grateful for this opportunity to share my approaches to problems regarding Criminal Practice and Procedure in England and Wales. My court is the senior criminal court in England and Wales. It is unique in that it is the only courthouse in the UK built and run by the local authority, the Corporation of the City of London. Within the court, jury trials of the most serious type of offence are administered by Her Majesty’s Court Service. The catchment area is around 10 million. About 2000 people a day come through. There are 18 courts and 16 permanent judges. The third and present building is built on the site of the notorious Newgate Goal. The ‘Old’ building was completed in 1907 and proudly displays the iconic ‘Lady of Justice’ on its dome. A modern extension was added in 1972. My office dates back to around 1290 and in addition to being a full-time judge, I have administrative responsibilities and take part in a number of events and functions connected with the governance and pageantry of the City/Lord Mayor and the livery company heritage. My Broad Concerns With the Legal System
• Firstly, of the declining independence of both the Judiciary and bar. Judges are non political and are appointed by the Judicial Appointments Commission. They are increasingly being made part of the Civil Service and are criticised by Ministers for matters such as the interpretation of ECHR legislation. The publicly funded bar faces continuing cutbacks in fees and increasing competition from solicitors. • Another issue is the erosion of discretion. Sentencing must start with ‘The Guidelines’ and the fairly recent right of prosecution appeals in sentencing has reduced the use of occasional ‘merciful’ sentencing. • Regarding the Government’s drive for austerity, the proposed cut of 25% over three years will adversely affect all sectors of the criminal justice system from prisons and policing, probation through to court back up staff. The single purpose of our Legal Services Commission is to cut back advocacy and solicitor preparation fees paid in running trials. Undoubtedly, there have been excessive claims in the past and the total expenditure for experts and interpreters has also risen considerably.
* The Recorder of London, Central Criminal Court, Old Bailey, London. This paper was presented at the Bar Association of Queensland Symposium, 8 March 2013.
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• As to the future of jury trials, it is important to maintain the integrity of the system as we know it. Important to continue the purity of deciding case ‘on the evidence heard in court,’ which can be tested. And of avoiding the absorption of family and friends views and stopping independent research on the internet. Changes and Trends
There is a problem with random composition in juries. For instance, police officers are allowed if they are not frontline and have no case connection. There is limited questioning of potential jurors. There are improved investigation methods in science. Ballistics, blood splatter and graphic presentation of pathology all benefit from advances and are powerful areas of evidence. CCTV footage and cell site analysis are very widely used in serious cases where resources are available and are particularly useful where there is a ‘conspiracy of silence’ amongst witnesses within the community. Facebook entries are an increasingly fruitful area of evidence. In relation to charging, many of our cases now use the doctrine of ‘joint enterprise responsibility’ in multi handed gun and knife attacks. The defence is often ‘present but not participating’ or one of a group acting beyond the scope of the agreed venture. Many advocate the availability of a ‘second degree murder’ type charge but there is no chance of getting new charges onto the statute book at the moment. ‘Straight through’ committals to the Crown Court for indictable offences have been standard since 1998. This is now accepted despite initial misgivings. If it is thought that there is no effective case to answer, the defence is entitled to ask the Crown Court judge for dismissal, ruling ‘on the papers’ and thus eliminating the old ‘examination of case’ and calling witnesses at first instance. Regarding pre-trial procedure, there is a presumption of bail under the 1976 Act, but objections to bail by the prosecution are ‘a serious risk of failing to appear’ and/or ‘interfering with the course of justice’. The more serious the allegation, the less likely the granting of bail. Quite often a cash security is taken in addition to surety. The Assange Wikileaks saga is an interesting example, but there were expensive police costs in waiting for him to reappear. I watch with fascinated horror the Pistorius investigation. Case Management and proactive control of trial length are a (possibly sadly) necessary culture change. Time is not an unlimited resource and there must be more consideration of the sacrifice jurors are making. The overriding objective that criminal trials should be dealt with justly is pulled together in The Criminal Procedure Rules 2005 and onwards. Judges are now expected to ensure that preparation is timely, issues are being addressed and delay is discouraged. This means the police and then the Crown Prosecution Service must have their case ready and served usually within about seven weeks of charge. A defence Statement is required, setting out matters on which he relies and witnesses are to be called, to be served within 14 days in ‘normal’ cases. In complex cases and for homicides there is considerably more flexibility. Thereafter there must be a Plea and Case Management Hearing [PCMH] where the Judge reviews the position and will sentence if a plea is offered, or make administrative orders as to the trial. The Judge will expect to know which prosecution witnesses are really required and be given a sensible estimate of the trial length and length of potential cross-examination, and it is important to pinpoint if there are any psychiatric issues where an order for an early report will streamline problems. The defence statement will then trigger any secondary disclosure, and from the date of the PCMH to the start of the trial, the discount for a plea of guilty declines proportionally. If a defence Developments in England & WAles Criminal Practice and Procedure 179 statement is not provided or provided late, both the prosecutor and the judge have the right to comment during the trial if appropriate. Prosecution Disclosure is a source of continuing problems. The test is anything that ‘assists defence or undermines prosecution’. Obviously the police are not keen and in large cases it is often necessary for the Crown to have a junior counsel to review the position to avoid problems emerging later during the trial. The Crown may sometimes take Public Interest Immunity Points in objecting to disclosure of some matters which would otherwise be discloseable which are then given anxious consideration by the judge in a private hearing. The Criminal Justice Act of 2003 created major and not always helpful changes in a number of areas, but it encompassed a philosophy of a greater trust in juries to balance & evaluate. Two major areas of change in procedure under this Actare: • The Admission of Hearsay Evidence. The labyrinth of old rules defied common sense. Hearsay is now admissible, subject to a number of tests. It is particularly useful to be able to place before the jury the written statement of a witness who is in fear and has been intimidated into not appearing. If done, the judge must direct the jury to be careful in accepting a statement that has not been tested and cross-examined.
• The other area of change is that of bad character. There are a number of ‘gateways’ to admissibility that need to be established. For example, it must be relevant to an important matter between the prosecution and the defence and/or it has substantive probative value. The basis is that juries should know about a defendant’s propensity to, for example, burgle, indecently assault etc. Unless such evidence is so overwhelmingly prejudicial, then the judge can use his discretion to exclude even though relevant. Parliament hoped that this change might result in more guilty pleas but I am not sure it has made as much difference as originally expected. Concerning applications for Special Measures, screens or curtains are usually granted where there is a request that the witness be shielded from the defendant and/or public (but not from everyone else) so that they may give their evidence with more confidence. The next stage of video linking is granted if it is required for women in sexual allegations and children. A further stage of anonymity or voice disguise is only granted in exceptional circumstances. In conclusion I would like to mention adverse inferences as a legal direction in the Criminal Justice and Public Order Act 1994. Regarding ‘Section 34: failure to mention facts when questioned or charged which are later relied on’, a defendant is given a clear warning when cautioned, as well as being told that he need not say anything! In many cases they say nothing and rely on the mantra that ‘my solicitor advised me to go no comment.’ The direction to the jury suggests that a defendant has waited until he knows what cards the prosecution have got and then tailors a later defence appropriately. The direction indicates that the jury may draw such inferences as appear proper and they can treat the failure ‘as support to the prosecution case’, but only if they think it is fair overall to do so. Now that a defence statement is required, the use of failure to mention facts is somewhat blunted from the defence standpoint. ‘Section 35: failure to give evidence at trial’ is a difficult tactical decision for the defence, but at least it avoids exposure to cross-examination. The judicial direction encompasses the comment that the defendant has said nothing to counter or explain the prosecution case and that his silence may count against him. 180 Queensland Legal Yearbook 2013
Sentencing
The Criminal Justice Act 2003 introduced the concept of potential dangerousness in the future based on what you had done in the past. Thus if guilty of a ‘specified offence’ set out in Schedule 15, with a maximum sentence usually over 10 years, and you pose ‘a serious risk of significant harm’, then the court must consider indeterminate ‘imprisonment for public protection’ or an ‘extended sentence’. Mandatory Life for murder under Schedule 21 was also introduced. Death not caused by blade or bullet resulted in 15 years, for example poisoning or strangulation. If by blade taken to the place of death, for instance youths going onto the street ‘tooled up’, it equalled 25 years. If by bullet or the victim was an officer or it was a double murder etc., the sentence started at 30. All these sentences are real time. Sentences for all other offences are half served in gaol and the other half back in the community under licence. In both areas there had been controversy and the legislation is seen by many judges as restricting judicial discretion. In many areas there are now ‘Guidelines’ that are usually based on a defendant of previous good character that was found guilty after a trial. Much work has been done on these over the past eight years or so by the Sentencing Council. There would generally be four grades of seriousness and within each grade, three levels all with a suggested range of sentence. Aggravating and mitigating factors also need to be factored in. A judge may depart from the guidelines as long as appropriate reasons are spelt out in the sentencing remarks. Considerable guidance is also given from time to time by decisions in the Court of Appeal (Criminal Division). Conclusion
To be able to practice law or to dispense it is not only an enormous privilege, but also an enormous responsibility. Our citizens and societies rely on all of us. I regard myself as extremely fortunate that despite continuing changes and external problems, my colleagues and I have been able to administer the rule of law in a free society with the knowledge that we have the backing of the general public. Queensland Law Society Symposium 2013 Opening Address
by The Honourable Paul de Jersey AC*
It is as always a great pleasure for me to have the opportunity, ladies and gentlemen, to address you briefly at the commencement of this important annual symposium. I at once express my sympathy to those of you who may have suffered during and since the recent floods. Two years ago on this occasion I found myself advancing similar sentiments. I express support for practitioners who have lost premises and files and equipment through flooding, and for all of you who have shared the misery inflicted on your clients. The plenary session topic concerns placement of the Australian profession within the Australian/Asian context. No doubt the speaker will identify prospective challenges. I have great respect for the Queensland profession, for its integrity, its competence and its expertise. I regularly counsel newly admitted practitioners as to the importance of continuing professional development. That points up what is I believe another hallmark of an effective practitioner, which is adaptability. The Queen Elizabeth II Courts of Law manifest good contemporary design and facilities. You may be interested to know we have nevertheless already identified some areas for improvement. We should for example, be able to ‘stream’ courtroom proceedings into other parts of the building, and I am confident that will soon be achieved. We in the judiciary, with your support, must ensure these excellent new facilities are, in the public interest, fully used. I emphasise our video capacity, which can work great efficiencies. Sitting in that brilliant new modern complex, I ask myself from time to time whether our processes are as up-to-date as they should be. We continually hone those processes, through rules of court, practice directions and the like. Their implementation will not ensure expeditious litigation without undue expense absent the full, progressive cooperation of the profession. Let us recall some of the history on the civil side. By the 1980s, the cost of litigation in the Supreme Court had become prohibitive. A person of ordinary means would have to mortgage the family home to pay for it. That is regrettably still the case. The worthy pro bono thrusts aside, it was largely that concern which gave impetus to mediation, now so wide-spread. Has mediation really proved to be a less expensive option? I have reservations about that: and when mediation fails, I imagine potentially worthy claims run the risk of collapse where the additional costs of a trial simply cannot be borne. I have been an enthusiastic proponent of mediation over many years. It has done wonders for court lists. But I must say I have come to experience some regret over a downside.
* Chief Justice of Queensland. This address was given at the opening of the Queensland Law Society Symposium, Brisbane Convention Centre, 15 March 2013.
181 182 Queensland Legal Yearbook 2013
I fear, for example, that some settlements which result from mediations may reflect a level of palm tree justice: though, the process being private, one could not definitely say one way or the other. I am also conscious that mediation has become so much the norm, that court advocacy skills are leeching away. And if no settlement results from a mediation, how well equipped are practitioners to implement the processes of litigation these days, especially in relation to the disclosure of documents? Young practitioners especially, may flounder when confronting our ‘direct relevance’ test. The disclosure of documents remains the embarrassing albatross of the civil justice system. Its exorbitant cost, in major cases especially, can be grotesque. A disputant confronted by the prospect of expensive multi-million dollar litigation might see attraction in identifying its respective 20 best documents and letting the cards fall where they should. More often than not the other 20 000 disclosable documents will impact minimally. I acknowledge it is easy to pronounce upon these things from a distance. The unremitting disclosure obligation may, I believe, be pressuring claimants into the arena of mediation. That is not necessarily a bad thing, but it may be a bad thing where the mediation does not exhibit the traditionally paraded advantages, as a relatively inexpensive, expeditious process likely to lead to a just and mutually satisfactory resolution. Queensland’s direct relevance regime for the pre-trial disclosure of documents has worked much more efficiently than its predecessor under Peruvian Guano. Its continuing success depends on the profession’s implementing the requirement with appropriate rigour. Over the last couple of years, the court has worked closely with the profession to refine our process for supervised cases (that is, cases where a trial would last more than five days), and it is appropriate that I express thanks today for the QLS contribution led by Justin McDonnell of King and Wood Mallesons. The result of this initiative should see more focus on limiting disclosure of documents and their efficient electronic management, as well as the traditional goal of limiting and defining the scope of any trial by reference to the real issues, and avoiding surprise. From what I am told and observe, the profession is alive to its responsibility to craft an economically manageable landscape in civil. I look forward to a continuation of that in implementing this new civil initiative. More robust regimes are mooted from time to time, such as imposing finite limits on the documents to be disclosed, numbers of witnesses, oral evidence and length of hearings. Legislative backing would be needed for those things, absent the agreement of the parties. The prospect of parties agreeing on a strictly abbreviated process leading to a swift, definitive result (excluding appeal, for example) is an interesting one which I would be keen for us to trial. We could only confidently do this with the parties’ agreement. Historically, our courts have dealt with exceptional cases very quickly (in my own case the ‘world’s tallest building’ case in 1987). But Judges are rightly astute these days to avoid curtailing procedural rights too far, and it is not clear appeal courts would support any robust limitation. My having said these things, I believe our present civil approach works reasonably well, but we are heavily dependent on the cooperation of the profession. I am confident that will continue, and embrace the changes which will inevitably ensue on the civil side. I turn to another area of potential change, and that is in the criminal justice system. We have tended to greet changes in this arena with considerable sceptical trepidation. Some few years ago, the Queensland legislature put an end to the sequestering of deliberating juries, and established the possibility of Judge only trials and majority verdicts. To the apparent dismay of some, perhaps many, the clocks did not stop and the temple curtain was not rent in two. Queensland Law Society Symposium 2013 Opening Address 183
The Queensland legislature had been circumspect. Majority verdicts are not allowed here on charges of murder, unlike the position in the United Kingdom. That was a concession, one surmises, to the grand criminal justice traditions so entrenched in this jurisdiction. I have little doubt that as the years, or maybe the decades, roll on, we will here in Queensland be urged to embrace reforms which have been in operation, effectively, in that great basin of legal tradition the United Kingdom, now for a decade or more. Trial judges in the UK are entitled to comment to the jury, adversely to an accused, for advancing a case for the first time at trial; courts have the discretion to admit evidence of an accused’s prior conviction for similar offending; and hearsay evidence is admitted, the residual question being confined to its weight. I attended a seminar at Warwick University conducted by the UK Judicial Studies Board shortly after the commencement of those — by our terms — radical reforms, most of them introduced in 2003. The mood was sombre. My recent reading, and discussion with senior judges in London, suggest their reformed system works well. Why, for example, should a jury be denied knowledge that an alleged rapist committed another rape six months earlier, subject to appropriate warning from the Judge, or that an accused charged with fraud has a string of convictions for dishonesty? While I acknowledge the contrary position, many would argue common sense and general life experience would militate in favour of not keeping a jury in the dark about such matters. I trust the intelligence and wisdom of my fellow citizens. I do not accept a claim that made aware of prior misconduct, jurors would automatically say: he did that so he must have done this. In a comparatively modest way, we are presently developing a practice direction about the pre-trial management of lengthy criminal trials, trials expected to last 15 days or more. There are many more of those trials these days. The draft practice direction, which is the subject of wide consultation with stakeholders, is premised on early preparation, and the comprehensive disclosure pre-trial, by both parties, of their respective positions. I believe we have long passed the point where the defence should be permitted to withhold disclosure of its intended trial approach. A criminal proceeding should not in this 21st century amount to a game where the players may keep their cards up their sleeves. The draft practice direction is intended to go some way towards rectifying that situation. The object is to improve efficiencies in relation to a number of matters: the reliability of the jury’s determination, discovering the truth notwithstanding the adversarial context, and economy in the deployment of resources, time and expense. I expect we would need legislative backing to compel the defence to disclose, fully, pre- trial, the ambit of issues, and I expect that as with majority verdicts, some would howl about erosion of inviolable rights. Yet in Victoria, which we have tended to regard as fairly conservative in these matters, the Criminal Procedure Act 2009 obliges the defence, pre-trial, to serve and file a document ‘identify(ing) the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’ (s 183) — in other words, fairly comprehensive disclosure of the defence position before the trial begins. That has been the position in the UK for more than a decade, and I note New South Wales is moving in that direction. I surmise that in this jurisdiction, were that level of pre-trial frankness obligatory, we would see fewer trials, and more pleas of guilty attracting the consequent mitigation in penalty. I suggest they would be true pleas, not expedient pleas. I acknowledge that cooperation does characterise many criminal proceedings, and we are grateful for that. There is every reason, however, why it should be a hallmark of all such proceedings. 184 Queensland Legal Yearbook 2013
We must remember that the public, paying to maintain the criminal justice system, has legitimate interest in efficiencies, while accepting that must be tempered by the need to respect, support and promote fundamental rights. But is it justified to summon a jury to twiddle its thumbs at public expense for hours if not days while issues are resolved at the commencement of a trial which could have been dealt with pre-trial under s 590AA of the Criminal Code? Is it justified that a trial be adjourned, or aborted, because without notice the defence choose at the last minute to rely on a position which, with notice, could have been investigated by the prosecution and met much earlier on? These things happen these days much less frequently than they did 30–40 years ago. But when they do, the public cost, and the inconvenience to many, are simply intolerable consequences. As that bastion of the rule of law the United Kingdom has been prepared to embrace progressive criminal law reform, and if we accept it has worked well there in the public interest, so should we be prepared to explore arguably desirable change. As I have said, our current initiative is comparatively modest, and I hope it is ultimately implemented, but the effective operation of even that level of change will depend on the cooperation of the profession, and that will in turn depend on what we call ‘cultural’ change. I assure you all of the support of the judiciary. And what, you may ask, of ultimate change in the judiciary. Our charter is largely defined and set down, and while there can be innovation — as with flowcharts, computers and the like with juries as but two of many examples — judgments from above do establish substantial constraints, especially in this criminal jurisdiction. I am as a trial judge continually reassured that my juries reach what I believe to be right results notwithstanding the glazed eyes which meet well motivated but necessarily highly complicated directions on matters like provocation and self-defence. And how disturbing was the research which unearthed jury incomprehension of the meaning of proof ‘beyond reasonable doubt’. The Queensland Law Reform Commission referred in 2009 to a survey which showed 36% of those surveyed believed proof beyond reasonable doubt meant ‘total proof’. May I draw again on the Victorian experience? I think the Victorian Jury Directions Bill 2012, currently before the Legislative Council, marks an interesting step in trying to simplify the task of juries. Among other things, that Bill sanctions something which was fairly common when I was first appointed to the Supreme Court in 1985, which was to tell juries that a reasonable doubt was a doubt founded in reason, and not something fanciful dreamt up for the purpose of avoiding discharging what would otherwise be an unpleasant duty. Maybe that language is now rather outdated and perhaps patronizing, but the regularity with which juries ask to be told what a reasonable doubt really is, suggests that we do need to be more proactive about this. At the moment, High Court dictates absolutely forbid it. According to respectable surveys, juries are crying out for help, yet in responding, judges are neutered. Judges are not allowed to tell juries even the obvious, that a ‘reasonable doubt’ is ‘a doubt founded upon reason’, or a ‘rational doubt’, let alone saying it may fall short of 100% scientific exactitude, or that it must surpass what is more probable than not. Under the Victorian bill, now at the second reading stage in the Upper House, Judges will be permitted to tell juries that proof beyond reasonable doubt surpasses proof of what is probable, whereas it may fall short of proof of ‘absolute certainty’, and that seems eminently sensible. Many would say that the abstruseness of a number of the necessary jury directions these days renders them opaque. That is largely the result of judicial cerebration at the appellate Queensland Law Society Symposium 2013 Opening Address 185 level. I think the time may have come for parliament to counter, by easing the task of juries through legislative licence, or not to put too fine a point on it, legislative ‘correction’. That said, I positively affirm my conviction that by one means or another, juries do regularly work through the facts and the law to reach the right result. The continuing legitimacy of this process depends on the court’s delivering comprehensible and manageable directions on the law. We may need legislative help here. What the courts are producing may involve a level of complexity which is incompatible with common-sensical determinations in our criminal courts. Talking more generally of the challenge to address change, I will not traverse this morning the particular changes in the legal landscape I have witnessed over my 42 year legal career. They range from the utilitarian — carbon paper to computers; to process — imagine 30 years ago a suggestion that evidence be received by telephone or video; to rights — with some accused denied the sight of the colour of the eyes of their accuser. Critics claim the law is time-warped. It is not. But as with the courts, the profession must be prepared to embrace obviously beneficial change, and not mindlessly shelter behind tradition, however time hallowed. Materially, the Queen Elizabeth II Courts of Law epitomise best practice, progressiveness, achievement, stability. We must join to ensure that the process — what happens there, and in all of the courts of the State — serves our citizens in the ultimately best way. Dr Stephen Simpson and the Origins of the Court System in Queensland
by Thomas Bradley*
This paper is inspired by a letter, which came to my attention in this way. In the second half of 2012, the London auction house Spink & Son Ltd was entrusted with selling the Alan Griffiths Collection, an important collection of Australian colonial stamps. Spink sent me the catalogue for Griffith’s Queensland colonial stamps. In it, I found a letter written by Dr Stephen Simpson to Mrs Emily Simpson, Mitcham, England.1 The Postmarks
The letter was in the collection, and therefore in the catalogue, because of the postmarks it bears, which can be seen below. The first is a Crowned oval mark: ‘GENERAL POST OFFICE DEC 7 1841 SYDNEY’ This denotes that the date the letter was processed at the GPO in Sydney on 7 December 1841. The ‘SHIP LETTER’ mark has been struck across the first mark. It indicates the letter was received in the Ship Letter Office in London.2 There is also a red mark enclosed in a double circle: ‘S 22MY22 1842’
This indicates the letter was received on 22 May Dr Stephen Simpson’s letter 1842 in the South District (‘S’ for postal purposes), in which the town of Mitcham was located.
* Barrister. This paper was presented at a Selden Society lecture at the Supreme Court of Queensland Library, 21 March 2013. 1 A full transcription of the letter appears at p 217. 2 Hendy, John G, The History of the Postmarks of the British Isles from 1840 to 1876 compiled chiefly from Official Records, Stanley Gibbons Limited, London & New York 1909, see p 68 fig 413. 186 Dr Stephen Simpson and the Origins of the Court System in Queensland 187
The handwritten figure ‘8’ above and to the right of the address is the rating, which indicates the rate payable on the letter was 8d. This was the minimum postage for letters from the colonies to the United Kingdom until 1854.3 Finally, there is a scalloped impression in red ink: ‘10FN10 MY23 1842’ This is the date and hour stamp, denoting the letter was processed in the London District Office at 10 o’clock in the morning (forenoon) on 23 May 1842.4 In the manner of the times, the letter is written on both sides of a single sheet of foolscap folio. It was folded into a shape we would recognised as an envelope and sealed with wax. Date and Writer’s Address
The text of the letter is dated ‘November 25/41’. That is 1841. The author’s address is ‘Brisbane, Moreton Bay’. Part of the importance of this letter lies in the fact that it is the earliest known letter sent by post from the Moreton Bay District. It may be more accurate to describe it as the earliest known private letter, as it may be assumed that there were earlier official communications between the military officers at Brisbane and the Governor’s office in Sydney. My first thought was that Brisbane’s earliest letter should, if possible, come home to Brisbane; where I was sure it would be better appreciated than at its English destination. On doing some initial research on the letter, however, I became intrigued by the broader relevance of the letter to the history of Brisbane, indeed Queensland, and in particular to our legal and judicial history. The letter is written from ‘Brisbane, Moreton Bay’. We can position the letter in time and locate Dr Simpson’s address at Brisbane in the following way. In 1839 the first Colonial Engineer, Major George Barney5 drew a survey of Brisbane Town, Moreton Bay. Barney was no amateur; he was later appointed Chief Commissioner of Crown Lands and Surveyor-General of NSW. From Barney’s survey we know the situation of the settlement in 1839. Of present interest are the following: • The Military Hospital [23], the Convict Hospital [24] and the Surgeon’s Quarters [25] located between what became George, William, Adelaide and Ann Streets, in the area later occupied by the 1879 and 1981 Supreme and District Court buildings. • At the other end of the town, the only marked building is the Clerk of Works Quarters [36]. The Clerk of Works was Andrew Petrie. This building was on what later became the corner of Queen and Wharf Streets.
3 Hendy, 1909, p 64, 67–68. 4 Hendy, 1909, see p 44, eg fig 222. 5 Major Barney arrived in Sydney in December 1835 as a captain in the Royal Engineers, to assume duties as Commanding Royal Engineer. Governor Burke gave him civil duties and the additional appointment as Colonial Engineer. By 1839 he held the rank of major. He was later promoted to the rank of lieutenant-colonel and given command of the Royal Engineers Department in NSW. See: Barney, George (1791–1862), Australian Dictionary of Biography, ANU (ADB); Sutton, R, George Barney, First Colonial Engineer, Institution of Engineers, Australia, 1984. 188 Queensland Legal Yearbook 2013
Major George Barney’s survey of Brisbane Town, 1839.
• As more enduring features, the survey shows two creeks, the Wind Mill [35] and the Commissariat Stores [9]. In 1844, a German missionary, Rev Carl Gerler6 drew a sketch map of Brisbane. Although plainly not the work of a surveyor (or a would be surveyor-general), Gerler’s sketch shows a few more buildings, including three cottages on the River bank surrounded by a fence at the bottom of the sketch in about the middle. These houses are at the Petrie Bight end of the main street. The central house marked ‘[21]’ is identified as ‘Dr Simpson’s House’. By relation to the nearby creek (after which Creek Street is named), we can place the house along what is now Eagle Street between Riparian Plaza (built over the creek) and the Riverside Centre. Dr Simpson, and his friend William Wiseman,7 had arrived in Brisbane on the Speculator, an apt name for a vessel bringing them here, at the end of July 1840, having
6 Rev Carl Friedrich Gerler (1817–1894) was an artisan missionary of the Gossner Society (Evangelical Union for the Spread of Christianity among the Heathen founded by Rev Dr J E Grossner of the Bethlehem Bohemian Church in Berlin), who arrived in Australia in January 1844 and joined the society’s existing mission at Zion Hill (Nundah). He was ordained as pastor of the mission on 28 October 1856. See: Gunson, N, Schmidt, Karl Wilhelm Edward (?–1864), ADB. 7 William Henry Wiseman was an Oxford graduate who had travelled with Dr Simpson in Europe and accompanied him and Mrs Simpson on the voyage to Sydney aboard the Wilmot in 1839. On 5 January 1855, the Governor General, Sir Charles Fitzroy appointed Mr Wiseman commissioner of crown lands for the pastoral district of Leichardt: The Sydney Morning Herald, 6 January 1855, p 4. Within a week, he was appointed as police magistrate of the territory of NSW and its dependencies: The Sydney Morning Herald, 10 January 1855, p 5. In 1856 he selected the site for Rockhampton at the navigational limit of the Fitzroy River. Dr Stephen Simpson and the Origins of the Court System in Queensland 189
Rev Gerler’s sketch map of Brisbane, 1844. obtained the permission of the Governor, Major Sir George Gipps.8 As the letter notes, the last Commandant of the Moreton Bay penal settlement, Lieutenant Owen Gorman9 had allowed Simpson to use one of the cottages at Eagle Farm, formerly the women’s prison farm, for the reception of his patients. Local recollections are that Dr Simpson and Mr Wiseman lived at Eagle Farm for a short time.10 Dr Simpson purchased the three lots at Petrie Bight in 1848, when the land was offered for sale by the Crown.11 However, early records, including the Gerler sketch, have him living in a hut on that part of the riverbank in the very early 1840s. He may well have built the huts with a view to purchasing the land, when it became available. Dr Simpson’s address in the official announcement of his appointment as commissioner of crown lands is given as ‘Post Town, Brisbane, Moreton Bay’.12 By January 1843, he had commenced building a cottage orné on the south bank of the Brisbane River at Woogaroo Creek, Redbank, where he intended to live once relieved of his police magistrate’s duties.13 By May 1843, the slab hut
8 Sir George Gipps was appointed Governor of New South Wales on 5 October 1837. He arrived in Sydney on 24 February 1838 and departed on 11 July 1846, his original six-year term having been extended. See: McCulloch, SC, Gipps, Sir George (1791-1847), ADB. 9 Lt Gorman (1799–1862) was a soldier of the 80th Leicestershire Regiment who served as Commandant of the Moreton Bay Penal settlement from 21 July 1839 to 15 April 1842. 10 Russell, H S, Genesis of Queensland, Turner & Henderson, 1888, p 247. 11 Cilento, R, The Life and residences of the Hon Stephen Simpson MD JP MLC, Royal Historical Society of Queensland Journal (RQHSJ), 1965, p 26. Simpson appears to have retained ownership of the Eagle Street land until his departure for England in December 1860: Sale advertisement The Moreton Bay Courier, 24 January 1860; and ‘to let’ notice The Moreton Bay Courier, 16 March 1861. 12 The Sydney Herald, 11 May 1842, p 3. 13 The Sydney Morning Herald, 23 February 1843, p 2. 190 Queensland Legal Yearbook 2013 at Woogaroo Creek must have been completed, as he wrote to the NSW Colonial Secretary from there.14 From this ‘sketchy’ chronology it may be surmised that the Petrie Bight riverbank property was the likely location from which the letter was written. It follows that it was penned from one of the first private dwellings at the start of free settlement in Brisbane. Simpson’s Early Life and Antecedents
Stephen Simpson was baptised at St Margaret’s Church, Wolston in Warwickshire on 29 July 1793. He was the son of Thomas Gravenor Simpson, a solicitor, and Mary Bunning, the daughter of a clergyman. His paternal grandfather, Joseph Simpson, was a barrister at Inner Temple, who went to school with Samuel Johnson and remained a friend of the good doctor, Oliver Goldsmith and David Garrick. Boswell describes him as: A barrister at law, of good parts, but who fell into a dissipated course of life, incompatible with that success in his profession which he once had, and would otherwise have deservedly maintained; yet he still preserved a dignity in his deportment. He wrote a tragedy on the story of Leonidas, entitled Dr Steven Simpson The Patriot. He read it to a company of lawyers, who found so many faults, that he wrote it over again; so then there were two tragedies on the same subject and with the same title.15 Boswell seems to be telling us it was a double tragedy that the barrister should try his luck as a playwright. In 1759, Johnson had borrowed 10 guineas from Joseph Simpson. In 1765, Simpson wrote to Johnson about his problems paying his debts and his own father’s refusal to assist. Johnson repaid the money and lent the dissipated barrister 10 guineas more.16 He offered this sage advice: Small debts are like small shot; they are rattling on every side, and can scarcely be escaped without a wound: great debts are like cannon; of loud noise, but little danger. You must, therefore, be enabled to discharge petty debts, that you may have leisure, with security, to struggle with the rest. Neither the great nor little debts disgrace you.17
14 Letter Dr Simpson to Deas Thomson 6 May 1843. Dr Simpson later sold the hut at Woogaroo to the Crown and it was used as a base for the Border (or Native) Police. A number of 19th Century commentaries use the expression ‘Woogaroo’ to describe Dr Simpson’s property at Wacol; so that later references to Woogaroo refer to Wolston House. 15 Boswell’s Life of Johnson, vol 3, p 12. 16 Boswell’s Life of Johnson, vol 1 p 488, diary entries for July 2 and July 8 1765. 17 Letter to Mr Joseph Simpson, Barrister, 1759, Boswell’s Life of Johnson, vol 1, p 269. Dr Stephen Simpson and the Origins of the Court System in Queensland 191
Thomas Simpson’s mother, Elizabeth Gravenor, had died and his father, according to Dr Johnson, had ‘married imprudently … at an age when [he] had a right of choice.’18 It has been suggested that Thomas Simpson’s maternal grandfather, Edward Gravenor, a silk merchant from Coventry, may have intervened after his daughter’s death and taken the grand-children to live with him. It may be in that way that our Stephen Simpson came to be baptised at Wolston, near Coventry.19 Military and Medical Careers
In 1813, at about the age of 21, Stephen Simpson enlisted as an ensign and served in the 14th Light Dragoons, becoming a Lieutenant on 8 December 1814. His regiment had fought in the Peninsular War, where it famously captured Joseph Bonaparte’s chamber pot, and was then sent to North America to fight in the New Orleans campaign of the War of 1812. It took no part in Waterloo or the battles following Napoleon’s return. After his discharge from the Army in 1817, Simpson qualified M.D. at the University of Edinburgh. Dr Simpson set up residence as a medical practitioner in Rome, treating English patients on the grand tour. His most celebrated patient was a son20 of the Duchess of Sutherland. Under Dr Simpson’s care, this ‘helpless invalid’ was ‘perfectly cured’.21 He accompanied the young aristocrat on his return to England. In 1836, Dr Simpson published ‘A practical view of Homœopathy: Being an address to British practitioners on the general applicability and superior efficacy of the homœopathic method in the treatment of disease’. It is reputed to be the first text English on homeopathy. The publication was not a success. Influential members of the medical profession, quite unsympathetic to the ‘continental’ fashion for homeopathy, wrote critical, even disparaging reviews. Perhaps in reaction to this unwelcome reception of his book, Dr Simpson decided to travel to New South Wales. At that time, there was quite a fascination with the southern territory and, particularly among the more enterprising, a view that one could make one’s fortune by becoming part of the then great Anglophone settler expansion.22 Marriage and Early Tragedy
On 15 September 1838, Dr Simpson had married Sophia Anne Simpson, a cousin, at St George’s Hanover Square, in London.23 He was then about 45 years of age and Sophia 34. Theirs was not a whirlwind romance. The two had become engaged almost 20 years earlier, when Sophia can only have been about 14. The letter begins: At length I have determined to write you a few lines, though as yet I have not heard a word from you since I left England — I have almost abandoned all hope of ever again hearing from any of the Simpsons, for it is now upwards of 18 months since I sent the melancholy details of my poor wife’s fate — I sent the particulars
18 Ibid. 19 This suggestion was made by Vic Wise of the National Trust (Qld) in an email to me of 23 December 2012. 20 Probably Francis Egerton (Lord Francis Leveson-Gower) (1800–1857) second son of the 1st Duke of Sutherland, who on medical advice — perhaps from Dr Simpson — toured the Mediterranean and the Holy Land in 1839–1840, publishing Mediterranean Sketches, A Spottiswoode, London (1843). 21 Russell, Genesis of Queensland, p 247. 22 Bellich, J, Replenishing the Earth, OUP, 2009. 23 Cilento, R, Random Observations on Wolston and Newstead House, RQHSJ, 1966 at p 193. 192 Queensland Legal Yearbook 2013
to Charles in the first instance & afterwards to Cal on Parch enclosed in a letter to Mr Edward Simpson — Both vessels surely cannot have been wrecked & it appears to me very strange that no notice should have been taken of them — I cannot now recapitulate the dreadful circumstances; she suffered so much & bore it so patiently that I can never forget the trying scene — Poor Sophie! she showed throughout an heroic firmness & never for a moment refrained at her unhappy fate Dr Simpson and Sophia had set sail from Portsmouth on 30 September 1839 aboard the Wilmot. They arrived in Sydney on 26 January 1840.24 They took a house on Jameson Street, Sydney. There, on 8 May 1840, Mrs Simpson gave birth to a daughter, also named Sophia. The child died eight days later.25 After another three days, Mrs Simpson died, aged 36.26 Although Dr Simpson complains of the lack of correspondence from his relatives, there must have been some earlier communication. The Colonist of 7 March 1840 reported a Government notice of unclaimed letters for ‘Stephen Simpson MD’. Moreton Bay in the 1840’s
The letter continues: As I cannot but suppose you must have heard something of my movements since the melancholy event I shall come at once to my present prospects — It is now upwards of 15 months that myself and my friend Wiseman took up our abode in the Bush, toiling like Slaves & living like Savages At the time Dr Simpson wrote the letter, as Barney’s and Gerler’s maps show, there were a number of penal settlement buildings on the north bank of the Brisbane River. The only structures still standing are the Old Commissariat Stores between William Street and Queen’s Wharf Road and the old Windmill on Wickham Terrace. The most significant structure was the Convict Barracks. Here Dr Simpson would preside as magistrate; here the Supreme Court of New South Wales would sit, on circuit in Moreton Bay; and here also, in time, the Queensland Parliament, including Dr Simpson MLC, would assemble for the first time in 1860. In addition to the Brisbane buildings, there were Government out-posts at Cooper’s Plains, Redbank and Limestone (now Ipswich). Under the penal regulations, no one could come within 50 miles of the penal settlement without authorisation. The new private houses shown on Gerler’s sketch, including Dr Simpson’s house, were the very beginning of colonial civilian settlement in Brisbane. In the letter, Dr Simpson writes: The settlement though not yet absolutely released from penal Regulations, has been opened to Squatters, who have liberty to set down anywhere on the immense plains and forest without 50 miles of Brisbane — As this Country is thought to be very superior to most other parts of the Colony there has been a great rush towards it & there are already about 40 large Cattle and Sheep establishments in the neighbourhood — They are in charge of about 800 men besides women and children — You will be surprised to hear that the proprietors are almost all men of education and good connexions — they have even an Eton Cricket Club on the Downs & most of them have been brought up at the universities — I have now
24 Australasian Chronicle, 27 January 1940; Sydney Gazette and NSW Advertiser, 28 January 1840. 25 The Sydney Morning Herald, 18 May 1840 p 2, col 1. 26 The Sydney Morning Herald, 25 May 1840 p 7, col 5. Dr Stephen Simpson and the Origins of the Court System in Queensland 193
Plan of the Convict Barracks
staying within for medical treatment a son of Mr Callum McKenzie, a Scotch Baronet of 12 000 per Annum & he has large establishment near here — There is also a nephew of the Governor’s with a son of Admiral Elliots keeping a Sheep Station — We have also several Honbles — indeed there is scarcely an exceptional person among them — The consequence of this congregation of souls has been the want of a Doctor —. Several of the principal Settlers have therefore applied to me to take the medical charge of their men & provide a Private Hospital at Brisbane for the reception of bad cases. On 22 May 1840 an Order in Council halted the flow of convicts to New South Wales, including Moreton Bay. The expansion of squatting to which Dr Simpson refers, presented a dilemma for the Governor, as Gipps reflected in a dispatch to Lord John Russell, then Colonial Secretary, in 1840: As well might it be attempted to confine the Arabs of the Desert within a circle traced upon their sands, as to confine the grazier or wool-growers of New South Wales within any bounds that can possibly be assigned to them … Amongst the squatters of New South Wales are the wealthiest of the land, occupying with the permission of government, thousands and tens of thousands of acres. Young men of good family and connexions in England, officers of the army and navy, graduates of Oxford and Cambridge, are also in no small number amongst them.27
27 Original correspondence Nov. – Dec. 1840, Sir George Gipps to Lord John Russell, Enclosure 5, 14, 16, Public Records Office, London CO201/300 194 Queensland Legal Yearbook 2013
By 1844 there were 17 stations established in the Moreton Bay region (ie east of the Great Dividing Range) and 27 runs on the Darling Downs.28 The first census, taken in 1846, revealed that North Brisbane had a population of 483, South Brisbane 346 and Limestone (now Ipswich) 103. The exceptional persons mentioned in the letter included: • Arthur Hodgson (1818–1902), an old Etonian and a Nawdon Scholar at Corpus Christi College, Cambridge in 1837–38,29 and Gilbert John Elliot (1818–1852), officer in the service of the th47 Regiment, former aide-de-camp to Governor Gipps.30 The two had established a sheep station at Eton Vale on the Darling Downs; Hodgson naming the holding after his old school. • Sir Robert Ramsay Mackenzie (1811–1873), fourth son of Sir George Stewart Mackenzie, Baronet of Coul.31 Sir Robert came to Sydney in April 1832 to join his brother James. He speculated in sheep properties, was bankrupt 1844–1846. In 1847, he was appointed Magistrate at Clifton. Sir Robert was Premier of Queensland from August 1867 to November 1868.32 • Henry Stuart Russell (1818–1889), who established Cecil Plains station along the Condamine River in 1842, was the son of an influential East India officer, educated at Harrow and Oxford.33 • Captain Alexander Ramsay (1823–1857), 52nd regiment, who was drowned in October 1857 in the wreck of the Catherine Adamson off the heads at Port Jackson.34 Captain Ramsay was a grandson of Sir Alexander (Burnett) Ramsay, 1st Baronet of Balmain (1757–1810) and son of the Hon Captain Robert Burnett Ramsay (1787–1846), 14th Regiment of Foot.
28 WH Trail, Queenly City. Full citation unavailable. 29 Donovan, Valerie, From Queensland Squatter to English Squire: Arthur Hodgson and the Colonial Gentry, 1840–1870, MA Thesis, UQ, December 1993, p 12. Hodgson was the son of the vicar of Rickmansworth, Pemberton. In 1842, Hodgson married Eliza Dowling, a daughter of Sir James Dowling (178701844), the second Chief Justice of New South Wales. Later, Hodggson was the prime mover of the Moreton Bay & Northern Districts Separation Association. He served in the Parliament of New South Wales and, after separation, as the Member for Warrego in the Queensland Legislative Assembly. He was a minister in the MacKenzie (1868) and Lilley (1869) administrations. He was appointed KCMG in 1886 for services to Queensland: Waterson, D B, ADB. 30 Elliot was the son of Sir George Elliot, KCB (1784–1863), who served under Nelson on the Victory and in 1841 was a rear-admiral and commander in chief of the East Indies and China Station. Elliott reputedly resigned his ADC position to become a squatter after the Governor, unhappy at the standards of his cook, pressed Elliott to take charge of the cooking of roast beef rounds: Hall, Thomas, The Early History of Warwick District, p 20. In 1860, Elliot was the Member for Wide Bay in the first Queensland Parliament and was elected as the first Speaker of the Legislative Assembly. The Parliament met on 16 May 1860 in the old Convict Barracks; that date being the 90th anniversary of the charting of Moreton Bay by Captain Cook in 1770. 31 Sir Robert married Louisa Alexandrina Jones of Brisbane at St John’s Church, Brisbane on 29 September 1846: The Moreton Bay Courier, 3 October 1946. He succeeded as 10th Baronet of Coul in Nova Scotia on the death of his brother William on 21 December 1868, returning to the family estate in Scotland in 1871. 32 Sir Robert was elected as the Member for Burnett in the first Legislative Assembly. 33 Mr Russell was an elected member of the NSW Legislative Council 1853–1855. In 1851 he married Charlotte Pinnock, the sister of the senior police magistrate and sheriff of Queensland, Philip Pinnock. See: Austin, CG and Lack, C, ADB. 34 The Moreton Bay Courier, 7 November 1857. Dr Stephen Simpson and the Origins of the Court System in Queensland 195
• Patrick Leslie35 (1815–1881) and George Farquhar Leslie36 (1820– 1860), younger sons of the 9th Laird of Warthill in Scotland, who had established South Toolburra station on 2 July 1840 and shortly afterward the neighbouring Canning Downs station.37 • Ernest George Beck Elphinstone Dalrymple (1820–1844) who sailed to Sydney with George Leslie in 1838, had set up Old Talgai station in 1840. He was the ninth son of Sir Robert Dalrymple, first baronet of Horn and West Hall, Aberdeenshire.38 • William Henry (‘Dick’) Glover, son of the Archdeacon of Norfolk, who was educated at University College, Oxford. • Frederick Neville Isaac (1825–1865), the son of a ‘respectable’ London banker, educated at Rugby, established Gowrie Station in 1840.39 • The Honourable James Erskine Murray (1810–1844), fourth son of the 7th Lord Elibank, held property interests, as a squatter, on the Darling Downs. Murray was admitted as an advocate in Scotland and practiced as a barrister in Port Phillip and Sydney.40 He was killed in 1844 while on a commercial expedition to open up trade with Borneo.41 Dr Simpson’s Appointment
On 10 February 1842, the Governor announced that the Moreton Bay District was open for free settlement, lifting the restriction on persons coming within 50 miles of the penal settlement. Dr Simpson may have been in Sydney at this time, because he travelled back to Moreton Bay on board the Shamrock with the Governor and party, departing Sydney on 18 March 1842,42 and arriving in the Bay six days later.
35 In 1845 Patrick Leslie purchased land at Newstead in Brisbane and built Newstead House, which he sold to Captain Wickham in 1847: Waller, K G, ADB. He became the leader of the separation movement on the Downs and in 1857 represented the Moreton, Wide Bay, Burnett and Maranoa Districts in the first New South Wales Legislative Assembly. 36 George Leslie the first representative of the United Pastoral Districts of Clarence and Darling Downs District in the NSW Legislative Council: Empire, (Sydney) 10 February 1855; The Moreton Bay Courier, 21 August 1860. 37 Hall, The Early History of Warwick District, p 15. 38 He died in of consumption in Brisbane on 4 November 1844: Austin, CG and Lack, C, ADB. 39 Frederick Isaac accompanied Dr Ludwig Leichhardt on his first exploring expedition and ‘being a first- class bushman, proved of great service to that gentleman’: Brisbane Courier, 18 July 1865. Leichhardt named the Isaac River after him on 13 Feb 1845. He was a magistrate for Western Downs and on 25 August 1864 was appointed to the Queensland Legislative Council, serving until his death from consumption on 12 July 1865. His Brisbane home was Bellevue House, George Street. Sources: Waterson, DB, Biographical Register of the Queensland Parliament: 1860–1929, 2nd revised edition (Sydney: Casket Publications, 2001); Donovan, VV, From Queensland Squatter to English Squire: Arthur Hodgson and the Colonial Gentry, 1840–1870, masters thesis, UQ, December 1993, at p 25; Weekly Herald, 27 July 1865. 40 He was admitted as a barrister of the Supreme Court of New South Wales on 17 October 1842, the same day Captain Wickham took his magistrate’s oath before the Court: The Sydney Morning Herald, 18 October 1842, p 2. The newspaper report noted: ‘There were fifteen Members of the Bar present at the opening of the Court yesterday, in wigs and gowns; thirteen old faces, or rather gowns and wigs, and two new ones’. Murray had a torrid relationship with Justice Willis in Port Phillip: Australasian Chronicle, 24 January 1843, p 2; Colonial Times (Hobart), 31 January 1843, p 2. In 1962, Murray’s grandson became the 13th Lord Elibank, when the 12th Lord (also 3rd Viscount Elibank) died without issue. 41 The Courier (Hobart), 7 September 1844 p 3. 42 Sydney Gazette and NSW Advertiser, 7 April 1842, p 4. 196 Queensland Legal Yearbook 2013
There was at that time a particular controversy about whether the free settlement should remain where the penal establishment had been, ie at the site of the present Brisbane CBD, or whether it ought to be relocated to Cleveland to be more readily accessible for large shipping and for overland transport from the Darling Downs. To assist in determining the principal site for free settlement, the Governor asked Captain Gilmore of the Shamrock to call at Cleveland before entering the mouth of the Brisbane River. The Captain dutifully did so on the afternoon of 24 March 1842. Henry Stuart Russell, on board the ship as a guest of the Governor, records the occasion in these terms: Moreton Bay mud and I had once made acquaintance: I sought no renewal. His Excellency and suite were boated to the ooze as far as the depth admitted; there was no help for it. Too heavy to be carried, they all had to take to the water, which was more in conformity with their tastes, it appeared through the Captain’s glass, than the mud proved to be. Floundering and flopping through such a hundred yards of deep nastiness was quite enough to settle the question between Brisbane and its rival. In about two hours the tide had risen sufficiently to spare them much of such footing on return. There may have been ‘deeper’ policy in timing such a visit — at lowest ebb — with a view to prepossessing His Excellency than my simplicity had been able to wade into.
The Governor had seemed much pleased at the appearance of Cleveland Point, when we approached it. I observed that he did not look back — as Lot’s wife once did — at the haven in dispute.43 On 28 March 1842, the last military commandant Lt Gorman hosted an official dinner to mark free settlement at the Commandant’s house.44 On 30 March 1842, the Shamrock carried off ‘the Governor, and his gathering back to sea-sickness and Sydney.’45 The Governor may not have been very impressed by the prospects of Brisbane itself. On his return to Sydney, he instructed his surveyor Wade to reduce the width of the principal streets of Brisbane from 140 links (92.4 feet or the 28 metres) to 100 links (or 66 feet or 20 metres). Only Queen Street survived this reduction, but barely, left at 121 links (80 feet or 24.4 metres). On 4 April 1942, the Government Gazette published the appointment of Dr Simpson as a magistrate of the territory of New South Wales and its dependencies and as a commissioner of crown lands in and for the district of Moreton Bay.46 In retrospect, The North Australian commented, ‘We can hardly point to a more happy selection’.47 The Governor’s despatch to Lord Stanley, Secretary of State for War and the Colonies, about the appointments noted: This gentleman, who is of the Medical Profession, was strongly recommended to me for an appointment in the Colony by Lord J. Russell’s letter of 28 July 1841, at the instance, as I have reason to believe, of the Duke of Sutherland or of some member of His Grace’s Family. The appointment of Medical Men to offices the
43 Russell, Genesis of Queensland, p 245. 44 ibid, p 246 45 ibid, p 246. 46 Australasian Chronicle, 7 April 1842, NSW Govt Gazette, 10 May 1842, p 639, 691. 47 The North Australian, 9 March 1858. Dr Stephen Simpson and the Origins of the Court System in Queensland 197
duties of which bring them into communication with the aborigines is, ceteris paribus, desirable.48 On 15 April 1842, Lt Gorman was relieved of command, following an inquiry into his dealings with a female convict, who had remained in Moreton Bay when she ought to have returned to Sydney with her peers in 1839.49 On 3 May 1842, Governor Gipps formally instructed Lt Gorman to hand over his papers to Dr Simpson.50 He then became the chief civil authority in the district; and would remain so until the arrival of the permanent police magistrate, Captain Wickham, in January 1843. On 10 May 1842, the Governor proclaimed the boundaries of the Moreton Bay District:51 on the South of the ranges which separate the sources of the Rivers Brisbane and Logan from those of the Richmond and Clarence; on the west by the range dividing the sources of the rivers flowing into the western interior from those which flow to the eastern coast; on the east by that coast; and on the northward by the limits of colonisation, until a more definite boundary can be determined on that side.52 The same day, the Governor appointed Dr Simpson as Commissioner of Crown Lands ‘beyond boundaries of location.’ Dr Simpson was to serve as police magistrate until Captain John Wickham arrived and took up his office as Government Resident and police magistrate. Justice at Moreton Bay
The office we refer to as ‘magistrate’ was first given the name ‘justice’ in 1360 in a statute of Edward III.53 The primary duty of such ‘justices’ was to conserve the peace and to hear and determine charges of offenses against it in the borough, county or other area in respect of which they were commissioned.54 Over time, by statute, the courts conducted by the justices of the peace, referred to as courts of general or quarter session, were given limited civil jurisdiction. The quarter session courts were so-called because they were required to sit at least once each quarter. The court of general sessions could sit at any time it was required. By an 1823 Act,55 the Imperial Parliament had authorised the Crown to establish a Supreme Court of New South Wales by charter or letters patent. It provided for actions at law to be tried by the Chief Justice of the new Supreme Court sitting with two magistrates or justices of the peace as assessors; and it provided for the holding of courts of general or quarter sessions56 at places appointed by the Governor.
48 Despatch No. 245, 41/1842, p 951. The appointments were approved by Stanley on 11 June 1843; the date giving an indication of the time taken for correspondence to travel from Sydney to London and back again. 49 Whether the inquiry affected Gorman’s career is unclear. On 1 July 1842, he was appointed Assistant Engineer and Superintendent of Iron Gangs at Towrang in the Southern Tablelands near Goulburn, where he served until 13 September 1843. He died in 1862 and was buried in Armidale, NSW. 50 Col Sec Letterbook Jan. 1832–May 1842, p 476; No. 42/14. 51 NSW Govt Gazette, 10 May 1842. 52 The Sydney Herald, 11 May 1842. 53 34 Edw III c. 1. 54 Halsbury’s Laws of England, 1st ed, vol 19, p 535. 55 4 Geo. IV c 96 An Act for the better administration of justice in New South Wales and Van Diemen’s Land and for the better government of the said colony. 56 These were local courts, comprised of a recorder or stipendiary magistrate or two justices of the peace sitting jointly. 198 Queensland Legal Yearbook 2013
The Transportation Act 182557 vested in one of more justice or justices of the peace all the powers, authorities and jurisdiction of courts of general and quarter sessions ‘exercised in a summary way’. The sole proviso was that any complaint was to be referred to a court of general or quarter session that was to be held within a week of the complaint at a place not more than 20 miles from the place where the offence was charged to have been committed. The legislation endowed the colonial justices of the peace with: power and authority to take cognizance of all matters and things cognizable in courts of general or quarter sessions in England so far as the circumstances and condition of the said colony shall require and admit and in a summary way to take cognizance of all crimes and misdemeanours not punishable with death [committed by] any felons or other offenders who have been or shall be transported to New South Wales or its dependencies and whose sentences shall not have expired or been remitted. Section 4 of the Transportation Act authorised the Governor to institute courts of civil jurisdiction to be called ‘Courts of Requests’ in different parts of the colony with: Full power and authority to hear and determine in a summary way all actions plaints and suits for the payment or recovery of any debt damages or matter not exceeding ten pounds sterling … and to award costs therein Prior to the appointment of Dr Simpson, the only justice of the peace appointed for Moreton Bay had been the military Commandant. There was no court of general or quarter session held within 20 miles of Brisbane or of any part of the Moreton Bay district. The Commandant exercised this summary criminal jurisdiction over felons and offenders and, under section 3 the Transportation Act, could: In a like summary way take cognizance of complaints made against any such felons or offenders for drunkenness disobedience of orders neglect of work absconding or desertion abusive language to their his or her employers or overseers insubordination or other turbulent or disorderly conduct and all such offences to punish by whipping or other corporal punishment not extending to privation of life or member … In this way Captain Logan’s notoriously harsh treatment of convicts was authorised. However, the summary jurisdiction was limited to felons and offenders who had been transported and not completed their sentences. Once a part of the colony, such as Moreton Bay, was opened to free settlement, more regular criminal, as well as civil, courts would be required. The Magistracy
At the first sitting of the Supreme Court of NSW held in Brisbane on 13 May 1850, Mr Justice Therry spoke of many things, but included in his address the following remarks about the magistracy: The sittings of the Supreme Court in this district are only periodical, and take place at distant intervals of time, but the Magistrates’ Court is daily open — it is there that the ordinary and general business of the country is transacted. In New South Wales the jurisdiction of these courts is more extensive than in the
57 6 Geo, IV, c 69: An Act for punishing Offences committed by Transports kept to labour in the Colonies and better regulating the powers of Justices of the Peace in New South Wales. Dr Stephen Simpson and the Origins of the Court System in Queensland 199
parent country, combining with the powers committed to them for the purposes of administrative justice in criminal matters, a large portion of that jurisdiction in civil affairs, which is exercised by the Judges of the County Courts in England. The powers of Justices under the Servants’ Act make them the judges in all disputes to the extent of £30, between artificers, manufacturers, journeymen, workmen, shepherds, and other male servants engaged on any station or premises. They are thus empowered under the provisions of this Act to adjudicate, it may be said, on all contracts between the employed and the employers of labour throughout the country — the cases of this description which find their way to the Supreme Court being only where the magnitude of the account calls for the interposition of the Supreme Court, and are so few as scarcely to constitute an exception. There are various parts of magisterial jurisdiction, such as the importance of due attention to the forms of law, in admitting to bail, in taking recognizances, and other ministerial duties, on which, if time permitted, I should be glad to offer some observations. The points of importance are not, indeed, many, and may be easily learned with attention to the directions contained in Plunkett’s Australian Magistrate, and Dickinson’s Quarter Sessions — two books which, with access to Callaghan’s Statutes, are quite sufficient to make any educated gentleman quite a sufficient lawyer to perform efficiently the duties of a magistrate in New South Wales. On the importance, usefulness, and dignity of the magisterial office, too high an estimate cannot be formed. His Honour referred a recent comment of the Court of Queen’s Bench that: Justices of the Peace, acting gratuitously, were ‘a class of persons to whom the country were under as great obligations as this or any other nation is, or ever was, to any members of its community.’ And then continued: Indeed the obligations to the magistracy in this country are much greater than in England, by reason of the circumstance that here every man’s means depend upon his own exertions, and require his personal superintendence. There is not as yet constituted in this country that class which we recognise and are familiar with in England, known by the name and title of the gentry of England, who inherit incomes, the rewards of ancestral virtue and patriotism, or the fruits of ancestral industry, and who, by means of their time not being taxed by a close personal attention to the sources which supply those incomes, are enabled without great inconvenience to give much of their time to matters appertaining to the administration of justice. Here, however, it is otherwise ordained — here each man has transported his family to a land distant from his native home, unsustained by that support and co- operation which are derived from the encouragement and aid of kindred, and the confidence of neighbours to whom he is known from boyhood, and is dependent entirely on his own energies for success in whatever pursuit he may engage. Here, in short, … it may be said truly that to every man his sheep or cattle station, or whatever spot he may settle down upon as the arena of his enterprise, is to him, as it were, a ‘rood’, which if he does not personally superintend, cultivate, and improve, the means wherewith he is to maintain himself and those dependent upon him, cannot be supplied. Hence, then, the greater the merit, and the greater the obligation of the country — because the nature of their occupations will less 200 Queensland Legal Yearbook 2013
conveniently admit of it — due to the Justices of the Peace in this country, for their unbought sacrifice of time and labour, and for the generous self-devotion with which, in the voluntary and gratuitous dispensation of justice, they represent that old and venerated remnant of natural authority in the parent country — the Magistracy of England.58 There is some echo of these sentiments in the recent moves to recognise ‘the substantial contribution Justices of the Peace make every day to the administration of justice in Queensland’. Under a pilot program, justices of the peace will be involved in Queensland Civil and Administrative Tribunal hearings of minor civil dispute in Brisbane, Southport, Townsville, Maroochydore and Ipswich.59 The Arrival of Wickham
On 17 October 1842, Captain Wickham took his oath as magistrate (‘the Commission of the Peace’) in Sydney before the three Justices of the NSW Supreme Court sitting in banco in their purple robes.60 The same day, the Honourable James Erskine Murray, a member of the Scottish Bar, was admitted as a barrister of the NSW Supreme Court. As noted above, he held property interests, as a squatter, on the Darling Downs. On the occasion there were 15 Counsel in court, ‘a larger number of barristers in attendance … than we remember having seen at any one time.’61 On 15 November 1842, the appointment of Captain Wickham as police magistrate for Moreton Bay was published in the Government Gazette.62 The ‘long expected police magistrate’ Wickham finally arrived in Brisbane on 22 January 1843 aboard the steamer Shamrock, together with a new chief constable63 and ‘four subs’.64 The Rev John Gregor was also aboard, arriving to serve as the first ‘regular clergyman’.65 Previously divine service had been conducted by the Rev Johann Handt, described as ‘a missionary on probation’. Although a Lutheran minister, in 1837–1839 Rev Handt was engaged by the Anglican Church Missionary Society and paid a government stipend as chaplain to the prisoners at Moreton Bay. Among his duties was the reading of the English Prayer Book services on Sundays.66 His English was thought to be rather unintelligible.67 Captain Wickham was due to take ‘his seat in the magisterial chair for the first time’ on Monday 30 January 1843. According to the Herald’s ‘various correspondents’: Dr S. will, I am happy to say, carry with him the good wishes of all classes at Brisbane, he having upon all occasions, both in the magisterial chair and his office, been ever ready to promote the interests of those who sought his advice and
58 [1850] NSWSupCMB 31. 59 Media Statements, Attorney-General and Minister for Justice, 22 October 2012, 30 November 2012. 60 The Sydney Morning Herald, 18 October 1842, p 2. 61 Australasian Chronicle, 18 October 1842 p 2. 62 Australasian Chronicle, 17 November 1842, p 3. 63 Mr Fitzgerald, formerly Assistant Superintendent in Sydney: The Sydney Morning Herald 19 December 1842, p 2. 64 The Sydney Morning Herald, 26 January 1843, p 2. 65 Rev Gregor had only recently been ordained in the local established Church. He was a minister of the Church of Scotland and had conducted a ministry in Sydney and Maitland as a Presbyterian minister. See: Rayner, K, The History of the Church of England in Queensland, Ph D Thesis, UQ, December 1962, p 19. 66 Rayner, K, ibid, p 17–18. 67 Russell, Genesis of Queensland, p 245. Dr Stephen Simpson and the Origins of the Court System in Queensland 201
assistance; and considering the very inadequate means placed at his disposal for preserving the peace, and upholding the laws, it cannot but be a matter of surprise that the quiet of the settlement has been maintained so well.68 It did not take long for a call to made for additional court officers. By March 1843, The Sydney Morning Herald correspondent was writing: A second magistrate is wanted very much on the settlement, now Dr Simpson, the Commissioner of Crown Lands, has been called, through the nature of his duties, elsewhere; his Excellency, I should imagine, would find but little difficulty in selecting a gentleman resident in the township who would feel honoured in being placed in the commission of the peace, and who could render much essential assistance to the Police Magistrate.69 From late 1842 ‘leading gentlemen’ had been communicating with the Governor, pressing for the establishment of a Court of Quarter Sessions and a Court of Requests in Brisbane.70 In April 1843, the Governor had answered the correspondents’ pleas. His Excellency established a Court of Petty Sessions at Brisbane71 and appointed Francis Edward Bigge of Moreton Bay72 and Lieutenant Johnson of the 99th Regiment, commander of the military detachment at Brisbane,73 to be magistrates. In May 1843, the Herald’s correspondent reported: I am happy to say that our little community is in a most peaceable state, robberies and petty larcenies seldom heard of, and a bushranger down here would indeed be considered a prodigy. At all events, it shows that if our spiritual welfare has not been altogether well attended to, our morals have not become quite depraved.74 In October 1843, the Governor appointed Captain Wickham to be Commissioner of the Court of Requests for the County of Stanley and George Milner Slade to be the Registrar of the Court.75 In about 18 months, the new free settlement had acquired a full compliment of lower civil and criminal courts, staffed by one salaried police magistrate and a number of honorary
68 The Sydney Morning Herald, 23 February 1843, p 2. 69 The Sydney Morning Herald, 30 March 1843, p 2. The ‘elsewhere’ may be a reference to Dr Simpson’s early expedition to Wide Bay. 70 The Sydney Morning Herald, 12 December 1842, p 2. 71 Australasian Chronicle, 11 April 1843, p. 4 and 15 April 1843, p 4. 72 The Sydney Morning Herald, 8 April 1843, p 3; Australasian Chronicle, 11 April 1843, p 4. Mr Bigge (1820–1915) had taken up Mount Brisbane station in 1840. He was a ‘a highly respectable gentleman’, perhaps best known for having been shot in ‘an affray’ with bushrangers on 18 August 1842. On 25 August 1843, the Herald reported that Mr Bigge ‘had been murdered by bushrangers.’ It may truly be said that reports of his death were greatly exaggerated; the wound described as ‘only a flesh one’: The Sydney Morning Herald 31 August 1842, p 2; he lived to the age of 95. He was a relative of John Thomas Bigge (1780–1843), who carried the commission of inquiry into the colony of NSW (1819–1823), which led to limited constitutional government through the Legislative Council and extensive legal reforms. In 1853, Mr Bigge built the cottage that is now The Courthouse Restaurant at Cleveland; from 1859 renting it to the Colonial Government as a courthouse and police lock up. In 1978, Harry and Ann Garms used sandstone and porphyry from the demolished 1879 Brisbane Supreme Court to restore the building. Mr Bigge was an elected member of the first NSW Legislative Council from 1843–1856, representing the Pastoral Districts of Moreton, Wide Bay, Burnett and Maranoa. See: www.parliament.nsw.gov.au. On 11 May 1960 Mr Bigge was appointed to the Queensland Legislative Council. Although the appointment was for life, he resigned on 16 May 1873. Dr Simpson also served as an MLC, being appointed on 23 May 1860. 73 The Sydney Morning Herald, 2 May 1843, p 2. 74 The Sydney Morning Herald, 25 May 1843, p 3. 75 The Australian, 26 October 1843, p 2. 202 Queensland Legal Yearbook 2013 magistrates with private or other government positions. It would be another seven years before the Supreme Court of the colony, based in Sydney, would add Moreton Bay to its circuit. In the course of the Supreme Court’s circuit sittings in Moreton Bay between 1850 and 1855, 197 criminal cases were heard and only 22 civil matters.76 This may give some indication of the mix of matters coming before the magistrates of the district prior to 1855. Simpson as Commissioner
Dr Simpson’s immediate duties, upon appointment as commission of crown lands, included: • to receive applications for licences to cut timber at Moreton Bay; • to issue annual licences for making bricks on Crown Lands, and quarrying stone on Government Lands; and • to issue licences too erect temporary buildings on Crown Lands. Dr Simpson may also have had duties in respect of the sale by auction of the land in the block bounded by Queen, Elizabeth, George and Albert Street, which had been surveyed by Wade on 26 April 1842,77 a public auction for the lease of parts of the Prisoners’ Barracks and some adjacent houses.78 He presided at annual hearings for the issue of liquor licences. By 1846 there were five licensed hotels or inns in North Brisbane, four in South Brisbane, one at Kangaroo Point, three in Ipswich and two outside these areas.79 The Matters Troubling the Magistrate and Commissioner
Although relieved of the full-time post of Police Magistrate by the arrival of Captain Wickham, Dr Simpson continued to serve as a magistrate, by virtue of his appointment as a justice of the peace, sitting both in Brisbane and in Ipswich. In the letter, Dr Simpson remarked: The undertaking is no doubt gigantic for my means, but no matter ‘nothing venture, nothing gain’ a truism in this Colony, when half the great fortunes have been made out of nothing — Unfortunately too at the present moment the money market here is in a dreadful state & a general bankruptcy seems at hand — men who have got wealth in Cattle, Sheep & Land can with difficulty find money to pay their men’s wages — Should I be able to get up my building before the Settlement opens it will not cost half what it would after, as wages here are now very moderate Matters of men’s wages would loom large in Dr Simpson’s time as magistrate and commissioner. The Masters and Servants Act of 1840 (NSW)80 provided for a justice of the peace to issue a summons to appear on the basis of a sworn complaint that:
76 Macquarie University Law School has compiled the decision of the NSW Supreme Court on the Moreton Bay circuit from the contemporary newspaper reports, see: http://www.law.mq.edu.au/ research/colonial_case_law/nsw/cases/moreton_bay/. The 1850 civil trial in Bowerman v MacKenzie and criminal trial in R v Ang are mentioned below. 77 Mellor, ED, The Changing Face of Brisbane, RQHSJ, 1959, p 355. On 16 July 1842, eight 36 perch allotments in Queen Street sold for a total of £1,340, with one at £250: Russell, Genesis of Queensland, p 645. 78 The Sydney Herald, 7 April 1842 p 3. 79 The Sydney Morning Herald, 29 April 1846 p 3. 80 4 Vict No. 23, s. 2. Dr Stephen Simpson and the Origins of the Court System in Queensland 203
any artificer manufacturer journey-man workman shepherd labourer or other male servant … engaged or hired either as a manual servant or house servant … in the Colony of New South Wales ... by any master or mistress employer or employers … for any time period whatsoever … for the execution performance and completion of any work job or business … where the amount to be paid shall not exceed the sum of thirty pounds shall without reasonable or sufficient excuse … absent himself from the service … during the customary time of serving … or refuse or neglect to work in a diligent manner .. or shall return his work or desert or quit the same before it shall have been completely finished without the consent of the person or persons by or for whom he shall have been engaged or hired: The summoned servant was required to appear before two Justices and: if no reasonable or sufficient cause be shewn to the contrary such Justices shall adjudge every person convicted of offending as aforesaid to forfeit all or such part of the wages or pay which at the time of such conviction shall be due or owing to him from and by the party complaining as to such Justices shall appear just and reasonable and also a sum not exceeding twice the amount of any damage which the said party shall have incurred according to the estimation of such Justices through the neglect absence or failure of the person so complained of and in default of payment thereof to commit such person to the common gaol there to remain without bail or mainprize for any time not exceeding three calendar months unless the same be sooner paid. The employer was to be reimbursed the estimated damage and the balance was paid to the Crown and applied to the public uses of the Colony and in support of the Government. The Act also provided for a justice of the peace to summons a person on a sworn application of a master, employer or a person employed or engaged by or for them: to determine differences that often arise between masters or employers and persons employed or engaged by or for them to perform certain services in agricultural or other work or labor as to the wages or remuneration to be paid or allowed to such party or parties for the performance of such work or labor
… and to order and direct such sum or sums of money as to them shall appear just and proper to be paid by such master or employer to the party or parties engaged in such work and labor within 14 days;
… failing payment, to by warrant levy distress and sale of the goods and effects of such master or employer and in default of sufficient distress to commit the master or employer to the common gaol for any time not exceeding three calendar months unless the distress be sooner satisfied. The NSW Masters and Servants Acts, unlike the United Kingdom Acts, applied to most workers in the colony, including those we could now call independent contractors. The Court of King’s Bench in the 1820’s and 1830’s had reduced the application of the laws in England and Wales, construing ‘servant’ and ‘labourer’ quite narrowly, to exclude anyone with a particular skill or trade, those hired by the job or the piece, those not engaged in manual work and those in domestic or menial service.81
81 Bramwell v Penneck (1827) 7 B & C 536–542, Hardy v Ryle (1829) 9 B & C 603–612; Lancaster v Greaves (1829) 9 B & C 627–632; Kitchen v Shaw (1837) 6 A & E 729–735. 204 Queensland Legal Yearbook 2013
The breadth of the NSW Masters and Servants’ legislation may be gauged by the number of people who came before the justices of the peace and magistrates who administered it. It has been estimated that 58,410 cases were heard between 1845 and 1860. Of these, 40% were brought by masters against allegedly absconding servants and 24% were disputes over wages, usually brought by servants against masters. In the cases of convicted absconding servants, 39% were imprisoned and 15% were fined.82 Migrant Worker Cases
An early celebrated case on which both Dr Simpson and Captain Wickham sat concerned the ‘Coolies’ of Tenthill station, near Gatton. In May 1845 Mr Friell and Mr Sandeman had taken up a run they arranged for the importation, via Port Macquarie, of 19 men, 3 women and 3 children from India together with 11 English boys, apprenticed to Mr Friell from the Orphan Asylum in Calcutta, and an interpreter, described as a ‘half-caste’. In September 1845, with a local resident of Indian origin as interpreter, Captain Wickham and Dr Simpson examined 18 of the men and 1 woman. On concluding their examination, they detained the superintendent of Tenthill station, Samuel Ayerst to appear on a charge of assaulting one of the workers Dable Sing. Captain Wickham and Dr Simpson forwarded their report of the examination to the Attorney-General in Sydney. They found there had been non-payment of wages, deficient rations and clothing and physical assaults. ‘Measures’ were taken to pay them the wages due and Simpson, in his capacity as Commissioner of Crown lands, arranged to leave a policeman at the station.83 Thomas Adams, the solicitor for the superintendent, took the unusual step of writing a letter to the Herald seeking ‘the privilege of saying a few words on the subject of the absurd charges made’ against his client. My firm belief is that the cases were fabricated, and that the men have been tampered with in consequence of the scarcity of labour in the district. The letter (dated 9 October 1845) was published on the same page as the report of the outcome of the magistrates’ enquiry. Notwithstanding the security arrangements for the Indian workers, other potential employers seem to have detained them in Brisbane with the prospect of safer and perhaps better paid employment. Mr Adams wrote again to the Herald on 24 October 1845 to express his outrage that ‘many parties’ in Brisbane ‘should have tampered with the Coolies, and should have endeavoured to prevent them returning to their duty.’ As to his client, Mr Adams wrote: I consider a most infamous aspersion was cast upon the character of Mr Ayerst, during the investigation respecting the Coolies at the Police Office here, not so much by what the Coolies swore, for their religion is a lie and their practice deceit; but by the ready credence the public gave to the most improbable stories.84
82 Merritt, A, The Development and Application of Masters and Servants Legislation in New South Wales — 1845–1930 Ph D diss, ANU, 1981, p 191, cited by Quinlan, M in Masters, Servants and Magistrates in Britain & the Empire, 1562-1955 UNC Press, 2004. 83 The Sydney Morning Herald, 10 October 1845, p 3. 84 The Sydney Morning Herald, 30 October 1845, p 3. Dr Stephen Simpson and the Origins of the Court System in Queensland 205
As one of the presiding court officers, Dr Simpson’s view seems to have accorded with that of the public. He wrote to the Attorney that the evidence ‘left no doubt that great maltreatment had been practised’.85 Shortly afterwards, Mr Friell arranged for the Indians to be relocated to his sheep station Burrandowan on the Boyne River. Apparently after the Simpson-Wickham inquiry, Mr Friell published a short pamphlet.86 It is peppered with attacks on the honesty and credibility of Indian workers and jibes at the ‘credulity’ of the ‘Police Court’ and ‘decisions of the benches’. It argues that the introduction of Indian labour into the Australasian Colonies on an extensive scale would be hazardous, unless laws were specially made for the purpose by the local legislature and that with such laws ‘no labour in the world will give greater, of so much, satisfaction … provided that it be applied to strictly pastoral purposes, and that it be always under European supervision.’87 One can image the type of ‘special laws’ that Mr Friell had in mind. The reviewer in another local newspaper noted: Mr Friell’s description of the general character of Coolies is scarcely likely to induce many of our stockholders to avail themselves of the advantages of Indian labour.88 When W C Wentworth and two others sought to bring ‘about 100 natives of India’ to New South Wales, the Officiating Advocate General of the Government of Bengal provided a written opinion to Secretary to the Government, noting that the emigration of natives of India for the purpose of being employed as labourers was prohibited by statute, the only exception being emigration to Mauritius. Mr Wentworth and his partners sought to avoid the effect of the prohibition by contracting to engage the Indians as menial servants; as it appeared menial servants and seamen were outside the definition of ‘labourers’ in the statutory prohibition.89 In early June 1848, Dr Simpson was the magistrate before whom the crew of the brig Eleanor were brought. According to the newspaper report of the time, entitled ‘Refractory Seamen’,90 The greater portion of the crew … left off work, and claimed their discharge from the vessel. The men seem determined not to go on in the vessel, and the master justly refuses to pay them off, as he will have to get fresh hands from Sydney to enable him to complete his voyage. The men, who are natives of New Caledonia, appear a very intelligent and hardy race, and no doubt make excellent seamen; like most other South Sea Islanders the only complaint they to have to make against Captain Woodin is, he gives them no grog; but the fact is, I believe, the spirits ran short, and the captain was compelled to discontinue it, and none was mentioned in the articles as part of the ration. Dr Simpson declined to hear the case by the Captain against the crew — although they were reportedly brought before him ‘two or three times’. He dismissed the case ‘declining to adjudicate in the matter.’ It appears he found the employment arrangement to be outside the
85 Simpson’s Letterbook, quoted by Fisher in The Best of Colonial Brisbane, Boolarong Press, 2012, p 98–99. 86 The Advantages of Indian Labour in the Australasian Colonies, as shown by certain details in regard to the Indian labourers imported by P. Friell Esq, and employed by him at Tent Hill, Moreton Bay. 87 The Sydney Morning Herald, 3 December 1846, p 2. 88 The Maitland Mercury & Hunter River General Advertiser, 16 December 1846, p 2. 89 The Sydney Morning Herald, 9 April 1846, p 3, where the relevant correspondence, including the Advocate General’s opinion, were printed. This interpretation may be that applied by Dr Simpson two years later. 90 The Sydney Morning Herald, 15 June 1848, p 3. 206 Queensland Legal Yearbook 2013 jurisdiction afforded him under the Master and Servant Acts.91 Either that, or his sympathy lay with the Islanders, who having been accustomed to rum rations, had them suddenly withdrawn. The Aboriginal Inhabitants
In his letter, Dr Simpson had written: The moment the vessel sails I shall mount my nag, armed with a brace of Pistols & a Broadsword (for the Natives here have been very troublesome of late), & best my course in the bush The Commissioners of Crown Lands were the sole officials of Government in areas outside the settled districts and as such they had magisterial authority. A series of NSW Acts in the 1830’s prohibited the unauthorised occupation of crown lands within the limits allotted for location to settlers, imposed a penalty for occupying crown lands beyond the limits of location without a licence and made unlawful the cutting of timber on crown lands.92 An 1839 Act93 had a principal object ‘to put a stop to the atrocities which have of late been so extensively committed beyond the boundaries, both by the Aborigines and on them.’94 It provided that Commissioners were to maintain law and order in their districts, determine disputes between masters and servants, seize cattle or sheep suspected of having been stolen and register the brands of different proprietors.95 A further amendment in June 1841, barred civil actions for trespass to crown lands beyond the limits allotted for location ‘until the case shall have been heard and determined by the Commissioner of the district’ and requiring any subsequent proceeding at law to ‘affirm the decision of the Commissioner’ and award ‘treble costs’.96 The position regarding land tenure in NSW was not without its uncertainties, as illustrated by the first civil case heard by the Supreme Court of New South Wales sitting on circuit in Brisbane. Bowerman v MacKenzie97 was an action for damages for trespass brought by one squatter against another. As His Honour Chief Justice Stephen explained to the civil jury: The soil of New South Wales belonged to the Crown, on behalf of the public, and the Crown only could grant a title; but only in one instance of this kind out of a hundred had such granting out taken place. The right then must be decided by possession. It was simply a claim, and involved no title. A man passed into the interior, and took possession of a tract of country, establishing his huts, hurdles, sheep, and shepherds, in various directions, and the tract of country so occupied by him was said to be in his possession; and he was entitled to bring an action against any persons who should intrude upon him. He was not bound to show his title, he simply said ‘the Crown does not interfere with me, and I had possession when you came in’.98
91 Other NSW magistrates had declined to hear such claims involving employment arrangements made outside the colony. 92 7 Will IV no 4, ss. 1, 2; 2 Vict no 19, ss. 1–3 93 2 Vict No. 27 (1839). 94 NSW Govt Gazette, 22 May 1839, p 605. 95 ss. 10, 11, 14. 96 5 Vict No 1, s. 2. 97 [1850] NSWSupCMB 1. 98 The jury, after deliberating for two hours, returned a verdict for the defendant: no trespass: The Moreton Bay Courier 30 November 1850. Dr Stephen Simpson and the Origins of the Court System in Queensland 207
In February 1839 the financial condition of New South Wales was concerning the Governor, Sir George Gipps. An extraordinary session of the Legislative Council was held for the purpose of adopting measures for the tranquillity of the districts beyond the limits of location. At this session, Major-General Sir Maurice O’Connell99 and Captain King were sworn in as members. They both had connections with the Moreton Bay district. In explaining the reason for calling the session together the Governor said: The vast interests which have grown up in these distant parts of the territory, and the number of persons of all classes now engaged in depasturing sheep and cattle beyond what are called the boundaries of location, might be sufficient of themselves to call for the protection of the Police Force, but the necessity for it is rendered far more urgent by the frequent aggressions made of late by the aboriginal natives upon the flocks and herds of the colonists, as well as on the lives of their stockmen, by the outrages which have been committed upon the aborigines, as well as by them, and particularly by one atrocious deed of blood, for which seven men suffered on the scaffold. The bill which I shall lay before you purposes to accomplish this object, by giving the Crown Lands Commissioners who already perform certain functions in these districts, far more important powers than they now possess, and by providing that each Commissioner shall be accompanied by a moving Police Force, sufficient to repress the predatory attacks of the natives, and to keep order amongst all classes. As it appears to me perfectly just that the persons who are protected by this force should pay the expense of it, the bill provides for that object by means of an assessment on cattle and other stock.100 The ‘atrocious deed of blood’ to which His Excellency referred was the murder of 24 aborigines on Henry Dangar’s station at Myall Creek in the Liverpool Plains.101 That crime and the subsequent trials were the subject of interest in the House of Commons.102 This led to specific instructions from the under-Secretary of State for the Colonies, Lord Glenelg, that the Aboriginal peoples must be accorded the full protection they deserved as British subjects.103 At the outset of colonial settlement in Australia, Captain Arthur Phillip’s second commission had set out his Instructions, including what was to become a familiar clause: You are to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy them, or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be
99 Sir Maurice Charles Philip O’Connell (1768–1848) was the commander of the military forces in New South Wales. He was Lieutenant Governor from 1810 and an appointed member of the NSW Legislative Council 1838–1843. He married Mary Bligh, daughter of the former Governor. Their son, Sir Maurice Charles O’Connell (1812–1879), was elected of the NSW Legislative Council for Port Phillip. The younger Sir Maurice was commissioner of crown lands for the Burnett District and twice (briefly) Government Resident at Port Curtis. He was appointed to the Queensland Legislative Council in May 1860 and knighted in 1868. See: Gibbany, HJ, ADB. 100 Quoted in Hall, Early History of Warwick District, p 56-57. 101 R v Kilmeister (No. 1) [1838] NSWSupC 105; and R v Kilmeister (No 2) [1838] NSWSupC 110. 102 Australian Aborigines — Correspondence relating to the Massacre of Various Aborigines and to the Trial of their Murders, House of Commons Command Paper 1839 (526), Vol XXXIV, British Parliamentary Papers — Colonies — Australia — 5, Irish University Press, Shannon 1970, p 371 et seq. 103 Lord Glenelg to Sir Richard Bourke, 26 July 1837 (reproduced in BPP ibid at p 373). 208 Queensland Legal Yearbook 2013
brought to punishment according to the degree of the offence. You will endeavour to procure an account of the numbers inhabiting the neighbourhood of the intended settlement, and report your opinion to one of our Secretaries of State in what manner our intercourse with these people may be turned to the advantage of this colony.104 In 1840, the United Kingdom Government had directed the colonial authorities to appropriate 15% of the land fund (ie the proceeds from the sale of crown land) for the benefit of Aboriginal population and to forward a comprehensive annual report on them. Governor Gipps’ reports include reports from the Aboriginal mission stations,105 the Port Philip Protectorate and the eighteen Commissioners of Crown Land, including Dr Simpson. By Dr Simpson’s estimate there were 3,000 Aborigines living between the Tweed River and Wide Bay and 1,500 along the Great Dividing Range.106 On his visit to Brisbane, Governor Gipps may have heard of the rumoured poisoning of up to 60 members of the Giggarbarah and Woogunbarah people near Kilcoy in early 1842. The rumour was that two shepherds working for Evan MacKenzie had given flour rations laced with strychnine to local Aboriginal people.107 In April 1843, Dr Simpson conducted an enquiry, but concluded that the dead had eaten stolen sheep that had been treated with arsenic for scab. As the Governor had noted, the unlawful killings were all one-way.108 In 1846, Dr Simpson was drawn into investigating the killings of European settlers by Aboriginals and the killing of Aboriginals by settlers, in the Moreton Bay District. The starting point may have been the killing of Andrew Gregor, a settler,109 and Mary Shannon, his servant,110 at Pine River in October 1846. According to The Moreton Bay Courier, the ‘deplorable fate of Mr Gregor and his hapless servant has caused the greatest excitement; and the enormity of the crime has given rise to feelings of execration against the natives, which will not soon be allayed.’111 The killings were widely reported.112 Dr Simpson travelled to the scene with Dr Ballow, who examined the bodies. He undertook a search, with the native police, and apprehend Constable, one of the alleged perpetrators.113 The Governor offered a £25 reward to ‘any free person who may secure and bring to justice the murderer or murderers’ and a condition pardon was offered to any prisoner doing the same.114
104 Historical Records of Australia (1914) Series 1, vol 1, p 13–14, cited by Deane and Gaudron JJ in Mabo v Queensland (No. 2) (1991–1992) 175 CLR 1 at 97. 105 Lord Stanley gave Governor Gipps permission to discontinue funding of Aboriginal missions in 1843, considering them and the protectorate to have been failures. 106 Cited in Kidd, R, The Way We Civilise: Aboriginal Affairs — The Untold Story, UQP 1997, p 5–6. 107 Colonial Observer, December 1842; The Sydney Morning Herald, 5 December 1842, p 2; Australasian Chronicle, 6 December 1842, p 2. 108 Some authors have inferred that the Kilcoy poisoning led to a widespread reaction among Aboriginal groups in central and western districts: Evan, R, A History of Queensland, CUP 2007, p5 5. 109 He was the brother of Rev John Gregor (1808–1848), the first licensed Church of England minister for the District of Moreton Bay: Rayner, K, ADB. 110 Mrs Shannon was pregnant at the time of her death. Her husband, also a servant of John Gregor, was attacked with spears, but escaped to seek help from a neighbouring settler. At the time of the attack, the Shannons and their three children were living in a hut on Mr Gregor’s property at Pine River. See: The Moreton Bay Courier, 24 October 1846, pp 2–3. Rev Gregor arranged for Mrs Shannon’s three children to be admitted to the Asylum at Parramatta: The Moreton Bay Courier, 9 January 1847, p 3. 111 24 October 1846, pp 2–3. 112 The Sydney Morning Herald, 26 October 1846, p 2; The Australian, 14 November 1846, p 4; The Maitland Mercury and Hunter River General Advertiser, 28 October 1846. 113 The Moreton Bay Courier, 24 October 1846, p 3. 114 The Moreton Bay Courier, 28 November 1846, p 3, quoting the Government Gazette. Dr Stephen Simpson and the Origins of the Court System in Queensland 209
With Captain Wickham, Dr Simpson received the sworn evidence of the witnesses and investigators.115 Dr Simpson determined that Constable was merely ‘one of the plunderers of the hut after the murder had been committed’ and was committed for trial as an accessory after the fact.116 He was transferred to Sydney for trial, but there was remanded in custody on charges of larceny only.117 Dr Simpson issued warrants for the arrest of others suspected of committing the crimes. One of the suspected murderers, Millbong Jemmy, was killed within a few days, during a raid on a hut at Doboy Creek occupied by a team of sawyers.118 Another suspect, Horse Jemmy, was shot in December 1846, refusing to surrender and attempting to resist capture.119 The Attorney-General, John Plunkett, directed an inquiry into the death of Horse Jemmy. In December 1846, Captain Wickham issued summonses to relevant witnesses and invited interested parties to come forward with any relevant evidence. In early February 1847, the inquiry was held, conducted by a large panel comprised of Captain Wickham, Dr Simpson, Lieutenant Blamire and Major North.120 No adverse finding appears to have been made concerning the persons involved in the apprehension and killing of Horse Jemmy. A third suspect, Jackey Jackey, evaded an attempted arrest at York’s Hollow. In the scuffle, shots were fired. Various rumours circulated that an Aboriginal man, woman or child had been shot. Captain Wickham conducted the inquiry. The reported evidence was quite contradictory. It was not clear whether anyone had been shot and those variously alleged to have been shot or injured were said to be alive or unharmed by gunfire.121 A fourth suspect in the Pine River murders, Omilly, was strangled by a rope deployed by the police to capture and restrain him; at the subsequent coroner’s inquest, the jury returned the verdict that he ‘had met his death while resisting the lawful apprehension of his person on a charge of murder’.122 Considerable public controversy surrounded the Pine River murders, the deaths of those accused of the crimes and the magistrates’ inquiries. Much of it played out in the pages of rival newspapers.123 Also apparently at the Attorney’s direction, Dr Simpson interviewed a number of long- term residents of Moreton Bay about alleged killings of settlers. George Robinson estimated ‘about 50 whites have already perished at the hands of the Aborigines’ in the Moreton Bay District. He could not estimate the number of Aboriginal people killed by settlers, but thought ‘the number of blacks who have been killed by the whites … has probably been very
115 The Sydney Morning Herald, 26 October 1846, p 2. 116 The Sydney Morning Herald, 30 November 1846, p 2. 117 The Moreton Bay Courier, 27 March 1847, p 2. 118 The Moreton Bay Courier, 7 November 1846, p 3. 119 The Moreton Bay Courier, 12 December 1846, p 2. Horse Jemmy was also a suspect in the murder of Mr Uhr. At the time of his death, he was reported as having some of Mr Uhr’s clothes and some property belonging to Mrs Shannon. 120 The Moreton Bay Courier, 6 February 1847, pp 2–3. Lt Charles Blamire was an officer of the 99th Regiment of Foot. Major William North of the 68th Light Infantry settled at Fairney Lawn, near Ipswich in 1844. 121 The Sydney Morning Herald, 23 February 1847, p 3. 122 The Maitland Mercury and Hunter River General Advertiser, 17 June 1848. 123 See for example: The Moreton Bay Courier, 6 February 1847, p 2 ‘The Aborigines and the Sydney Chronicle Newspaper’; The Sydney Morning Herald, 23 February 1847 ‘The Aborigines’;Sydney Chronicle, 24 February 1847, p 4 ‘The Aborigines — Inquiry’; The Moreton Bay Courier, 20 March 1847, p 2 ‘Original Correspondence’; The Moreton Bay Courier, 23 October 1847, p 3 ‘False Philanthropy’. 210 Queensland Legal Yearbook 2013 considerable.’124 James Canning Pearce claimed to have given him a list of 60 names.125 Looking back, Dr Simpson described 1846 as a crisis year for black-white relations in the Moreton Bay District, in contrast to the relative peace for the rest of his time as commissioner.126 Court proceedings involving Aboriginal parties or witnesses presented particular legal issues. Taking their lead from the early decisions of Mr Justice Dowling in the Supreme Court,127 the courts insisted on interpreters being present to enable any Aboriginal accused to follow the court process. The Aboriginal belief systems were not recognised by the courts as sufficient to allow Aboriginal witnesses who maintained their traditional beliefs to take an oath, and so they were unable to give evidence, until legislative intervention. While Western Australia enacted a provision allowing aboriginal witnesses to give evidence on affirmation in 1841128 and South Australia followed in 1848,129 the eastern colonies were much slower to act. In 1839, Governor Gipps had raised the matter in correspondence with Lord Normanby at the Home Office in London. Lord Normanby urges the Governor to submit a proposal to the NSW Legislative Council to overcome the impediments to the Courts receiving aboriginal testimony, on the basis that the exclusion of such evidence ‘would appear to be injurious to the interests of justice.’130 A Bill was passed by the Legislative Council,131 but was disallowed by Lord John Russell, the Whig Colonial Secretary, on the advice of the Attorney-General and Solicitor General that it was contrary to British jurisprudence.132 In 1841 there was a change of government in London, with the Conservative Sir Robert Peel displacing the Whig Viscount Melbourne. In 1843, the Westminster Parliament passed an Act to validate any law or ordinance made or to be made by a Legislature of a British Colony authorising the admission of unsworn testimony of members of ‘various Tribes of barbarous and uncivilized Peoples, destitute of knowledge of God and of any religious belief’ as not being repugnant to the Law of England.133 In Sydney, Governor Gipps, acting on instructions from the Peel Government, introduced a bill to his Legislative Council in 1844 for the purpose of applying the Imperial Act in New South Wales. The Bill was limited to criminal proceedings and provided:
124 The Courier (Hobart), 4 November 1846, p 4, quoted in an article on William Westgarth’s Report on the Condition, Capabilities, and Prospects of the Australian Aborigines, Melbourne (1846). George Augustus Robinson (1791–1866) worked with the indigenous peoples of Van Diemen’s land (1829– 1839) and was appointed Chief Protector of Aborigines at Port Phillip (1839–1849): ADB. 125 The Sydney Morning Herald, 7 August 1849, p 3. Pearce was an early local entrepreneur, who went bankrupt in the early 1840’s recession; brought the steamer Experiment and offered regular navigation between Brisbane and Ipswich in 1846. Like more recent private/public infrastructure ventures, this did not prove to be an economic success for Pearce. He ended his career as the clerk of the Brisbane Gaol, where he worked with my great-great-grandfather, Patrick Bradley: Fisher, R, The Best of Colonial Brisbane, Boolarong Press, 2012, citing Dowse, T, Reminiscences 3:36 and Dowse, T, Old Times, 1869. 126 Fisher, R, The Best of Brisbane, Boolarong, Brisbane 2012, p 70. 127 R v Boatman or Jackass and Bulleye (1832) NSW Sel Cas (Dowling) 6; [1832] NSWSupC 4; Sydney Gazette 25 February 1832. 128 An Act to allow the Aboriginal Natives of Western Australia to give information and evidence without the sanction of an Oath 1841 (WA) (4&5 Vict 22). 129 South Australian Ordinance No 3 of 1848. 130 Historical Records of Australia, Series I, Vol. XX, p 302 (Marquis of Normanby to Sir George Gipps, August 31, 1839); p 368 (Gipps to Normanby, October 14, 1839). The two despatches appear to have crossed each other. 131 3 Vict No. 16. 132 Historical Records of Australia, Series I, Vol. XX, p 756 (Lord John Russell to Sir George Gipps, August 11, 1840). 133 An Act to authorize the Legislatures of certain of Her Majesty’s Colonies to pass Laws for the Admission, in certain Cases, of unsworn Testimony in Civil and Criminal Proceedings (6 Vict No. 22). Dr Stephen Simpson and the Origins of the Court System in Queensland 211
that every Aboriginal native … shall be permitted to give his or her testimony, in such manner, and subject to such forms, as the court or magistrate before which or whom such testimony shall be given, shall viva voce direct or prescribe, instead of an oath in any criminal proceedings … and that the evidence given shall be of so much weight only as corroborating circumstances may entitle it to. The Bill was rejected by 14 votes to 10. The Governor re-introduced the measure in 1849, when it was again defeated 10 votes to 9. Victoria passed enabling amendments in 1854.134 New South Wales did not do so until 1876.135 In Queensland, which inherited the common law position on separation from New South Wales, enabling legislation was not enacted until 1884.136 Through the whole of Dr Simpson’s time as a magistrate, Aboriginal parties and potential witnesses were unable to give evidence at trials. However, he did receive the evidence of Aboriginal witnesses at inquiries he conducted on the Attorney’s directions, including those referred to above. Other Public Controversy
In the letter, Dr Simpson had written: I am in all to have the principal direction of the concern & my partner is a very good natured man & not likely to interfere with me — a thing essential to me as I cannot play second fiddle This desire to have his way was accompanied by a resistance to public criticism. Early in his time as a magistrate, Dr Simpson was involved in some public controversy with John Hubert Plunkett, the Attorney-General of New South Wales. On 19 January 1844, a newspaper report was published of the Attorney’s comments at the opening of proceedings in a horse stealing case about: the very defective manner in which cases of this description had been got up in many parts of the interior, more especially in the neighbourhoods of Port Macquarie and Moreton Bay. The principal ground of fault was, the omission of the committing magistrate, a commissioner of crown lands, to secure such a chain of evidence as, in cases of horse or cattle stealing, would connect the prisoner with the stolen animal: for, by reason of the latter having passed through the hands of different persons, the whole of whom were not before the Court at the time of the trial, it was frequently found impossible to make out sufficient legal proof to ensure a conviction. This might be obviated with great ease, by allowing the stolen animal to be recognised in the presence of the same constable who had previously apprehended the prisoner with the animal in his possession, and thus connecting each point of the case. If a complete chain of evidence was not to be procured in this manner, it would be much better, he said, that the person charged should not be committed at all, than that the public should be put to the inconvenience of an ineffectual prosecution, which, in cases coming from such remote parts of the colony, are very expensive.137
134 Law of Evidence Further Amendment Act 1854 (Vic) (17 Vict No. 21), ss 7–11. 135 Evidence Act 1876 (NSW), s. 3 permitted a judge to direct a witness not able to swear an oath ‘to tell the truth, the whole truth, and nothing but the truth’. A solemn declaration in lieu of an oath was introduced by s. 13 of the Oaths Act 1900 (NSW). 136 Oaths Act Amendment Act 1884 (Qld) (48 Vict No. 19), s. 2. 137 The Sydney Morning Herald, 19 January 1844, p 3. 212 Queensland Legal Yearbook 2013
Dr Simpson wrote a letter to the editor in response: My attention having been drawn to an article in the Herald of this day, entitled ‘Important to Magistrates of the Interior’, I request, in explanation, your inclusion of the following remarks:- It ought to have been stated in Court, the principal witness in the case alluded to, Thomas Camphlette, the owner of the horse, swore at the Police Court, Brisbane, to having seen the prisoner (particularly identifying his general appearance and dress) ride with the horse, could not be found to serve the subpoena upon him. In my evidence before the Court, I said that my policeman took the prisoner in to custody after he had abandoned the mount at Redbank — hence his evidence could prove nothing. The prisoner was committed by the Police Court at Brisbane where my evidence was taken with the view of proving his intention to steal, and not set by me as Commissioner of Crown Lands. The case, however, broke down as I was warned it would, from the absence of the principal witness, and not from any negligence of the Bench of Magistrates at Brisbane.138 It appears Dr Simpson’s newspaper reading in early 1844 may not have strayed beyond the Herald. If it had, he might have noticed, with greater frustration, a similar report to the 19 January one, published in the Maitland Mercury & Hunter River General Advertiser a week after Dr Simpson’s letter was published. Worse, the later report attributed to the Judge the criticisms of the ‘the very defective manner in which cases of this description were frequently got up’ and the ‘useless expense’ of bringing such poorly prepared cases.139 1850s
In 1851 Dr Simpson purchased from the Crown 640 acres of land, further upstream from Woogaroo where, in 1852, he built Wolston House, named after his birthplace. Over the following decade, he acquired adjoining lands, creating a very substantial pastoral property and horse-breeding stud. Dr Simpson served as returning officer for the Stanley Boroughs in the 1851 general election for the NSW Legislative Council and the 1853 by-election.140 He called a meeting, by public notice, for the purpose of nominating a member, giving notice that if a poll was demanded, it would be take place two days later with polling centres at North Brisbane, South Brisbane and Ipswich. He served again as returning officer in April 1856.141 His eminent social position in the rapidly growing settlement may be gauged by the lunch he hosted at Wolston House in March 1854 for the recently appointed Governor General of all Her Majesty’s Australian Possessions (and Governor of New South Wales) Sir Charles Fitzroy.142 Dr Simpson served as Commissioner of Crown Lands for Moreton Bay District until 1855.143
138 The Sydney Morning Herald, 20 January 1844, p 3. 139 The Maitland Mercury & Hunter River General Advertiser, 27 January 1844, p 4. 140 The Moreton Bay Courier, 1 January 1853. 141 North Australian, Ipswich and General Advertiser, 8 April 1856. 142 The Moreton Bay Courier, 1 April 1854. 143 Empire, 7 February 1856. Dr Stephen Simpson and the Origins of the Court System in Queensland 213
Wolston House, 1988
Medical Matters
In the letter Dr Simpson skited: For the last 6 months I have, however, had medical charge of the Government Establishment during the absence of the Colonial Surgeon — This has been of some service to me as the people seem to think they have been more successfully treated than formerly — In fact right or wrong I have gotten a name by it, which is likely to lead to favourable results … Several of the principal Settlers have therefore applied to me to take the medical charge of their men & provide a Private Hospital at Brisbane for the reception of bad cases. As it would be impossible for me to visit the Stations & take care of the Hospital at the same time. I proposed to the Colonial Surgeon here to join me — This he was nothing loath to do, seeing I was likely to have it all my own way — Under the firm of Simpson & Co, Mr Ballow & myself have commenced operations — For the present the Commandant here has allowed me to appropriate one of the buildings at the Farm for the reception of patients — in the meantime I have written off to Governor to obtain permission to erect a Private Hospital & Medical Store at Brisbane with security as to the future possession of the land it may be built upon when the Settlement is thrown open to purchasers Although he did not embark upon building a new private hospital, Dr Simpson maintained his interest in medical matters. The ‘Colonial Surgeon’ referred to in the letter 214 Queensland Legal Yearbook 2013 was Dr David Ballow, like Dr Simpson a graduate of Edinburgh University.144 He had been appointed Assistant Colonial Surgeon on 5 May 1840.145 On 6 May 1841, Governor Gipps approved payment of 7/6 per day to Dr Simpson for duties as acting Colonial Assistant Surgeon, in the absence of Dr Ballow.146 From at least September 1842, private patients were treated at ‘H M General Hospital, Brisbane Town’ (the former military and convict hospital) upon the provision of a ‘bond to pay the expenses of medical treatment’.147 In 1848, the Hospital was taken over by a public committee, including Dr Simpson as a trustee, and run with a small Government contribution.148 Dr Simpson’s medical background may have been useful in his role as Commissioner and his charge over the Border Police. He took initiatives in the investigation of serious crimes, in the case of the death of a Chinese worker, Dr Simpson had the deceased’s body disinterred and directed Dr O’Neill to conduct a post mortem examination. This evidence indicated ‘that the deceased and the prisoner had been struggling together, and that the gun was fired on the impulse of the moment’. The evidence, when presented to the Supreme Court at the subsequent murder trial, led Stephen CJ to charge the jury to consider only manslaughter. The evidence was of great importance in a case where, as the Court noted with surprise and dissatisfaction, ‘the prisoner’s master had not taken steps to provide for the defence of, or to insure a fair trial for his servant.’149 Tragedy
The loss of his wife and daughter in 1840 was not to be the end of Dr Simpson’s personal tragedies. In 1856 his niece’s son, John Ommaney, came to Brisbane, apparently with a view to taking over his great uncle’s horse stud and pastoral interests. Sadly the same year, young John, when out working on Dr Simpson’s property, was thrown from his horse. The horse returned riderless. After diligent search, the rider was found on the ground ‘in a state of insensibility’. He died.150 Dr Simpson named his most easterly run ‘Mount Ommaney’ in his great nephew’s memory. The area still bears that name today. Final decade
In the letter, Dr Simpson had thought: In fact if I can any how weather the first year I have no doubt for the result & hope in ten years to pay you a visit in Old England His pastoral and other interests kept Dr Simpson in Moreton Bay for nearly twice as long as he anticipated in 1841.
144 O’Donoghue, K, David Keith Ballow (1804–1850), ADB. 145 NSW Govt Gazette, 5 May 1840. 146 Colonial Secretary Letterbook (Jan 1832–May 1842), p 421, No 41/4075; 41/2. On 29 September 1850, Dr Ballow died of typhus, contracted while treating passengers of the quarantined ship Emigrant, after the ship’s surgeon and the usual health officer (Dr Mallon) had fallen ill with the disease: The Moreton Bay Courier, 5 October 1850, p 2. The building Ballow Chambers, Wickham Terrace, Brisbane is named in His Honour. 147 Col Sec Letters 42/08279 (25 September 1842). 148 The Sydney Morning Herald, 30 May 1848, p 3. 149 R v Ang [1850] NSWSupCMB 2; The Moreton Bay Courier 18 November 1850. 150 The Moreton Bay Courier, 15 March 1856. Dr Stephen Simpson and the Origins of the Court System in Queensland 215
On 26 May 1860, following separation, Dr Simpson was appointed by the inaugural Queensland Governor, Sir George Bowen, as one of the four members of the first Legislative Council of Queensland.151 This was an appointment for life. In October 1860, Dr Simpson sold the whole of his landholding at Wolston (300 horses and 400 head of cattle on 1520 acres) to Matthew Goggs for £9000.152 On 15 December 1860, he embarked for Sydney on the Yarra Yarra. From there he travelled with Dr J Dunmore Lang on the Jeddo and the Nemesis to the Red Sea, overland to the Mediterranean and then by the Ceylon to England. He was given leave of the Legislative Council for a few years. The Governor accepted his resignation from Parliament on 3 February 1865.153 Dr Simpson never returned to Brisbane. He died on 11 March 1869 at 28 Bryanston Street, Marylebone, Portman Square, London, aged 77.154 The letter concluded: I have now I think brought up my adventures to the present time & when you have a spare moment: shall be glad to know how you are getting on the other side of the Globe and if you see any of my Lichfield connexions you may just hint that I am still alive Dr Simpson had made a will on 30 January 1869, leaving specific bequests of £1000 to each of the four daughters of his late sister, Mrs Elizabeth Barwell, and £200 to each of the four daughters of his brother Charles Simpson, and the residue to: liberally reward my landlady with whom I have lived many years in great comfort and my personal attendants for their great care and attention during my illness.155 Simpson’s estate included £1400 worth of effects in Queensland. His Honour Mr Justice Lutwyche granted probate of Dr Simpson’s will to Robert Little, solicitor of Little and Browne, Brisbane, on 9 August 1869.156 The Canons
The letter was addressed to Mrs Simpson at ‘The Canons’. The manor ‘Canons’ at Mitcham is a large Georgian house built on lands of the priory of St Mary Overy. In 1545, following the dissolution of the monasteries, Henry VIII sold the manor of Mitcham, which passed through various owners to the Cranmer family. By 1836, the last of the Cranmers, Emily, married William Simpson of Lichfield. It is likely this is the Mrs Simpson to whom the letter is addressed. William Simpson was a witness at the wedding of Dr Simpson and Sophia Anne Simpson. Sophia was the daughter of another
151 Qld Govt Gazette, 26 May 1860. 152 The North Australian, Ipswich & General Advertiser, 19 October 1860, see also advertisement of 3 July 1860. The Goggs family and their descendants held the properties until 1901, when they sold the parts that later became the suburbs of River Hills, Westlake, Mt Ommaney, Jamboree Heights and Darra; retaining only the original 640 acres. This original holding passed through the Grindles and the Hurleys until in 1960 it was resumed by the Queensland Department of Agriculture. In 1965, after a public campaign, a small part of the land, including Wolston House, was given in trust for memorial purposes to the National Trust of Queensland. 153 Qld Govt Gazette, 4 February 1865. 154 Brisbane Courier, 22 May 1869; The Sydney Morning Herald, 25 May 1869; Cilento at p 54. 155 Cilento, R, Valedictory Presidential Address, RQHSJ, 1968 p 602–603. 156 The Queenslander, 14 August 1869. 216 Queensland Legal Yearbook 2013
Dr Stephen Simpson’s letter
Stephen Simpson with whom she lived in Mitcham, Surrey before the marriage, probably at the Canons. So it appears that Dr Simpson was writing in 1841 to his late wife’s sister in law. Resorting to this step in the apparent absence of any response to his earlier letters from Sydney to his own younger brother Charles and to his cousin Edward, probably also Emily’s cousin. Had those replies not been missed, this small vignette of Brisbane in 1841 would not have been created and could not have endured to prompt these reflections today. Emily Simpson died in 1858 and William Simpson in 1861. Their son William Simpson inherited the Canons. It still stands today, owned by the Council of the London Borough of Merton. It is now part of the Canons Leisure Complex and is used for community purposes. The Dovecote on the Cannons property, built by the Augustinians in 1515, still stands. Dr Simpson’s letter is only a third of its age, but like the monastic building, it offers an insight into the people, events and issues that informed the foundations of the courts and justice system inherited from European predecessors and their adaptation to local customs and conditions over the ensuing 170 years. Dr Stephen Simpson and the Origins of the Court System in Queensland 217
Dr Simpson’s letter
[Front of envelope] Mrs Simpson Canons Mitcham Surrey England Direct, Brisbane, Moreton Bay, Via Sydney New S. W. Brisbane, Moreton Bay Nov. 25/41
My Dear Mrs Simpson At length I have determined to write you a few lines, though as yet I have not heard a word from you since I left England - I have almost abandoned all hope of ever again hearing from any of the Simpsons, for it is now upwards of 18 months since I sent the melancholy details of my poor wife’s fate — I sent the particulars to Charles in the first instance & after wards to Cal on Parch enclosed in a letter to Mr Edward Simpson — Both vessels surely cannot have been wrecked & it appears to me very strange that no notice should have been taken of them - I cannot now recapitulate the dreadful circumstances; she suffered so much & bore it so patiently that I can never forget the trying scene — Poor Sophie! she showed throughout an heroic firmness & never for a moment refrained at her unhappy fate — As I cannot but suppose you must have heard something of my movements since the melancholy event I shall come at once to my present prospects — It is now upwards of 15 months that myself and my friend Wiseman took up our abode in the Bush, toiling like Slaves & living like Savages — For the last 6 months I have, however, had medical charge of the Government Establishment during the absence of the Colonial Surgeon — This has been of some service to me as the people seem to think they have been more successfully treated than formerly — In fact right or wrong I have gotten a name by it, which is likely to lead to favourable results — The settlement though not yet absolutely released from penal Regulations, has been opened to Squatters, who have liberty to set down anywhere on the immense plains and forest without 50 miles of Brisbane — As this Country is thought to be very superior to most other parts of the Colony there has been a great rush towards it & there are already about 40 large Cattle and Sheep establishments in the neighbourhood — They are in charge of about 800 men besides women and children — You will be surprised to hear that the proprietors are almost all men of education and good connexions — they have even an Eton Cricket Club on the Downs & most of them have been brought up at the universities — I have now staying within for medical treatment a son of Mr Callum McKenzie, a Scotch Baronet of 12 000 per Annum & he has large establishment near here — There is also a nephew of the Governor’s with a son of Admiral Elliots keeping a Sheep Station — We have also several Honbles — indeed there is scarcely an exceptional person among them — The consequence of this congregation of souls has been the want of a Doctor —. Several of the principal Settlers have therefore applied to me to take the medical charge of their men & provide a Private Hospital at Brisbane for the reception of bad cases. As it would be impossible for me to visit the Stations & take care of the Hospital at the same time. I proposed to the Colonial Surgeon here to join me — This he was nothing 218 Queensland Legal Yearbook 2013 loath to do, seeing I was likely to have it all my own way — Under the firm of Simpson & Co, Mr Ballow & myself have commenced operations — For the present the Commandant here has allowed me to appropriate one of the buildings at the Farm for the reception of patients — in the meantime I have written off to Governor to obtain permission to erect a Private Hospital & Medical Store at Brisbane with security as to the future possession of the land it may be built upon when the Settlement is thrown open to purchasers — There is little doubt but I shall obtain it, as I shall be well backed by the Settlers & the Colonial Secretary will do all he can to assist me — I have already gotten a plan for my building & have men at work cutting and splitting timber for the purpose — The undertaking is no doubt gigantic for my means, but no matter “nothing venture, nothing gain” a truism in this Colony, when half the great fortunes have been made out of nothing — Unfortunately too at the present moment the money market here is in a dreadful state & a general bankruptcy seems at hand — men who have got wealth in Cattle, Sheep & Land can with difficulty find money to pay their men’s wages — Should I be able to get up my building before the Settlement opens it will not cost half what it would after, as wages here are now very moderate — In fact if I can any how weather the first year I have no doubt for the result & hope in ten years to pay you a visit in Old England — The moment the vessel sails I shall mount my nag, armed with a brace of Pistols & a Broadsword (for the Natives here have been very troublesome of late), & best my course in the bush — The first Station I have to visit is about 60 miles off, the others at intervals of, from 10 to 20 miles, I expect to be absent about a month living the whole time in a way that you in England can form no idea of & sleeping & like worse — but no matter, it must be done if I mean to make money — My terms are to take medical charge of whole stations after payment of 1£ per head for the men & 10 Shillings for women and children annually — accoutrements 2£ extra — Non subscribers 10s per consultation & three shillings per day in the Hospital — for this I visit the Stations once in 3 months & if extra journeys are required they pay according to the distance — of course these charges do not include Masters or any but the labouring class — I am in all
[Break for envelope address] to have the principal direction of the concern & my partner is a very good natured man & not likely to interfere with me — a thing essential to me as I cannot play second fiddle — I have now I think brought up my adventures to the present time & when you have a spare moment: shall be glad to know how you are getting on the other side of the Globe and if you see any of my Lichfield connexions you may just hint that I am still alive — with kind regards to Mr S & your family, believe me
Yours very sincerely S Simpson
[Back of envelope] Should you at any time have a spare Weekly Paper, it would be acceptable — What do Judges Know?
by The Honourable Justice Patrick Keane*
It is a great honour to be asked to speak at this dinner to honour the memory of Sir Harry Gibbs. For Queensland lawyers of my generation, Sir Harry ‘bestrode our narrow world like a colossus.’ For a junior barrister appearing before his Court there were two striking aspects to the experience: the first was the remarkable courtesy with which he conducted proceedings. It was remarkable because it was in stark contrast to the experience of counsel when his immediate predecessor, Sir Garfield Barwick, presided. The second thing about appearing before Sir Harry, which no-one could mistake, was the confidence and assurance with which he conducted himself. He was a master of the professional skills which Sir Owen Dixon described as the ‘high technique of the common law’. There was no hectoring. He always put his tentative view for counsel’s response in a polite question or suggestion; but his confidence and commitment were always evident. His confidence was justified by his deep learning and his remarkable powers of analysis. And his commitment was that of the professional lawyer who owed no allegiance save to the resolution of the dispute according to law. Sir Harry was the beau ideal of the professional lawyer. He knew and loved the law and the idea of the law. He put me in mind of the description of the soldiers of the Roundhead army in the English Civil War who were said to have known what they were fighting for, and to have loved what they knew. Taking my cue from that, I would like, this evening, to take a few moments to reflect on some aspects of what judges know, or more precisely perhaps, how judges come to know the things that underpin their decisions. It is probably trite to say that, in our democracy, it is the public demonstration on a daily basis of the fairness and rationality of the judicial decision- making process that sustains public confidence in our judiciary as the unelected third arm of government, given that in Australia, personal imperfections in the judges are not susceptible to correction by the electorate. The structural aspects of the judicial process are familiar: our judges hear evidence presented by the parties in open court, make findings of fact based on that evidence and then apply to those facts the law in accordance with arguments also presented in open court. They then resolve the issues tendered by the parties in accordance with written reasons made available for public scrutiny and criticism. Last year, this address was given by my colleague, Justice Susan Kiefel, who spoke of the last of these aspects of the judicial function, that is to say the writing of judgments as an aspect of the processes that are essential to ensure public confidence in the judiciary. This evening I would like to continue the consideration of the relationship between the judiciary and public confidence in that institution. I propose to focus on the way courts inform themselves of the bases for their decisions, not for the finding of primary facts, but for their conclusions on questions of law.
* Justice of the High Court of Australia. Address to Sir Harry Gibbs Law Dinner, Emmanuel College, The University of Queensland, 19 April 2013.
219 220 Queensland Legal Yearbook 2013
My thesis is that how judges inform themselves as to what they know has a strong bearing on the maintenance of public confidence in their decisions. In particular, the qualities of independence, competence and a commitment to fairness and transparency, in a word professionalism, are essential to the success of the judiciary as the unelected branch of government. On the other hand, the deployment by judges of untested information, rhetorical flights and philosophical insights is likely to be inimical to that success. Fardon and the Sages of the Common Law
May I begin close to home with Fardon v Attorney-General for the State of Queensland.1 That was the case in which a serial rapist challenged the constitutionality of the Dangerous Prisoners (Sexual Offenders) Act, an Act designed to keep that class of dangerous prisoners in custody at the end of their sentence if they were found then to pose an unacceptable risk to the community. In that case, it was my job as Queensland’s Solicitor-General, to defend, in the High Court, the power of the Queensland Parliament to enact such legislation. In the course of argument, I was being given a very hard time of it by one particular member of the Court. His Honour repeatedly reminded me that it was, what he called, the ‘great wisdom of the sages of the common law’ that they did not try to guess how an offender might behave in the future after serving his proper sentence. His Honour was forced to repeat the question several times. I looked and felt like the wallaby in the spotlight. Ultimately, Chief Justice Gleeson intervened, saying: ‘Well, if Mr Fardon had raped several women during the time of the great sages of the common law, no-one would have had to worry about his future after he had served his sentence.’ That was the end of that particular line of questioning. That experience leads me to suggest that lawyerly scepticism, rather than rhetorical veneration, is a sounder attitude to the work of the great sages of the common law. Sir Edward Coke, for example, is venerated as a great sage of the common law. But his legal writings are almost impenetrable, and not only because of his Elizabethan English. As Dr McPherson observed in his book The Reception of English Law Abroad,2 it was because Coke’s great work Coke on Littleton was regarded as an ‘incoherent mass’ of legalese by American lawyers, even those as brilliant as John Quincy Adams, that Blackstone became an immediate and enduring success in the United States. As to the value of Blackstone himself, some great Americans were sceptical. Thomas Jefferson referred to Blackstone as ‘all honeyed Toryism.’ But to return to Coke for a moment, there are good reasons why he does not deserve to be venerated. Sir Edward, far from being a lion in defence of the common law against James I, was, in sober truth, the trimmers’ trimmer. In Dr Bonham’s Case3 Sir Edward spoke of the common law, that is the judges, controlling Acts of Parliament, so that the courts might declare statutes void on the ground that they were ‘against common right and reason.’ But when, at an earlier point in his career he had been Speaker of the House of Commons, he expressly affirmed the absolute power of the Parliament.4
1 (2004) 223 CLR 575. 2 McPherson, 242–3, 485. 3 (1610) 77 ER 646. 4 Holdsworth, A History of English Law (6th Impression, 2003) 184. What Do Judges Know? 221
Coke was also, as a barrister and a judge, a terrible bully in Court — and, I suspect, outside it. We can, perhaps, get a true measure of the man from the story that when he died in 1634, his widow, Lady Hatton (and note that she did not take his name), said: ‘We shall never see his like again, praise be to God.’5 Perhaps the greatest sage of the common law — certainly so far as the criminal law is concerned — was Sir Matthew Hale. He was Chief Justice of the King’s Bench from 1671– 1676. He is the author of the oldest history of the common law. That history reveals that Hale held some distinctly ahistorical views. Writing of the brutal and bloody Norman Conquest of England in 1066, Hale wrote: ‘Duke William legitimately succeeded to the English throne. Nothing else happened, and there was no conquest.’ As a sitting judge, his most interesting case was the Case of the Witches. This was a case in which two poor, lonely old women were charged with being witches. In particular, it was said against one of them that she had cursed one of the complainants so terribly that his legs had become paralysed, and he was unable to walk. During the course of the trial, a number of local gentlemen of the shire in which the trial was held represented to Hale that the case was based on superstitious fictions and should be thrown out. Hale ignored these entreaties, and charged the jury in terms which made it very clear that he, Hale, and, indeed, all right-thinking folk, could take it as clearly established, by the word of God himself in the Bible, that the Devil did indeed work through witches to blight the lives of the godly. Interestingly, he also charged the jury that it is as wrong to acquit the guilty, as it is to convict the innocent. Unsurprisingly perhaps, the accused were duly convicted. It was reported that it afterwards became clear that the accused must certainly have been witches because, within a couple of days of their being convicted, the complainant, whose legs had been paralysed, recovered, and he was fully able to walk again. Apparently, the witches’ spell had been broken. Just as in Monty Python’s ‘Search for the Holy Grail’ — where the witch turned John Cleese into a newt; but he got better. Hale was not only wrong in his historical understandings and in his belief in witches and in his directions to the jury when judged through modern perceptions, he was seriously behind his own times in terms of the views of educated Englishmen. I would like now to turn to consider the issue of what judges know by reference to some aspects of the American experience. The American Experience
The Brandeis brief
No doubt you are all familiar with the term ‘the Brandeis brief.’ The deployment of the Brandeis brief is closely associated with another issue in constitutional law: the testing of the constitutional validity of a statue by consideration of its practical consequences.
5 AWB Simpson, Book Review of ‘Sir Edward Coke and the Grievances of the Commonwealth’, by Stephen D White (1982) 98 Law Quarterly Review 174. 222 Queensland Legal Yearbook 2013
Muller v Oregon and the first Brandeis Brief
In Muller,6 the Supreme Court upheld Oregon laws which prohibited women from working in ‘any mechanical establishment, or factory, or laundry for more than ten hours in any one day’. The US Supreme Court had, in its 1905 decision Lochner v New York,7 struck down an occupational health and safety statute as an unconstitutional interference with the contractual rights of employers and employees. Two years later in Muller Louis Brandeis, acting as counsel for the State of Oregon supporting the law, provided the Court a brief comprising of two pages of legal argument followed by over one hundred pages of statistics, sociological reports and outlines of similar legislation in other jurisdictions. The Court made the following comments regarding Brandeis’ argument: The legislation and opinions referred to … may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which would otherwise be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.8 It is interesting to pause here to note three things about the Supreme Court’s observations. First, the non-legal materials were not submitted by way of evidence at a trial where their accuracy might have been tested and their relevance disputed. Secondly, the relevance of the materials was to show the ‘reasonableness of the specific law at issue and the relationship of the regulation of economic activity by the law to the needs of society as a matter of social justice.’ That reveals an interesting perspective of the judicial function. We are all familiar with the notion that the validity of a statute must be tested by looking at its substance rather than its form. But this test can easily slide into a concern which directs attention to the economic or social consequences of impugned legislation. Some might suggest that such questions are better seen as political issues for the judgment of the legislature which is susceptible of correction by the electorate. A response to that suggestion might be that the issue was before a Court and so it required a decision from the Court. The rejoinder to that response would be that the issue was before the Court because of the Court’s interpretation of the U.S. Constitution. And thirdly, what are we to make of the Court’s characterization of what it was doing as taking ‘judicial cognizance’ of a ‘matter of general knowledge’. If it was a matter of general knowledge, why was the evidentiary material put forward by Brandeis necessary at all?
6 208 US 412 (1908). 7 198 US 45 (1905). 8 208 US 412 (1908) 420–1. What Do Judges Know? 223
I am not at all sure that there has ever been a truly satisfactory answer to this question. To say that, however, is not to say that the approach has not served the cause of justice. Brown v Board of Education
Undoubtedly one of the most historically significant deployments of a Brandeis brief occurred in the famous case of Brown v Board of Education.9 The Supreme Court led by Chief Justice Earl Warren unanimously held that laws of a number of states which denied black children the opportunity to attend schools also attended by white children contravened the Fourteenth Amendment. The decision was a clear departure from the ‘separate but equal’ doctrine of Plessy v Ferguson.10 The Court noted that separating black children: From others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”11 In so concluding, the Court referred to several psychological studies concerning the effects of racial segregation. On the basis of these studies, the Court concluded that: Whatever may have been the extent of psychological knowledge at the time of Plessy v Ferguson, this finding [the finding of the Court inBrown concerning the detrimental effects of segregation] is amply supported by modern authority. Any language in Plessy v Ferguson contrary to this finding is rejected.”12 (footnote omitted) But the Brandeis brief is a blade which can cut both ways, as we can see if we fast forward to this year in the case of Shelby County v Holder when the US Supreme Court heard a challenge to the constitutionality of section 5 of the federal Voting Rights Act 1965. This Act requires 16 States, most but not all in the Old South, to satisfy the Justice Department or a federal court that, before any change is made to local voting procedures, the change will have neither the purpose nor the effect of ‘denying or abridging the right to vote on account of race or colour.’ This is the provision which restricts the ability of the States to which it applies to introduce voter identification laws which their opponents consider are apt to disenfranchise blacks or hispanics. The challenge to section 5 by Shelby Country, Alabama, is based on the post‑Civil War 14th and 15th Amendments to the Constitution which vested in the Congress power ‘to enforce, by appropriate legislation’ the right to the equal protection of the laws and the right to vote. The essence of the challenge, described by Justice Scalia in the course of argument, was that section 5 is the ‘perpetuation of racial entitlement.’ That is to say, the law is bad because it protects blacks and hispanics from legislative attempts to disenfranchise them. Justice Scalia referred to section 5 as imposing ‘extraordinary procedures that deny the States sovereign powers which the Constitution preserves to them.’ In the course of argument, Justice Kagan asked Shelby County’s lawyer: ‘You said the problem has been solved. But who gets to make that judgment really? Is it you, the Court, or is it — or is it Congress?’ The lawyer, Mr Rein, answered that Congress can examine the
9 347 US 483 (1954). 10 163 US 537 (1896). 11 347 US 483 (1954) 494. 12 347 US 483 (1954) 494–5. 224 Queensland Legal Yearbook 2013 problem but that ‘it is up to the Court to determine whether the problem indeed has been solved.’ Justice Kagan responded: ‘Well, that’s a big new power that you are giving us — that we have the power now to decide whether racial discrimination has been solved. I did not think that that fell within our bailiwick.’ Chief Justice Roberts put to the Solicitor-General for the United States, Mr Verrilli, a collection of statistics which suggested that the problem which justified the law had been solved. Mississippi, one of the States affected by section 5, had a better record of African‑American voter registration and turnout than Massachusetts, one of the States not so covered. This suggestion prompted the Massachusetts Secretary of State, Mr William Galvin, to complain that the Chief Justice had used what he described as ‘phony statistics’ in a ‘deceptive’ and ‘truly disturbing’ way. And to add irony to insult, Mississippi had signed a brief urging the Supreme Court to uphold the law. And last month in the course of argument in the Same Sex Marriage Case, Justice Kennedy put to Counsel the following proposition: There are some 40 000 children in California … that live with same sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case. Once again, one might ask: ‘How does he know.’ One might have hoped that children in California do not wake up in the morning worrying about the marital status of their parents; but even if one accepts the rhetorical force of His Honour’s observations, one needs to see that that is exactly what they are: a rhetorical appeal, via an unsupported and probably unsupportable, assumption about the facts on which the appeal is based in support of a controversial legal standard. What it is distinctly not is the marshalling of facts to answer a legal question. The Australian Approach to the Brandeis Brief
The fundamental difference between the U.S. and Australian approach to evidence used to establish constitutional fact was noted by an American scholar, Sanford H Kadish, in 1959. He described the American approach as a species of judicial notice, saying: The Supreme Court has long had experience dealing with matters of underlying social and economic fact in the process of judicial review. Certainly since the Brandeis Brief such matters have received wide attention, partly as a result of the doctrines of constitutional interpretation which often (certainly in 14th Amendment cases) pose the issue of constitutionality in terms of whether the legislature has acted unreasonably or arbitrarily. The Court’s attitude is exemplified in an American Bar Association address by Stone J in 1928 in which he criticized the bar for failing to apprise the Court ‘as to all phases of the particular social conditions affected, the evils supposed to originate in them, and the appropriateness of the particular remedy sought to be applied’. ‘Intimate acquaintance with every aspect of the conditions which have given rise to the regulatory problems,’ he admonished, ‘are infinitely more important to the court than are the citation of authorities or the recital of bare formulas.’
Judicial notice has been the commonly used technique for justifying consideration of facts of this kind. But it has been a judicial notice an Australian lawyer would not recognize as belonging to the same species. In constitutional cases it is no What Do Judges Know? 225
longer a device ancillary to the actual introduction of evidence and confined to notorious and indisputable facts. It has become a major instrument through which the Court gains access to and deals with material of the most disputable character — social and economic facts and judgments.”13 (footnotes omitted) The Brandeis brief version of judicial notice is certainly not a feature of Australian constitutional litigation. Professor Zines has said, the ‘sort of facts presented to the Supreme Court by a Brandeis Brief would appear … to go beyond our principle of judicial notice’.14 One reason for the Australian reluctance to adopt the Brandeis brief is the concern that the resolution of constitutional issues, which, of course, affect the whole nation, should not depend upon the limited facts which the parties to a piece of private litigation choose to adduce. In Gerhardy v Brown, Brennan J explained that ‘[w]hen a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend upon the course of private litigation. The legislative will is not surrendered into the hands of the litigants,’15 and generally such facts ‘are not peculiar to the immediate parties.’16 And there is the intriguing question raised by Professor Zines whether, where facts are relevant to validity, ‘a law declared valid can cease to be so when the material facts change.’17 There was no Brandeis brief, or anything like it, in the Communist Party Case. There the High Court famously ‘held that, save perhaps in time of war, neither Parliament nor the Executive could make a conclusive determination on an issue, factual or legal, on which constitutionality depended. The final determination of such an issue was only for the courts.’18 The High Court held that it was not bound by the views of the political arms of government as to whether the activities of the Communist party posed a threat to Australia. Not only that — the Court was prepared to make its own judgments about the facts of the nature and extent of the threat; and it did so as a matter of judicial notice without actual evidence on the issue.19 Dixon J said: Just as courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians, and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like, so we may rely upon a knowledge of the general nature and development of the accepted tenets or doctrines of communism as a political philosophy ascertained or verified, not from the polemics of the subject, but from serious studies and inquiries and historical narratives. We may take into account the course of open and notorious international events of a public nature. And, with respect to our own country, matters of common knowledge and experience are open to us. But we are not entitled to inform ourselves of and take into our
13 Kadish, ‘Judicial Review in the High Court and the United States Supreme Court’, (1959–1960) 2 Melbourne University Law Review 127, 140. 14 Leslie Zines, The High Court and the Constitution (5th ed 2008) 656. 15 (1985) 159 CLR 70, 141–2. 16 Brazil, ‘The Ascertainment of Facts in Australian Constitutional Cases’, (1970) 4 Federal Law Review 65, 67. 17 Zines, above n 14, 650. 18 Kenny, ‘Constitutional Fact Assessment’ (1990) 1 Public Law Review 134, 155. 19 Australian Communist Party v Commonwealth (1951) 83 CLR 1. 226 Queensland Legal Yearbook 2013
consideration particular features of the Constitution of the Union of Socialist Soviet Republics.20 (footnotes omitted) This approach prompts the observation that ‘[o]n the one hand … the Court ..… assumed the obligation to ascertain the facts determinative of validity, but on the other, the Court [did not outline] a set of certain principles for their ascertainment.’ There is there a lack of practical judicial guidance as to appropriate fact presentation.21 Although it remains the case that ‘the presentation of social and economic material in the High Court is something of an unusual event’,22 two notable examples where it has occurred are Clarke King & Co v Australian Wheat Board23 and Ubergang v Australian Wheat Board.24 These were cases concerned with whether s 92 of the Constitution invalidated attempts to stabilise the price of wheat by the regulation of the wheat industry. In Clarke King & Co counsel handed up excerpts from historical books, statistical data and other works concerning the effect of the wheat price stabilisation measures under scrutiny. Barwick CJ made reference to the ‘lodged material’25 and Stephen J relied on one of the reports included in the material.26 In Ubergang, a case that related to substantially the same issues, the Court accepted the approach taken to the extraneous material provided by the parties in Clarke King & Co. It is, I think, fair to say that these cases represent the high point of attempts to persuade Australian courts to act upon this sort of material. And I suspect that the impetus to develop the jurisprudence further, fell away when the High Court’s decision in 1988 in Cole v Whitfield27 gave the quietus to the Barwick approach to s 92 of the Constitution which the Court was still grappling with in Clarke King and Ubergang. If the members of the Court may inform themselves of facts or reach conclusions about constitutional facts by reference to its view of what is general knowledge, there is not only the danger that the party adversely affected by the conclusions will not have had the opportunity to address the accuracy of what is said to be general knowledge. And there is the further possibility that the judges will not take judicial knowledge of the same facts.28 In-House Judicial Fact Finding
It would seem that the US Supreme Court, in its reliance on factual enquiry as a basis for conclusions of law, ‘has not confined itself to the researches of counsel.’29 Aside from relying on material provided by the parties in Brandeis briefs, there has been, as I have already noted, a trend towards judges of the US Supreme Court carrying out their own independent, extra-legal research to establish constitutional facts. In an article published last year in the Virginia Law Review, Allison Orr Larsen outlined several instances in which US Supreme Court decisions have referred to extra-legal literature that was not provided by any of the parties to the Court. Larsen searched for references
20 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 196. 21 Kenny, ‘Constitutional Fact Assessment’, (1990) 1 Public Law Review 134, 156. 22 Zines, above n 14, 650. 23 (1978) 140 CLRE 120. 24 (1980) 145 CLR 266. 25 Clarke King & Co v Australian Wheat Board (1978) 140 CLR 120, 161. 26 Clarke King & Co v Australian Wheat Board (1978) 140 CLR 120, 175. 27 (1988) 165 CLR 360. 28 Holmes, ‘Evidence in Constitutional Cases’ (1949) 23 Australian Law Journal 235, 236. 29 Kadish, ‘Judicial Review in the High Court and the United States Supreme Court’, (1959–1960) 2 Melbourne University Law Review 127, 140. What Do Judges Know? 227 in Supreme Court judgments establishing legislative facts ‘never mentioned in any of the briefs’.30 She found that: [O]f the 120 cases from 2000 to 2010 that political scientists label the ‘most salient Supreme Court decisions’ — largely measured by whether they appear on the front pages of newspapers — fifty-six percent of them contain at least one assertion of legislative fact supported by sources found ‘in house’.31 That this should be so suggests a substantial departure from that core aspect of a lawyer’s professional ethos concerned with ensuring a fair opportunity to all sides to scrutinise and criticise, if not actually to control, the evidence on which the decision is based. It is disturbing that the Court should ignore its obligations of natural justice to the parties. The Australian view was expressed by Heydon J in Thomas v Mowbray: [I]t would be astonishing if there were not a duty on the Court to advise the parties both of any constitutional fact it may find and of any material not tendered or referred to in open court upon which it proposes to rely in reaching a conclusion that that fact exists. It is scarcely satisfactory for a party to learn of some supposed fact by reason of which that party lost the litigation on reading the Court’s reasons for judgment, without having any opportunity to dispute the materiality of the fact, or its accuracy, or the trustworthiness of the source from which it was taken, or the validity of the reasoning from those sources.32
Philosophical Insights
The American courts are confronted by the difficulty that the sloganistic language of much of the Bill of Rights gives rise to tensions between politically desirable ends. As Professor Paul Freund said, great constitutional controversies ‘reflect not so much a clash of right and wrong as a conflict between right and right: effective law enforcement and the integrity of the accused; public order and freedom of speech, freedom of worship and abstention by the State from aiding as well as impeding religion.’33 Judges of the US Federal and Supreme Courts are called upon by the broad political language of the Bill of Rights to make what are essentially political judgments the truth of which are not amenable to demonstration by reference to evidence. There is a risk that those required to perform this task may be regarded as political partisans rather than independent professionals whose competence lies in law not ideology. There is a real risk that the judiciary may become politicised by the necessity to resolve conflicts between right and right by seeking to apply the open-textured statements in the Bill of Rights as tests of the legality of the will of the representatives of the people in the legislature. One cannot blame the US judges for the problem bequeathed them by the Founding Fathers; but coupled with the tendency of the US constitutional arrangements to turn judges into politicians is the temptation for judges, required to mediate the broad language of the Bill of Rights, to indulge in rhetorical flights or philosophical insights to give legal force to their personal views about how things should be.
30 Larsen, ‘Confronting Supreme Court Fact Finding’ (2012) 98 Virginia Law Review 1255, 1262. 31 Larsen, ‘Confronting Supreme Court Fact Finding’ (2012) 98 Virginia Law Review 1255, 1262. 32 (2007) 233 CLR 307, 521 [636]. 33 Paul A Freund, ‘Constitutional Dilemmas’ (1965) 45 Boston University Law Review 13, 22. 228 Queensland Legal Yearbook 2013
It is a powerful temptation: it kept the Dominicans busy for hundreds of years. The US Supreme Court’s 1973 decision in Roe v Wade was based on the proposition that the right to privacy extended to ‘encompass a woman’s decision whether or not to terminate her pregnancy’34 so as to render invalid a State law prohibiting abortion. In 2007 in Gonzales v Carhart35 the Supreme Court took a step back from the decision in Roe v Wade. The Court upheld by five votes to four, a federal law prohibiting so-called partial-birth abortions. The opinion of the majority was written by Justice Kennedy in the course of which he said: While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.36 This insight, so blithely shared, was based on an acknowledged absence of ‘reliable data’. It provoked a stinging dissent from Justice Bader Ginsburg who wrote that the view expressed by Justice Kennedy depended upon ‘an anti‑abortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “severe depression and loss of esteem” ... This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.’ In a recent article in The New Yorker (March 2013 at 44) Justice Baden Ginsburg is quoted by the author Jeffrey Toobin as saying that she thought Justice Kennedy’s opinion in Gonzales v Carhart was ‘dreadful’. I pause here to note that if the judges speak this way about each other’s work, what is everyone else to think of it. One might say that differences of opinion over the issue of abortion should not be surprising. We are fortunate in Australia that our legislatures have struck a balance which means that our communities are not convulsed by this issue. My point is the general one that a judicial decision which appeals to a view of the facts for which there is no empirical evidence, which is plainly contestable as a matter of policy, and which is no more substantial than a rhetorical flight, is not apt to sustain public confidence in the decisions of the court as the institution from which citizens expect decisions made by disinterested judges applying the law to the evidence in a transparent way. The extension of the right of privacy in Roe v Wade was subject to the possibility that there might be an ‘important state interest’37 in limiting the efficacy of the right to privacy to invalidate State law. In 1992, in Planned Parenthood of Southeastern Pennsylvania v Casey,38 the Supreme Court considered the content of the ‘compelling state interest’ limitation upon the power of the constitutional right of privacy to trump the laws of the States regulating abortion. The decisive opinion in the case was that of Justices O’Connor, Kennedy and Souter. Their Honours supported the implication of the constitutional right to privacy by reference to a view of individual liberty, the content of which they explained in the following terms:
34 410 US 113 (1973) 153. 35 550 US 124 (2007). 36 550 US 124 (2007) 159. 37 410 US 113 (1973) 154. 38 505 US 833 (1992). What Do Judges Know? 229
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.39 What do you make of that? We know what at least one of Kennedy J’s colleagues thinks. In Lawrence v Texas,40 decided in 2003, Justice Antonin Scalia referred to this reasoning scathingly as the ‘sweet-mystery-of-life passage’.41 Whatever you think of the practical outcome of the cases, you might think that the passages I have cited provide an elusive basis on which to determine the validity or invalidity of laws passed by the elected representatives of the people. In terms of the maintenance of public confidence in an unelected judiciary, why should legislators and the majorities of electors be expected to accept that a judge’s definition of the concept of existence of meaning and of the universe, is more valid than theirs. And why would they be content that his view should become the law of the land. What if a judge’s understanding of the concept of existence, of meaning, of the universe and the mystery of human life requires him or her to act to deny others the opportunity to act upon their own understanding? It should hardly be surprising that when these poetic insights become the law of the land electors and legislators are left unpersuaded and angry. Not all of us like the same poems; not all of us find the same insights in the same poems. No‑one is entitled to insist that the rest of us must like the same poems that he or she likes, much less that we must, under legal compulsion, submit to having our lives ordered in accordance with them. Philosophic or poetic visions do not provide a satisfactory knowledge base for judicial decisions that will commend public confidence. The concern that this sort of self-indulgence is inimical to public confidence in the judiciary is not idle speculation. That it is so is demonstrated by the crisis which currently grips the federal judiciary in the United States. On 6 April this year, the New York Times reported that of the 856 federal district and circuit court seats in the United States, 85 are unfilled. The problem is getting worse. That ten per cent vacancy rate is nearly double the vacancy rate at the beginning of President George W Bush’s second term. The important point is that the problem is now of such long-standing that more than a third of the current vacancies have been declared ‘judicial emergencies’ based on court workloads and the length of time that the seats have been empty. The problem is due to the unwillingness of the US Senate to confirm presidential appointments for reasons described by the New York Times editorial board as ‘politics, ideology and spite’. The most serious aspect, and the most striking example, of the judicial emergency is afforded by the prestigious and important United States Court of Appeals for the District of Columbia Circuit. It is a feeder to the Supreme Court of the United States. It decides most appeals from federal regulatory agencies and exercises exclusive jurisdiction over national
39 505 US 833 (1992) 851. Somewhat more sober is the statement by Professor Freund: ‘What must be cherished and secured above all — what the Constitution means to be secured — is human personality. Its cultivation is both a civic necessity and a spiritual duty. The right to be oneself, to differ in thought and word, to express one’s non conformity in peaceable persuasion, to be treated by one’s fellows wielding public power as a rational subject and not a mere object, to be treated even-handedly … rights of Englishmen, and retransformed in eighteenth century America into rights of man, remain the central concern of a civilisation torn between the angel and the dynamo.’ Freund, ‘Individual and Commonwealth in the Thought of Mr Justice Jackson’ (1955) 8 Stanford Law Review 9, 23–4. 40 539 US 558 (2003). 41 539 US 558 (2003) 588. 230 Queensland Legal Yearbook 2013 security matters. It is an eleven seat court; four of those seats are vacant; and the last time the Senate could bring itself to agree to confirm an appointment to that Court was in 2006. This appalling state of affairs may be described as a pathology of the separation of powers, in which the regard of one branch of government for another sours from a healthy and respectful scepticism to jealous and debilitating suspicion. We in this country have avoided this problem. Judicial appointments to any court in this country almost always garner bipartisan support. That we have avoided the malaise which besets our great partner and friend is due, no doubt, to more than one factor. I would venture the suggestion, however, that important among these factors is the resolute professionalism and groundedness which characterises the work of our courts. The further the courts stray from the professional commitment to deciding cases on the basis of facts proved or truly notorious, the weaker become the claims of the judicial process to command the confidence of the public. The more closely we hew to the exercise of the professional virtues of independence, competence and transparency, the stronger is our claim on the confidence of the community. Independent professional competence may not be very exciting, but it is the best antidote to the toxic partisanship which threatens the work of federal judiciary in the United States. Sir Edward Coke’s great rival, Francis Bacon, a man who regarded every lawyer, himself included, as ‘a debtor to his profession’,42 argued in Chudleigh’s Case43 that the judges’ authority over the laws of England was ‘to expound them faithfully and apply them properly’. That is probably as succinct a statement as one can get of the professional duty of the judges who, in this country, work together with the lawyers to do justice. And it is also a succinct statement of what made Harry Gibbs a great lawyer and a great judge.
42 Dixon, Jesting Pilate, (2nd ed 1997) 134. 43 Holdsworth, above n 4, 186. The Story Behind the Land Borders of the Australian States — A Legal and Historical Overview
by Dr Gerard Carney*
Introduction
I think it is safe to say that every Australian is able to draw roughly the land borders of the six Australian States and of the Northern Territory. Less well known is the history behind these borders. This lecture attempts to trace that history in terms of when, how and why these borders were drawn where they are. Time does not permit consideration of the coastline boundaries, which were determined by a majority of the High Court in the Seas and Submerged Lands Act Case in 1975 to lie at the low-water mark.1 So, my apology to Tasmania which barely rates a mention in this lecture! Nor do I cover the boundary of the Australian Capital Territory within New South Wales. Geographical barriers are usually the most effective land borders, such as mountain ranges, rivers, lakes, gorges, or deserts. All of these geographical features have played some role in the drawing of Australia’s boundaries. But their role has been a secondary one on the mainland due to the extraordinary distances involved, and the fact that the internal geography of the continent was largely unknown at the time the UK authorities felt the need to define Australia’s land borders. Instead, primary reliance was placed on the meridian lines of longitude (measured from the prime meridian at Greenwich2) and parallels of latitude (measured from the equator) — referred to by one commentator as those ‘celestially-described boundaries’. Why particular lines of longitude and latitude were selected is not entirely clear. A significant determinate of a nation’s boundary is, of course, international law. In this respect, many may be surprised by the fact that the first land boundary created by the British on this continent in 1786 can be traced to a treaty between Portugal and Spain in 1494. An important role often overlooked is that of the early surveyors of this continent whose arduous task was to physically mark out the actual boundaries between the colonies. They had to undertake complex calculations to arrive at the most accurate measurements then possible, knowing that their instruments denied them the mathematical accuracy they so earnestly sought. They also had to cope with a harsh environment which threatened their
* Professor of Law, Curtin Law School. This paper was originally presented at the High Court of Australia, Canberra, on 10 April 2013. A revised version of the paper was then presented at a Selden Society lecture at the Supreme Court Library Queensland, 23 May 2013. 1 New South Wales v Commonwealth (1975) 135 CLR 337. 2 The Greenwich prime meridian was internationally adopted in 1884 at the International Meridian Conference at Washington DC, although it was adopted by Britain well before that.
231 232 Queensland Legal Yearbook 2013 very survival. Nor was their ordeal over, when years later, some of their work is the subject of constitutional challenge in the High Court! So a study of Australia’s land boundaries involves the intersection of politics, constitutional and international law, geography, science, and at least up to the 19th century, stories of human endurance. The most practical way to tell this story is to do so chronologically. Pre-European settlement
Before European settlement of Australia, what was the position as far as territorial boundaries were concerned? Ronald and Catherine Berndt’s classic work, The World of the First Australians,3 describes an ancient continent inhabited by around 500 tribes, each having a territory from which they believed they had been created. In Mabo v Queensland No 2, Deane and Gaudron JJ observed that in 1788: ‘The boundaries of their traditional lands were likely to be long-standing and defined’.4 1770
When Captain Cook ‘took possession’, in the name of His Majesty George III, of the whole eastern coast of Australia in August 1770 at Possession Island, it seems that he did not bother to accord this territory a new name. Hawkesworth, the editor of his Journal, is credited with deriving the name: New South Wales. Nor did Captain Cook define any western boundary for this new British possession. He only purported to take possession of the coastline which he saw and which he felt sure no European had previously seen, namely, from the northern tip of Cape York, south to Point Hicks. For this reason, he did not take possession further south, especially since Abel Tasman had, during his first voyage on 3 December 1642, purported to take possession on behalf of the Prince of Holland of an unidentified part of Van Diemen’s Land.5 Accordingly, the precise area of the new British possession remained obscure. 1786
This was remedied in 1786 when the boundaries of the first British colony in the Pacific Ocean were defined by the two commissions issued to Captain Arthur Phillip appointing him Governor of the penal settlement of New South Wales.6 Both commissions defined the boundaries of New South Wales as extending from the Northern Cape of Cape York to the southern coast of Van Diemen’s Land and west to 135° east longitude, including the ‘adjacent Pacific Islands’. Selection of 135° east longitude (which I will refer to as the 135 meridian) meant that New South Wales extended from the eastern coastline across almost half of the continent. The western half of the continent remained unclaimed by any foreign power, and continued to be referred to as New Holland.
3 (Ure Smith Sydney, 2nd edition, 1977) espec 32–3. 4 (1992) 175 CLR 1 at 99. 5 Bill Gammage, ‘Early Boundaries of New South Wales’ (1981) 19(77) Historical Studies 524. 6 Historical Records of New South Wales, Series I vol I 1–8. The Story Behind the Land Borders of the Australian States 233
Map 1 — 1786
Map 2 Meridiano de Tordesillas 234 Queensland Legal Yearbook 2013
Why was the 135 meridian chosen? The answer seems to have its origins in an agreement reached between Spain and Portugal by the Treaty of Tordesillas on 7 June 1494. By this treaty, they divided between them the world outside Europe, then thought to be flat, by reference to a line of longitude 370 leagues west of the Cape Verde Islands. This was the supposed mid-point of the Atlantic Ocean between Europe and the recently discovered New World. This agreement slightly adjusted in Portugal’s favour the settlement brokered the year before by Pope Alexander VI and proclaimed in a Papal Bull.7 Under the 1494 Treaty, Portugal had dominion over all lands east of the Tordesillas Line, while Spain had dominion over all lands west of that line.8 The circumnavigation of the globe by Ferdinand Magellan from 1519 to 1522 effectively converted the dominions of Portugal and Spain into hemispheres. This led, however, to a dispute over the specific meridian defining their respective hemispheres in the Pacific (referred to as the anti-meridian) because they calculated the Tordesillas Line from different points in the Cape Verde Islands. Portugal calculated the Tordesillas Line further west at effectively 51° west longitude, the anti-meridian of which is 129° east longitude. Whereas Spain calculated the Tordesillas Line east of Portugal’s line at effectively at 45° west longitude, the anti-meridian of which is 135° east longitude (ie the 135 meridian).9 It seems that at least by the end of the 16th century the Spanish view prevailed with the anti-meridian of the Tordesillas Line being commonly accepted at the 135 meridian.10 This enabled Spain to develop its monopoly over the Americas and the Pacific Ocean during the ensuing three centuries. Consequently, the Dutchman, Abel Tasman, in 1644 named only the western half of the new continent as New Holland, leaving the eastern half as Terra Australis within the dominion of Spain.11 This avoided any additional conflict with Spain, against whom Holland was fighting for independence, while at the same time assuming control of the East Indies from the Portuguese.12 This appears to explain why in 1786 the British selected the 135 meridian as the western boundary of New South Wales, leaving untouched the western half of the continent known as New Holland. They did not wish to offend the Dutch before signing them up with Prussia and Holland in 1788 to form the Triple Alliance13 as a buffer to the French. While this may explain why the British did not lay claim to the whole continent, it does not explain why the Portuguese line at 129° East longitude (which I will refer to hereafter as the 129 meridian) was not selected. A possible explanation was the need to keep clear of Timor to avoid any possible conflict with Portuguese and Dutch control over that island.14 Although priority was given in 1788 to ensuring no offence to the Dutch, the British remained mindful of the Spanish claim to Terra Australis and, in particular, to Spain’s claim
7 The Papal Line of 1493 issued by Pope Alexander VI was 100 leagues west of the Cape Verde Islands: see Leslie R Marchant, ‘The Political Division of Australia 1479–1829: The Historical Development of the Western Australian Border’ (2000) 29(1) Cartography 33. 8 Cf the Treaty of Alcacovas of 1479 which gave the northern hemisphere above 27 degrees north latitude to Spain and the southern hemisphere to Portugal. This latitude is at the southern edge of the Canary Islands. 9 Gammage, above n 5, 529. 10 See Marchant, above n 7, Part II, 5; Gammage, above n 5, 529 cites OHK Spate, The Spanish Lake (1979) 56. See also David Taylor, The States of a Nation — The Politics and Surveys of the Australian State Borders (NSW Department of Lands, 2006) 26–7 and 30. 11 See Robert J King, ‘Terra Australis, New Holland and New South Wales: The Treaty of Tordesillas and Australia’, The Globe, No 47 1998, 35–55. 12 Holland achieved independence from Spain in 1647 by the Treaty of Munster. 13 See K McIntyre, The Secret Discovery of Australia(Souvenir Press, 1977) 355. 14 See Gammage, above n 5, 531. The Story Behind the Land Borders of the Australian States 235 of exclusive sovereignty and navigation rights in the Pacific. However, this claim dissolved with the loss of French naval support following the French Revolution in 1789. Spain was then forced to concede by a Convention of 28 October 1790, Britain’s rights to navigate, fish, trade in and settle any unoccupied areas of the Pacific Ocean.15 Nonetheless, potential French and Dutch claims led to growing concern at the commencement of the 19th century over the future of the western half of the continent. The Dutch regained ambitions in the East Indies following the defeat of Napoleon in 1815 and after the return of Java from the British in 1816. Concern over French ambitions was expressed by Governor Macquarie in a despatch to Under-Secretary Henry Goulburn in 1817, in which he emphasised: ‘… the great importance, both in respect to the Mother Country and the future prosperity of this Colony, of preventing the French or any other European Nation from forming any Settlement in any part of this Continent, and ... the expediency and necessity of using every possible means and precaution to frustrate the present intentions of the French Government in this instance’.16 Heightened European interest in New Holland in the 1820s strengthened the case for British trading settlements along the northern coast of the continent, west of the 135 meridian beyond the jurisdiction of New South Wales. Accordingly, on instructions from the Admiralty, Captain Bremer of HMS Tamar in September 1824 took possession on behalf of HM George IV of the ‘North Coast of New Holland or Australia’ between the 129 and 13517 meridians, including all islands off the coast.18 Settlements were soon established at Port Essington and at Fort Dundas on Melville Island with convict volunteers. These developments in the north led to a decision in Britain to move the western boundary of New South Wales from the 135 meridian to the 129 meridian.19 This appears to have been done in 1825 by the issue of the commission to the new Governor of New South Wales, Sir Ralph Darling. 1825
Governor Darling’s commission of 16 July 1825 prescribed the western boundary of the colony to be the 129 meridian.20 The selection of this meridian accommodated the new settlements at Port Essington and Melville Island, and seems likely to have been made both to accord with the Portuguese anti-meridian line under the Treaty of Tordesillas and to prevent any Dutch settlements east of that line.21 Governor Darling’s commission also redefined the southern boundary of New South Wales as the most southern point of the mainland at Wilson’s Promontory, in order to give effect to the establishment of Van Diemen’s Land as a separate colony from 3 December 1825.
15 King, above n 11, 51–2. 16 Despatch dated 24 September 1817: HRA Series I vol IX pp 488–9. Note 84 claims that it was in this despatch that the first official use of ‘Australia’ occurred. 17 Marchant, above n 7, Part II, 1 suggests that that meridian was selected because this allowed for ships to safely sail around the western side of Bathurst Island to enter Beagle Gulf and Van Diemen Gulf. 18 Report from Captain Bremer to Earl Bathurst, 12 Nov 1824 at Melville Island: HRA Series III, vol V, 781. 19 See ACV Melbourne, RB Joyce (ed), Early Constitutional Development in Australia (University of Queensland Press, 1963) 107. 20 HRA Series I, vol XI, 109. 21 Gammage, above n 5, 752. See also King, above n 11, 52. 236 Queensland Legal Yearbook 2013
129º
New South Wales
Van Diemen’s Land Map 3 — 1825 It is significant to note that this western extension of New South Wales to the 129 meridian in 1825 preceded in 1829 the ‘taking of possession’ of the remainder of the continent, west of the 129 meridian, to establish the colony of Western Australia. This means that Western Australia is the only State never to have been part of New South Wales. It also explains s 4 of the Constitution Act 1902 (NSW), which re-enacts s VXVI of the Constitution Act 1855 (NSW), by continuing to describe the territory of New South Wales as the whole of the eastern part of the continent from the 154th meridian to the 129th meridian (except for the territory of Victoria, South Australia22 and Queensland). Accordingly, Western Australia avoids the embarrassment of being described by Dr Edward Jenks in his History of the Australasian Colonies in 1896 as one of the ‘Daughter Colonies of NSW’! Western Australia
Although Governor Darling established a military base at Albany in King George’s Sound in December 1826 to prevent any French or Dutch annexation of the western part of the continent, no formal act of British possession occurred west of the 129 meridian until Captain Fremantle, commander of HMS Challenger, left Cape Town and landed at the Swan River on 2 May 1829 whereupon he took formal possession ‘of the whole of the West Coast of New Holland’. 23 Twelve days later, the Swan River Act (Imp) (10 Geo IV c22) received royal assent to provide for the establishment of the colony of Western Australia. Captain James Stirling then sailed up the Swan River on the Parmelia on 1 June 1829 to take formal possession of Western Australia by proclamation on 18 June 1829.
22 As at 1902 — thereby also excluding the Northern Territory which was then part of South Australia. 23 Advised in a despatch Fremantle to Croker, Secretary to the Admiralty, 8 October 1829. The Story Behind the Land Borders of the Australian States 237
The 1829 Imperial Act did not define the limits of Western Australia except to say that no part of the colonies of New South Wales and Van Diemen’s Land shall be comprised in the new colony. Its territorial limits were later defined by the Letters Patent and Commission issued to Governor Stirling dated 4 March 1831 — as extending in the north from Cape Londonderry, to West Cape Howe in the south, and in the west to the 129 meridian (ie the Portuguese anti-meridian). Accordingly, from at least 4 March 1831, the entire continent of Australia was finally encompassed in the two colonies of New South Wales and Western Australia with their contiguous border at the 129 meridian. At this time, no other mainland colony had been created by separation from New South Wales. The first colony to do so was South Australia. 129º
Western Australia New South Wales
Van Diemen’s Land
Map 4 — 1831 South Australia
South Australia is territorially the most promiscuous of the Australian States, being the only State which has a border with every other mainland State and the Northern Territory. In 1829, as Captain Stirling was achieving his long awaited ambition of sailing up the Swan River to establish the settlement of Perth, Edward Gibbon Wakefield was publishing his pamphlet in London entitled: A Letter from Sydney (1829, edited by Robert Gouger).24 This paper outlined his plans for establishing a free settlement in Australia by selling Crown land at a substantial price to fund infrastructure and the migration of appropriate free settlers.
24 Originally a series of letters. Also see Wakefield, A View of the Art of Colonization, with Present Reference to the British Empire (London, Parker 1849). 238 Queensland Legal Yearbook 2013
While South Australians proudly boast that their State was the only Australian colony never to have been a penal settlement, it is ironic that Wakefield devised and wrote his scheme for a free settlement while serving time in Newgate Gaol for abduction of an heiress! After considerable lobbying by Wakefield and his supporters, and apparently25 without consulting the NSW Government, the South Australian Colonisation Act 1834 (Imp) (4 & 5 Will IV c 95) was enacted by the Imperial Parliament to empower the King in Council to establish one or more ‘provinces’ and to define their boundaries within the area of ‘Australia’ bounded on the north at 26 degrees south latitude, on the south by the Indian Ocean, on the west at 132 degrees longitude, and on the east at 141 degrees longitude, including Kangaroo Island and all adjacent islands and bays. 129º
Western Australia 26º South Australia New South Wales 132º 141º Van Diemen’s Land Map 5 — 1836 So why the selection of the northern boundary at the 26th parallel, the eastern boundary at the 141 meridian, and the western boundary at the 132 meridian? Especially puzzling is the western boundary at the 132 meridian which left between South Australia and Western Australia, an area of NSW referred to as No Man’s Land of approximately 80 000 square miles. I have been unable so far to ascertain any clear explanation for any of these South Australian boundaries.26 The issue is significant given that South Australia’s eastern and northern boundaries remain the boundaries of the five mainland States and the largest Commonwealth territory.
25 According to WD Campbell, ‘An Account of the Boundaries of the Australasian Colonies’ The Surveyor Vol VII Part I, 5–34, 12 (no authority cited). 26 See the ‘Colonial Office: Correspondence relative to South Australia, published by the House of Commons 1841’ — cited in A Grenfell Price, The Foundation and Settlement of South Australia 1829– 1845 (FW Preece, first published 1924, 1973 facsimile edition) 23. The Story Behind the Land Borders of the Australian States 239
The earliest reference to the proposed boundaries of South Australia, which I have found, is a pamphlet of 32 pages, published in 1831, entitled: Proposal to His Majesty’s Government for founding a Colony on the Southern Coast of Australia.27 This proposal emanated from a group of gentlemen (known as the National Colonisation Society)28 who met on 3 August 1831 in the London chambers of solicitor, William Tooke, chaired by Colonel Torrens MP. They recommended a settlement on Kangaroo Island or on the mainland between the 132 and 141 meridians. Although much of what was proposed was not adopted by the Imperial authorities, these proposed western and eastern boundaries were adopted. As for the northern boundary at the 26th parallel, I have uncovered no explanation for its selection. The 1831 proposal did not refer to any northern boundary. This was probably due to the fact that they had no idea what was in the interior of the continent at that time. It is possible that the Colonial Office picked the 26th parallel simply because it was half way across the continent. Since delivering this lecture at the High Court on 10 April 2013, further information29 has come to hand which indicates that the promoters of the new colony preferred to leave the northern boundary undefined in the hope that the colony might extend all the way north to the Indian Ocean. It has been suggested that the Counsel to the Colonial Office, James Stephen, warned against such extravagant territorial claims, whereupon a northern border at the 20th parallel was proposed. This was altered to the Tropic of Capricorn30 by the 1834 Bill but was further lowered to the 26th parallel following debate in the House of Commons, possibly due to the influence of Francis Baring MP, who was intent on limiting potential competition from Australia while selling his vast land holdings in America.31 It has been suggested that ‘no sooner was the new colony settled after 1836 than some South Australians began to draw the boundary northwards again in their own imagination”!32 As for the western boundary at the 132 meridian, here again I have been unable to find any official explanation. While this meridian had only been legally defined as the eastern boundary of Western Australia several months before the 1831 proposal, it had been the western boundary of NSW since 1825. One possible explanation is that the promoters of the new colony did not want its boundaries to be contiguous with any other colony (except for NSW) in order to distance the free settler society as far as possible from any convict influence. In leaving an area between South Australia and Western Australia technically part of NSW, it certainly created a messy jurisdictional situation! A more likely explanation is geographic. The 1831 pamphlet includes a detailed description of the major bays and features of the southern coast of Australia by way of extracts from Captain Matthew Flinders’ journal published in 1813. The pamphlet’s extracts begin in the west with Flinders’ description of Fowler’s Bay which lies a little east of the 132 meridian, then continue with descriptions of the major bays east along the coast including Port Lincoln and Kangaroo Island, and ends with Encounter Bay where Flinders’ discoveries terminated upon meeting the French. The pamphlet then refers to Sturt’s discovery of the mouth of the
27 http://ia600307.us.archive.org/33/items/proposaltohisma00londgoog/proposaltohisma00londgoog. pdf; see also HRA Series I vol XVI in note 205, 882. 28 See Douglas Pike, Paradise of Dissent — South Australia 1829–1857 (Melbourne University Press, 2nd ed, 1967) 58. 29 Jack Cross, Great Central State — The Foundation of the Northern Territory (Wakefield Press, 2011) 1–4. 30 Proposed by the South Australian Association in their South Australian Outline of the Plan of a Proposed Colony to be founded on the South Coast of Australia; with an account of the Soil, Climate (Ridgeway, 1834) 6. 31 Cross, above n 29, 3–4; see Hansard’s Parliamentary Debates (3) vol XXV c 701. 32 Ibid 4. 240 Queensland Legal Yearbook 2013
River Murray, its connection with the Darling River, and its extensive tributaries as far as the Blue Mountains near Sydney. The reason why the 1831 pamphlet begins in the west with Fowler’s Bay may be gleaned from Flinders’ journal itself33 and the geography of the southern coastline which he navigated. The coast west of the 132 meridian across to the 129 meridian comprises the spectacular and inaccessible cliffs of the Great Australian Bight. Fowler’s Bay near the 132 meridian is the first protected bay which Flinders found where he could go ashore. He named it after his first lieutenant.34 Flinders’ detailed description of the coastline east from Fowler’s Bay to the Spencer Gulf indicated opportunities for shipping and trading. Flinders also acknowledged that his navigation east from Cape Nuyts, beginning with Fowler’s Bay, marked the beginning of European discovery of that part of the southern coast.35 Dutch explorers (Captain Francois Thyssen and Peter Nutys, had reached just west of that point before turning away from the coast in 1627. Similarly the French in 1793 (French Admiral D’Entrecasteaux). So it is possible that the 1831 pamphlet recommended the 132 meridian as the original western boundary of South Australia since the coastline was only of potential use and value that far west, apart from being the stretch of southern coast which Flinders was first to navigate. As for the eastern boundary with NSW at the 141 meridian, here again there seems to be little by way of official explanation. But it is consistent with ensuring for the new colony the perceived commercial and trading advantages flowing from the River Murray, as well as access to the fertile land on the York Peninsula and Kangaroo Island.36 Once the statutory prerequisites of the 1834 Act were satisfied, the Province of South Australia was established by Letters Patent dated 19 February 1836. It became a Crown colony following the financial collapse of the province in May 1841. Each of its borders with Western Australia, Victoria, New South Wales, Queensland and the Northern Territory now warrant specific mention. Border with Western Australia
‘No Man’s Land’, between South Australia’s western border at the 132 meridian and the WA border at the 129 meridian, remained part of New South Wales until 1861. South Australia sought for many years to have this area annexed to the colony. Section 66 of the Constitution Act 1855 (Imp) authorised the Queen to detach this area from NSW. In 1858, the NSW Government were prepared to transfer the area to SA because it was: useless to NSW; would become a burden on NSW public finance if settlers did go there; was only capable of being effectively regulated by South Australia; and was inaccessible to NSW. The Legislative Council, however, was not convinced. Members raised concern over the lack of evidence that the area was in fact useless to NSW, the impact this relinquishment of territory might have on ‘the maintenance of faith with the public debt’, the dangerous precedent it might set for other areas of NSW like the Murrumbidgee region which had closer
33 Matthew Flinders, A Voyage to Terra Australis; Undertaken for the purpose of completing the discovery of that vast country, and prosecuted in the years 1801, 1802, and 1803, in His Majesty’s Ship The Investigator, and subsequently in the armed vessel Porpoise, arrival of the Cumberland Schooner; with an account of the Shipwreck of the Porpoise, arrival of the Cumberland at Mauritius, and the imprisonment of the Commander for six and a half years in the Island (G & J Nicol, Pall Mall, 1914) Vol 1. 34 Ibid 104. 35 Ibid. 36 See A Grenfell Price, Ch IV ‘Prospectus and Flotation 1829–1936’ in The Centenary History of South Australia (Royal Geographical Society of Australasia, South Australian Branch, 1936) 47; Grenfell Price, above n 26, 13, 16–7. The Story Behind the Land Borders of the Australian States 241 trading links to Adelaide than Sydney, and the fact that South Australia had not bothered to approach NSW directly!37 After significant efforts on the part of SA’s Governor MacDonnell, No Man’s Land was eventually annexed to South Australia on 10 October 1861 by Letters Patent made under the Australian Colonies Act 1861 (Imp) (24 & 25 Vic c 44). Border with Victoria
Originally, the eastern border of South Australia at the 141 meridian was entirely the western boundary of New South Wales. In 1850, with the separation from New South Wales of the new colony of Victoria, the lower part of the border up to the River Murray was now the border with Victoria, while the remaining upper part continued as the border with NSW. From 1839, attempts were made by SA and NSW surveyors to precisely mark out this boundary along the 141 meridian.38 In 1844, SA’s Governor Grey suggested that the border with NSW at this meridian be replaced with the Glenelg River. In response, NSW suggested the River Murray further west instead. Despite the preparedness of both colonies to reconsider their border, the Governor of NSW, Sir Charles Fitzroy outlined to Earl Grey in 1848 how neither of these alternatives was acceptable: I find that my predecessor [Sir George Gipps], after deliberating the matter with his Executive Council, came to the conclusion that the natural boundaries recommended by Governor Grey were not distinct or perfect enough to justify so large a concession of country on the part of NSW as this adoption would require. The course of the Murray, on the other hand, was not open to any objection on the score of indistinctiveness; but its adoption would deprive South Australia of a large tract of sea board Country, and would leave the capital of that Colony within forty miles of its frontier. Being thus unable to recommend either of the proposed boundaries, the Council advised an adherence to the 141st Degree of East Longitude.39 In 1846, the practical necessity to mark the boundary was highlighted by a SA Land Commissioner to the Colonial Secretary in these terms: I would beg leave to call His Excellency’s attention to the necessity of having the eastern boundary of the Province at least approximately defined as soon as possible. The country through which it passes is now occupied for seventy miles from the east coast, and there are at least twelve or fourteen settlers whose runs lie so near the boundary that I considered my jurisdiction over them uncertain, and therefore refrained from interfering with them. The loss to the revenue is not the only evil resulting from the want of a defined boundary. A number of bad characters resort to this neutral ground, knowing that the police cannot interfere with them until the question of jurisdiction is determined.40 By the end of 1846, agreement was reached by correspondence between the NSW Governor Sir Charles Fitzroy and the SA Lieutenant-Governor Frederick Robe that their respective surveyors should use their ‘best means’ to mark the boundary even if this might
37 See the debates of the NSW Legislative Council on 4 November 1858, reported in the Sydney Morning Herald, 5 November 1858, 3. 38 See David Taylor, The States of a Nation — The Politics and Surveys of the Australian State Borders (NSW Department of Lands, 2006) 71ff. 39 Despatch No 7 of 8/1/1848 in HRA, Series I, vol XXVI, 163. 40 Letter from Charles Bonney 15 July 1846: quoted by Taylor, above n 38, 74–5, above n 20. 242 Queensland Legal Yearbook 2013 still be out by a few seconds of longitude.41 Surveyor Wade marked the 141 meridian border from the western side of the mouth of the Glenelg River north to the 36th parallel, a distance of 123 miles.42 Despite an initial view that this line, referred to as the Wade line, was a temporary one, it was adopted by proclamation published in the South Australian Government Gazette of 23 December 1847 and subsequently by a proclamation to the same effect in the New South Wales Government Gazette of 4 March 1849. Surveyor White continued the Wade line to the River Murray in 1850: hence the description of the SA/Vic boundary as the Wade-White Line. This latter part of the line was never proclaimed.43 After the separation of the colony of Victoria from New South Wales in 1850, the Wade- White Line was found by the use of more accurate technology in 1868 to be two miles and 19 chains west of the 141 meridian. 129º
Western Australia 26º South Australia New South Wales
132º Victoria 141º Van Diemen’s Land Map 6 — 1851 South Australia immediately sought correction of the boundary line eastward but had no success. A prolonged campaign for rectification of the boundary achieved nothing. In 1894 the South Australian Governor even purported to issue a proclamation to revoke the 1847 proclamation of the Wade line and sought the intervention of the UK Parliament and Government. These appeals stalled because Victoria refused to accede to the matter being adjudicated by Imperial authority.
41 See Taylor, above n 38, 75; detailed history by Griffith CJ in South Australia v Victoria (1911) 12 CLR 667, 677–693. 42 See Despatch No 7 of 8/1/1848 from NSW Governor Fitzroy to Earl Grey in HRA, Series I, vol XXVI 163–4. 43 See Frank J Williams, ‘Boundaries’ in Wilfred Priest (ed), The Wakefield Companion to South Australian History (Wakefield Press 2001), 82. The Story Behind the Land Borders of the Australian States 243
Federation led to renewed attempts by South Australia in the High Court and the Privy Council. These were also unsuccessful. Why so? In South Australia v Victoria,44 the Court accepted first that it had jurisdiction under s 75(iv) of the Commonwealth Constitution as a matter arising between two States which raised a justiciable issue. A majority of the Court,45 led by Chief Justice Griffith, then rejected South Australia’s claim relying on the doctrine of authority arising from necessity, that is, once the need to mark out the boundary arose as settlers arrived, so the Governors of both NSW and SA had authority to agree on the actual boundary line drawn by their surveyors as the best attempt at that time to give effect to the border at the 141 meridian. And, that this was intended to be a permanent fixing of the boundary.46 Justice Higgins dissented, rejecting any statutory conferral of authority on the Governors to fix a boundary other than on the true 141 meridian. His Honour reasoned: ‘If Parliament says the 141st degree, the Executive cannot make the boundary two miles more to the West.’47 His view makes no allowance for the apparent impossibility during the 1830s and 1840s of accurately determining the boundary along lines of longitude and latitude. Justice Isaacs, in the majority, highlights in his judgment the extreme inconvenience of such a strict view on the rights and duties of the local inhabitants if the boundary had to be moved each time there was an improvement in technology. On appeal, the Judicial Committee of the Privy Council,48 in affirming the High Court’s decision, found that the Letters Patent and the 1834 Statute establishing South Australia contemplated that an actual boundary needed to be determined and impliedly empowered the Executives of the two colonies to implement this.49 The Privy Council had no difficulty in rejecting South Australia’s argument that any boundary line could only ever be provisional until it was finally drawn with complete accuracy. Lord Moulton, in delivering the opinion of the Judicial Committee, relied on the need to fix a boundary with certainty: It is essential that the given boundary should be such as fixes the rights and duties of the people and their rulers, and this can only be done by its fixing a boundary on the surface of the earth which divides the two.50 The Judicial Committee also considered the effect of the Queensland Government Act 1861 (24 & 25 Vic c 44) the preamble of which begins: Whereas the boundaries of certain of Her Majesty’s Colonies on the Continent of Australia may be found to have been imperfectly or inconveniently defined, and it may be expedient, from time to time, to determine or alter such boundaries: This Act empowered the Governors, with the advice of their respective Executive Councils, by an instrument under their joint hands and seals, to determine or alter the common boundary of such Colonies … subject to Her Majesty’s approval. This provision was interpreted to authorise an actual change to the lawfully prescribed borders of the Colonies. It did not affect the implied power of the colonial authorities to
44 (1911) 12 CLR 667. 45 Barton J concurred; same conclusion by O’Connor J and Isaacs J; Higgins J dissented. 46 See espec O’Connor J, 711–14 and Isaacs J, 723 and 731. 47 (1911) 12 CLR 667 at 737, para 19. 48 (1914) 18 CLR 115. 49 Ibid 140. 50 Ibid 139. 244 Queensland Legal Yearbook 2013 determine issues arising in the actual marking of those lawfully prescribed borders.51 This distinction between the prescribed border and its actual survey occupies a central and pivotal role in understanding the legal status of the land boundaries of Australia. Border with New South Wales
In 1868, the South Australia-New South Wales boundary north from the Murray River to the 26th parallel was surveyed. It was at this time that the inaccuracy of the Wade-White Line was discovered. Known as the Smalley-Todd Line, it is more accurately drawn along the 141 meridian north by commencing two miles and 19 chains east of the point where the Wade-White Line connects with the Murray River. By 1914 even this line was not regarded as entirely accurate, with the Privy Council observing in South Australia v Victoria that it was still ‘probably a hundred yards to the east of the meridian’.52 The difference between the two boundaries which meet the River Murray is accentuated by the river meandering north-west for 13 km from the point where it meets the SA/NSW border until it meets the SA/Vic border — even though the gap between the two borders, as the crow flies, is only 2 miles and 19 chains west. This means that the border with Victoria extends further north thereby creating a narrow strip of South Australia bounded on the west and east by both borders and the River Murray on the south. It also raises difficult issues over the precise boundary line along this 13 km stretch of the Murray. There are competing arguments for the territory of South Australia to extend in three different ways: (i) over the whole of the watercourse of the river; (ii) to the middle of the river; or (iii) only to the northern bank.53 Borders with Queensland
South Australia’s eastern border with Queensland exists because the Queensland-New South Wales border at the 29th parallel lies south of South Australia’s northern boundary at the 26th parallel. The point where the borders of New South Wales, Queensland and South Australia meet, is named ‘Cameron Corner’, after the surveyor who marked the spot in 1879 with a large wooden post. South Australia’s northern border with Queensland arose in 1862 when Queensland acquired the eastern strip of the Northern Territory to the 138 meridian. This prompted South Australia to seek the remainder of the Northern Territory. Annexation of the Northern Territory
The Colony of South Australia acquired the Northern Territory from NSW by Letters Patent dated 6 July 1863, issued pursuant to s 2 of the Australian Colonies Act 1861. This may have been motivated initially to thwart any further expansion of Queensland into the Northern Territory, as well as by an abiding desire of the original promoters of South Australia to form ‘The Great Central State’ stretching across the continent from the Southern Ocean north to the Indian Ocean, with all the trading advantages flowing from both coasts.54 But it seems that the annexation of the Northern Territory was more in response to John McDouall Stuart’s trek from Adelaide to Darwin in 1861–62, and the need to control
51 Ibid 135. 52 Ibid 139. 53 See Greg Parker, Time & Space in South Australia, The Curious Anomaly in the Border of South Australia, Australian Association of Constitutional Law seminar paper, Adelaide 2009. 54 Cross, above n 29 ,1. The Story Behind the Land Borders of the Australian States 245 the northern grazing lands attracting South Australian settlers.55 In time, South Australia regretted its acquisition. Eventually, the South Australian Parliament willingly surrendered, by s 7 of the Northern Territory Surrender Act 1907 (SA), the Northern Territory to the Commonwealth of Australia in accordance with s 111 of the Commonwealth Constitution. This territory was accepted by s 6 of the Northern Territory Acceptance Act 1910 (Cth) with effect from 1 January 1911. The northern border with the Northern Territory remains the original border of South Australia at the 26th parallel. This boundary was not surveyed until the 1960s.56 Victoria
The District of Port Phillip became separated from NSW as the new colony of Victoria on 1 July 1851 pursuant to the procedure prescribed by the Australian Constitutions Act (No 2) 1850 (Imp). Section 1 of the Act defined the border with NSW, while maintaining the South Australia border at the 141 meridian. The land borders of Victoria with New South Wales and South Australia have generated more litigation than any other borders. Since the border with South Australia has already been covered, let me deal with the NSW border. The origins of the border between Victoria and NSW seem to lie in the Australian Constitutions Act (No 1) 1842 (Imp) (5 & 6 Vic c 76) which granted New South Wales its first form of representative government. In providing for the election of six representatives from the District of Port Phillip to the NSW Legislative Council, the Act defined the northern boundary of the District as follows: a straight line drawn from Cape How (sic) to the nearest source of the River Murray and thence the course of that river to the eastern boundary of the province of South Australia.57 This description was adopted by s 1 of theAustralian Constitutions Act 185058 to define the territory of Victoria upon separation from New South Wales. Clarification of the River Murray as the boundary occurred under s 5 of theConstitution Statute 1855 (Imp), which: declared and enacted, That the whole watercourse of the said River Murray, from its source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of NSW. Both colonies were also authorised to redefine this boundary line by enacting concurrent laws. Why Cape Howe and the River Murray were selected as the key features of the Victorian- New South Wales border is not well documented. But the explanation seems to lie in the fact that they were near the southern boundaries of the two southern-most counties of NSW, namely, St Vincent and Murray, as proclaimed by the NSW Governor on 14 October 1829. Their southern boundaries extended from the coast south of Bateman’s Bay and then along the Murrumbidgee River.
55 See A Powell, Far Country: A Short History of the Northern Territory (Melbourne University Press, 2nd ed, 1988) 73–6; Cross, above n 29, 7ff. 56 See Williams, above n 43, 82. 57 See ACV Melbourne, Joyce, above n 19, 269. 58 13 & 14 Vic c 59. 246 Queensland Legal Yearbook 2013
So when Lord John Russell, as Secretary of State for the Colonies, proposed in 1840 to the NSW Governor, Sir George Gipps, the creation of the Port Phillip District, he initially suggested the boundary line to be ‘from the limits of these two Counties by the whole course of the River Murrumbidgee and the Murray, until it meets the Eastern Boundary of South Australia.’59 Consequently, the Port Phillip District included the area north of the Murray River to the Murrumbidgee River.60 Why Cape Howe was selected on the coast remains unexplained. It is fascinating to note that the survey conducted in 1872 in a straight line from Forest Hill, the agreed source of the Murray, across 110 miles of the rugged Australian Alps, arrived at Cape Howe a mere 16.8 inches from the marker at the Cape!61 The Victoria-New South Wales border has also raised legal issues, although the High Court was not involved until the 1980s. In 1911, an issue arose over what was the ‘nearest source of the River Murray’. Although never litigated, it was argued by some in the Riverina District62 of NSW who were unhappy that they had not been included in Victoria, that the Murray’s nearest source was in fact the source of the Murrumbidgee River. This would mean that all territory between the Murrumbidgee and Murray Rivers was part of Victoria — the same territory as that of the former District of Port Phillip.63 So far the High Court has not had to rule on this issue! But in the 1980s the High Court had to resolve in two cases — precisely where the boundary line lies in the River Murray itself. In 1980, the High Court in Ward v R64 established that the precise boundary line between New South Wales and Victoria along the River Murray is the top of the southern bank of the river. The Court interpreted s 5 of the Constitution Act 1855 (Imp), which deemed the whole watercourse of the River Murray to be in New South Wales, to thereby encompass from the top of one bank to the top of the other. Accordingly, a shot fired from the top of the southern bank of the river by Ward, which killed a man on the southern shore of the river, constituted an offence committed in New South Wales and not in Victoria. The decision of the High Court in 1982 in Hazlett v Presnell65 dealt with the issue arising from the fact that there are two islands in the middle of the River Murray, for which s 5 of the Constitution Act 1855 (Imp) makes no provision. Those islands are: Pental Island and Beveridge Island. Their status had previously been an issue during the latter half of the 19th century. In 1872, Pental Island, which is 15 miles long and 2 miles across, was claimed by Victoria, although it was treated as part of NSW. The Judicial Committee of the Privy Council in arbitrating this issue advised, without giving reasons, that it was part of Victoria.66 The status of the other island, Beveridge Island, was raised the following year. Both NSW and Victoria avoided litigation in this case by agreeing to ask their respective surveyors to determine whether the main channel of the River Murray flowed to the north or south of the island. In concluding that it flowed to the north of the island, they agreed that the
59 Despatch No 93 of 31 May 1840: HRA, Series I, Vol XX, 641–2. 60 See Note 119 to Despatch No 93 of 31 May 1840: HRA, Series I, Vol XX, 642, 869. 61 WD Campbell, ‘An Account of the Boundaries of the Australasian Colonies’ The Surveyor, Vol VII, Part I, 23. 62 Ibid: their petition for separation from NSW in 1865 was unsuccessful: ibid 33–4. 63 MH McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 ALJ 678, 678 in n 55 cites the opinion by NSW Sol-Gen Walter Bevan of 1 March 1912 in NSW Parliamentary Papers 1911–12 Vol 4 at 709; JCH Ogier, ‘The Riverina’ (1913) 29 Victorian Geographical Journal 49. 64 (1980) 142 CLR 308, the Court agreed with Stephen J. 65 (1982) 149 CLR 107. 66 See W Harrison Moore, ‘The Case of Pental Island’ (1904) 20 LQR 236. The Story Behind the Land Borders of the Australian States 247 island was part of Victoria. This conclusion was confirmed by a letter of 20 June 1876 from the Colonial Secretary of New South Wales to the Chief Secretary of Victoria. Successive colonial and State Governments of New South Wales and Victoria accepted and acted on this understanding. It was this understanding which was challenged in 1982 in Hazlett v Presnell.67 The High Court rejected the challenge, primarily on the ground that the approach of leaving to the surveyors the technical determination of the actual boundary line in accordance with s 1 of the 1855 Imperial Act was within the implied authority of both Governments conferred by that statute. The Court followed the approach adopted by the Privy Council in South Australia v Victoria68 in deriving a similar implied authority to determine the actual boundary: In our view, those provisions [of the 1850 and 1855 Acts] contained an implied grant of power and authority to the local administrators of the two Colonies to delineate and determine the actual boundary line on the surface of the earth and to resolve, by accord or agreement reached in good faith for that purpose, any questions of the identification of the River Murray, its course and its whole watercourse which might arise in that delineation and determination.69 The Court followed the earlier authority despite acknowledging it is more difficult to define a boundary fixed by a meridian than by a river.70 The Court also indicated that the long period of reliance on the understanding between the two governments since 1873 would bar the claim brought in the 1980s.71 The Court adopted the position expressed by the US Supreme Court in Rhode Island v Massachusetts: … for the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary.72 The Court in obiter offered guidance for a river boundary where the natural course of a river changes. If this change occurs as part of a gradual process of change (‘gradual and imperceptible erosion and accretion’),73 then the boundary is altered in accordance with ordinary principles of erosion and accretion. If, however, it occurs suddenly as an ‘avulsion’, then the boundary is unlikely to change. The final State to consider in this story is, of course, Queensland — the only Australian colony to be created and to be given self-government at the same moment on 10 December 1859! Queensland
The placement of the border between New South Wales and Queensland in the 1850s aroused more controversy and debate than any other Australian land boundary. This was due to several factors: the widespread settlement which had already occurred in the northern rivers of New South Wales; the pastoral interests at stake in that region; the long gestation period
67 (1982) 149 CLR 107. 68 (1914) 18 CLR 115, 140–1. 69 (1982) 149 CLR 107, 122–3. 70 Ibid at 122. 71 Ibid at 125. 72 (1846) 4 How 591, 639. 73 (1982) 149 CLR 107, 118. 248 Queensland Legal Yearbook 2013 since the establishment of the penal station at Moreton Bay in 1824; and, after all, it was the final border by which the mother colony of New South Wales was to be defined. The focus of attention for the proposed border was as far south as the 30th parallel and as far north as the 26th parallel. As early as 1840, both these parallels were publicly suggested: the former by Governor Gipps who favoured a border south of the Clarence River to facilitate the pastoral industry in that region; the more northern parallel by an article in the Sydney Morning Herald (9 December 1840) which suggested 50 miles north of Moreton Bay. In 1846, there was an aborted attempt to create a new colony, called ‘North Australia’, north from the 26th parallel and west to the 129 meridian. The necessary Letters Patent74 were issued, an Administrator was appointed, a settlement was established at Port Curtis (now Gladstone) and the inaugural Government Gazette of North Australia was published on 30 January 1847. However, unbeknown to those concerned, Earl Grey had arranged for the Letters Patent to be revoked the previous December, which led to Port Curtis being abandoned by June 1847.75 Meanwhile, the Reverend Dr John Dunmore Lang who was in England from 1847 to 1850 lobbied Earl Grey for a new northern colony from the 30th parallel. Significant support existed on the Darling Downs for this. However, members of the NSW Parliament, some of whom formed the ‘Select Committee on the Dismemberment of NSW’,76 and landed interests in New England sought the 26th parallel. During 1855 and 1856, the Principal Secretary of State for the Colonies, Henry Labouchere, grappled with these competing views in despatches with the NSW Governor, Sir William Denison. It appears Governor Denison may well have suggested the compromise of the McPherson Range at the 28th parallel near the coast. It was the following description, which he suggested in a despatch to Labouchere, which was adopted by the Letters Patent of 6 June 1859 establishing the new colony of Queensland: Starting at Cape Danger and following the range of hills which now separate the district of Clarence River from that of Moreton Bay, it should continue along that ridge forming the boundary of the basins of the Richmond and Clarence until it reaches the Parallel of 29 degrees of south latitude, along which it should continue westward till it reaches the meridian of 141 degrees east …77
74 Issued 17 February 1846 pursuant to s 51 of the Australian Constitutions Act 1842 (5&6 Vic c 76). 75 McLelland,above n 63, 678, 674. 76 Campbell, above n 61, 25. 77 Despatch of 2 January 1858 from Governor Denison to Labouchere. This despatch included the final boundary with a map by Augustus Gregory (later first Qld Surveyor-General). See also: UR Ellis, New Australian States (The Endeavour Press, 1933) 59. The Story Behind the Land Borders of the Australian States 249
129º
Western Australia South Queensland Australia 29º New South Wales
132º Victoria 141º Tasmania
Map 7 — 1859 A joint survey by the NSW and Qld surveyors, Isaiah Rowland and Francis Roberts, was undertaken of the eastern section of the NSW/Qld border between 1863 and 1866, commencing from Point Danger and ending at the junction of the Tenterfield and Dumaresq Rivers, a total of 215 miles (346 km). A complication of this border not found in any other Australian border is the need to determine the water-shed of the McPherson Range, since the border must run along the Range between the named rivers.78 It seems that the Queensland and New South Wales Governments have tacitly accepted since the 1860s that the more accurate plans produced by the Qld surveyor, Mr Roberts, define that part of the border, rather than those produced by the NSW surveyor, Mr Rowland. Minor errors in the border, since revealed, have not been the cause of dispute, given the reliance both Governments have placed on the Qld survey plans. For instance, when the survey line was found in 1934, during construction of a tick gate and fence, not to follow strictly the top of the range near Terranora in NSW, the NSW Crown Solicitor advised Premier Bertram Stevens that ‘Mr Robert’s definition had always been adopted as the common boundary, and he advised against any redetermination of the boundary by method of litigation against Queensland’.79 Unlike the position with the River Murray where Imperial statute conferred the whole watercourse to NSW, it is accepted that the actual boundary runs along the middle thread of the rivers which form the NSW–Queensland border.80
78 See the instructions from Qld Surveyor-General Augustus Gregory to Roberts 17 April 1863, quoted in Taylor, above n 38, 150. 79 Ibid 152–3. 80 Ibid 149 who cites at n 62 the Report of Graeme Stewart, Boundary definition of a Section of the New South Wales/Queensland Border located along the Dumaresq River between Tenterfield and Bonshaw. 250 Queensland Legal Yearbook 2013
The Letters Patent of 1859 made no reference to the western boundary of Queensland above the 26th parallel. Consequently, some argued Queensland extended all the way to the Western Australian border at the 129 meridian. One explanation is that this was a deliberate omission from the Letters Patent to allow for future determination of the western boundary as the interior country was explored.81 An opinion of the Imperial Law Officers of the Crown dated September 1859 rejected the view that the western boundary was at the 129 meridian, asserting that it was at the 141 meridian. They relied on the reference in the Letters Patent to the southern border ending at the eastern boundary of South Australia at the 141 meridian, to infer that this meridian formed the western boundary of the new colony.82 Northern Territory Border
Although not a persuasive interpretation, the issue was soon resolved when Queensland succeeded in persuading the Imperial authorities to transfer to it, by Letters Patent dated 13 March 1862, that part of the Northern Territory between the 141 and 138 meridians, above the 26th parallel: Map 8 129º 138º
Western Queensland Australia South Australia New South Wales
Victoria
Tasmania
Map 8 — 1862 Queensland sought this annexation to gain control of the plains around the Albert River, referred to as the ‘Plains of Promise’, which were attracting squatters from Queensland, as well as to establish a deep water port in the Gulf of Carpentaria. Queensland gained enormously from this additional territory which includes the Barkly Tableland and the Mt Isa mineral field, as well as significant uranium deposits.
81 Qld Surveyor-General Gregory Memo of 28 Sept 1860 in Votes and Proceedings of the Queensland Parliament 1861, 1012–3. 82 Opinion dated 28 Sept 1859, ibid 1015. The Story Behind the Land Borders of the Australian States 251
Suggestions from the Colonial Office later in 1862 to divide the remainder of the Northern Territory so that the top half above the Tropic of Capricorn was annexed to Queensland and the bottom half to South Australia were firmly rejected by Queensland which had no desire to increase its territory beyond the 138 meridian.83 Instead, as noted earlier, South Australia eagerly accepted the annexation of the entire Northern Territory. 129º 138º
Northern Territory
Western Queensland Australia South Australia New South Wales
Victoria
Tasmania
Map 9 — 1911 It should come as no surprise that when surveyed between 1884 and 1886, the Qld/NT border along the 138 meridian was not drawn precisely north. So by the time it reaches the Gulf of Carpentaria, it is out by 600m in Queensland’s favour!84 An attempt has been made in Queensland to avoid any uncertainty over its land boundaries by enacting the Queensland Boundaries Declaratory Act 1982 (Qld), s 3 of which purports to fix the land boundaries of Queensland according to the surveys conducted before 1900. The efficacy of this legislation seems doubtful in the absence of complementary legislation of the other States or Territory with which the Queensland boundaries are contiguous. Power to Alter State Borders
There remains to consider whether it is possible for the State borders to be altered in the future.
83 See Votes and Proceedings of the Queensland Parliament 1863, 539–45 for Despatch No 5 from Governor Bowen to the Secretary of State for the Colonies dated 18 January 1863 with two enclosures: Minutes of the Executive Council of Queensland dated 14 January 1863; and Memo from Surveyor-General Gregory dated 25 November 1862. 84 Bill Kitson and Judith McKay, Surveying Queensland 1839–1945 A Pictorial History (Qld Department of Natural Resources & Water and the Queensland Museum, 2006) 61. 252 Queensland Legal Yearbook 2013
Before federation, the colonial boundaries could be altered by the Queen in Council under the Colonial Boundaries Act 1895 (Imp) with the consent of the affected Colonial Parliaments. Since federation, s 123 of the Commonwealth Constitution provides the only constitutional avenue for an alteration in State borders. It provides as follows: The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. Accordingly, it is possible for the borders of a State to be altered by Commonwealth legislation enacted under s 123 which has been approved by both that State’s Parliament and by a referendum of that State’s electorate. Where the alteration affects the borders of more than one State, then the requisite approvals will be required from all affected States. Writing in 1900, Quick & Garran considered the requirement of electoral approval as an ‘extraordinary limitation’ on the power of State Parliaments.85 This additional approval had been inserted into clause 123 subsequent to the Convention Debates, in response to the failure of the Convention Bill to be approved by the requisite majority in NSW. Today, referendum approval for any alteration in the State borders seems entirely appropriate and justified. However the late inclusion of State electoral approval in the drafting of s 123, creates difficulty with ss 111, 121 and 124 of the Constitution. Section 111 enables a State Parliament to surrender part of its territory to the Commonwealth. Section 121 enables the Commonwealth Parliament to establish new States, which by s 124, can occur by an existing State giving up part of its territory to form a new State, or by the union of two or more States or parts thereof. In each of these circumstances, State borders are likely to change, but only the consent of the relevant State Parliament is expressly required. Hence the issue: whether s 123 applies in each of these circumstances to require referendum approval? Not surprisingly, Quick & Garran86 argue against this on the basis that each of the specific powers in ss 11187, 121 and 124 should not be read down by s 123. While constitutional arguments can be mounted each way on this issue, I suggest that each of the State electorates in the 21st century would expect their approval to be sought before the borders of their State were altered in any respect. Conclusion
It is evident from what I have covered that the story of Australia’s land boundaries is intimately connected with the foundations of this nation and its development. It is a story which has yet to be fully revealed. What is clear is that several boundaries, which were marked by our surveyors in the 19th century, are in fact not exactly true to their celestial descriptions. Yet the High Court, since federation, has sensibly responded to this situation by refusing to disrupt the rights of those who might be affected by any correction.
85 J Quick & RR Garran, The Annotated Constitution of the Australian Commonwealth (1901) 975. 86 Ibid. 87 The NT was surrendered by SA to the Cth under s 111 (approved inPaterson v O’Brien (1977) 138 CLR 276) without any SA or NT referendum. The Story Behind the Land Borders of the Australian States 253
As for the future, I imagine that our State land boundaries will remain unchanged this century — although the polities they limit will continue to evolve markedly! Procedural Fairness v Modern Tribunals: Can the Twain Meet?
by The Honourable Justice Alan Wilson*
QCAT’s first Deputy President Judge Fleur Kingham coined the phrase ‘Actively Fair’ to describe how the Tribunal planned, from its inception, to go about its work. It has, rightly, stuck. The term nicely encapsulates what the legislature plainly intended to enshrine in the QCAT Act:1 the provision of dispute resolution services to the citizens of Queensland that were accessible and speedy and economical but also just, and fair. The need to balance these things is vivid in the Act. QCAT must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.2 It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’.3 It is not bound by the rules of evidence or the practices or procedures of courts,4 and must act with as little formality and technicality and with as much speed as it can;5 and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’. 6 Parties themselves are required to act quickly,7 and are subject to sanctions and penalties if they do not.8 But this emphasis does not allow the Tribunal to pursue speedy resolution at all costs. In all proceedings it must ‘act fairly and according to the substantial merits of the case’9 and ‘observe the rules of natural justice’.10 It must meet these obligations while also discharging an additional burden which is not imposed upon courts: fulfilling an overarching responsibility to ensure that parties understand what is going on — ‘that each party understands … the practices and procedures of the tribunal … and the nature of assertions made in the proceeding and the legal implications of the assertion … (and) any decision of the tribunal’.11 QCAT and other tribunals are not, however, alone in having to operate under the aegis of these statutory imperatives. They are echoed in the Queensland courts in r 5 of the UCPR,12
* Judge, Supreme Court of Queensland. President of the Queensland Civil and Administrative Tribunal (2009–13). This paper was presented at the th7 Annual Government Lawyers’ Conference, 31 May 2013. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld). 2 QCAT Act s 3(b). 3 Ibid s 4(c). 4 Ibid s 28(3)(b). 5 Ibid s 28(3)(d). 6 Ibid s 62(1). 7 Ibid s 45. 8 See eg dismissing, striking out or deciding if party causing disadvantage (s 48); and costs against party in interests of justice (s 102). 9 QCAT Act s 28(2). 10 Ibid s 28(3)(a). 11 Ibid s 29(1)(a)(i) and (ii). 12 Uniform Civil Procedure Rules 1999 (Qld).
254 Procedural Fairness v Modern Tribunals: Can the Twain Meet? 255 although in less emphatic terms. (There is another noteworthy difference, of course: the UCPR are subordinate legislation, and lack the force of an act of Parliament.)13 This emphasis on speed and the efficiency in decision-making bodies within the justice system reflects a sea change in the way the judicial arm of our Westminster model of government, and society, now seek to address the individual’s right to have access to state- provided dispute resolution. Two factors have propelled that change: the growth in individual rights, and increasing pressure from the Executive and Parliament upon courts and tribunals to be ‘productive’ in the sense that more services are to be provided to more citizens, but at lesser cost to society. Both factors are usually categorised in very general terms as ‘access to justice’. Individual rights have expanded with legislation which gives new substantive rights to many large groups like consumers, employees, and tenants. As the governments which grant these rights recognise, the possession of them is valueless if the means of vindication and adjudication are not also made available through access to courts, and tribunals. Those dispute resolution bodies have, in turn, adapted by moving from a system which ensured a litigant’s substantive rights were always paramount, and could not usually be defeated by procedural steps, to one which places a heavy emphasis upon efficient case management, accompanied by serious sanctions for parties who breach procedural guidelines. The difference is between Lord Bowen’s 1883 statement ‘Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy’14 and Lord Woolf’s observation in 1999 that courts could not, and would not, tolerate non-compliance with time limits for procedural steps.15 In just over a century the dispute resolution system provided by courts has moved, then, from one in which the parties dictate the pace, with virtually no interference, to one where courts have overarching power to manage their lists and will use that power where a party is acting a way which involves the inefficient use of a public resource — judges and courtrooms, and court staff. This approach has been given the highest imprimatur in the High Court’s decision in Aon v ANU.16 But before we talk about that case it is worth diverting to the death throes, as it were, of the old system and what happened in an English case usually called BCCI — Three Rivers.17 In that case the trial court had decided that depositors with BCCI had no realistic prospect of establishing that Bank of England officials knowingly acted unlawfully with the intention of damaging them (or reasonable foresight of any damage), and therefore gave summary judgment in favour of the Bank. That decision was affirmed by the Court of Appeal but overturned by the House of Lords, in which the majority disregarded an important principle of modern case management: that of balancing ‘pure’ justice against court and litigant resources. In effect, the lower courts identified the case as futile and removed it from their lists, but the highest court clung tenaciously to the old dispensation and said, in effect, that even parties with very poor cases were still entitled to their day in court — and, of course, the chance to clog up lists and delay other more meritorious cases. Sadly — and very expensively — the trial court, the Court of Appeal (and the dissenting judges in the House of Lords) were proved right. When the trial eventually commenced it
13 Harrington v Low (1996) 190 CLR 311. 14 Clarepede & Co v Commercial Union Association (1883) 32 WR 262, 262. 15 Biguzzi v Rank Leisure plc [1999] 4 All ER 934, 940. 16 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 17 Three Rivers District Council and others v Bank of England (No 3) [2001] 2 All ER 513. 256 Queensland Legal Yearbook 2013 proved a futile exercise, and collapsed on day 256. The costs to the defendants alone were thought to be in the region of 80 million pounds. The cost in terms of judicial time was incalculable.18 This sea change involves something more than just a shifting of the goalposts. As a New Zealand academic lawyer, Les Arthur, has pointed out in a recent article in the Journal of Judicial Administration,19 intrusive modern case management techniques and their rigorous application by courts and tribunals reflect a new view about the fundamental purpose of a civil trial: that, while the parties themselves are ultimately and primarily concerned with winning their litigation, the justice system itself views the overall purpose of a trial now as one which seeks to arrive at a just decision at a reasonable cost to the parties (and society), within a reasonable time. As Arthur points out this involves, in a sense, a change in the way our adversarial system defines ‘justice’. The change is from a definition which depends solely upon the decision of a court after the parties have used the adversarial system to exhaustion (ie, ‘justice’ is measured by reference to the ‘winning’ outcome) to one which focuses more heavily on what he calls justice on the merits, which is the product of the cooperative ethic imposed by case management and associated modern court rules with their much greater emphasis on cooperation, candidness and respect for the truth. In other words, the focus has shifted from a system in which there is scope for a stronger or richer party (unfettered by effective control by the courts of the conduct of proceedings) to intimidate or browbeat a weaker or poorer party to produce a resolution of the case which may be, as Lord Woolf noted, either unfair or achieved at a grossly disproportionate cost, or after unreasonable delay.20 This is the brave new world into which QCAT was thrust. Its statutory brief is, as we have seen from the provisions in its Act mentioned earlier, focused intensively upon process but not, of course, exclusively because it pays equal attention and gives equal weight to a just outcome. We must use the limited public resources we have efficiently and effectively but with a constant, unwavering eye upon just outcomes. For reasons which should by now be apparent I see little difference between the approach our statute requires us to adopt, and that of the courts. The difference, if there is one, is simply a matter of scale. (In that context may I mention how astonishingly cheap the Tribunal has proved to be? In our first year the average cost to the citizens of Queensland of a QCAT matter, all the way to final resolution, was about $770. As we have grown better at our work, it has dropped to $618. The Attorney-General is right to describe us, as he has from time to time, as a ‘lean, mean justice machine’.)21 The Tribunal has approached the work of balancing these statutory exhortations towards efficiency with achieving fair and just outcomes by focusing intensively upon the issues in each of the 30 000 or so matters which come to it each year.
18 Adrian Zuckerman, ‘Court Adjudication of Civil Disputes: A Public Service to be Delivered with Proportion Resources, Within a Reasonable Time and at Reasonable Cost’ (Speech delivered at the University of Melbourne, 21 September 2006). 19 Les Arthur, ‘Does case management undermine the rule of law in the pursuit of access to justice?’ (2011) 20 JJA 240. 20 Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales, June 1995. 21 Queensland, Parliamentary Debates, Legislative Assembly, 30 April 2013, 1314 (Jarrod Bleijie, Attorney-General). Procedural Fairness v Modern Tribunals: Can the Twain Meet? 257
In the context of an arena in which the presence of lawyers is not the norm and the legislation itself turns its face against legal representation,22 the Tribunal has attempted to develop an ethos in which it meets its obligations of ensuring parties a fair hearing and also ensuring that they understand the case they must meet by, itself, focusing upon the primary issues on every possible occasion in which parties come before it and guiding the parties to a better understanding of those issues, and what they involve, and how a case about them can most effectively and efficiently be resolved, or adjudicated. That focus helps to ensure that time is not wasted on irrelevant or minor matters; that the parties receive the guidance they are entitled to under s 29 of the QCAT Act; and, that ADR and hearing processes are as short and efficient as they can be. The Tribunal — unsurprisingly, in light of this approach — expects of lawyers that they will provide assistance in this exercise. You will best advance the interests of your clients if, from the first, you approach proceedings in the Tribunal with two paramount questions in mind: 1. What are the issues to be determined? 2. By what means can those issues be most quickly and inexpensively resolved? A short diversion: QCAT has an undeserved reputation for being hostile to lawyers. That is wrong; its legislation does not encourage legal representation but the Tribunal always welcomes, in those cases where representation is justified, the contribution that lawyers can make. Where tensions can arise between the Tribunal and lawyers is when the latter fail to acknowledge, and behave in a way that reflects, the new dispensation of the QCAT Act. In light of the obligations upon parties and the Tribunal to be quick and efficient we do not think it unreasonable to expect the same of legal representatives. After three years of operation QCAT Members now have the regular pleasure of seeing good lawyers working, in numberless cases, in ways that show they also appreciate the new milieu and its cooperative ethos under which lawyers, parties, and the Tribunal work towards the best possible answer to those two questions. That new approach has, as mentioned earlier, the highest approval in the High Court’s decision in Aon v ANU. The decision there was made within the ambit of modern court procedure rules like r 5 of the UCPR which emphasise the overriding principle of achieving a just, timely and cost effective resolution of proceedings. The case involved a very late request to adjourn a long trial, without an adequate explanation. As the High Court observed, to allow the adjournment would ‘… undermine confidence in the administration of justice’.23 It is now appreciated that ‘the courts are concerned not only with justice between the parties … but also with the public interest in the proper and efficient use of public resources’.24 QCAT is no different and has, as you will appreciate, the full statutory armory to act in a way which ensures parties do not misuse it (or public resources) or disadvantage their opponents. How, then, has it gone about balancing those powers with the need to ensure parties are granted their full measure of procedural fairness, and natural justice? First, by not applying its rules in a harsh or unreasonable way. Unsurprisingly, lay parties who take the time to digest the QCAT Act and Rules can become over excited about an opponent’s minor infringements of them. The Tribunal has applied its legislation and rules
22 QCAT Act s 43. 23 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 195 per French CJ. 24 Ibid 189. 258 Queensland Legal Yearbook 2013 equably and fairly and in a way which affords procedural fairness, while not allowing parties to offend the principles laid out in Aon v ANU. QCAT has also had the advantage, unlike other large Australian Federal or State ‘super’ Tribunals, of an internal Appeals Tribunal which can set benchmarks in these areas and, if necessary, ensure that outcomes are not harsh or unjust. An example is King v TIC Realty (No 4)25 in which a party objected to a decision extending, by five days, the time in which his opponent might file written submissions. When the extension was granted he sought reasons, as he was permitted to do under s 122 of the QCAT Act. In its reasons the Appeal Tribunal said that to have denied the extension ‘… in the context of the legislative provisions governing the Tribunal’s practices and procedures was inconceivable’; and, that ‘… denial would also have been against the plain tenets of justice and even handedness which the legislation, and principles of procedural fairness, dictate.’ Secondly, the Tribunal will right wrongs to parties when they involve denials of procedural fairness. There are a large number of examples, particularly amongst the decisions of the Appeal Tribunal. In Collins v Percival,26 for example, parties applied to present evidence by telephone at the hearing, but one party did not appear. The Tribunal had consented to his appearance by telephone but failed to provide him with information about the procedure for the telephone hearing and, itself, failed to contact him after the hearing commenced. The Appeal Tribunal had no hesitation in finding that the distressed party had been denied procedural fairness. Third, the Tribunal has been active in ensuring a proper balance of competing rights to be heard27 and, also, that its Members and Adjudicators observe the applicable principles. In Jimenez v Sternlight Investments,28 a tenancy dispute, the Adjudicator failed to give reasons but simply said at the conclusion of the hearing that he thought one party, a real estate agent, was ‘right’ and, when pressed for reasons, said that he preferred the real estate agents ‘submissions’. As the Appeal Tribunal observed, this involved a manifest failure to give proper reasons (as s 122 of the QCAT Act requires). Unsurprisingly, the special demands and challenges presented by unrepresented parties have required careful and delicate steps when those parties press the boundaries of misconduct — for example, by failing to comply with rules or Tribunal directions in a way which exposes them to the most serious sanction — striking out. Like the Courts, the Tribunal uses ‘guillotine’ orders, but attempts to express them in plain and simple language so that parties have a clear warning of the risk attached to non- compliance. The system is supplemented, within QCAT, by an institutional structure for file management which differs from the Courts, and involves individual management of each file by a nominated case officer. At the direction of a Tribunal Member that officer may take steps to supplement and enhance the process by which parties are lead to a full and proper understanding of Tribunal practices and procedures by, for example, writing warning letters if time limits in directions orders are breached. Your first appearance in a Tribunal matter will usually be at an initial directions hearing. The presiding Member will be looking to identify the answers to the two questions posed earlier: what are the issues, and how can they most efficiently and effectively be resolved or adjudicated?
25 [2010] QCATA 105. 26 [2011] QCATA 245. 27 Chapman v State of Queensland [2011] QCATA 242. 28 [2011] QCATA 29. Procedural Fairness v Modern Tribunals: Can the Twain Meet? 259
Preparation for that hearing by legal representatives will be most effective if lawyers attend ready to show the presiding Member that they have pondered those questions, and are able to advance a timetable for, and appropriate steps in, the proceedings which realistically reflects answers to them; and that those answers also reflect a proper balancing of speed, and economy, with procedural fairness. This early focus upon clarifying the issues and moulding a process that will succinctly but justly address them has paid dividends. It is further supplemented by the usual second step, the Compulsory Conference, which is a mixed ADR and case management process presided over by a member who is usually at the same level as the ultimate adjudicator, if the matter goes to hearing. If the matter cannot be fully resolved at the CoCo, more directions are likely to issue from it to ensure that the parties’ preparation for hearing remains focussed, and efficient. The Members of the Tribunal are keenly aware of the public interest requirements that proceedings be conducted properly and efficiently and that the costs of those proceedings be confined insofar as is reasonably practicable. As you will appreciate delays in the conduct of proceedings impacts upon the parties themselves, on parties in other matters, and on you and your practice. In a busy but resource-poor tribunal like QCAT, taking up Members’ time with disputes arising out of inefficiency or non-performance of directions has immediate adverse effects upon many other parties waiting to have their matters determined. Another aspect of these modern case management practices is proportionality: so far as possible, resolving the issues in each case in such a way that the costs to the parties (and the public) are proportionate to the complexity of the subject matter in dispute. Both lawyers and the Members of the Tribunal are required to assist in achieving this purpose. The powers of management expressly conferred on Members of the Tribunal to reduce delay and refine issues are extensive. They include powers to give directions as to the conduct of the hearing,29 to limit the number of witnesses who may be called or documents which may be tendered,30 and to specify the time that may be taken by a party in presenting their case.31 The Members must, however, exercise these powers in a manner that does not detract from the principles of natural justice.32 The Tribunal has, after over three years, experienced Members who have expertise in managing cases in many of our 160 or so jurisdictions. They will — as the QCAT Act mandates — be firm but fair in giving directions for the conduct of matters which are speedy but balanced and achievable if the parties remain focussed upon the effective resolution of the principal issues and are not diverted by arid skirmishing; and, in setting hearing times which are often strictly limited, but reflect the overarching principles of balance, and proportionality.
29 QCAT Act s 62(1). 30 Ibid s 95(2). 31 Ibid s 95(3). 32 Ibid s 28(3). Kirk v Industrial Court of New South Wales: Its Implications for the Supreme Court
by The Honourable Justice Peter Applegarth*
In Kirk v Industrial Court of New South Wales1 the High Court held that the State legislature cannot remove a State Supreme Court’s supervisory power to review certain decisions to ensure they do not exceed lawful authority by reason of jurisdictional error. The Supreme Court’s power to correct jurisdictional error was said to be a defining characteristic of a Court exercising judicial power under Chapter III of the Constitution. Chapter III contemplates that each State will have a Supreme Court that exercises supervisory jurisdiction, subject to the ultimate control of the High Court. The principle at stake is the institutional integrity of a Supreme Court which forms part of an integrated system of courts. The effect of Kirk is to entrench a system of judicial review of State decision-makers, including courts and tribunals, and to limit the operation of privative clauses that seek to oust the jurisdiction of the Supreme Court to review decisions for jurisdictional error. Another consequence is to align the constitutional status of judicial review of State decision-making with the constitutional status of judicial review of Commonwealth decision-makers. In Kirk the High Court completed, in respect of judicial review of State decision-making, the process of giving judicial review a constitutional dimension and confirming the centrality of jurisdictional error. This constitutional dimension was evident in respect of Commonwealth decision- making in Plaintiff S157/2002 v The Commonwealth.2 The alignment of constitutionally protected judicial review undertaken by State Supreme Courts with the constitutionally protected forms of judicial review of Commonwealth decisions should not disguise their different constitutional origins. The constitutional protection given to supervisory review by State courts in Kirk has its origins in s 73 of the Constitution, whereas Commonwealth judicial review for jurisdictional error derives from s 75(v) of the Constitution. Still, both constitutionally-protected forms of judicial review have a common theme, namely the institutional role of courts in correcting jurisdictional error and thereby applying the rule of law to the exercise of official power. In 1996 in Kable v Director of Public Prosecutions (NSW)3 the High Court confirmed that State and federal courts form part of an integrated system of courts recognised by the Constitution and, accordingly, State legislative power is constrained in altering the constitution, jurisdiction or procedures of State courts. The reference to ‘Supreme Court’ in s 73(ii) of the Constitution gives such a court, from which a right of appeal exists to the
* Judge, Supreme Court of Queensland. This paper was presented at the th7 Annual Government Lawyers’ Conference, 31 May 2013. 1 (2010) 239 CLR 531. 2 (2003) 211 CLR 476. 3 (1996) 189 CLR 51.
260 Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 261
High Court, a constitutional status. Forge v Australian Securities and Investments Commission4 confirmed that it was beyond the legislative power of a State to alter the constitutional character of its Supreme Court so that it ceases to meet the constitutional description. In Kable a New South Wales law that empowered the Supreme Court to order the continued detention of a named prisoner beyond his sentence on account of the likely danger he posed to others was invalidated. By 2004, with the upholding of State laws that empowered Supreme Courts to order the continued detention of certain offenders,5 Kirby J wondered whether Kable was a ‘constitutional guard-dog that would bark but once’.6 In recent years the guard-dog has barked a few times, and with the judgment in Kirk, some commentators have wondered whether ‘this dog may need a bark collar’.7 That the Chapter III or institutional integrity guard-dog should have barked in Kirk was not entirely unpredictable. In Kable McHugh J had observed that under the Constitution, the State Courts have a role that extends beyond their status and role as part of the State judicial system. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Legislatures could not alter or undermine this constitutional scheme. In Forge the principle discussed in Kable was identified as the preservation of the institutional integrity of State courts.8 This hinged upon maintenance of the defining characteristics of a State Supreme Court. Against that background, it is not surprising that in Kirk, after observing that there is but one common law of Australia, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ continued: The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Coutts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint.9 In this paper I wish to address four topics. The first is the essential facts of the decision in Kirk. The background to the decision has been discussed by a number of commentators and I do not intend to dwell upon it.10 The second topic is the post-Kirk decisions about the entrenched minimum supervisory review jurisdiction of State Supreme courts. There have been hundreds of cases that have considered Kirk and time only permits me to discuss a few of them, and my focus will be on decisions in Queensland. Thirdly, I wish to turn to the notion of ‘jurisdictional error’ which the supervisory review jurisdiction exists to correct. Kirk touched upon what is meant by ‘jurisdictional error’ but its scope remains necessarily imprecise. The categories of jurisdictional error identified in Craig v The State of South Australia11 were said to provide examples, not a rigid taxonomy. Finally, given the potential width of the concept of
4 (2006) 228 CLR 45, 76 [63]. 5 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Baker v The Queen (2004) 223 CLR 513. 6 Baker (ibid) 535 [54]. 7 Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 PLR 77, 79. 8 Supra 76 [63]. 9 Supra 581 [99]. 10 See, for example, Finn, ‘Constitutionalising Supervisory Review at State level: The End of Hickman’ (2010) 21 PLR 92; Horneman-Wren, ‘Kirk v Industrial Court of New South Wales’ (February 2011) Hearsay Issue 47; Vial, ‘The Minimum Entrenched Supervisory Review Jurisdiction of State Supreme Courts: Kirk v Industrial Relations Commission (NSW)’ (2011) 32 Adelaide Law Review 145. 11 (1995) 184 CLR 163. 262 Queensland Legal Yearbook 2013
‘jurisdictional error’, even within the categories of error posited in Craig, questions arise as to the scope for legislatures to limit the practical implications of Kirk. An associated issue is the controls the courts themselves might apply in the exercise of the constitutionally-guaranteed State supervisory jurisdiction. Two particular matters warrant consideration. The first is the imposition of a leave requirement on the exercise of judicial review: a matter addressed by Justice Basten.12 The second is the appropriate bases upon which a court might decline, as a matter of discretion, to exercise the supervisory jurisdiction. Kirk and its Background
Mr Kirk was a director of Kirk Group Holdings Pty Ltd, which owned a farm in New South Wales. Mr Palmer was employed by Kirk Group Holdings as the manager of the farm and was killed in an accident while driving the farm’s All Terrain Vehicle. Kirk Group Holdings was charged under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (OH&S Act).13 Section 15 imposed a duty on an employer to ensure the health, safety and welfare at work of all its employees. Section 16 imposed a duty on an employer to ensure that persons not in the employer’s employment were not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking while those persons were at the employer’s place of work. Mr Kirk was charged under s 50 of the OH&S Act, which deemed a director of a company to be liable for offences of the company. Mr Kirk and Kirk Group Holdings were convicted in the Industrial Court of New South Wales and received fines. Despite the right of appeal to the Full Bench of the Industrial Court, Mr Kirk and Kirk Group Holdings brought proceedings in the Court of Appeal.14 The Court of Appeal declined to intervene until the appellants had exhausted their rights of appeal.15 An appeal by Mr Kirk and Kirk Group Holdings to the Full Bench of the Industrial Court was unsuccessful. A further appeal was made by Mr Kirk and Kirk Group Holdings to the Court of Appeal, seeking an order in the nature of certiorari quashing their convictions. The appellants sought to challenge their convictions on the basis of several errors they said amounted to jurisdictional errors. A potential barrier to their application was the privative clause contained in s 179 of the Industrial Relations Act 1996 (NSW) (IRA), which provided that a decision of the Industrial Court was final and could not be ‘appealed against, reviewed, quashed or called into question by any court or tribunal’, including proceedings brought for relief by order in the nature of certiorari. It was accepted that the Court of Appeal could exercise its supervisory jurisdiction on the basis of jurisdictional error. However, it did not accept that the errors identified by the appellants amounted to jurisdictional errors. As such, the appeal was unsuccessful. On appeal to the High Court of Australia, the appellants challenged their convictions on two new grounds. The first ground was an error in the construction of s 15 of the OH&S Act. The second ground was an error by allowing Mr Kirk to be called as a witness. The High Court held that each error amounted to a jurisdictional error.16 The High Court further held that privative clauses, such as that contained in s 179 of the IRA, did not affect the availability of judicial review in State Supreme Courts for jurisdiction error. Legislation which removes the power of a State Supreme Court to grant relief for
12 Basten, ‘Jurisdictional Error after Kirk: Has It a Future?’ (2012) 23 PLR 94 (‘Basten 2012’). 13 This Act has since been repealed. The current Act is the Work Health and Safety Act 2011 (NSW). 14 See Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 66 NSWLR 151. 15 Ibid 162, 185 [46], [154]. 16 Kirk (supra) 575 [77]. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 263 jurisdictional error was held to be beyond State legislative power,17 since it would remove from the Court one of its defining characteristics.18 Kirk and its Context
In a recent article, Professor Ratnapala and Associate Professor Crowe have positioned Kirk in the context of other High Court jurisprudence about the institutional integrity of State courts.19 The authors argue that these decisions can be placed into four interrelated categories:
(a) The constitution of a Court; (b) Impermissible grants of jurisdiction; (c) Impermissible withdrawal of jurisdiction; and (d) Procedural guarantees.
Kirk of course is concerned with the withdrawal of jurisdiction. As the joint judgment stated: A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.20 Ratnapala and Crowe argue that the decision in Kirk has wide-ranging implications beyond a limitation on State legislature power to divest the Supreme Court of its supervisory jurisdiction. The broader implications include:
• Constitutional limitations on State laws which purport to authorise inferior courts or tribunals to finally determine the legality of their own actions, and the fact that the power to review on grounds of jurisdictional error cannot be removed by Parliament designating an inferior court as a superior court of record; • The maintenance of a distinction drawn in Craig with respect to errors of law made by inferior courts and those of administrative tribunals, and whether the same categories of jurisdictional error apply to inferior courts and administrative tribunals;21 • The right to factual particulars and whether a State law may dispense with the requirement for factual particulars of a criminal charge; and • Whether a State legislature might deprive a Supreme Court of the supervisory jurisdiction to set aside judicial decisions made in breach of the rules of natural justice.
17 Kirk (supra) [100] 581. 18 Kirk (supra) [99] 581. 19 ‘Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power’ (2012) 36 MVLR 175. 20 Kirk (supra) 566 [55]. 21 A topic discussed by Vial (supra) 152–4. 264 Queensland Legal Yearbook 2013
The Effect of Kirk
The effect of Kirk can be stated at a level of generality, namely that it is not possible to remove certain State decisions from the supervisory jurisdiction of the Supreme Court to correct jurisdictional error. The practical implications of Kirk in this State are hard to assess. Much of the case law has been in areas not far removed from Kirk itself, namely prosecutions for breaches of occupational health and safety laws. An early decision in that regard was NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland22 in which Boddice J found that the President of the Industrial Court had committed jurisdictional error in one respect relating to the provision of particulars. In that case, an applicant sought to review a decision of the President of the Industrial Court dismissing an appeal from a decision of an Industrial Magistrate in a complaint brought against the applicant alleging a breach of the Workplace Health and Safety Act 1995 (Qld). The issue related to the validity of the complaint. Justice Boddice found that the complaint was not a nullity but that, in dismissing the appeal, the President of the Industrial Court, whilst accepting that there are occasions when a complainant may be required to particularise inadequacies in precautions or lapses in diligence, erroneously held that there was no obligation on a complainant to particularise ‘the measures not taken’ so as to apprise a defendant of the case it was to meet in preparing any defence. Justice Boddice continued: That finding did not involve the application of established law to the facts as found by the first respondent. That finding constituted a misconstruction of the relevant statute and a misconception of the extent of the Court‘s powers in the particular case in relation to a matter which was specifically the subject of a ground of appeal before the first respondent. As such, the finding constitutes a jurisdictional error as that term is identified in Kirk.23 Boddice J identified differences which exist between the New South Wales legislation considered in Kirk and Queensland legislation. His Honour’s decision in that regard was followed by Martin J in a more recent case involving the same parties.24 The issue again turned on the adequacy of the particulars, and whether the Industrial Court made a jurisdictional error which permitted its decision to be reviewed by the Supreme Court. Martin J found that the Industrial Court correctly regarded its task as being one in which it was to determine whether fairness required further and better particulars of the measures not taken. The President answered that question by reference to the decision of the Industrial Magistrate, and in doing so, found against the applicant. The decision by the President wherein he considered the fairness of the Magistrate’s refusal was a matter within his jurisdiction. Accordingly, in the absence of jurisdictional error, it could not be reviewed in the Supreme Court. In Bauer Foundations Australia Pty Ltd v President of Industrial Court of Queensland25 Chief Justice de Jersey was concerned with an application which alleged that the President of the Industrial Court fell into jurisdictional error in determining an appeal from an industrial magistrate. One of the grounds of challenge related to the President’s treatment of certain alleged factual errors. In that context, the Chief Justice stated:
22 [2010] QSC 373. 23 Ibid [29]. 24 NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2012] QSC 147. 25 [2011] QSC 103. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 265
Carrying out the process of evaluation committed to him as an appellate body, it was open (indeed compelling) for the President to conclude as he did. In any event, if he erred in the conclusion he drew, he did so in the course of exercising the jurisdiction committed to him.26 In Thiess Pty Ltd v President of the Industrial Court of Queensland27 the point at issue concerned the power of an Industrial Magistrate to allow amendment of a complaint. Since the decision is one of mine, the less I say about it, the better. It is sufficient to observe that I concluded that the purported exercise of the power to amend the complaint in the circumstances of that case was undertaken without power and constituted a jurisdictional error. The President of the Industrial Court in hearing the appeal reached a different conclusion about the power to amend. I concluded that the decision of the President was an error within jurisdiction. The decision, although involving an error of law, was not a jurisdictional error. Simply put, the issue was whether the Industrial Magistrate erred in the respects alleged in the application to appeal to the Industrial Court. That was a matter committed to the Industrial Court to decide. Its decision that the Industrial Magistrate did not err was made in the course of exercising its appellate jurisdiction. In the end, the Industrial Court was found to have made an error concerning the exercise of the Industrial Magistrate’s power to amend a complaint, in relation to a matter of substance. It was something about which the Industrial Court was authorised to decide. It was not an error about the extent of the Industrial Court’s functions and powers. It was an error about the extent of the Industrial Magistrate’s powers and whether the power to amend arose in the circumstances. It was not, however, a jurisdictional error by the Industrial Court. The position then was that the defendant in the proceedings was exposed to the risk of conviction for two charges in circumstances where the Industrial Magistrate should have refused the application to amend. The jurisdiction to judicially review the decision of the President of the Industrial Court was not engaged. However, this did not affect the supervisory jurisdiction of the Supreme Court over inferior courts and tribunals in respect of jurisdictional error. I concluded: I consider that it is an appropriate exercise of the supervisory jurisdiction of the Court to make orders that have the effect of not exposing the applicant to a conviction by reason of a jurisdictional error by the Industrial Magistrate. The applicant should not be exposed to conviction on two separate and distinct offences in circumstances where it finds itself in that position by reason of a jurisdictional error.28 The relief granted was to make appropriately worded declaratory orders in respect of the jurisdictional error of the Industrial Magistrate, being an error that was not corrected on appeal to the Industrial Court. The restrictions on reviews from decisions of the Industrial Court did not affect the court’s supervisory jurisdiction over jurisdictional error by an inferior court before which a party is facing criminal charges.29 In Newman v President of the Industrial Court of Queensland30 Justice Ann Lyons considered an application for judicial review in respect of an allegation that a complaint was defective in having failed to plead the acts or omissions which were alleged to constitute
26 Ibid [7]. 27 [2012] 2 Qd R 387; [2011] QSC 294. 28 Ibid [52]. 29 See the case note by Dr Kristy Richardson, ‘Jurisdictional Error in the Occupational Health and Safety Jurisdiction’: Thiess Pty Ltd v President of the Industrial Court of Queensland (2012) 32 Qld Lawyer 17. 30 [2012] QSC 145. 266 Queensland Legal Yearbook 2013 the failure to discharge obligations under the Electrical Safety Act 2002 (Qld). Justice Lyons concluded that no jurisdictional error on the part of the President had been established. The President had approached his task in conducting the appeal before him so as to review the facts and apply the law as he found it to be. Even if he misinterpreted the relevant statutory provisions, such an approach did not amount to jurisdictional error. The approach in Thiess was followed. In short, the Industrial Court does not fall into jurisdictional error whenever it misinterprets or misapplies statutory provisions which are the subject of a ground of appeal to it. Her Honour declined to exercise the supervisory jurisdiction. The circumstances of that case were held to be decidedly different to the facts of Thiess. Another field in which theKirk jurisprudence has flowered are challenges to the decisions of adjudicators under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). In considering comparable New South Wales legislation, the New South Wales Court of Appeal in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd31 concluded that certain provisions restricting reviews of such decisions did not operate to oust the court’s jurisdiction to grant relief in the nature of certiorari. That decision was followed by the Queensland Court of Appeal in Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd.32 The Court ruled that it was not within the constitutional power of the State to exclude the power of the Supreme Court to exercise its supervisory jurisdiction as to jurisdictional error, and that an adjudicator’s decision under the Act is a decision over which the Supreme Court has supervisory jurisdiction, being a jurisdiction which is not affected by s 18(2) of the Judicial Review Act 1991. In recent years there have been any number of challenges to adjudicator’s decisions under the BCIPA on the grounds of jurisdictional error. A number of them have been successful.33 However, care is required in the identification of jurisdictional error. The Court of Appeal’s decision in Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd34 warrants careful attention. Justice Philippides, with whom Holmes and White JJA agreed, discussed the concept of jurisdictional error at [95] to [105]. The decision emphasised the centrality of the distinction between jurisdictional and non-jurisdictional error. An adjudicator’s determination as to the extent and value of construction work is not a jurisdictional fact. An incorrect determination as to the extent and quantum of the work that comprised ‘construction work’ was not a jurisdictional error. Any other approach would have been contrary to the scheme of the BCIPA which placed the determination as to the extent or value of construction work and related goods and services as a matter that the adjudicator was empowered to determine under s 26 of the BCIPA. In BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd35 the distinction between jurisdictional and non-jurisdictional errors was considered in the context of the BCIPA. It was observed: The adjudicator may lack jurisdiction because the claimed amounts are not referrable to ‘construction work’ or ‘related goods and services’. There may be other
31 (2010) 78 NSWLR 393. 32 [2012] 1 Qd R 525; [2011] QCA 22. 33 For a recent example see Capricorn Quarries Pty Ltd v Inline Communication Construction Pty Ltd [2012] QSC 388. 34 [2012] QCA 276. 35 [2012] QSC 346. The decision was subject to appeal at the time of the address. The Court of Appeal found it unnecessary to decide if an adjudicator’s error in not applying a particular contractual provision was jurisdictional: BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394 [48]. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 267
reasons why a claim cannot be sustained, for example, because the claimant is an unlicensed builder.36 A jurisdictional error may be made by the adjudicator in proceeding to determine an adjudication for a number of reasons. The determination may be affected by jurisdictional error on one of the grounds discussed in Craig v South Australia.37 For example, the adjudicator may disregard something which the relevant statute requires to be considered as a condition of jurisdiction or otherwise fall into jurisdictional error by determining something which the adjudicator lacks authority to determine. A distinction may be made between matters which are ‘an essential preliminary to the decision-making process’ and ‘matters which can arise during the course of the decision-making process itself’.38 Where matters are entrusted to an adjudicator to decide, an error of law made in the course of the decision-making process is not, of itself, a jurisdictional error. An error in construing the terms of the contract under which an entitlement is claimed is not, of itself, a jurisdictional error. The position is otherwise where the error causes the adjudicator to make one or more of the jurisdictional errors identified in the leading authorities which consider the issue of ‘jurisdictional error’ in the context of the [BCIPA] and comparable legislation in other Australian jurisdictions.39 Alleged errors in the construction of a contract were found to be not jurisdictional.40 The adjudicator was found to have not disregarded a limitation on his functions and powers. The jurisdiction conferred on the adjudicator was said to include the authority to construe the contract in order to determine whether there was an entitlement to be paid for latent conditions. Any error in interpreting the relevant clause in that respect would have been one made in the exercise of jurisdiction, and would not constitute a jurisdictional error. The Meaning of Jurisdictional Error
The distinction between jurisdictional and non-jurisdictional error has been much‑criticised. It has been the subject of sustained attack by some jurists and distinguished academic commentators. However, the distinction is well-established and resistant to attack. Chief Justice Spigelman has observed that the distinction between jurisdictional error and non- jurisdictional error is necessitated in Australia by the separation of powers doctrine.41 Kirk affirmed the distinction. The joint judgment stated: … the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non‑jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.42
36 Cant Contracting Pty Ltd v Casella [2007] 2 Qd R 13. 37 Supra 177. 38 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (supra) at 405 [43]–[44]; Clyde Bergemann Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039 [42]. 39 Supra [9]. 40 Ibid [27]. 41 Spigelman (supra) 83. 42 Kirk (supra) 581 [100]. 268 Queensland Legal Yearbook 2013
Justice Basten has referred to jurisdictional error as a ‘misnomer’. He described it as a conclusionary label but adopted the view of Professor Aronson that it has a long history of usage, a central core meaning and that we can tolerate its imprecision. There may be no single test or theory by which the distinction between jurisdictional and non-jurisdictional error can be determined. However, as Hayne J stated in Re Refugee Review Tribunal; Ex parte Aala: The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error when the decision maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction … The former kind of error concerns departures from limits upon the exercise of the power the latter does not.43 In Craig the High Court was concerned with the distinction between jurisdictional and non-jurisdictional error in the case of an inferior court. The majority identified three categories of jurisdictional error. These may be summarised as follows: (1) The mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers; (2) Entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context; (3) Proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig (at 178) that — the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.)44 In Kirk these categories were said not to provide ‘a rigid taxonomy of jurisdictional error’ and that the examples given of the ambit of jurisdictional error by an inferior court were just that: examples.45 In Kirk the joint judgment stated that it was neither necessary nor possible ‘to attempt to mark the metes and bounds of jurisdictional error’.46 Certain comments in the joint judgment in Kirk have cast doubt on the distinction between inferior courts and administrative tribunals in the context of jurisdictional error. Some commentators consider that these observations should be considered strictly as obiter.47 Kirk itself was concerned with jurisdictional error by an inferior court. The distinction has arisen in the past based on the theory that an error, if made by a court, would not ordinarily constitute jurisdictional error since an ordinary court is competent to determine authoritatively questions of law, whereas an administrative tribunal is not.48 In Kirk, the joint judgment cast doubt on whether a distinction can readily be made between
43 (2000) 204 CLR 82, 141 [163]. 44 This summary is taken from the judgment of McDougall J in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (supra) 426–7 [158], drawing in turn from Kirk (supra) 177–8 [72]. 45 Kirk (supra) 574 [73]. 46 Ibid 573 [71]. 47 Finn (supra) 96. 48 Craig (supra) 179–80. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 269 a court and an administrative tribunal.49 Their Honours observed that at a State level that distinction may not always be drawn easily, for there is not, in the States’ constitutional arrangements, that same separation of powers that is required at a federal level by Chapter III of the Constitution. The distinction was also said to break down when consideration is given to what questions of law a court is permitted to ‘authoritatively’ determine. To observe that inferior courts generally have authority to decide questions of law ‘authoritatively’ is not to conclude that the determination of any particular question is not open to review by a superior court. The ‘authoritative’ decisions of inferior courts were those which were not attended by jurisdictional error. Jurisdictional error may be corrected in the case of an inferior court and also in the case of an administrative tribunal or administrative decision-maker which is amenable to the writ of certiorari. This is not, however, to doubt that there is an important distinction between the two for the purposes of jurisdictional error and some post-Kirk cases have continued to apply the Craig distinction.50 I leave to one side the circumstances in which a tribunal may have power conferred upon it to determine questions of law. The proposition that emerged from Craig is really one of statutory interpretation: namely that one is likely to infer a legislative intention to allow a court to determine a question of law as part of its jurisdiction, whereas ‘with a tribunal, which may not be composed of lawyers, the final determination of all legal issues is more likely to be intended to rest with a reviewing court’.51 Whether this reasoning has now been discarded in unclear. What is clear is that Kirk questioned the usefulness of saying that an inferior court has jurisdiction to ‘authoritatively’ determine questions of law. Inferior courts and tribunals have whatever authority is conferred upon them by law, and their precise authority turns upon a careful consideration of the legislation which constitutes them and gives them power. Neither has power to ‘authoritatively’ decide a matter in a manner which places any resultant jurisdictional error beyond review. Both courts and tribunals are amenable to judicial review for jurisdictional error. But not every determination of a question of law is jurisdictional in nature. The body may have jurisdiction to decide that question of law, rightly or wrongly. The distinction between a court and an administrative tribunal has implications in other contexts. In a different context the Court of Appeal last year ruled that the Queensland Civil and Administrative Tribunal is a court for Chapter III purposes.52 However, a body’s status as a Chapter III court does not immunise it from supervisory review at either federal or State level. We are familiar, having practised in the landscape created by the Administrative Decisions Judicial Review Act (1977) (Cth) and the Judicial Review Act 1991 (Qld), with judicial review of administrative decisions. But federal judicial review under the constitutional writs referred to in s 75(v) of the Constitution has not been confined to administrative decision- making or administrative tribunals. The High Court can issue constitutional writs against judges of the Federal Court and the Family Court. Historically, judicial review has not been confined to control of the executive. It also applies to ensuring that the exercise of judicial power is free from jurisdictional error. But this does not necessitate the same approach to the correction of administrative decision-making and judicial decision-making. There are fundamental differences between the two. However, Kirk has challenged the existence of a strict distinction between the approach to judicial review of the decisions of courts and
49 Kirk (supra) 572–3 [68]–[70]. 50 Director-General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 46 [24]; Hall v State of South Australia [2010] SASC 219 [53]. 51 Basten ‘The supervisory jurisdiction of the Supreme Courts’ (2011) 85 ALJ 273, 296 (‘Basten 2011’). 52 Owen v Menzies [2012] QCA 170. 270 Queensland Legal Yearbook 2013 administrative tribunals for the purpose of reviewing jurisdictional error. Needless to say the fact that a State law describes a body as a court or even a superior court of record does not immunise it from the supervisory jurisdiction of the Supreme Court or the ultimate supervisory jurisdiction of the High Court. Kirk does not provide a closed list of categories of jurisdictional error. It is doubtful that one ever could, since what is a jurisdictional error has long escaped a definitive definition. The famous American jurist Felix Frankfurter remarked about the morass in which one can be led by ‘loose talk about jurisdiction’, and observed that ‘jurisdiction’ competes with ‘right’ as one of the most deceptive legal pitfalls.53 Judges and academic commentators have observed that ‘jurisdictional error’ is a conclusionary label. But as Justice Basten noted, there is no necessary harm in that. The scope of ‘jurisdictional error’ will continue to challenge us. The distinction is a real one. Chief Justice Gleeson once pointed out that twilight does not invalidate the distinction between night and day. In the same vein, the difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction does not invalidate the distinction. The distinction is central to federal and State administrative law. As Chief Justice Spigelman stated: … there is a distinction between ensuring that powers are exercised for the purpose, broadly understood, for which they were conferred and in the manner in which they were intended to be exercised, on the one hand, and the reasonableness or appropriateness of the decisions made in the exercise of such powers on the other hand. Reasonable minds can and will differ as to where the line is to be drawn. The former is an integrity function which is inherent in the concept of ‘jurisdictional error’.54 The amenability of decision-making to supervisory review for jurisdictional error calls attention to distinguishing between facts, opinions or steps that are jurisdictional, being a matter, a condition of mind or a requirement that enlivens the power of the decision-maker and is an essential condition of the existence of jurisdiction, and matters which are not jurisdictional in this sense. Ultimately, the difference involves the application of principles of statutory interpretation and reasonable minds will differ in hard cases over whether something is a jurisdictional fact. As to other categories of jurisdictional error, the matters referred to in Craig, whilst described merely as examples in Kirk, remain a useful point of reference, and it is to those categories that the Supreme Court has turned in the cases that I have noted. To remind you, these are: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires to be taken into account as a condition of jurisdiction (or taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the court is performing or the extent of its powers in the circumstances of the particular case. Those categories were noted in the context of the function of an inferior court. In the area of administrative decision-making the scope of jurisdictional error will continue to be illuminated by the High Court’s jurisprudence in applications involving constitutional writs.
53 City of Yonkers v United States, 320 US 685, 695 (1944); Spigelman (supra) 84. 54 Spigelman (supra) 85. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 271
The most recent exploration of that issue (although I have not checked today’s news) was in Minister for Immigration and Citizenship v Li.55 In very short summary, the High Court held that a refusal by the Migration Review Tribunal to adjourn review proceedings was unreasonable. The Tribunal’s reasons failed to identify any consideration weighing in favour of the abrupt conclusion it brought to the review, and none was suggested by the Minister on appeal. The failure of the Tribunal to discharge its function under the Migration Act 1958 (Cth) according to law meant, according to the High Court, that it had acted beyond its jurisdiction in affirming the delegate’s decision. The judgments warrant reading for their statements of principle to the effect that a presumption exists that a statutorily conferred power will be exercised reasonably. Chief Justice French explained what is meant by reasonableness in this regard, and starts with the proposition that every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Officials exercising discretion must comply with the ‘canons of rationality’. He stated: A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions.56 Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.57 Wednesbury unreasonableness was discussed by the Chief Justice, who remarked: After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.58 In the same vein: The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.59
55 (2013) 97 ALJR 618; [2013] HCA 18. 56 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 258–9 [11]–[13] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. 57 Li (supra) 630 [26] (emphasis added). 58 Ibid 630 [28]. 59 Ibid 631 [30]. 272 Queensland Legal Yearbook 2013
The joint judgment of Hayne, Kiefel and Bell JJ likewise ruled that a legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably,60 and explored the meaning of reasonableness. There was said to be an area within the ‘bounds of legal reasonableness’ in which there is a genuinely free discretion.61 After discussing the concept of unreasonableness, their Honours concluded in respect of the review of the exercise of statutory discretion that unreasonableness may be an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided … it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.62 Justice Gageler gave a separate, and highly illuminating judgment about reasonableness as a statutory implication, and judging unreasonableness. Each judgment complements the other, and so I will not describe Justice Gageler’s judgment as the icing on the cake. It includes the following about Wednesbury unreasonableness: [108] Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy. [109] The conception underlying the stringency of the test as applicable in Australia is captured by the observation made 50 years ago that:63 ‘This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.’ [110] The same observation lends force to the suggestion that, for the purpose of applying the test, ‘guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion’.64 There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion ‘if upon the facts it is unreasonable
60 Ibid 637 [63]. 61 Ibid 637–8 [66]. 62 Ibid 640 [76]. 63 Klein v Domus Pty Ltd (1963) 109 CLR 467, 473, quoted in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1178 [69]. 64 Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, 42. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 273
or plainly unjust’,65 or if ‘failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court’. 66 It is therefore fair to say that ‘[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature’.67 [111] It has nevertheless been observed that ‘in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise’.68 That is because it is ‘harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience’.69 Similar observations have been made as to the inability of a court ‘effectively’ to review a state of satisfaction forming a pre-condition to an exercise of a statutory power or performance of a statutory duty ‘where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste’.70 71 His Honour concluded in respect of the test of unreasonableness: Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.72 Any discussion of the concept of reasonableness in administrative law will require a whole day seminar or more. This decision in Li does not suggest that decisions are amenable to judicial review on the grounds they are unreasonable in some general sense of that word. Li revisits an area that has been much-visited in the High Court’s jurisprudence in immigration cases over the last two decades. Those of us who studied administrative law when the ADJR Act was in its infancy were taught about Wednesbury unreasonableness. In such a case the courts can interfere, as Lord Greene said in Wednesbury, if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it. He went on to say that to prove a case of that kind would require something overwhelming. Earlier Lord Greene referred to a decision that could be ‘so absurd that no sensible person would ever dream that it lay within the powers of the authority’.73 Since then judicial review in this area has supplemented Wednesbury unreasonableness with other epithets such as perversity and illogicality. At the risk of attempting to simplify an area of great subtlety, one can say that a decision-maker acts beyond jurisdiction in a case in which there is no evidence or where the decision is so unreasonable that no reasonable authority could ever come to it. These categories of case might be loosely described as cases of judicial review on the grounds of error of fact, rather than error of law. However that
65 House v The King (1936) 55 CLR 499, 505. See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1178 [68]. 66 Lovell v Lovell (1950) 81 CLR 513, 519; [1950] HCA 52, citing Sharp v Wakefield [1891] AC 173, 179. 67 Norbis v Norbis (1986) 161 CLR 513, 540; [1986] HCA 17. 68 Norbis v Norbis (1986) 161 CLR 513, 540–1. 69 Norbis v Norbis (1986) 161 CLR 513, 541. 70 Buck v Bavone (1976) 135 CLR 110, 118–19; [1976] HCA 24, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 276; [1996] HCA 6. 71 Li (supra) 645 [108]–[111]. 72 Li (supra) 646 [113]. 73 Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223, 229. 274 Queensland Legal Yearbook 2013 distinction is unhelpful. Instead, it is preferable to resort to first principles and describe such extreme cases for what they are: a decision-maker acting beyond power. The lawful authority of the decision-maker does not extend to making a decision that no reasonable authority could ever come to. And there is no authority to make a decision in a case in which there is absolutely no evidence. But where there is evidence it is difficult to challenge a decision on the grounds of Wednesbury unreasonableness. The danger is that the court is drawn into merits review rather than focussing upon the legality of the decision. The distinction between merit review and legality was made in the often cited judgment of Brennan J in Attorney-General (NSW) v Quin.74 That distinction lies at the centre of Australian administrative law and is concerned with the maintenance of the institutional integrity of courts, tribunals and administrative decision-makers. The principle of jurisdiction confines decision‑makers to their lawful authority. Decision-makers have the authority to decide matters within their jurisdiction, absent jurisdictional error, and for a court to interfere with such decision-making would mark entry into the forbidden field of merit review. Finally, on the topic of whether a decision is amenable to judicial review on the grounds of Wednesbury unreasonableness or because it is ‘absurd’ or ‘perverse’ or ‘illogical’, it is worth recalling the cautionary remarks of Gleeson CJ and McHugh J in Eshetu: Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.75 If someone thought that I was going to illuminate the scope of judicial review for jurisdictional error this afternoon, then I have to disappoint them. The categories of jurisdictional error were not exhaustively stated in Kirk. Some might say they were left deliberately imprecise. A fairer assessment would be that the High Court in Kirk did not attempt the impossible, namely positing a single test by which jurisdictional and non‑jurisdictional error can be distinguished. It was sufficient for the purposes of deciding Kirk to identify the respects in which the New South Wales Industrial Court had fallen into jurisdictional error. What is meant by jurisdictional error can be found in other cases and in the textbooks. Some might say that it is an elastic concept on the simple basis the concept can be stretched to cover entirely unsupportable findings of fact. However, the concept cannot be stretched too far and courts, in the interests of not exceeding their legitimate authority, will decline to describe errors of fact and law made in the exercise of jurisdiction as jurisdictional errors, unless they qualify as one of the jurisdictional errors that masters of this subject, like Emeritus Professor Aronson, have spent a professional lifetime analysing and categorising. An erroneous finding of fact or an error of law in the course of exercising jurisdiction is not enough to qualify as a jurisdictional error. In summary, the distinction between jurisdictional error and other errors, whilst elusive, is firmly entrenched in our constitutional jurisprudence and Kirk confirms that it is here to stay.
74 (1990) 170 CLR 1, 35–6. 75 (1999) 197 CLR 611, 626 [40]. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 275
Possible Future Legislative Developments
Kirk signals that privative clauses will be of limited effect. Just as privative clauses in the federal arena cannot immunise decisions (or purported decisions) from judicial review for jurisdictional error, privative clauses under State legislation cannot immunise decisions from supervisory review. This prompts consideration of other means by which decisions can be placed beyond review or, at least, the potential for review limited. One way, and this is not meant as any kind of encouragement, is to replace objective facts with states of satisfaction, judgment or belief (reasonable or otherwise) as the basis upon which a power arises. This, however, may give rise to different grounds of constitutional challenge if, for example, someone is exposed to adverse consequences for their liberty, property or other interests because of the existence of a state of mind in a decision-maker rather than the existence of some more definite and more easily proven state of facts. Common law constitutional principles, or ‘fundamental principles of public law’ may constrain legislative power to confer on an official an ill-defined discretion to deprive a citizen of liberty, property or other entitlements on the basis of a suspicion or state of belief that to do so is in the public interest. And it always must be recalled that a power that depends upon the existence of a decision- maker’s state of satisfaction is still amenable to judicial review. Finally, important questions of public policy arise as to whether executive powers should be exercised on the basis of such broad discretionary judgments. Such a judgment may amount to little more than a whim or be the product of prejudice. Even if such an exercise of power is legal, and beyond effective judicial review in a case where the state of satisfaction relates to a matter of opinion, policy or taste about which views may reasonably differ,76 a system of public law which confers such uncontrolled powers is hardly conducive to good public administration. An alternative to the privative clause is the enactment of a ‘no invalidity’ provision. These kind of provisions exist in revenue law and one such provision was discussed by the High Court in Federal Commissioner of Taxation v Futuris Corporation.77 Whereas a privative clause purports to remove the jurisdiction of a court to review and the power to grant prerogative and other forms of relief, a ‘no invalidity’ clause does something different. It purports to change the substantive law by providing that certain administrative defects are not to lead to the invalidity of a decision. Both share the same troubling feature of limiting or avoiding judicial review. And as McDonald observed in ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’78 ‘there are serious doubts about the constitutionality of no-invalidity clauses purporting to have general application’.79 Finn shares this view.80 Another possible device (to use the neutral term) is the enactment of time bars.81 I turn to consider something close to the facts of Kirk itself and a matter which is featured in post-Kirk decisions in this State, namely the obligation to provide particulars in a criminal case. Professor Ratnapala and Associate Professor Crowe suggest that amongst the broader implications of Kirk may be that a State legislature may not constitutionally be able to deprive a person charged with a criminal offence of notice of the factual particulars on which the charge is based. There is, of course, a longstanding common law rule that a charge
76 Buck v Bavone (1976) 135 CLR 110, 118–19. 77 (2008) 237 CLR 146. 78 (2010) 21 PLR 15. 79 McDonald (supra) 20. 80 Finn (supra) 106. 81 Spigelman (supra) 89. 276 Queensland Legal Yearbook 2013 of committing a criminal offence must not only describe the nature of the offence, but should also state the particular acts or omissions of the defendant that violated the provision. The learned authors question whether a State Act may dispense with the requirement for factual particulars of a charge under State law, and suggest that such a provision would abrogate one of the basic common law requirements of natural justice. I will simply mention that in R v CAZ82 the Queensland Court of Appeal was concerned with a State law that removed the general law obligation on the prosecution to provide particulars in respect of certain aspects of a sexual offence. The argument was that these were beyond power because they infringed the principles established in Kable and Kirk. The argument was rejected. Justice Basten has observed that the decision illustrates ways in which a State legislature can remove what might otherwise be grounds for asserting jurisdictional error by varying the procedural obligations in the exercise of judicial power.83 The question then shifts to the nature of the procedural obligations which are essential to the exercise of judicial power and the extent to which State legislatures can validly limit what would otherwise be requirements of natural justice. At a certain point, laws which require courts to act in circumstances which would otherwise amount to a denial of natural justice may be open to challenge on the basis of the jurisprudence in Kirk and other Chapter III cases. The institutional integrity and character of the Court would be adversely affected and it would cease to be a Supreme Court within the meaning of the Constitution. Judicial Controls on the Exercise of Supervisory Jurisdiction
The final topic that I wish to address is the extent to which State courts might themselves control the exercise of their constitutionally entrenched supervisory review jurisdiction. One means would be the introduction of a requirement that leave be obtained to pursue such a case. Justice Basten has noted that in other common law countries, including the United Kingdom, applications for judicial review are by leave.84 I must remark that some of those other countries have abandoned the distinction between jurisdictional and non-jurisdictional errors and their generally expansive view about the limits of judicial review incorporating concepts of proportionality, may explain the introduction, on pragmatic grounds, of a leave requirement. However, the creation of a requirement for leave has a functional and pragmatic justification and leave might be declined in a case in which an appeal is available. I do not ignore the predictable argument that a decision tainted by jurisdictional error is no decision at all and that, in the event of success on judicial review and an order quashing the decision there would be no decision against which to appeal.85 The competing argument is that unless and until the decision is set aside or quashed, it has a certain operational and legal effect and is amenable to appeal or review if such an appeal or review process is provided by law. It should be recalled that in the first round of theKirk litigation, the New South Wales Court of Appeal held that the applicants should exhaust their rights of appeal before invoking the supervisory jurisdiction.86 Justice Basten remarks that a leave requirement has the constitutional benefit of vesting control of the supervisory jurisdiction in the hands of the courts which exercise it. Still, there remains the issue of the criteria to grant or refuse leave. One such criterion would be
82 [2011] QCA 231. 83 Basten 2012, 102. 84 Ibid 98. 85 Thiess Pty Ltd v Industrial Court (NSW) (2010) 78 NSWLR 94, 109 [75]–[77]. 86 Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (supra) 162, 185 [46], [154]. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 277 the availability and scope of rights of appeal. Another, potentially controversial, pragmatic consideration is the seriousness of the alleged jurisdictional error. It should be recalled that traditionally prerogative relief was obtained in two stages. It was necessary to obtain an order nisi calling on the respondent to show cause why the relevant relief should not be granted. This order nisi might be made absolute if the applicant succeeded at the final hearing. The process of first obtaining an order nisi operated as a kind of filter, but has been abandoned in most Australian jurisdictions. In Queensland it has been replaced by an application for judicial review without a leave requirement. In South Australia there remains a requirement for leave or permission to proceed. Another means by which the court itself might control the exercise of its supervisory jurisdiction is the exercise of the discretion to decline relief in an appropriate case. Prerogative remedies and similar statutory remedies for jurisdictional error are discretionary, and the discretion is to be exercised judicially. In a clear case of want or excess of jurisdiction a prerogative writ will issue ‘almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.’87 In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd, McDougall J observed that even in a case of clear jurisdictional error there is a residual discretion to not make an order in the nature of certiorari and that, in the ordinary case, such an order would be made ‘almost as of right.’88 One discretionary ground to decline to order certiorari is where there are ‘alternative and adequate remedies for the wrong of which complaint is made.’89 The High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd, in referring to the jurisdiction under s 75 of the Constitution to issue a writ of mandamus against an officer of the Commonwealth, referred to ‘well recognised grounds upon which the court may, in its discretion, withhold the remedy’ and continued: For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.90 This passage has been cited with approval in more recent times.91 Those observations are often made in the cases involving the grant of a constitutional writ, however, Chase is authority that similar principles apply to the discretion to withhold a remedy in the exercise of the Court’s supervisory jurisdiction. Where relief is sought in the form of an order quashing or setting aside an adjudication decision, or an order is sought declaring the decision to be void, an aggrieved applicant who has established a jurisdictional error ordinarily will be entitled to such a remedy, but the remedy may be withheld as a matter of discretion if the circumstances make it just to do so. One example is if a more convenient and satisfactory remedy exists.
87 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 194 per Gibbs CJ; followed in Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others (2004) 60 NSWLR 558, which was in turn followed in Chase Oyster Bar Pty Ltd v Hamo Industries Ltd (supra) 446–9 [267]–[284]. 88 Supra 448 [275]. 89 Ibid 449 [284]. 90 (1949) 78 CLR 389, 400 (emphasis added). 91 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 [28]. In the same case Kirby J at [77] referred to ‘the need to conserve relief to cases where it is appropriate and required to do practical justice.’ 278 Queensland Legal Yearbook 2013
A right of appeal, or review on the merits, from an adverse decision may constitute a strong discretionary ground for declining to embark upon the hearing of an application that seeks to invoke the supervisory jurisdiction of the Supreme Court. Instead, I will conclude with the observation that public lawyers faced with applications for the Supreme Court to exercise its supervisory jurisdiction will need to pay close attention to the extent to which such relief might be declined by a court on discretionary grounds because of the availability of alternative relief. This directs attention to the availability of appeals, including the grounds upon which appeals are allowed, the existence of merit review and other means by which alleged jurisdictional errors might be rectified. This is not entirely unfamiliar territory to an administrative lawyer. In the context of judicial review of administrative decisions one has the jurisprudence under s 48 of the Judicial Review Act 1991 (Qld). In the area of the court’s supervisory review jurisdiction there is a constitutional dimension, and it might be said that compelling grounds would be required to persuade a court to decline to grant appropriate relief in a case in which a citizen has demonstrated that a decision-maker has committed jurisdictional error. Instead, the issue may become whether a party, seeking to have the Court exercise its supervisory jurisdiction, should be required to first exhaust reasonable alternative remedies which may be apt to correct the alleged error. If such remedy exists, and resort to it does not cure the alleged error, then it might be appropriate for the applicant to return to the Supreme Court and demonstrate that there has been a jurisdictional error that warrants relief of the kind provided for in Part 5 of the Judicial Review Act 1991 (Qld) or declaratory relief. Conclusion
Kirk has its foundation in the principle that Chapter III of the Constitution preserves the institutional integrity of State Supreme Courts. This institutional integrity principle has many other applications. Kirk established that a legislature cannot remove a State Supreme Court’s supervisory jurisdiction which exists to ensure that inferior courts do not exceed the limits of their lawful authority. It casts doubt on the distinction drawn in Craig between inferior courts and administrative tribunals. The list of jurisdictional errors stated in Craig that an inferior court might commit should not be taken to be exhaustive. However, decisions since Kirk in relation to inferior courts have continued to apply the principles formulated in Craig.92 Still, it remains to be seen whether, for example, a denial of procedural fairness amounts to a jurisdictional error by an inferior court. The distinction between jurisdictional and non-jurisdictional errors, whilst elusive, remains. The notion of jurisdictional error reflects a fundamental principle in our constitutional arrangements. However, pragmatists or cynics may see the label of jurisdictional error as being something which a reviewing court assigns to a demonstrated error due to its seriousness. It would be contrary to well-established principles of Australian law to abandon the distinction between jurisdictional and non-jurisdictional errors. The correction of mistakes, even serious mistakes involving the construction of a statute, is no function of a court undertaking judicial review if those errors are non-jurisdictional or do not appear on the face of the record. Working out the distinction between jurisdictional and non-jurisdictional errors will remain a demanding task for those who advise citizens and corporations affected by official conduct, and by public lawyers who seek to resist challenges to the validity of decisions.
92 Finn 103. Kirk v InDustrial Court of New South Wales: Its Implications for the Supreme Court 279
It is not simply because we are Queenslanders that we pay respect to what was said by Justice Brennan in Quin.93 It is because it is a statement of principle which informs the fundamental distinction between merit review and review of the legality of a decision. The court enforces the law which determines the limits and governs the exercise of a decision- maker’s power. If in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.94 The samerespect for institutional boundaries should be expected of the exercise of the Supreme Court’s constitutionally entrenched supervisory jurisdiction. In exercising that authority, the Court has no general jurisdiction to enforce principles of good public administration and administrative justice. It does not sit as a merit review tribunal. It subjects certain bodies, including inferior courts and tribunals, to scrutiny concerning the legality of their conduct. The recent High Court decision in Li is a reminder that the legislature is taken to have intended that a statutory power is exercised reasonably. Acting on that principle, the court (to quote Brennan J in Quin) ‘holds invalid a purported exercise of power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action’.95 Such a limitation is confined, and invalidity on that ground is rare. But Li shows that tribunals can fall into such errors. The level of scrutiny to which a decision will be subjected may depend on the function being exercised by the decision-maker, and whether the power to make the decision is one which rests upon the existence of concrete facts or matters of ‘opinion or policy or taste’. Some would argue for a heightened level of scrutiny where the power is capable of affecting ‘the fundamental human rights or freedoms of the individual, whether by interfering with an existing freedom or by denying a benefit that would otherwise be available, as compared with the exercise of routine regulatory powers’.96 Kirk places the supervisory review jurisdiction of State Supreme Courts on a similar though different constitutional pedestal to the system of judicial review entrenched by s 75(v) of the Constitution in respect of federal decision-making. These jurisdictions cannot be removed by privative clauses. The Supreme Court has this constitutionally-entrenched supervisory review jurisdiction. The issue then turns to the manner in which it exercises it. Should the court itself by rules and procedures create an initial filter in the form of a requirement for leave, and refuse leave in appropriate cases where, for example, other forms of relief are available? In cases that are taken on, how will the courts develop and better define the distinction between jurisdictional and non-jurisdictional errors? Is a different approach required in the case of inferior courts to that which applies in the case of tribunals? Finally, in what circumstances will it be appropriate for the court to decline to embark upon a substantive hearing in the exercise of its supervisory jurisdiction in a case in which an arguable case of jurisdictional error is alleged? Should the existence of alternative, equally effective remedies by way of appeal or review be a basis upon which the court declines, as a matter of discretion, to grant relief in the form of prerogative remedies, until at least those alternative procedures have run their course? These, and other questions, will engage, and dare I say gainfully employ, public lawyers in the years and decades to come.
93 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36. 94 Ibid. 95 Ibid. 96 Basten 2011, 297. Two Conceptions of Equitable Assignment
by The Honourable Justice James Edelman* and Dr Steven Elliott**
Introduction
One of the opening sentences of Professor Tolhurst’s The Assignment of Contractual Rights says that assignments of contractual rights ‘involve a transfer of a contractual right from the owner (assignor) to the transferee (assignee)’.1 This is also a consistent theme throughout The Law of Assignment by Marcus Smith QC and of JG Starke’s treatise on Assignments of Choses in Action in Australia.2 There are also many judicial decisions which characterise the assignment of contractual rights as involving a transfer of the rights or acquisition of the rights.3 And even the very word ‘assignment’ connotes a transfer of rights.4 These ideas, by very distinguished authors and judges, represent a view which is now very widely held about equitable assignment.5 But this was not always the case. An earlier conception of equitable assignment stands in contrast with this modern view. The point made in the first part of this paper is that there are two different conceptions of equitable assignment which can have different consequences. The first treats equitable assignment as a transfer. Apart from the significant support in the language of many cases, and in leading texts, this approach is supported in one of the leading Australian cases, a decision of a powerful Court of Appeal in Queensland in Thomas v National Australia Bank Limited.6 The alternative conception of equitable assignment is that equitable assignment essentially involves the creation of a trust. Unless the case is brought within the statute, and a legal assignment effected, title never passes. The right of action remains with the assignor, and what the assignee acquires is a right against the assignor relating to that right of action.
* Judge, Supreme Court of Western Australia; Adjunct Professor of Law, University of Western Australia and University of Queensland; Conjoint Professor of Law, University of New South Wales. ** Barrister, One Essex Court, London. This a revised version of a paper presented on 6 June 2013 in the Banco Court as part of the Current Legal Issues Seminar Series 2013. 1 G Tolhurst, The Assignment of Contractual Rights (2006) 3 [1.01]. 2 M Smith, The Law of Assignment: The Creation and Transfer of Choses in Action(2013) 234 [11.43]: ‘assignment is concerned with the transfer of property’; J Starke, Assignment of Choses in Action in Australia (1972) 10: ‘An assignment of a chose in action is a transaction or disposition which has the effect, in general, of immediately transferring the right in question from the party in whom it is vested to another party’. 3 Some examples include Norman v Federal Commissioner of Taxation (1963) 109 CLR 9, 26 (Windeyer J); Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 915 (Lord Hoffmann);Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 [31] (Finn and Sundberg JJ) [188] (Emmett J). 4 ‘Assign’: transfer or make over formally (esp. personal property, to); ‘Assignment’: legal or other formal transference of a right or property; a document that effects or authorizes this: Shorter Oxford Dictionary, Vol 1 (5th ed, 2002) 134. 5 This paper only concerns equitable assignment of legal rights, chiefly contractual rights. 6 Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448.
280 Two Conceptions of Equitable Assignment 281
On this alternative conception, equitable assignment is not a transfer of rights but it is a creation of new rights or powers in equity which relate to, or encumber, the existing rights held by the assignor. The assignor holds his rights subject to that equitable encumbrance which generally includes a requirement that the assignor use his rights for the benefit of the assignee. It is a debate only about semantics whether the label ‘trust’ should be attached to the equitable assignment. Importantly, it is now well accepted that the creation of a trust involves no transfer of any rights.7 This alternative view, espoused as early as 1884 by Story,8 and with modern adherents,9 is explained below. There are a number of substantial issues, the resolution of which may depend upon which of the two conceptions of equitable assignment is adopted. One issue concerns the proper parties to an action upon an assigned right. This is the concern of the second part of this paper. On the transfer conception of an equitable assignment it is easy to see why the assignor should ‘drop out’ and the action be litigated between the assignee and the debtor. But on the trust conception of equitable assignment the assignor should never drop out because he holds the relevant rights. Another issue concerns anti-assignment clauses. This issue is briefly discussed in the third part of the paper. On the transfer conception of assignment it has been argued that an anti-assignment clause prevents transfer of the right but does not prevent the creation of a trust. On the encumbrance conception the effect of an anti-assignment clause ought to be the same whether the prohibition is described as a prohibition against the creation of a trust or a prohibition against assignment. The encumbrance conception of equitable assignment is today in need of friends. Over the past thirty years or so the transfer conception has gained an increasing hold in the intermediate appellate courts in Australia and in England. One of the purposes of this paper is to redress this by outlining the case in favour of the encumbrance conception. Its cause is not a lost one, for the High Court of Australia and the Supreme Court of the United Kingdom are still yet to choose. Part 1: The Two Conceptions of Equitable Assignment
The Evolution of Equitable Assignment
The origin of much of our law of obligations is Roman. The etymology of obligation is ligare or ‘to bind’. The etymology of contract is contrahare‘ ’, ‘to draw together’. As Emmett J has observed, these metaphors were understood by Roman lawyers as emphasising the personal nature of contractual obligations. Roman lawyers would say ‘nomina ossibus inhaerent that is to say, contractual claims cling to the bones (of the contracting parties) [and accordingly] … in classical Roman law, contractual obligations, being personal, could not be assigned: a contractual claim could not be separated from the person of the contracting parties and could be enforced only by a contracting party against a contracting party’.10 Professor Zimmermann
7 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 706 (Lord Browne-Wilkinson); DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431, 463 (Aickin J); Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592 [30] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ); Peldan v Anderson [2006] HCA 48; (2006) 227 CLR 471 [37] (Gummow ACJ, Kirby, Hayne, Callinan & Crennan JJ). 8 J Story, Commentaries on Equity Jurisprudence (1884) 689 [1040]. 9 See especially CH Tham ‘The Nature of Equitable Assignment and Anti-Assignment Clauses’ in J Neyers et al (eds) Exploring Contract Law (2009) 283 and B McFarlane, The Structure of Property Law (2008) 212–14. 10 Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 [187]. 282 Queensland Legal Yearbook 2013 described the Roman antipathy against assignment saying that ‘the action arising from the obligation hinges on the bones and entrails of the creditor and can no more be separated from his person than the soul from the body’.11 Despite the Roman law principle that a personal claim remained between those persons, there were various ways in which a third party could obtain the benefit of a creditor’s claim. Two of those were novatio and procuratio in rem suam. Each of these techniques is well known today. A contract can be novated by agreement between the parties to substitute a different creditor. This is not assignment. The Romans called it delegation obligandi: an old debt was substituted with a new one. The other instance, procuratio in rem suam, was an authorisation of the third party to sue in the name of the creditor. Again, this was not an assignment. It is the equivalent to today’s power of attorney coupled with an undertaking that the third party could keep the proceeds arising from any claim. Procuratio had numerous disadvantages. The creditor could still sue the debtor himself; the creditor could release the debt owed by the assignee prior to any litigation; and the creditor could revoke the power of attorney. A separate undertaking, or cautio, was necessary by which the creditor promised by stipulatio not to ‘interfere’ with the rights. By the time of Justinian, an action utilis, a concept similar to the early English action on the case, was allowed whenever the parties intended to ‘transfer’ a claim. The Codex spoke of ‘actiones transmittere’12 and ‘actiones per cessionem transferre’.13 The assignee would bring his own claim; his name would appear in the intentio in the formula and the claim could not be revoked or affected by death of the creditor. But, as Zimmermann has observed, the action was not really ‘transferred’ because the creditor continued to have a claim. If the debtor paid the creditor then the assignee would no longer have an action.14 English law initially followed the early Roman approach generally prohibiting the assignment of choses in action. Although English law permitted novation, a false start led to an early view that the power of attorney fell within the prohibition against maintenance.15 But by the 17th century English law permitted the creation of a power of attorney.16 The early Roman approach was probably introduced into English law by its enunciation by Bracton.17 As Holdsworth observed, the old rule of non-assignability was based upon twin concerns of (i) maintenance and oppression of the debtor and (ii) the perception that rights of action are personal. In Lampet’s case,18 Lord Coke said that ‘the great wisdom and policy of the sages and founders of our law have provided, that no possibility, right, title, nor thing in action, shall be granted or assigned to strangers, for that would be the occasion of multiplying of contentions and suits, of great oppression of the people, and chiefly of terre-tenants, and the subversion of the due and equal execution of justice.’ Over time those concerns became allayed and the rule gradually modified; and in this work of gradual modification ‘both law and equity … lent a hand’.19 It was particularly in equity where assignment became possible. The very earliest equity cases recognised that equitable rights could be ‘assigned’: ‘a Grant of future Possibility is not good in law, yet a
11 R Zimmermann, The Law of Obligations — Roman Foundations of the Civilian Tradition (1990) 58. 12 C 8.53.33. 13 C 5.12.31.pr. 14 R Zimmermann, The Law of Obligations (1996) 62. 15 JB Ames, Lectures on Legal History (1913) 213. 16 G Spence, The Equitable Jurisdiction of the Court of Chancery (1849) 851; Code 8.42.1 17 Bracton, De Legibus Consuetudinibus Angliae (On the laws and customs of England). 18 (1572–1616) 10 Co Rep 46; [1612] 77 ER 994,977. 19 W Holdsworth, ‘The History of the Treatment of Choses in Action by the Common Law’ (1920) 33 Harv Law Rev 997, 1029. Two Conceptions of Equitable Assignment 283
Possibility of a Trust in Equity might be assigned’.20 It was soon recognised that common law rights could also be the subject of the same assignment principles in equity. By 1765, Blackstone referred to the common law rule against assignment as ‘a great encouragement to litigiousness’ but continued explaining that in equity:21 this nicety is now disregarded: though, in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor’s name; the person, to whom it is transferred, being rather an attorney than an assignee. Thus, equity, by the expedient of the declaration of trust, permitted that which the common law had denied: assignment of common law rights. As we will see, the origins of equitable assignment as a declaration of trust are commonly forgotten today. The Transfer Conception of Equitable Assignment
The first modern conception of equitable assignment is that it involves rights against the debtor which are held by the assignor being transferred to the assignee. The assignee becomes the right-holder and a direct jural relationship between the debtor and the assignee is formed. There are a number of difficulties for the transfer conception of equitable assignment. First, in relation to assignment of contractual rights, the common law rights and obligations under contract generally represent the manifested will of the parties. If one party is able unilaterally to transfer rights owed to him by another then the other party to the contract will be placed under an obligation to a person to whom he has never undertaken to be bound. This point is powerfully made by Associate Professor Tham.22 In the context of assignment of contractual rights the notion of transfer of the contractual rights makes no conceptual sense. Suppose the debtor (A) is an individual with a contractual debt to a bank creditor (B). If the bank B assigns the debt to C, what has been ‘transferred’? Can C, a person about whom A has no knowledge and with whom A has no relationship, make any demands of A? If so, on what basis can C do this? A has not agreed to incur a debt to C, either expressly or impliedly. Or consider an assignment of legal rights involving the holding of shares in a company. What has been ‘transferred’ when the registered shareholder assigns in equity? The registered shareholder will still receive the dividends. The registered shareholder still has the right to vote. From the perspective of the company nothing has changed. Secondly, if an equitable assignment really involved a ‘transfer’ of rights then how is it possible to make sense of this as a matter of history? Consider, for example, the equitable assignment of a common law debt. Prior to Judicature reforms, how could a court of Chancery have held that common law rights had been transferred from one party to another? How could the same Court then have enforced the transferred common law right for the purposes of giving a common law remedy to the grantee of a common law right against the debtor? And if this was not historically possible, what has changed so that it would be possible today? Or, in the words of Meagher, Gummow and Lehane, ‘[h]ow a person not the legal owner can, the Judicature Act notwithstanding, prosecute what is, in effect, an action at common law for
20 Warmstrey v Tanfield (1628–9) 1 Ch Rep 29, 30; 21 ER 498. 21 W Blackstone, Commentaries on the Laws of England (1765) Book 2, Ch 30. 22 See especially CH Tham, ‘The Nature of Equitable Assignment and Anti-Assignment Clauses’ in J Neyers et al (eds), Exploring Contract Law (2009) 283. 284 Queensland Legal Yearbook 2013 damages is not explained’.23 The same is true of a common law action for debt. This difficulty is explored further below in relation to the consequence of the encumbrance conception of equitable assignment as requiring joinder of the assignor as a matter of substance, not merely procedure. The Encumbrance Conception of Equitable Assignment
The other conception of equitable assignment is that it involves the rights being held by the assignor becoming encumbered by a new (equitable) right which is held by the assignee. Nothing is transferred. Rather, new rights are created in equity. As we explain below, this conception means that equitable assignment brings about a trust in all but name. (i) The Requirements for Creation of a Trust and the Requirements for Equitable Assignment
There are various essential requirements for the assignment of a right. Three of the core requirements are as follows. First, the assignor must manifest an intention to assign the right. Second, there must be a right in existence which is identified or identifiable with reasonable certainty. Third, there must be certainty of the identity of the assignee. On the encumbrance conception of equitable assignment, it is no coincidence that these three requirements match those for the creation of a trust. Story argued that ‘every such assignment is considered in equity, as in its nature amounting to a declaration of trust and to an agreement to permit the assignee to make use of the name of the assignor, in order to recover the debt, or to reduce the property into possession’.24 The only objection to this observation by Story is that no agreement to ‘use the name of the assignor’ need be express or implied, although it will often be the case that an assignor will also grant a power of attorney.25 The use of the assignor’s name to sue can also be obtained by joinder of the assignor as a defendant. As we discuss further below, if the assignor will not sue for the benefit of the assignee then the assignee can preserve that benefit by suing the creditor, joining the assignor as a defendant. It is, of course, possible for the intention behind the ‘assignment’ merely to be an undertaking to allow the assignee the right to sue in the assignor’s name. But if the manifest intention is limited in that way then the appropriate label to attach to such an arrangement is ‘power of attorney’ not ‘assignment’. In Marshall’s 1950 thesis on assignment he developed a three-fold classification of equitable assignments: (i) informal assignment; (ii) assignment by way of trust; and (iii) assignment by way of contract.26 Properly understood, however, Marshall’s classification was not of independent categories. A trust can be created by contractual agreement. Hence, category (ii) and category (iii) are not independent. And, as Marshall acknowledged, the first category was really a catch-all for assignments which operated other than by way of contract or trust.27 But, as Marcus Smith observes, the effect of any assignment in category (i) is that
23 R Meagher et al, Meagher Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, 2002) 286 [6–520]. 24 Story, above n 8, 689 [1040]. 25 Tailby v Official Receiver (1888) 13 App Cas 523; Re Androma Pty Ltd [1987] 2 Qd R 134. 26 O Marshall, The Assignment of Choses in Action (1950) 80. 27 Ibid 109. Two Conceptions of Equitable Assignment 285 if the right being assigned is equitable then ‘an equitable chose will be held behind a trust’28 and if the right being assigned is a common law right then the common law right is held on trust.29 (ii) The Need for the Creation of Rights in Assignment and Trust
The encumbrance conception of equitable assignment matches a long established approach to the nature of a trust. It should, however, be acknowledged that there are competing conceptions of a trust which more closely match the conception of an equitable assignment as involving a ‘transfer’. For instance, it is not uncommon to encounter references to the creation of a trust by the transfer of rights to the beneficiary. But this view of a trust is conceptually flawed. The House of Lords, and the High Court of Australia on numerous occasions, has emphasised that equitable rights do not co-exist with legal rights.30 The creation of a trust does not separate two existing rights. Instead, the creation of a trust creates new equitable rights. In a recent article one of us has explored a long history which has recognised the conception of a trust as requiring as necessary (though not always sufficient) the creation of an equitable encumbrance upon particular rights held by the trustee.31 This historical conception of a trust was supported by Sanders’ great text from 1791 until 1844;32 by Dr Whitley Stokes in his carefully drafted Indian Trusts Act 1882 section 3; by Walter Hart in 1899;33 by the United States Restatements of the Law of Trusts 1935, section 2 (a definition substantially reproduced in the second and third restatements in 1957 and 2003);34 as well as in the first edition of the leading Australian text on trusts in 1958.35 Broadly, each of these definitions focussed attention on the beneficiary’s power or right as one which related to the rights of the trustee or, conversely, the particular liability obligation of the trustee in relation to the trust rights which were held. And, in 1910, Professor Maitland said that:36 Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here. Had there been a conflict here the … Judicature Act … would have abolished the whole law of trusts.[37] Common law says that A is the owner, equity says that B is the owner,
28 Smith, above n 2, 219 [11.06]. 29 Ibid 222 [11.14]. 30 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 706 (Lord Browne-Wilkinson); DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431, 463 (Aickin J); Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592,606 [30] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ); Peldan v Anderson [2006] HCA 48; (2006) 227 CLR 471, 485 [37] (Gummow ACJ, Kirby, Hayne, Callinan & Crennan JJ). 31 J Edelman, ‘Two Fundamental Questions for the Law of Trusts’ (2013) 129 LQR 66. 32 FW Sanders, An Essay on Uses and Trusts, and on the Nature and Operation of Conveyances at Common Law, and Those Deriving their Effect from the Statute of Uses (2nd edn 1799). The final edition was theth 5 by GW Sanders and J Warner in 1844. 33 W Hart, ‘What is a Trust’ (1899) 15 LQR 294. 34 American Law Institute Restatement of the Law of Trusts (1935). The reporter was Austin Scott. 35 K Jacobs, The Law of Trusts in New South Wales (1958) 7. 36 FW Maitland, Equity also The Forms of Action at Common Law (1910) 17–18. See also FW Maitland Equity — A Course of Lectures (2nd ed, 1936) 17. 37 Section 25 of the Judicature Act 1873 provides: ‘Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail’. 286 Queensland Legal Yearbook 2013
but equity is to prevail, therefore B is the owner and A has no right or duty of any sort or kind in or about the land. Of course the Judicature Act has not acted in this way; it has left the law of trusts just where it stood, because it found no conflict, no variance even, between the rules of the common law and the rules of equity. It is, however, true that it is not always sufficient for a trust merely that the holder of a legal right is encumbered by some equitable liability or duty.38 Examples are rights to redeem a common law mortgage, easements and restrictive covenants. (iii) The Substantive Duties of the Assignor and the Substantive Duties of the Trustee
Usually, although not always,39 trustees have positive duties. Those include duties commonly described as a duty to act in the best interests of a beneficiary. An exposition of the same principle in relation to equitable assignment can be seen in the masterful decision of Windeyer J in Norman v Federal Commissioner of Taxation.40 The principles (although not the conclusion) Windeyer J identified were concurred with by Dixon J. As Windeyer J explained, ‘courts of equity would come to the assistance of the assignee if the assignor refused to do whatever was necessary to enable the assignee to get the benefit of the assignment. Thus a recalcitrant assignor would be required, on having an indemnity for his costs, to permit his name to be used in an action to recover the debt; or an assignor would be restrained from receiving the debt for himself, as for example in L’Estrange v L’Estrange’.41 The Predominance of the Transfer Conception in Recent Authorities
The encumbrance conception of equitable assignment is conceptually coherent — it follows the well understood model of the trust — as well as being faithful to historical antecedents. But it does not fully reflect the current state of the law in either Australia or England. And it will not be easily capable of adoption at any level below the highest courts. What seemed clear to an earlier generation has become clouded. It is not necessary to look back very far to find a time when the encumbrance conception was generally accepted. Warner Bros Records Inc v Rollgreen Ltd in 1976 involved the question whether an equitable assignee could validly exercise a contractual option.42 The answer was that he could not. Roskill LJ gave as his reason that ‘the only rights that an equitable assignment can create in the equitable assignee are rights against his assignor who thenceforth becomes the trustee of the benefit of the option for the assignee, and the assignor could, of course, be compelled in equity to exercise those rights for the benefit of the assignee.’43 Sir John Pennycuick shared this view: Where there is a contract between A and B, and A makes an equitable but not a legal assignment of the benefit of that contract to C, this equitable assignment does not put C into a contractual relation with B, and, consequently, C is not in a position to exercise directly against B any right conferred by the contract on A.
38 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 702–3 (Lord Browne-Wilkinson). 39 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 112 [5] (Gleeson CJ, McHugh, Gummow & Callinan JJ). Swadling has argued that the word ‘trust’ should not be used at all and that the order should be described only as an order for conveyance of a right: W Swadling ‘The fiction of the constructive trust’ [2011] CLP 1, 10–13. 40 Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9. 41 (1850) 13 Beav 281; (1850) 51 ER 108. 42 Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430 (CA). 43 Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430 (CA) 443–4. Two Conceptions of Equitable Assignment 287
The equitable assignment may be converted into a legal assignment by notice to B: see section 136 of the Law of Property Act 1925; but, so long as the assignment remains equitable only, C has no more than a right in equity to require A to protect the interest which A has assigned and to do so by exercising the option himself. As we have explained, there are reasons in support of this approach. Why should the contractual counterparty be required to recognise the act of a stranger to whom he has never undertaken any obligation and, as in Warner Bros itself, of whom he may never have heard? So far as the validity of contractual notices are concerned, Warner Bros has been followed in New South Wales: ‘The right of an equitable assignee of a chose in action being one against the assignor rather than the debtor, the equitable assignee cannot exercise a contractual right against the debtor.’44 A conceptual divide separates those views from the view the English Court of Appeal took in the 2011 appeal in National Westminster Bank plc v Kapoor.45 One of the questions in that case was whether an equitable assignee of part of a debt was a ‘creditor’ entitled to vote in an insolvency procedure. This turned on whether the equitable assignee was a person to whom the relevant part of the debt was owed. Etherton LJ, with whom the others agreed, answered this question by reference to a supposed principle of law that ‘the equitable assignee of a debt, and not the equitable assignor, has the substantive legal right to sue for the assigned debt.’46 It is possible to understand why Etherton LJ felt that a number of decisions of the Court of Appeal decided since Warner Bros pointed towards this conclusion.47 What is more difficult to understand is the conclusion itself.48 The Lord Justice accepted that the assignor had legal title, but held that the court should refuse to recognise this title in favour of the title of the assignee, ‘except where the assignor is a trustee for the assignee and expressly suing as such or the assignee joins in’.49 He justified this approach, amongst other things, by reference to section 49 of the Senior Courts Act 1981 (Eng), which provides that ‘wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same subject matter, the rules of equity shall prevail’. This reasoning involves the same fallacy that Maitland identified more than a century ago. An equitable assignor and his assignee do not have competing titles. The assignor has rights against the third party debtor and the assignee has rights against the assignor. There is no conflict that needs to be resolved by resort to section 49. If Etherton LJ’s reasoning were correct and there were a conflict, then it would apply across the law of trusts for the title of trustees would always be in competition with the title of their beneficiaries. The truth is that while beneficiaries have rights against their trustees, they do not have a ‘title’ to the trust assets in any sense that is comparable to the sense in which the trustees have title.
44 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 (NSWCA); Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548; Silkdale Pty Ltd Ltd v Long Leys Co Pty Ltd (1995) 7 BPR 14,414. See also Dwyer v Derek [2003] QSC 274. 45 National Westminster Bank plc v Kapoor [2011] EWCA Civ 1083; [2012] 1 All ER 1201. And more recently Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376, [58]: ‘Where there has been an assignment that takes effect in equity, the general rule is that it is the equitable assignee who has the right to sue, because it is the equitable assignee who is beneficially entitled to the thing in action.’ 46 National Westminster Bank plc v Kapoor [2011] EWCA Civ 1083; [2012] 1 All ER 1201, [43]. 47 Central Insurance Co Ltd v Seacalf Shipping Corporation (The Aiolos) [1983] 2 Lloyd’s Rep 25 (CA); Three Rivers District Council v Bank of England [1996] QB 292 (CA); Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] QB 825 (CA). 48 See also PG Turner, ‘May the Assignee of Part of a Debt Vote at a Creditors’ Meeting?’ [2012] CLJ 270. 49 National Westminster Bank plc v Kapoor [2011] EWCA Civ 1083; [2012] 1 All ER 1201, [40]. 288 Queensland Legal Yearbook 2013
It is, moreover, wrong to think that the framers of the Judicature Acts intended through section 49’s predecessor to give equitable assignees a cause of action directly against the debtor which they had never previously enjoyed. The framers did innovate in this area but in a much more limited way. By section 25(6) of the Judicature Act 1873 (Eng) they, in effect, allowed a defined class of equitable assignments to be converted into outright transfers of legal rights by the provision of notice. In these cases and through this mechanism assignees were to gain direct claims. There would have been little purpose in this if the framers also intended that by section 49 equitable assignees should have direct claims in every case. As French CJ, Crennan and Kiefel JJ said in Equuscorp Pty Ltd v Haxton (quoting Lord Esher MR)50 ‘the words mean what they say; they transfer the legal right to the debt as well as the legal remedies for its recovery.’51 But, as they said in the same joint judgment, ‘[e]quitable assignments were not affected’.52 To a proponent of the encumbrance conception, part of the difficulty with Etherton LJ’s analysis is the opposition he posits between equitable assignments that take effect as trusts and other equitable assignments. There is no distinction here because every equitable assignment is, in essence, a species of trust. Referring to a modification limited to marine policies wrought by section 50(2) of the Marine Insurance Act 1906, Slesser LJ explained in Williams v Atlantic Assurance Company Limited that at common law ‘the assignee could not sue in his own name on the policy, but an action could be brought by the assignor as trustee for the assignee’.53 The same thinking that underpins Kapoor also underpins the decision of the Queensland Court of Appeal in Thomas v National Australia Bank Limited.54 In that case, Pincus JA said that: … it is not in question that an equitable assignment is good as between assignee and assignor, without notice to the debtor. The only debatable point is whether the meaning of this statement is that the assigned property passes, without notice, but until notice is given the debtor may pay the assignor … or whether, on the other hand, notice to the debtor is necessary in order to pass title to the debt.55 His Honour’s conclusion, with which McMurdo P and Thomas JA said they agreed, was that title passes with or without notice. Again, this conclusion is fundamentally inconsistent with the encumbrance conception of equitable assignment. On that conception, unless the case is brought within the statute, and a legal assignment effected, title never passes. The right of action remains with the assignor, and what the assignee acquires is a right against the assignor relating to that right of action, just as the beneficiaries of a trust are limited to rights against their trustee. Arguably, if Pincus JA were correct, and a mere equitable assignment were effective to pass the right of action, section 26(5) of the Judicature Act 1873 (Eng) and its Australian counterparts would have been unnecessary.
50 Read v Brown (1888) 22 QBD 128, 132, Fry and Lopes LJJ agreeing at 132 and 133 respectively. 51 [2012] HCA 7; (2012) 246 CLR 498, 529 [63]. 52 [2012] HCA 7; (2012) 246 CLR 498, 527 [57]. See also William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, 461 (Lord Macnaghten). 53 Williams v Atlantic Assurance Company Limited [1933] 1 KB 81 (CA) 105. 54 Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448. The transfer conception has also been favoured by the New Zealand Court of Appeal: Mountain Road (No 9) Limited v Michael Edgley Corporation Pty Ltd [1999] 1 NZLR 335. 55 Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448 [18]. Two Conceptions of Equitable Assignment 289
Part 2: Equitable Assignment and Joinder of Parties
We have already identified some of the different consequences that follow depending upon whether one adopts the transfer conception or the encumbrance conception of equitable assignment. This part of our paper is concerned with one of the most basic procedural distinctions which arises between these two conceptions. That is, is it necessary always for an assignee to join the assignor in an action against the debtor? On the transfer conception joinder should not be necessary. The relevant right has been transferred and it may often by an unnecessary inconvenience to join an assignor who has no real interest in participating in the litigation. On the encumbrance conception, joinder must always be necessary, even if the assignor merely enters an appearance and agrees to abide by the decision of the Court (removing any likelihood of any costs consequences or further expense). To explain why joinder is required on the encumbrance conception of an equitable assignment it is necessary to begin with trusts before turning to assignment. Trusts: the Vandepitt Procedure
Although there may be exceptional cases,56 any common law claim against a third party who tortiously damages the trust property belongs to the trustee. This is because it is the trustee who holds the right to the property. Similarly, if the trustee contracts with a third party in his representative capacity, any claim to enforce the contract belongs to the trustee.57 The third party has made no promises to the beneficiaries and may not even know of the trust. It follows that any claim to enforce contractual or other rights which are the subject of a trust must be made by the trustee. The reason for this is clear. Apart from anything else, the beneficiaries themselves have no rights against the third party. Beneficiaries do have rights against their trustee, and these may include rights to require that he enforce whatever claims he may have in his representative capacity against third parties. 58 In an appropriate case beneficiaries may bring proceedings against their trustee for a mandatory order requiring that he do so. If the trustee improperly fails to enforce rights subject to the trust, he may be required to account to the beneficiaries for the value of the benefit that is lost. There is accordingly a chain of rights and therefore a chain of possible claims. Apart from exceptional cases where the beneficiaries separately enjoy common law rights against the third party, the beneficiaries cannot leapfrog over the trustee and sue the third party directly. Where the trustee refuses to claim, in order to avoid the inconvenience and delay of a multiplicity of actions the courts have for a long time allowed the claims at both stages of this chain to be brought together in a single proceeding initiated by the beneficiaries. The first case involving a trust appears to be Meldrum v Scorer in 1887, 59 but there are much earlier cases involving deceased estates.60 Nowadays this is commonly referred to as the Vandepitt procedure following Lord Wright’s reference to it in Vandepitt v Preferred Accident Insurance Corp of New York.61
56 Shell UK Ltd v Total UK Ltd [2010] EWCA Civ 180; [2011] QB 86. An appeal to the UK Supreme Court settled before hearing. 57 Dunlop Pneumatic Tyre Co v Selfridge & Co [1915] AC 847, 853; Vandepitt v Preferred Accident Insurance Corp of New York [1933] AC 70, 79. 58 Lloyd’s v Harper (1880) 16 Ch D 290 (CA). 59 Meldrum v Scorer (1887) 56 LT 471. 60 Marcus Smith QC traces this back to Nicholson v Sherman (1664) 1 Ch Cas 57; 22 ER 693. 61 Vandepitt v Preferred Accident Insurance Corp of New York [1933] AC 70, 79. M Smith QC ‘Locus standi and the enforcement of legal claims by cestuis que trust and assignees’ (2008) 22 Trust Law International 140 contains an excellent discussion of this procedure and its historical development. 290 Queensland Legal Yearbook 2013
What is important to understand about the Vandepitt procedure is that it involves two conceptually separate claims compressed into one proceeding. The beneficiaries sue as claimants naming both the trustee and the third party as defendants. In order to succeed, the beneficiaries must show two things. They must first show that the case is one in which the court should direct that the trustee assert his claim against the third party or, which amounts to the same thing, a case in which the trustee should be required to lend his name so that the beneficiaries can claim. They must then show that the trustee’s claim should succeed. The procedural configuration does not obscure the jural reality that there are two claims in issue. Hanworth MR explained this clearly in Harmer v Armstrong.62 There are several good reasons why the trustee is a necessary party to this form of procedure. (i) The trustee may deny that there is any trust, as in Harmer v Armstrong itself, or else admit the trust but object to the claim being made. In fact the beneficiaries may only take the decision whether to claim out of the hands of the trustee where special circumstances exist,63 usually only in cases where the trust is bare.64 (ii) The trustee is also needed so that he will be bound res judicata. If the trustee is not joined, after satisfying a judgment in favour of the beneficiaries the third party may find that he faces a fresh claim by the trustee. (iii) Since the dispute necessarily concerns a transaction between the third party and the trustee, there is every possibility that the trustee will have evidence to give. It may not be fair to require that the third party operate the more limited procedures available for compelling disclosure and other evidence from non-parties. (iv) Unless the trust is bare and the beneficiaries are the only claimants on the res, the trustee will need to receive the proceeds of the claim so that these can be properly distributed. These reasons are all important, but there is a more fundamental reason still. This is that the trustee is a necessary party in principle because it is the trustee who has rights against the third party. This last proposition was confirmed by the Supreme Court of the United Kingdom in its 2010 decision in Roberts v Gill & Co.65 In that case, Mr Roberts commenced proceedings for negligence against two firms of solicitors who had advised the former personal representatives of the estate of his late grandmother. His claims were brought in his personal capacity as a legatee of the estate. This claim could not succeed because the solicitors owed no duties to Mr Roberts. He applied, first, to amend his claim in order to continue it both in his personal capacity and as a derivative claim on behalf of the estate, the latter being said to involve a mere change in capacity, and, second, to join the administrator of the estate as a necessary party to the derivative claim. By the time this application was made, any new claim by either Mr Roberts or the administrator was time-barred. The Supreme Court held that the circumstances were not sufficiently special to permit the beneficiary to bring a derivative claim. However, Lords Collins, Rodger and Walker JJSC held that another reason why the amendment would not be allowed was that a derivative action
62 Harmer v Armstrong [1934] 1 Ch 65 (CA) 84. More recently, Barbados Trust Co v Bank of Zambia [2007] EWCA Civ 148; [2007] 1 Lloyds Law Rep 495 at [45]. 63 Hayim v Citibank NA [1987] AC 730. 64 Re Field [1971] 1 WLR 555, 561. 65 Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240. Two Conceptions of Equitable Assignment 291 by a beneficiary requires the joinder of the administrator at the outset of the proceedings. It followed that the first amendment could not succeed because the proceedings so amended would be improperly constituted. Without the first amendment, the second amendment would not assist Mr Roberts either, because the administrator was not a necessary party to the claim Mr Roberts made in his personal capacity. In the leading speech Lord Collins concluded that the administrator was a necessary party to any derivative claim in part by analogy with claims by trust beneficiaries invoking the Vandepitt procedure and also by analogy with derivative claims made by the shareholders of companies. In the case of trusts, Lord Collins noted that joinder ensures that the trustee is bound and avoids a multiplicity of action. He added that ‘joinder also has a substantive basis, since the beneficiary has no personal right to sue, and is suing on behalf of the estate, or more accurately, the trustee.’66 Equitable Assignment
That is how matters stand in the law of trusts. If the correct conception of equitable assignment is that it involves an encumbrance upon the assignor’s rights requiring the assignor to hold the rights for the assignee, and is therefore in the nature of a trust, the answer ought to be the same. This was the case before the Judicature reforms. The answer then was that the assignee, like the beneficiary of a trust, could never sue the debtor in his own name for the simple reason that the claim belonged to the assignor. Therefore it was the assignor who sued as trustee for the assignee.67 If the assignee had taken a power of attorney then he could initiate that proceeding in the name of the assignor. If he had not, and if the assignor was unwilling to lend his name to the proceedings, the assignee needed to proceed through two stages: first, a suit in equity for a decree requiring the assignor to lend his name, and second, an action at law against the debtor in the name of the assignor.68 Two innovations ameliorated the position of equitable assignees. First, as mentioned above, by section 26(5) of the Judicature Act 1873 (Eng) and its Australian counterparts, a defined class of assignees were given the right to claim directly in their own name. Second, in the case of assignments outside the legislation, a practice developed whereby assignees would initiate proceedings naming both the debtor and the assignor as defendants.69 The structure and rationale is the same as that of the Vandepitt procedure discussed above in connection with trusts and deceased estates, bearing in mind that an equitable assignment is essentially a bare trust so that the restrictions on the use of the Vandepitt procedure in other contexts are generally inapplicable.70 An action in this form is properly constituted ‘because the party with the title to sue at law is privy to the action.’71 Joinder of the legal owner was necessary in all cases of this second type. Thus the editor of Daniell’s Chancery Practice wrote that:
66 Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 [62]. Although Lord Hope DPSC preferred not to base his decision solely on the ground that special circumstances had not been made out, he agreed (at [84]) that ‘[t]he beneficiary has no personal right to sue. The requirement that the personal representative must be joined is more than just a matter of procedure.’ 67 Williams v Atlantic Assurance Company limited [1933] 1 KB 81 (CA) 105. 68 Re Westerton [1919] 2 Ch 104, 133. 69 eg Durham Brothers v Robertson [1898] 1 QB 765 (CA) 770–1. 70 See M Smith QC ‘Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees’ (2008) 22 Trust Law International 140. 71 Treadwell v Hickey [2009] NSWSC 1395 [92]. 292 Queensland Legal Yearbook 2013
The principle that requires a trustee, or other owner of the legal estate, to be brought before the Court in actions relating to trust property, applies equally to all cases where the legal right to sue for the thing demanded is outstanding in a different person from him who claims the beneficial interest.72 As in the case of trusts, the requirement that the equitable assignor be joined was properly viewed as a requirement of substance. It was for this reason that, except where the legislature has intervened,73 if the assignee sues without joining his assignor and then seeks to join the assignor after the limitation period has expired, the amendment would not be allowed and the action would fail.74 Similarly, if the assignor was a company which had been dissolved, there could be no joinder and the claim would be lost unless the company were restored to the register.75 The principle in both of these cases is that only the assignor has a claim against the debtor. An action brought by an equitable assignee without joining the assignor was therefore improperly constituted.76 The action was not a nullity,77 because of the judicature rule that an action should not be defeated by misjoinder or non-joinder, but it was considered that the action ‘will not be an appropriate vehicle for the ultimate recovery of a remedy at law unless and until the assignor who is alone entitled to sue at law is a party.’78 The assignor needed to be joined before judgment. All of this coheres with the encumbrance conception of equitable assignment as we have explained it in earlier parts of this paper, and all of it seems to have been well understood only a generation ago. However a significant shift, consistent with the transfer conception of equitable assignment, has more recently led English and Australian courts to take a different approach to the issue of joinder. So far as the English cases are concerned, this shift had occurred by the time the appeal in Roberts v Gill & Co came before the Supreme Court in 2010. In arguing that it was not necessary that the administrator be joined at the outset of the proceedings, the analogy counsel for Mr Roberts pressed on their Lordships was with the claims of an equitable assignee. The suggestion was that a more liberal rule applies in relation to equitable assignments and that there is no good reason why that more liberal rule should not apply also to claims relating to a deceased estate. Lord Collins noted comparatively recent authorities holding that in the case of an equitable assignment the usual requirement to join the assignor is procedural only, that joinder need only occur before final judgment and that it may be dispensed with, although only in ‘the most exceptional circumstances’.79 His Lordship took these cases to have the consequence that an action by an assignee is validly constituted without joinder including for the purposes of stopping limitation periods from running. Lord Collins did not, however, accept that there is a ‘real analogy’ between an equitable assignee and the beneficiary of an
72 Daniell’s Chancery Practice (7th ed 1901) vol 1, 173 and see 175. 73 In England: Limitation Act 1980 s 35 and, implementing that, 1981 RSC Ord 15 r 6 (now CPR 19.5). See the discussion in Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 at [24] to [37]. The same issue has been resolved in New South Wales by treating an action brought by an equitable assignee alone as ‘an action … brought on the cause of action’ within the Limitation Act 1969 s 63(2): Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; (2000) 48 NSWLR 709. 74 Hudson v Ferneyhough (No 1) (1890) 34 Sol J 228 (CA). 75 MH Smith (Plant Hire) v DL Mainwaring [1986] 2 Lloyd’s Rep 244 (CA). 76 Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101. 77 See Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448. 78 Treadwell v Hickey [2009] NSWSC 1395 [98]. 79 Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 [63]-[71]. Two Conceptions of Equitable Assignment 293 unadministered estate. This was because ‘in the case of an equitable assignment the assignee is the true owner and the assignor is a bare trustee’. Lord Walker expressed a similar view.80 There are well known differences between the rights of a beneficiary of an unadministered estate and the rights of a beneficiary under a trust or an equitable assignee. But, as Lord Clark JSC observed, it is difficult to see how those differences require a different rule in relation to joinder.81 His next step was to reason that if the joinder rule was not absolute in the case of an equitable assignment then perhaps it should not be absolute in a derivative action as well. However, it would be more logical to reason in the opposite direction. Lord Collins accepted that (i) the reasons why a trustee must be joined include the substantive reason that only he has rights against the third party and (ii) an equitable assignor is a trustee. The inference from these premises should be that in principle the assignor should be joined in every case. The line of authorities to which Lord Collins referred in support of the proposition that joinder may be dispensed with began with the 1983 decision of the Court of Appeal in The Aiolos.82 This was the turning point — or the false step, according to taste. The Court of Appeal there accepted, for the first time, a submission that (i) an equitable assignee has a cause of action which he can assert independently of the assignor and (ii) the presence of the assignor is not universally necessary and can be dispensed with by the court where there is no risk of double jeopardy. This was not necessary for the decision because the court considered that the assignor in that case should be joined. The two propositions have nonetheless been affirmed and followed in the Court of Appeal on a number of occasions and may fairly be said to represent the law in England at the present juncture.83 A similar development has occurred in Australian intermediate appellate courts.84 However, when this issue was considered by Gummow and Bell JJ in the High Court of Australia in Equuscorp Pty Ltd v Haxton, the principle was expressed in limited terms restricted to interlocutory proceedings. Their Honours said that85 an action by an equitable assignee without joining the assignor is not a nullity; the action may be liable to be stayed pending joinder, but no such application for a stay has been made in the present litigation. The authorities considered by Lord Collins of Mapesbury in Roberts v Gill & Co indicate that any outstanding assignor must be joined before final judgment can be obtained by the assignee, but that has been held not to be necessary where the assignee is seeking interlocutory relief. As noted above, if Equuscorp were to obtain the relief it seeks in these appeals, this would not be final in nature. In a passage referred to in a footnote, Gummow and Bell JJ also approved the remarks of Gaudron and Gummow JJ in Oshlack v Richmond River Council86 that an equitable assignor of a legal chose in action could, upon receiving a costs indemnity, be required to sue the debtor.
80 Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 [102]. 81 Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 [124]. 82 Central Insurance Co Ltd v Seacalf Shipping Corpn (The Aiolos) [1983] 2 Lloyd’s Rep 25 (CA) 33–4. See also Weddell v JA Pearce & Major [1988] Ch 26, 38–43. 83 Three Rivers District Council v Governor and Company of the Bank of England [1996] QB 292 (CA) 313 (where the court also stated that the assignor may not sue in the absence of the assignee); Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC [2001] QB 825 (CA) [60]; National Westminster Bank plc v Kapoor [2011] EWCA Civ 1083; [2012] 1 All ER 1201; Bexhill UK Limited v Razzaq [2012] EWCA Civ 1376 [58]. 84 See especially Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11, 512 (NSWCA) and Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448. 85 [2012] HCA 7; (2012) 86 ALJR 296 [78] (footnotes omitted). 86 [1998] HCA 11; (1998) 193 CLR 72 [41]. 294 Queensland Legal Yearbook 2013
The case commonly cited in support of the development that the assignor need not always be joined is William Brandt’s Sons & Co v Dunlop Rubber Company Limited, a decision of the House of Lords from 1905.87 However non-joinder of the assignor was not an issue in the appeal and appears only to have been noticed in the course of the proceedings before the House of Lords. Lord Macnaghten referred to the point in passing: Strictly speaking, [the assignor], or their trustee in bankruptcy, should have been brought before the Court. But no action is now dismissed for want of parties, and the trustee in bankruptcy had really no interest in the matter. At your Lordships’ bar the [debtor] disclaimed the wish to have him present, and in both Courts below they claimed to retain for their own use any balance that might remain after satisfying Brandts.88 Although Lord Macnaghten did not speak in terms indicating that he intended to develop the law or decide any new point, this passage was pressed upon the House some twenty years later in Performing Rights Society Limited v London Theatre of Varieties Limited in support of a liberal approach to joinder.89 Their Lordships did not agree that Brandt’s case significantly changed the general rule requiring joinder. Lord Phillimore said that the point about Brandt’s case was ‘robbed of much weight by the fact that the objection in that case was withdrawn at the Bar of the House’, and Viscount Cave LC appears to have considered the case to be confined to circumstances in which the defendant disclaimed any wish to have the legal owner made a party.90 Although not mentioned, it is clear from Travis v Milne that there was nothing exceptional about the course the House took in Brandt’s case.91 In Travis v Milne there might have been an issue whether the beneficiaries of a deceased estate were entitled to maintain their suit, but since the defendants waived any objection, Turner V-C said he did not need to further consider the point.92 Brandt’s case does not, therefore, provide convincing support for the proposition that joinder is a purely procedural requirement which can be dispensed with by the court where there is no procedural imperative.93 Nor has a convincing principled explanation for this proposition been found. Two attempts have been made as follows. The first attempt involves the assertion that an equitable assignee has his own direct claim, which sounds in equity, against the debtor. This equitable claim apparently sits alongside the legal claim belonging to the assignor and prevails in the event of a competition between them. In Three Rivers District Council v Bank of England, Staughton LJ said in a minority judgment that ‘this solution comes nearest to reconciling all the authorities’.94 The idea has been developed by Tolhurst, who reasons that to the extent the remedy the assignee seeks involves the enforcement of legal rights, the assignor must necessarily be joined, but that there are a range of equitable remedies available to an assignee and that where one of these is claimed joinder is only a procedural requirement.95
87 William Brandt’s Sons & Co v Dunlop Rubber Company Limited [1905] AC 454. 88 William Brandt’s Sons & Co v Dunlop Rubber Company Limited [1905] AC 454, 462. 89 Performing Rights Society Limited v London Theatre of Varieties Limited [1924] AC 1. 90 Performing Rights Society Limited v London Theatre of Varieties Limited [1924] AC 1, 37, 14. 91 Travis v Milne (1851) 9 Hare 141; 68 ER 449. 92 See M Smith QC, The Law of Assignment (2nd ed 2013) 233 [11.41], citing also Les Affréteurs Réunis Société Anonyme v Leopold Walford (London) Ltd [1919] AC 801, 801–2. 93 eg Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC [2001] QB 825 (CA) [60]: ‘There is a rule of practice that the assignor should be joined, but that rule will not be insisted upon where there is no need, in particular if there is no risk of a separate claim by the assignor’. 94 Three Rivers District Council v Bank of England [1996] QB 292 (CA) 303. 95 GJ Tolhurst, ‘Equitable assignment of legal rights: a resolution to a conundrum’ (2002) 118 LQR 98. This view is also favoured by A Guest, Guest on the Law of Assignment (2012) 90 [3–08]. Two Conceptions of Equitable Assignment 295
Marcus Smith QC points out that this reasoning has not been adopted in any case and that there is no explanation by reference to authority how it is that equity can fashion a direct claim against the debtor vesting in the assignee.96 The equitable remedies to which Tolhurst refers have never been made available to equitable assignees before. If they were to be made available to equitable assignees, it would then be necessary to explain (i) why it is that the debtor should be subject to claims made by someone with whom he did not contract and (ii) why those remedies should not be made available to every beneficiary of a bare trust. The second attempt involves the assertion that the assignee is entitled to enforce the assignor’s claim but in the assignee’s own name. This idea, which Marcus Smith QC advances in the second edition of The Law of Assignment, amounts to the claim that the law has developed such that an equitable assignment must be treated as tantamount to a transfer of the assignor’s legal rights.97 This was essentially the analysis of the Queensland Court of Appeal in Thomas v National Australia Bank Limited,98 which we have already discussed. Part 3: Barbados Trust and Anti-Assignment Clauses
The difference between the transfer and the encumbrance conceptions of equitable assignment also affects how we analyse the effect of anti-assignment clauses. This is illustrated by the 2007 decision of the English Court of Appeal in Barbados Trust Co v Bank of Zambia.99 Although not necessary to the determination of the appeal, one of the issues which each of the three Lords Justice considered in detail was the effect of an anti-assignment clause on a declaration of trust intended to avoid the restriction. The case involved distressed Zambian debt sold by Bank of America to the claimant vulture fund shortly before the expiry of a limitation period. An anti-assignment clause prohibited assignment other than to ‘banks or other financial institution’. The claimant vulture fund was not a bank or financial institution. So, instead of using the language of assignment, Bank of America declared itself trustee of the debt for the claimant. The claimant then operated the Vandepitt procedure, suing the Bank of Zambia and joining the Bank of America as a defendant. The question was whether this stratagem succeeded in evading the anti-assignment clause. Waller and Rix LJJ thought that the stratagem did work. Broadly, their view was that since a declaration of trust does not bring the beneficiary into direct contractual relations with the debtor, but only creates an encumbrance on the trustee’s own rights, an anti-assignment clause would not prohibit the declaration unless expressly worded. The clause in question was not worded in this way. Bank of America could have sued to recover the debt with a view to paying the proceeds over to its beneficiary. If that were permissible, and if the claimant could have compelled Bank of America to bring that claim, then why should both steps not be compressed into a single Vandepitt proceeding? Waller LJ said there ‘is no reason why the court should hold that [Bank of Zambia] should be entitled to a defence which it would not have had if some longer and more tortuous form of procedure, compelling [Bank of America] to sue, had been used.’
96 Smith, above n 2, 231 [11.38]. 97 Ibid 231–6 [11.39] — [11.47]. In the same passage Smith explains that the process by which an assignee claims may be compared to the Vandepitt procedure as it applies to trusts and deceased estates. This is a valid comparison but it does not explain why an equitable assignee can never sue without joining the assignor. The beneficiary of a trust or deceased estate who invokes the Vandepitt procedure must always join the trustee or executor. 98 Thomas v National Australia Bank Limited [1999] QCA 525; [2000] 2 Qd R 448. 99 [2007] EWCA Civ 148; [2007] 1 Lloyds Law Rep 495. 296 Queensland Legal Yearbook 2013
Hooper LJ disagreed on this point. He considered that the claimant’s stratagem cut directly across the anti-assignment clause: the Bank of Zambia found itself facing a vulture fund across the court notwithstanding that it had stipulated that the debt could only be assigned to a bank or other financial institution. That restriction would have achieved very little if it could be evaded by a declaration of trust. Hooper LJ did not think that special drafting should be required to prevent the claimant’s stratagem. On this view, the anti- assignment clause did not prohibit the declaration of trust but it did prevent the claimant from then operating the Vandepitt procedure. What was common to all of the three Lords Justice is that they all recognised a conceptual distinction between an equitable assignment and a declaration of trust, although Hooper LJ was less inclined to accord this distinction substantial effect. The same approach, differentiating equitable assignment and trust, has been taken in Australia. In Secure Parking (WA) Pty Ltd v Wilson,100 Buss JA (Martin CJ agreeing) in the Court of Appeal in Western Australia said that a trust may be created in respect of a contract which is not assignable in law. The Bank of Zambia’s position was effectively the encumbrance view of equitable assignment. On that view, there is no substantive difference between (i) an assignment of a debt and (ii) a declaration of a trust coupled with the operation of the Vandepitt procedure. Viewed in this way, the claimant cannot evade the anti-assignment clause merely by using different words. This approach does not ultimately resolve the issue in Barbados Trust. It is still necessary to construe the clause. However it sharpens the questions one asks in doing so. Does the clause prohibit the creditor from creating in a third party a beneficial interest in relation to the creditor’s right (whether the process is called equitable assignment or the declaration of a trust)? If so, what is the consequence — if the creditor/trustee sues to recover the debt, does the debtor now have a defence? Or does the breach of the anti-assignment clause only give the debtor a damages claim for any loss he may have suffered? If the beneficiary himself sues, operating the Vandepitt procedure, does the anti-assignment clause give the debtor a defence to the claim that he would not have had if the creditor/trustee had sued?101 Conclusion
The nature of equitable assignment is at a cross-roads. Until a short time ago the conception of equitable assignment adopted by the courts was modelled on the private trust. A second conception, consistent with the etymology of ‘assignment’, and perhaps more consistent with practical convenience, has emerged. This second conception treats equitable assignment as involving a transfer. This conception is evident in the answers given comparatively recently by the courts to a number of issues but particularly in relation to the issue of whether the assignor must always be joined and in relation to the method of analysing anti-assignment clauses. The transfer conception of equitable assignment, if it prevails, may require us to revisit some fundamental principles of equity.
100 [2008] WASCA 268; (2008) 38 WAR 350, 377 [101]. 101 See further the detailed discussion in CH Tham ‘The Nature of Equitable Assignment and Anti- Assignment Clauses’ in J Neyers et al (eds), Exploring Contract Law (2009) 283. Lawyers and Legislation
by The Honourable Justice John Dowsett AM*
Introduction
In my time as a barrister and as a Supreme, and then a Federal Court Judge, there has been a marked shift in the nature of the subject matter of litigation. In particular, the emphasis has moved away from resolution of disputes according to the common law and rules of equity. The emphasis is now very much upon resolution of disputes arising out of, or to be resolved in accordance with statutory regimes. This tendency may be more pronounced in matters which engage federal jurisdiction than in matters purely within the jurisdiction of the state and territory courts, but I believe that the trend can be seen in all litigation and in all courts. It is not surprising, given the increased activities of our legislatures in a whole range of areas, particularly in the regulation of commercial and social life, and notwithstanding attempts to deregulate markets. There is, I perceive, increasing disquiet amongst lawyers concerning both the volume and quality of legislation. There is also concern about our capacity to have ready access to statute law as it applied at any relevant date, the history leading to the enactment and/or amendment of legislation, relevant subordinate legislation and relevant case law. These difficulties are largely the result of the sheer volume of legislation and the frequency of amendment. They are only mildly ameliorated by the use of technology. I will try to identify the circumstances which have led to the present situation, question the process by which legislation is enacted, seek to identify ways in which that process might be improved and urge the legal profession to play a greater role in ensuring the appropriateness and quality of our statutory law. I shall do all of this in my capacity as a person who reads, construes and applies statutes, but has little knowledge of how they come to life. The Legal Profession
In many ways, the legal profession tends to be a passive consumer of whatever the legislature chooses to serve up as legislation. Part of my thesis is that, as a profession, lawyers have a right and a duty to ensure the quality of our statute law in order to ensure the quality and fairness of the law as a whole. This flows from our existence as a learned profession. It is worth focussing on the meaning of this expression. Traditionally the three learned professions have been law, medicine and divinity. Although originally, entry to such professions was probably based upon practical, rather than theoretical training, these areas were, nonetheless amongst the first to be recognized as separate areas of study in academic institutions. Generally,
* Judge, Federal Court of Australia. This paper was presented at the Bar Association of Queensland Bar Practice Course, 19 July 2013.
297 298 Queensland Legal Yearbook 2013 substantial periods of study and high standards of individual probity are needed in order to qualify for entry. As an aside, I should mention submissions which, whilst still at the Bar, I heard made in the Full Court in connection with an application for admission to practice or some similar matter. Senior counsel submitted that a degree from the QUT (or perhaps then, the QIT) was not a university degree. Although my recollection is hazy, I think that the admission rules then required a university degree as one possible qualification for admission. The submission was that traditionally, a university was an institution which offered courses in each of the three areas — law, medicine and divinity. The QUT (or QIT) did not offer courses in medicine or divinity, and so it was said that it was not a university, and that its degrees were therefore not university degrees. The submission was not well received. However it was a serious argument, ably put by an experienced and highly regarded practitioner and academic. I do not necessarily imply that he himself subscribed to it. An American writer, Charles Donahue Jnr, has defined a profession as follows: The classic sociological definition of a profession is a group who make their living by employing their learning on behalf of other people by whom they are in some way compensated. For the group to be fully a profession, it must have: a sense of group identity; a great deal to say about, if not total control over, admission to the group; a system for passing on its learning to a new generation; norms of behaviour with regard to the exercise of its professional duties; and a system for enforcing those norms. We should not underestimate the fact that we come to the profession with substantial education and training. Those qualifications put us in a special position of knowledge, and therefore power in connection with the law. Further, our virtual monopoly of the right to act in connection with legal matters re-inforces our unique position. That position gives us great personal benefit but also imposes obligations. Among those obligations is an obligation to use our training in the interests of the community as a whole, and not just in the interests of clients, ourselves or the profession. I suggest that our duty to the wider community includes a duty, as best we can, to maintain and improve the quality of the law as a whole. In his paper Donahue examines the English legal profession of the 14th century, identifying it as comprising the common lawyers and the canon lawyers. On the common law side he focuses on the advocates, known as serjeants. Donahue concludes, perhaps tentatively, that the professional division between the common and canon lawyers may have isolated the common law from the influence of ongoing developments in continental Europe in both canon and civil law, leading to the sharp distinction which still exists between the common law system, in all its many emanations and the various emanations of the civil law. To my mind, this is not surprising. In the relatively short lifetime of the common law and statute law in Australia, we have managed to create a variety of different systems, whilst living on the one continental land mass, and notwithstanding the fact that for much of that time, we have looked to English authorities and English statutes for guidance in most respects. That professional divisions can have such a long-standing and dramatic effect on substantive and procedural law suggests that we should be wary of such divisions. For that reason, I consider that it is desirable that we think about the legal profession in a broader sense. In examining the role to be played by the legal profession in shaping legislation it would be artificial to look at judges, barristers, solicitors or academic lawyers in isolation. It would be quite unsatisfactory from the points of view of these groups and the law generally if each were regularly to deal separately with government with respect to legislation. For that reason, I urge a united front in dealing with government on legislative matters. My references in this paper Lawyers and Legislation 299 to the ‘legal profession’ should be taken as including all judges, barristers and solicitors, both those in practice and those in employment, and legal academics, as the combined repository of legal learning in our society. If we are such a repository then should we not play a substantial role in formulating, or at least considering carefully any innovation or change in statute law? To what extent are we doing so? And who is responsible for the very unsatisfactory state of statute law, particularly Commonwealth statute law, at the present time? My primary thesis is that the legal profession must become more actively engaged in the design of legislation, going well beyond the present level of such involvement. That involvement seems to consist of an invitation for ‘any suggestions’, which invitation is issued after the politicians, their advisers, party officials, pressure groups and public servants have largely settled the overall approach and shape of the legislation. If we are to have greater input, I suggest that it would be a lot better if we were to participate as one professional group, aiming to ensure quality legislation which produces no bad surprises such as fundamental inconsistency with other legislation, or other unforeseen consequences for the law as a whole, or for groups within our society. Law and Legislation
Setting aside arguments about whether Judges make law or not, there can be no doubt that the primary instrument for making and amending the law, including the common law and rules of equity, is legislation. I note in passing that parliaments, particularly the Commonwealth Parliament, show a disturbing tendency to let the administrators change the law by regulation, for example by declaring that certain statutory provisions will not apply in particular circumstances. The Corporations Act contains examples of this practice. The law is produced by the society which recognises it, which law then regulates that society. This we have learnt from the decision of the High Court in Yorta Yorta. In that case, reported at (2002) 214 CLR 422 Gleeson CJ, Gummow and Hayne JJ said at [49]: Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. Changes in society will therefore be reflected in changes in the law, which changes may themselves further change the society and the way it operates. I doubt whether anybody would dispute the proposition that the volume of legislative activity has increased substantially over the last 20 or 30 years. In fact I suspect that the expansion of legislative regulation probably started during, or after the Second World War and was, to a great extent necessitated by the events of that war and its consequences. It is difficult for us, almost all having been born after 1945, to appreciate those changes and their dramatic nature. We can only do so if we look at pre-war society through the eyes of our parents or grandparents, or through the media and literature. Change
I want to say a little about change. It is common, easy and boring to speak, indiscriminately and rhetorically, about change. I hope to be a little more focussed, addressing briefly some 300 Queensland Legal Yearbook 2013 of the ways in which change has directly affected our work, and avoiding any rhetorical flourishes. The changes which have dominated development of human society since 1945 fall into two main categories. The first, and more obvious area of change has been technological. Building on technological advances made during the war, scientists, inventors, industrialists and other entrepreneurs have made discoveries and inventions, and developed methods which have utterly changed many aspects of our working and personal lives. Technological change causes social change, and that is the second area in which change has so dominated society since 1945. However technology has not been the only driver of social change. Such change has also occurred as the result of changes in the ways in which we think about ourselves and our society, and the ways in which we express our thoughts about those matters, these changes also having been, to some extent, provoked by the war experience. People are frequently challenged by change. Each of us, in one way or another, becomes attached to aspects of our life and work. We don’t want to see them go just because somebody else says that there is a better way of doing this or that. When change is occasional and incremental, it is easier to accommodate. But when it is constant and not readily seen as incremental, it produces its own social problems. We have come to realize that change, be it technological or social, comes at a price. Many post-war changes have been quite startling for pre-war generations although, for later generations, even the most spectacular advance is only to be expected. From my own point of view the 1969 moon landing is perhaps the best example of this. It was undoubtedly a great achievement, produced by a combination of social and technological change. I say social change because without such change, there could never have been the necessary money or the will to spend it on that venture. I remember, in July 1969, Mr WA Lee sending us home from an Equity lecture at The University of Queensland in order that we might watch the moon landing. Many, perhaps most thought it amazing, almost beyond belief. I have never been able to see it in that way. To me it was the inevitable consequence of carrying out extensive and detailed research and mathematical calculation, as inevitable as it was that somebody from Europe would discover the Americas and Australia. I dislike myself for this blasé attitude. I think it is a product of the rigorous approach to scientific and mathematical studies at my secondary school, not that I was much good in those areas myself. I may have been a little too worldly about the moon landing, but most people would now accept that we have not yet identified the bounds beyond which human ingenuity cannot take us. That is a fundamental change in our perception of ourselves and perhaps carries with it the risk of hubris. These aspects of change also pose a problem for legislators. They must strike a balance between, on the one hand, not increasing the discomfiture of some members of the community by re-inforcing the impact of rapid change and, on the other hand, failing to deal with the need to ensure that the law responds in a timely way to technological change and, to a certain extent, anticipates and accommodates future technological change. We have also fundamentally changed our thinking about human beings, human society and the roles, rights, duties and relationships which are features of that society. Many of us remember a time when very few married women worked. For example, in the 1950s and 1960s the Queensland Education Department effectively treated marriage by a woman as a sackable offence. One never saw an apparently Aboriginal person or, save for the members of a few long-resident Chinese families, an Asian face, in Brisbane. Everybody knew that there were a few Aboriginal people living in squalor somewhere but in Brisbane, nobody knew where. In thinking and speaking of issues such as discrimination and interpersonal relationships we now express ideas which would never have occurred to most people prior to Lawyers and Legislation 301
1939, and we express those ideas with an openness and forcefulness which would then also have been rare. Such changes have necessarily been reflected in our law. As I have said, change has its price. Technological change has reduced the demand for un-skilled, semi-skilled and even skilled labour, with obvious economic consequences for those affected, and associated social cost for them and for the wider society. In industrial law this has led to an increased emphasis on job security, undermining previous perceptions that the master and servant relationship was effectively contractual. Indeed, even the term ‘master and servant’ is rarely heard today. Social change has led to increases in single-parent families and families in which both parents are employed. Provision of child care services has therefore become a major social issue. Changes in our thinking about indigenous people and their pre-sovereignty societies have led to major legal and social issues concerning Aboriginal land rights. The populations of the world are moving, sometimes in response to political pressures, sometimes in response to economic pressures. Such movements have always been a feature of human society, but the relative ease of long-distance travel and widely shared knowledge of, or widely held perceptions as to the quality of life in other societies have caused a substantial increase in such movement, leading to attempts by nation states to regulate movement into their respective territories. These changes have all had legal consequences. The horrors of the war led to an increased focus upon what it means to be human and, in particular, upon the individual person’s reasonable minimal entitlements, whether they be due from parents, an employer, the state or the world, usually represented by the United Nations organisation or one of its agencies. This focus on human rights has inevitably caused us to reconsider the proper role of government, and the line between individual rights and the government’s duty to protect the society which it governs. There are, of course, many other examples of problems caused by change. However the point is that social and technological change interacts with the law and legal change, often in quite complex ways. Some changes cannot occur unless there is legal change. Other changes produce the need for new or altered regulatory regimes. Change produces different results for different people or classes. Unequal, even if not inequitable effects cause frustration, and frustration provokes disputes and unrest. A function of the courts is to quell disputes in order to avoid self-help. They must do so in accordance with law. But the law of a society is much more than a guide book for resolving disputes. It also prescribes rights and obligations as between the citizen and the state, and between citizens inter se. In other words it provides enforceable expectations as to conduct within our society. It is part of the complex environment in which our lives are lived. The complexity of the problems produced by change since 1945 have placed pressure on the legal system, the fundamental design of which reflects the needs of earlier times. It is particularly important to keep in mind the fact that the law regulates the relationships between government and the governed. Much of the change to which I have referred has been reflected in the law governing those relationships, resulting in the law, and therefore the courts and the legal profession having a much expanded role in supervising the actions of government. This expanded role has, to some extent, been produced by the enhanced importance of public international law. Governments have been significantly affected by developments in that area, with the emergence of international agreements and treaties to which nation states accede, creating binding obligations, together with mechanisms for enforcement and the resolution of disputes. Interest in this area was again provoked by the horrors of the war. The Refugees Convention was an early example. It now causes significant problems for nation states. Technological changes affecting communications and travel have reinforced the need for agreements between nation states in a wide range of areas, as has the great expansion in international trade and commerce. Quite apart from expansion in 302 Queensland Legal Yearbook 2013 the role, and enhancement of the standing of public international lawyers, accession to such treaties and agreements has the capacity to influence our approach to domestic law, even if the relevant agreement or treaty has not been incorporated into that law. If it is has been so incorporated, the effect is obviously greater. This new international dimension has placed new obligations upon national governments and, through national government, on regional governments. Although enforcement of those obligations may be, in some ways, difficult, international agencies are always able to apply pressure to governments through public criticism which is heard by the electorate. Domestic pressure groups are also very vocal about the international causes which they espouse. All but the real rogue states feel a degree of pressure to comply with international obligations. In some ways, national governments have, in practice, lost some of the autonomy which they previously possessed. Returning to domestic law, in traditional areas of the common law, such as tort and contract, there have been substantial changes. In recent years in Australia, for example, there has been a policy of limiting damages awards in connection with injuries suffered in the workplace and in motor vehicle accidents, and now an attempt to adopt a system of national disability insurance, the form of which is still unclear. On the other hand, in connection with physical injury suffered in some circumstances, and in connection with financial loss, governments have favoured the availability of legal redress against medical practitioners, pharmaceutical companies, banking corporations, financial advisers, insurers and corporations generally. Governments have done this by facilitating class actions and by adopting so-called consumer protection legislation, with relief of the kind provided by the Trade Practices Act, now the Competition and Consumer Act. These changes seem to reflect changing views as to the proper relationships between individual citizens and commercial undertakings and between traders or professional people on the one hand, and customers, clients or patients on the other. Substantial change has also occurred as the result of a utilitarian perception that some aspects of the law were too complex or required standardization amongst the jurisdictions. Two Australian examples have been the Uniform Evidence Act and the Commonwealth Criminal Code, both devised in the expectation, or at least the hope that they would be adopted by all Australian jurisdictions. I shall return to the Criminal Code at a later stage. Increased interest in individual rights has led to increased expectations as to government’s duty to the citizen, sometimes called an ‘entitlements mentality’. Governments which do not meet those expectations do so at their peril. And of course, both the traditional and new media encourage and inform such expectations. The wider range of government activity also makes government more complicated, and therefore more difficult. These factors mean that government’s choices as to whether, and how to legislate are often constrained by public expectations. All of this has consequences for the law and lawyers. Inherent in what I have been saying is the proposition that the fundamental technological and social changes since 1945 have profoundly affected the role of government and the methods used to govern. ‘Government’ in this context includes all three branches of government. These changes have not been gradual or incremental. They have occurred rapidly and have caused abrupt changes in our understandings of individual and collective rights and obligations, in the nature of the law itself and in how it works. Inevitably, the volume of legislation has expanded rapidly. Lawyers and Legislation 303
The Decision to Legislate
To this point I have been trying to explain why legislation has become such an important part of the law. Whilst our law was predominantly found in the common law and rules of equity, the volume of legislation was very small. It was possible for a parliament to take time to ensure that legislation was designed to serve a purpose, limited to what was necessary to achieve that purpose, and clear as to meaning. Today, the sheer volume of legislation and public expectations that government will act in response to any real or imagined shortcoming, have led to there being very little time to ensure quality in legislation and, in any event, little motivation to achieve such quality rather than merely to satisfy public expectation and political self-interest. In my experience lawyers, unless they are also members of parliament, know little about how legislation is created, save in areas which are of particular importance to themselves, such as legislation concerning the profession itself, the bread and butter aspects of their practices or, in the case of academics, particular intellectual interests. We are generally aware of the process by which laws are formally enacted by the presentation of a bill which, usually gradually, wends its way through the Parliament until it is adopted in final form and receives the Royal Assent. But we do not know much about the process by which the need for the law is identified and formulated, or the drafting process which follows, leading to its introduction into Parliament. The process has attracted some interest in the course of this year as a result of the introduction into the Australian Parliament of a number of pieces of substantial and long-awaited legislation, with the government demanding that such legislation be examined, debated and passed within very short time frames. It seems that governments generally subscribe to the well-known aphorism attributed to Bismarck that, ‘The lesser the people know about how sausages and laws are made, the better they sleep at night.’ This version comes from Wikiquotes. You will, however, be not at all surprised to hear that the Americans now claim the observation for an American lawyer called Saxe, on the basis that only a lawyer would have the insight necessary to coin it. This approach might be thought unjustifiably to over-estimate the talents of the virtually unknown American lawyer in question, at the expense of one of the great European leaders of the 19th century. That’s American lawyers for you. Much major legislation seems to arise out of election promises, which is a little worrying, given the way in which such promises are developed and made. Usually, the promise or policy announcement will have been made in a general way, designed to carry a particular message to voters about the benefit of the policy to the targeted group of electors, and as little as possible about its effect on others. One suspects that little thought will have been given as to how the promise will be met, or as to the adverse consequences which may flow from it. The more obvious adverse consequences may be highlighted by the opposition parties, but the plethora of policies at election time will generally prevent in-depth consideration of the pros and cons of a particular policy. Having made a promise, an elected government may feel obliged to carry it into effect, although we know that this is not always the case. Assuming that the promise is to be honoured, it may be a little too late to worry about the pros and cons, not a comfortable position in which to develop the relevant legislation. Other legislation emerges in response to problems or perceived problems, very often when they cause concern that inactivity in the area may affect the government’s prospects of re-election. Two sources of such motivation for legislative activity are the media and pressure groups. In the case of the media the issue will probably have been considerably simplified and again, the pros and cons will not have received balanced consideration. Examples of this are 304 Queensland Legal Yearbook 2013 the media discussion of sentencing levels, mandatory sentencing, immigration and so-called tax loopholes about which I shall say more at a later stage. By definition a pressure group, in pressing for legislative change, is advancing a policy of its own. The proposal may or may not reflect mature and impartial consideration of its advantages and disadvantages, but neither the government nor the public has any reason to assume that it does. Governments respond to media pressure and the submissions of well- organized pressure groups. Pressure groups maintain substantial representation in seats of government. As I recall, in Washington DC the National Rifle Association’s headquarters is directly opposite the Australian Embassy, but the NRA Building is much bigger. Government response to media pressure or pressure from organised lobby groups may not necessarily be informed by a consideration of wider community interests. Government agencies also generate legislation. In many cases the relevant agency will have identified a real weakness in the existing law, which weakness requires fixing. In others, a request for legislative change may reflect a policy of the relevant agency, more designed to protect its own patch, or to make life easier for its staff than to facilitate good government. Once again, there is no reason to assume that all likely consequences of such a proposal will have been identified, or its advantages and disadvantages assessed. The need for a fair assessment of the advantages, disadvantages and consequences of proposed legislation is obvious, but it is not clear that it regularly occurs, unless one accepts that the political survival of a government is an end in itself, that in the words of Catch 22, ‘What’s good for Milo Minderbinder is good for the Army.’ We must also keep in mind the fact that governments feel the need to be seen to be doing something. They have a substantial corps of media consultants and press officers whose sole purpose in life is to communicate the government’s actions to the media, presenting them in the most favourable light. For example, in the 1970s, the state government departments used to put out regular glossy brochures trumpeting their recent ‘reforms’. These days, any change seems to be a reform. The brochures were circulated to practising lawyers. I recall picking up one such brochure in our chambers waiting area. It had been issued by the Attorney General’s Department and asserted that the department had been very busy reforming the law relating to dividing fences in order to facilitate the resolution of neighbourhood disputes. Now I would not have thought that even in the lawless 1970s, in the outback Brisbane suburbs, there was any real threat to the peace, order and good government of Queensland, justifying significant amendment to long-standing legislation concerning dividing fences. What innovation could there possibly have been? I was prompted to look at the amending legislation in question. It made minor procedural changes, but nothing else. Of course, the Attorney General’s Department was not then in charge of much legislation of its own. I suppose that it had to say something, and perhaps that is the problem. Of course, the decision to legislate is a policy decision for the executive branch. But once that decision has been taken, there must be mature consideration of the best way to give effect to that policy decision. There will generally be more than one way of doing so. The choice amongst the alternatives may benefit or adversely affect one group or another in the community. One approach may create complications in other areas of the law, whilst another approach may not. One approach may be more or less likely to produce a constitutional challenge. Another approach may be more or less efficacious in producing the desired result. To some extent, these are also policy issues which, again, are for the executive branch. However I cannot see how those decisions can be made on an informed basis, unless there has been significant legal input concerning questions such as constitutional validity, likely effects on specific stakeholders and others, and possible conflict with other aspects of the law. These are largely legal questions. There seems to me to be no good reason militating against proper Lawyers and Legislation 305 consultation at this early stage, before time and money have been expended in drafting. It may be that some such process occurs within the public service, but as far as I can see, it is not conducted in public, and apart from strategic leaks, there is little disclosure of any such consideration. War Stories
My own limited experience with legislative reform supports my scepticism as to the decision- making process concerning the desirability and form of legislation. In the late 1980s or early 1990s, the Commonwealth decided to develop a uniform criminal code. I have been told by somebody who knows that a conscious decision was made not to take as a model, the Griffith Code, then in force in Queensland, in Western Australia and, in part, in Tasmania, there being equivalent legislation in other former British colonies. I understand that this decision was made in the belief that the Commonwealth would not be able to persuade New South Wales or Victoria to accept what would have been seen as the ‘Queensland model’. In the result, the Commonwealth produced a model which, in my view, is unique in its approach and, in many ways alien to our traditional thought and language concerning the criminal law. As part of the drafting process, a committee headed by, I think a New South Wales District Court Judge, sought submissions concerning the proposed draft provisions relating to offences involving assault. The request came to a Judges’ meeting in the Supreme Court. We appointed a couple of Judges to give careful consideration to the proposal and eventually indicated that there were significant structural difficulties with the approach. As the Australian court most experienced with codified criminal law at first instance and on appeal, we foolishly thought that our views would be given some weight. Our views were, in fact, summarily, and not very courteously dismissed. I realise now that such consequence was inevitable, given the earlier decision not to base the new model on the Griffith Code. My other close encounter with the development of legislation was in connection with the creation of cartel conduct offences, and the conferment on the Federal Court of jurisdiction to conduct trials on indictment for those offences. This was, for the government and the Federal Court, a very important project, and the Court established a committee to deal with government on the issue. The committee initially consisted of four Judges. However only two (Lander J from South Australia and I) saw the project through to the end. We both had criminal experience as the result of Supreme Court service. We attended a number of very lengthy meetings with representatives of the Attorney General’s Department and the Treasury. Our line always was that the legislation needed only to define the offence and confer jurisdiction to hear a charge on indictment, and that such conferment would implicitly confer all necessary power. We failed miserably in our advocacy. It was, however, interesting to watch the machinery of government at close quarters. First, the driving force for the legislation was Treasury’s desire, perhaps on behalf of the ACCC, to apply criminal sanctions to cartel conduct. That was undoubtedly a policy decision for government. In effect, it fell to Treasury to define the offence. Keeping in mind the fact that a trial judge has to explain the law to the jury, the need for simplicity is obvious. This is what Treasury came up with: 306 Queensland Legal Yearbook 2013
44ZZRF Making a contract etc. containing a cartel provision Offence (1) A corporation commits an offence if: (a) the corporation makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. (2) The fault element for paragraph (1)(b) is knowledge or belief.
44ZZRG Giving effect to a cartel provision Offence (1) A corporation commits an offence if: (a) a contract, arrangement or understanding contains a cartel provision; and (b) the corporation gives effect to the cartel provision. (2) The fault element for paragraph (1)(a) is knowledge or belief.
You will appreciate that the offence pursuant to s 44ZZRF is making a contract or arrangement which contains a cartel provision, whilst the offence pursuant to s 44ZZRG is giving effect to a cartel provision. It seems likely that in most cases, both offences would be charged. For those not yet initiated into the mysteries of the Commonwealth Criminal Code, it distinguishes between the physical elements of an offence and accompanying fault elements, all of which must be proven. The fault elements are generally intention to do an act or produce a result, knowledge or belief which accompanies an act, recklessness in performing an act or negligence in doing so. Obviously, the big question arising out of ss 44ZZRF and 44ZZRG is the meaning of the term ‘cartel provision’. The term is defined in s 44ZZRD. It extends over 4 or 5 pages. I do not propose to read it all to you, but I shall try to give you a taste of it. Subsection (1) provides: For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:
(a) either of the following conditions is satisfied in relation to the provision: (i) the purpose/effect condition set out in subsection (2); (ii) the purpose condition set out in subsection (3); and (b) the competition condition set out in subsection (4) is satisfied in relation to the provision.
You will see that a provision is a cartel provision if it contains either a purpose/effect condition as defined in subs (2) or a purpose condition as defined in subs (3). In order that a provision be a cartel provision it must also satisfy the competition condition set out in subs (4). In effect subs (4) requires that two or more parties to the contract, arrangement or understanding are, or are likely to be in competition in the supply or acquisition of goods or services. It is, itself, a complex provision. However, for present purposes, it is subss (2) and (3) which best exemplify my concern. They provide: Lawyers and Legislation 307
Purpose/effect condition
(2) The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly: (a) fixing, controlling or maintaining; or (b) providing for the fixing, controlling or maintaining of; the price for, or a discount, allowance, rebate or credit in relation to: (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; (e) goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or (f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of he parties to the contract, arrangement or understanding.
Purpose condition
(3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly: (a) preventing, restricting or limiting: (i) the production, or likely production of goods by any or all of the parties to the contract, arrangement or understanding; or (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or (b) allocating between any or all of the parties to the contract, arrangement or understanding: (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or (iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or (iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services: (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or 308 Queensland Legal Yearbook 2013
(ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or (iii) 3 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.
In demonstrating the complexity of the section I am not simply indulging in some sort of cheap party trick. Obviously, not all of the various alternatives will be relied upon by the prosecution in all cases, but experience suggests that prosecutors will try to keep their options open. To the extent that the case is presented in various alternative ways, the trial Judge will have to explain a significant number of subtle distinctions to the jury, the members of which will have no familiarity with the theory of competition, the market in question or the notion of cartel conduct. The Court wrote to Treasury saying that we thought that the definition was all but impossible to explain to a jury. We were told that Treasury had every faith in our ability to do so. That was very reassuring. The definition of ‘cartel provision’ is by no means the only difficulty which will face a judge and jury in a cartel case. I mention it here only because it illustrates the difficulty associated with choosing the path to be taken in giving legislative effect to a policy decision, and the need for involving lawyers at an early stage, perhaps before the actual drafting process has commenced. Secondly, it demonstrates a perception within government that if one uses enough words, in enough different combinations, it is possible to predict and proscribe all possible conduct which those pressing for the legislation would like to outlaw, if only they could foresee the whole range of possible human activity in the relevant area. A similar misconception about the power of language and the power of legislation underpins much of the taxation legislation. Of course, the reality is that one cannot foresee every possible way in which a determined cartel operator or taxpayer may seek to avoid the operation of a particular statutory provision. Perhaps it would be better to wait and see, closing gaps in the legislation as they appear, but also accepting that there simply has to be a limit to the extent of statutory regulation. The continuing sanity of lawyers really depends upon legislation being capable of comprehension by a single human mind. The complexity produced by such drafting techniques challenges all but the most exceptional of minds. Further, if there is any justification for the proposition that legislation should be drafted with the lay person as the intended addressee, a proposition which I challenge, then drafting of this kind is not likely to serve that purpose. I said that Lander J and I had urged a minimalist approach, conferring jurisdiction and leaving it to the Court to make relevant rules. In this respect we were unsuccessful beyond our worst imaginings. The statutory provisions deal with a mish-mash of procedural matters. For example, a colleague recently reminded me of s 23EJ of the Federal Court Act which is one of many provisions dealing with the empanelment and handling of juries. That section provides: Lawyers and Legislation 309
(1) A juror is discharged if the juror is not selected in a ballot conducted under section 23DE in relation to the jury. (2) A juror is to be taken to be discharged if the juror dies.
Despite such provisions, the Act does not deal exhaustively with procedural matters, so that some rules are still necessary. A number of factors led to this unsatisfactory outcome. Perhaps the most significant was that the relevant Commonwealth agencies had little previous experience with criminal procedure statutes, save of course for the CDPP. There was a perception, I think, that the Federal Court’s civil case management system offered a basis for the management of lengthy criminal trials. There was also a tacit assumption that the Court would be able to compel early disclosure of the defence and of evidence to be led for the defence. There are still traces of that thinking in the legislation but in reality, such an approach to criminal trials is not realistic. There were other ambiguities in the process. First, as part of the price for getting the States to agree to the creation of the offences, jurisdiction was also to be conferred on the State Supreme Courts. That raised the question of the practice to be applied in the Federal Court. If the indictment were presented in a state court, the state practice would generally apply. But nobody thought that it would be a good idea for the Federal Court simply to pick up the relevant state practice pursuant to the Judiciary Act. A further complication was a perception that jurisdiction in cartel offences might be only the beginning of the conferment of criminal jurisdiction upon the Federal Court. This possibility created confusion in our thinking, leading us sometimes to speak as if we were only drafting for trials of cartel offences, and at other times, to take a broader view, anticipating future conferments of jurisdiction. Another complication was the extent to which the general provisions of the Commonwealth Criminal Code were to apply. Some interesting questions remain to be addressed in that respect. Overall the outcome of the project is that we have a brand new offence, couched in terms which will be difficult to explain to a lay jury, and an overly prescriptive set of legislative procedural provisions which will probably be little used, even in the unlikely event of a flood of cartel prosecutions. Finally, we have a trial process which will resemble, in many respects, the trials which have previously been conducted in the Australian states and territories, but will differ in ways which cannot easily be anticipated. You now know what went into that particular sausage. Drafting Styles
Then comes the drafting exercise. Many things may be said about statutory drafting, but a good starting point seems to be identification of the relevant addressee. Who is going to read this document and act or advise upon it? In my view this is the point at which present drafting practice has lost touch with reality. There is no significant likelihood that the person in the street will get his or her copy of a relevant statute, sit down and read it in order to make a decision as to how he or she will act. That may be the ideal situation, but it is a long way from current reality. Drafters pretend that people actually do this. To be fair to the drafters, the politicians have told them to take this approach. In fact, the addressee, the ‘consumer of drafting services’ if you like, is the lawyer who advises on the legislation, or the public servant who has to administer it, usually acting, where necessary, upon legal advice. Not long ago I read, or somebody told me that scientists use Greek and Latin words as scientific terms because those languages are not in common use, and so the meanings of words do not change in the way that the meanings of words in regular use change. That makes perfect sense to me. Rather than feeling guilty about the language in which our legal 310 Queensland Legal Yearbook 2013 heritage is expressed, we should perhaps ask whether such language does not give more precise meaning than can otherwise be achieved. I am not only speaking of the use of words from other languages. Good English words such as ‘thereto’ and ‘thereof’ are also unpopular but may contribute to more precision when used appropriately. It is, after all, not difficult to understand such language if one has a reasonable education, a dictionary and the capacity for a moment’s thought. If legislation is truly directed to lawyers, then there can be no objection to the use of technical terms. My experience with the cartel offence legislation brought home to me an observation made some years ago by a colleague. He said that there was a significant difference between American legislative drafting practice and the Australian practice. The American practice, he said, was to draw legislation in wide terms and leave it to the executive and the courts to work out the detail. On the other hand, in Australia, we try to put it all in the act. Now I don’t know much about American statutes but my limited experience suggests that this observation is correct. Certainly, the Australian practice tends towards a very detailed approach to the construction of the legislation and the mechanics of its operation. Further, it is generally still necessary to promulgate detailed regulations to support the legislation. I have already said something about this subject in connection with the drafting of the cartel legislation. It may well be that overly detailed legislation is actually less likely to achieve the object of the legislation than is broader legislation, simply because, in the latter case, the focus of any construction exercise will be the broad purpose and apparent generality of operation of the statute, rather than the detailed procedures and definitions generally found in the former. A second consideration is parliamentary time. Does Parliament have the time to address a legislative proposal which deals in detail with mechanical matters, as opposed to laying down broad principles, rights and duties? If it does not have the time to proceed, clause by clause, through the bill, then it is unlikely that the product will be good legislation. This will certainly be the case in Australia, if the Commonwealth Parliament continues to intrude into the operation of areas traditionally performed pursuant to state and territory legislation, such as hospitals and schools, where the substance of the legislation is inevitably regulatory in nature. We have to ask why Parliament would choose to go into more, rather than less detail. One possible reason is a fear that delegated legislation may be invalid in circumstances in which, if the subject matter had been dealt with in the relevant act, there would have been no problem. Another possible reason is the legislators’ fear of the courts and the legal profession. There is a perception that the more that is said, the less likely it is that the lawyers will be able to overcome the true statutory intention. We must concede that some lawyers have advanced apparently unarguable submissions concerning the construction and/or operation of statutes, but the thing is that some of them have done so successfully. In any event there is no real reason to believe that more words, rather than fewer are likely to be more successful in communicating the legislative purpose. Perhaps more attention to identification of that purpose would help. Finally, detailed provisions as to the operation of an act may be designed to accommodate particular pressure groups which have interests in the process, rather than the purpose to be achieved by it. Access to Legislation
One cannot speak about legislative drafting without saying something about the taxation legislation. The rot started in the 1960s in response to a series of relatively simply schemes to minimise tax by reference to the relatively simple provisions of the Income Tax Assessment Act 1936. At that time, too, in response to the gradually increasing rate at which the Act Lawyers and Legislation 311 was being amended, revolutionary technology emerged for keeping up with the amendments and the cases. It was the CCH loose-leaf tax service, in three volumes, as I recall. It had curious page and paragraph numbering. I recall Sir Nigel Bowen saying that they were used because one day, it would all be computerized. It was certainly a great aid to students and practitioners. The format has been adopted in many other legislative areas. However it has been the victim of its own success. In many areas the length of legislation, the number of amendments and the volume of cases make it almost impossible to use those services for their primary purpose — understanding the relevant legislation as a whole and construing individual sections, simply because associated sections are separated by pages of annotations. In effect, we need a pamphlet copy of the legislation to understand how it works and to construe it, and the loose-leaf service to discover historical details and what the courts have said about it. Although my experience with the use of online services is very limited, they do not seem to me to solve the problem. An associated problem is the frequency with which legislation is amended. Such frequency leads to the need for almost annual replacement of pamphlet copies, to the extent that they are still available. It is generally necessary that we be able to identify the precise wording of relevant provisions at relevant points in time. That can be difficult. It shouldn’t be. The online statutory services help but I, at least, still find it necessary to print out the different versions for detailed comparison. Certainty
There must be a doubt as to whether ongoing, piecemeal amendment of statutes is consistent with the role of the law. At least part of that role is the provision of certainty as to the rights and obligations which a statute purports to regulate. Statutes are not the playthings of parliamentarians, political parties or public servants. The community’s best interests may well be better served by the greater certainty found in a more disciplined approach to drafting and amendment. Perhaps there should be a general rule that save in emergencies, legislation should be amended only once every five years. Such a rule might force legislators and drafters to identify their goals more clearly, and to think more deeply about the ways in which they are to be achieved. I do not overlook the profession’s contribution to this problem, particularly in the area of taxation. There can be no doubt that over the years, the tax avoidance industry has fought a ferocious war in seeking to avoid the operation of sections which seem to have plain meanings. We cannot complain that Treasury has fought back in order to protect the revenue. However, as has been said by a few columnists in recent months, there seems to be a mindset in Treasury that any money left with the citizen is a lost opportunity to tax, and that a ‘saving’ is made whenever the liability to tax is extended, whilst to allow any form of concession is a ‘spend’. Such an attitude is not conducive to good tax legislation. Other Drafting Techniques
Before turning to what we might do about this problem, assuming that you agree that there is a problem, I want to identify two drafting techniques which really annoy me. The first is the use of examples. This technique exists in two forms. One is the ‘second person’ example. ‘If you do this, you may do that’. The second form is that adopted by the now former Prime Minister, in discussing the National Disability Insurance Scheme: ‘John has an income of 312 Queensland Legal Yearbook 2013
$50 000 a year, a partner, two children and a dog. The dog falls ill, etc’. Believe it or not, this approach is also used in some legislation. The trouble with examples is that they take the focus off the principle in question. Legislation is about categorisation of conduct, property and circumstances on the basis of identifiable characteristics. It will always be impossible to foresee all of the events or circumstances in connection with which a statute will be engaged. If the criteria for the categorization of subject matter are clear, then neither a simple, nor a complex example will help. The first will add nothing, and the second will be too specific to offer guidance in other cases. The second technique which I wish to condemn is the practice of providing in legislation that in certain circumstances, a court ‘must’ do something. Parliament may prescribe that in certain circumstances, a party will have a particular right or obligation. That is the legislature’s business. If a court fails appropriately to recognise such a right or obligation, the remedy is an appeal. To use mandatory language, addressed to the courts serves no useful purpose and runs the risk of at least appearing to undermine the separation of powers. What Can We Do?
I suggest that the legal profession has both an obligation to ensure the quality of legislation and an interest in so doing, going beyond pro forma and last minute consultation which seems to be the only input that we generally have. Our capacity to demand greater input will depend very much upon our fostering a public perception that lawyers are especially well- placed and willing to offer objective comment upon proposed legislation so that legislators ignore us at their peril. We should demonstrate our willingness and competence to participate in the legislative process in the public interest. Such participation would necessitate a system of liaison with government to ensure that we receive early notice of proposed legislation so that we can make submissions concerning the general approach to be adopted, as well as participate in the detailed drafting. We may have to be selective about the range of legislation which we take on, but that would depend upon available resources. Presently, our participation in legislative drafting depends largely upon the voluntary involvement of ad hoc groups. No doubt the number involved could be expanded. However it may be that, in due course, the profession should establish an institution dedicated to setting and maintaining high standards in legislation. No doubt many of you will think that these proposals are unnecessary or impossible to implement. However I suggest that if we are the real repository of society’s understanding of the law, then it is critical that we make our learning and skills available in order to advance the public interest in a just and efficient legal system. For too long, we have allowed the politicians and public servants to dominate law-making. For years the outcomes have been declining in quality. If war is too important to be left to the generals, then law is too important to be left to career politicians whose primary motivation is often electoral survival. They may be supreme in developing the relevant policy, but implementation is a different thing altogether. For us, it is a matter of both interest and duty. A good sausage is worth the effort. What Exactly is a Remedial Constructive Trust?
by Professor Michael Bryan*
Setting the Scene
Judicial and academic discussion of constructive trusts resembles a bazaar, not unlike the Grand Bazaar at Istanbul. It is very noisy; it is easy to lose your way in the labyrinthine pathways, and you cannot be sure that your purchase works properly until it has been tried out at home. Just as in the gloom of the covered market it can be hard to distinguish between vendors and purchasers, so in this area it can be hard to distinguish between the contributions made by judges and academics, if their identities are not known. Some judges approach constructive trust adjudication from the level of high theory while some academics ignore theory and are obsessed by practical considerations. The tourist leaves the constructive trust bazaar invigorated but confused. Two examples, tediously familiar to the equity lawyer or teacher, illustrate the bewildering and occasionally exotic field of choice available to would-be purchasers from two of the stalls. Consider first D, who owes fiduciary obligations to P, and who accepts a bribe from X with which he buys land. The property appreciates in value. Acceptance of the bribe is a flagrant breach of D’s fiduciary obligations. D is personally accountable to P for the amount of the bribe.1 Is P entitled to a constructive trust over the land D has purchased with the bribe money? The reported judgments and academic commentary offer a variety of answers to this question. On one side are those who say that P is entitled to an immediate constructive trust over the land.2 On the other are those who insist that P’s only liability is to account for the amount of the bribe.3 Alternatively, we might award P an account of profits, assessed at the appreciated value of the land, but deny proprietary relief.4 Finally, we might reject the application of the automatic constructive trust, crystallising at the moment of the fiduciary’s
* Emeritus Professor at Melbourne Law School. This paper was presented at the Bar Associations of Queensland’s Current Legal Issues Seminar Series 2013, Banco Court, 25 July 2013. 1 Boston Deep Sea Fishing Co v Ansell (1888) 39 ChD 339 (CA); Mahesan v Malaysian Government Officers’ Co-operative Housing Society [1979] AC 374 (PC). 2 Att-Gen for Hong Kong v Reid [1994] AC 324 (PC); Thahir Kartika Ratna v PT Pertambangam Minyak dan Gas Bumi Negara (Pertamina) [1994] 3SLR (R) 312 (Singapore CA); Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 (Full Federal Court); Sir Peter Millet, ‘Bribes and Secret Commissions’ [1993] Restitution Law Review 7; DJ Hayton, ‘Proprietary Liability for Secret Profits’ (2011) 127LQR 487. 3 Lister & Co v Stubbs [1890] Ch 1 (CA); Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347 (CA); FHR European Ventures LLP v Mankarious [2013] EWCA Civ 17 (CA); Sir Roy Goode passim but most recently, ‘Proprietary Liability for Secret Profits’ (2011) 127 LQR 493; Darryn Jensen,’ Reining In the Constructive Trust’ (2010) 32 Sydney Law Review 87, 93 – 4. 4 Peter Birks, ’Property in the Profits of Wrongdoing’ (1994) University of West Australia Law Review 8.
313 314 Queensland Legal Yearbook 2013 receipt of the bribe, but instead allow P to elect for the imposition of a constructive trust taking effect from the exercise of the election.5 If we are prepared to accept that a constructive trust can be imposed over D’s land, at least in some circumstances, let us consider a supplementary question. Will the availability of the constructive trust be affected by the fact that D is bankrupt at the time proprietary relief is under consideration? In Grimaldi v Chameleon Mining NL (No2) the Full Federal Court was of the opinion that in the case of actual bankruptcy the imposition of an equitable lien over D’s land may be sufficient to achieve ‘practical justice’ in the circumstances of the case.6 Relegating P from constructive trust relief to the status of a secured creditor in D’s bankruptcy was justified by reference to the recognition of the remedial constructive trust in Australian equity. Whether D’s insolvency ought to preclude the award of a constructive trust, assuming that all other preconditions are satisfied, raises some important questions of legal policy and method which I this paper examines. Now consider the second stall in the constructive trust bazaar. Suppose that P pays $1 million to D by mistake. D buys a beach property with the money. Is P entitled to the benefit of a constructive trust over the property? Intending purchasers at this stall are spoilt for choice and there is a real risk of making an unwise purchase. One possible response is to hold that a D is a constructive trustee at the moment of receipt, the trust now attaching to the property purchased with the payment.7 Another is to apply dicta of Lord Browne-Wilkinson,8 adopted and refined in an important New South Wales decision,9 and hold that the constructive trust attaches to the payment or its product when the recipient becomes aware of circumstances indicating to a reasonable person that the payment was mistaken. Another compromise solution — plaintiff centred rather than defendant centred — is to impose the trust from the time when P elects to set aside the transfer.10 And then there are solutions which are grounded in notions of commercial risk-taking. One of them would limit the award of the constructive trust to cases where, by analogy to the position of a secured creditor, the claimant has not taken the risk of the defendant’s insolvency.11 Application of this principle would result in the award of a constructive trust in most cases of mistaken payments. Exceptionally, proprietary relief will
5 Contracts between fiduciaries and principals which are voidable for breach of obligation can give rise to the imposition of a constructive trust taking effect from the date of election to avoid : Daly v Sydney Stock Exchange Ltd (1985) 160 CLR 371. The availability of the election model outside the established categories of voidable contract is uncertain but see B Häcker, n 10, below, for a structured model of election-based relief. 6 [2012] FCAFC 6 [583]. The case did not involve the taking of a bribe and the dictum is obiter. 7 Chase Manhattan Bank v Israel British Bank [1980] Ch 105. See also Shields v Westpac Banking Corp [2008] NSWCA 268 (fundamental mistake justifies imposition of automatic constructive trust). 8 Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669, 705. See also Ben McFarlane, ‘Trusts and Knowledge’ in Jamie Glister and Pauline Ridge (eds), Fault Lines in Equity (Hart Publishing, Oxford, 2012) 169. Contrast Maqsood v Mahmood [2012] EWCA Civ 251, Ward LJ at [37], noting that Lord Browne-Wilkinson’s dictum was tentative and not part of the ratio of Westdeutsche. 9 Wambo Coal Co Pty Ltd v Ariff[2007] NSWSC 589. The recent decision of the Singapore Court of Appeal in Wee Chiaw Sek Anna v Ng Li — Ann Genevieve (sole executrix of the estate of Ng Hock Seng dec’ d)[2013] SCCA 36, [169]–[184] recognises a remedial constructive trust only on the basis of the defendant’s knowledge of the facts entitling the plaintiff to the benefit of the trust. 10 B Häcker, ‘Proprietary Restitution after Impaired Consent Transfers: A Generalised Power Model’ (2009) 68 Cambridge Law Journal 324; Elise Bant and Michael Bryan, ‘Constructive Trusts and Equitable Proprietary Relief: Rethinking the Essentials’ 5(2011) Journal of Equity 171, 181–5. 11 Andrew Burrows, The Law of Restitution (3rd ed, 2011, OUP) 176–80. Similar versions of risk theory have been canvassed in the North American literature: D Pacciocco, ‘The Remedial Constructive Trust: A Principled Basis for Priorities over Creditors’ (1989) 68 Canadian Bar Review 315, 339; E Sherwin, ‘Constructive Trusts in Bankruptcy’ [1989] Illinois Law Review 297. What Exactly is a Remedial Constructive Trust? 315 be denied, for example where the payer deliberately chooses to make an unsecured payment under a contract vitiated by mistake.12 Finally, there are those who would confine the mistaken payer to a personal claim in unjust enrichment.13 Moreover, some judges and commentators reject the assumption that a constructive trust awarded to P in this scenario is a response to unjust enrichment.14 So there are a number of potential responses to the mistaken payment conundrum. Each has been justified either in terms of authority, policy, or the logic of equitable title — and sometimes all three. Each has its particular merits and defects; none has been authoritatively accepted as the ‘right answer’. But here also I pose a supplementary question. Assuming that in at least some situations equity imposes a constructive trust over a mistaken payment or its traceable product, will the imposition be affected by D’s bankruptcy at the time of application? Bankruptcy supplies the backdrop to most cases in this category,15 but there is no suggestion in any of them that, for example, an equitable lien ought to be awarded as an alternative to the constructive trust. The trust imposed over a mistaken payment, or its proceeds, is said to be an example of an institutional constructive trust.16 Why, in a system of equity that recognises both institutional and remedial constructive trusts, the mistaken payment should be regarded as institutional and non-discretionary, whereas the trust imposed over the proceeds of a breach of fiduciary duty is remedial and discretionary, has not been explained. Third parties, including creditors, have as much interest in the award of one type of proprietary constructive trust as the other. Some writers have objected to the notion that the availability of a remedy can be determined by reference to the solvency of the defendant or to the impact of the remedy on third parties to the litigation.17 To permit the selection of remedy to be influenced by the presence or absence of third parties interested in the selection- in other words consequentialism — focuses on ends at the expense of means. When an interest under a trust is claimed, so the argument runs, then either the plaintiff is entitled to that interest, applying the established rules for recognising a trust, or he does not. It is impermissible to find that the defendant has a property right for the purposes of deciding an ‘inter partes’ dispute but only a personal right where third party interests are at stake. In the words of a critic of consequentialist reasoning, ‘the virtue of [legal] concepts lies in their relative invariance to context and thus in their applicability to a broad range of situations.’18
12 Burrows, above n 11, 178. 13 William Swadling, ‘Policy Arguments for Proprietary Restitution’ in, S Degeling and J Edelman (eds), Unjust Enrichment in Commercial Law (Thomson Reuters, Sydney, 2008) criticises the arguments adduced for proprietary relief in unjust enrichment cases but does not argue that relief should be confined to personal restitution. 14 Graham Virgo, The Principles of the Law of Restitution (OUP, 2 nd ed, 2006) 11–18, 569–76. The property analysis, as opposed to the unjust enrichment analysis, of tracing the proceeds of a breach of fiduciary duty was approved in Foskett v McKeown [2001] 1 AC 102. 15 An exception is Shields v Wespac Banking Corp, above n 7, where the constructive trust was imposed as a precondition to a proprietary claim to property in the hands of third parties. 16 Wambo Coal Co Pty Ltd v Ariff[2007] NSWSC 589 [40]. 17 William Swadling, ‘Policy Arguments for Proprietary Restitution’, above n 14. Ben McFarlane, ‘Rights and Value: Means and Ends’ in, C Mitchell and W Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment (Hart Publishing, 2013) ch 1. 18 McFarlane, above n 17, 30. 316 Queensland Legal Yearbook 2013
The aim of this paper is to examine whether courts apply consequentialist reasoning when deciding whether to impose a constructive trust19 and, if they do, whether we ought to mind about it. The dictum of the Full Federal Court in Grimaldi assumes that an analysis of the consequences of the award of equitable relief is desirable, perhaps even unavoidable. The critics argue that consequentialism subordinates the consistent application of equitable concepts to the view taken of the contexts in which they arise. The disagreement is fundamental to how courts exercise discretion when ordering proprietary relief. To anticipate my conclusion, some claims to constructive trusteeship cannot be satisfactorily determined without account being taken of the interests of third parties. This is true of constructive trusts imposed in order to enforce expectations, such as estoppel and Muschinski constructive trusts. These are genuinely remedial. But other claims should not be decided by reference to the existence of third party interests. Specifically, constructive trusts imposed in order to enforce a claimant’s title, or to restore title to the claimant, should not be subjected to remedial treatment. Constructive trusts imposed on fiduciaries to compel disgorgement of unauthorised gains occupy a contested middle ground between the other categories. Two recent developments have given resonance to the debate about consequentialism. One is the Australian recognition of the remedial constructive trust; the other is the promulgation by the American Law Institute of The Third Restatement: Restitution and Unjust Enrichment.20 A brief word needs to be said about each of them before returning to my theme of consequentialist reasoning in constructive trust jurisprudence. The Remedial Constructive Trust: Origins and Australian Reception
On a long view of equity history constructive trusts have always been remedial, for much the same reason that express and resulting trusts are remedial. All trusts exemplify the power of courts of equity to invoke its powers so as to affect the conscience of a title holder of property where it would be inequitable for the titleholder to deal with the property as his own.21 Lord Nottingham LC’s assertion in Coke v Fountain22 that equity ‘never presumes a trust, but in case of absolute necessity’ lest ‘a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate’ identifies what modern lawyers might characterise as the danger of judicial overreach: that trust relief can be unpredictable in its consequences and is capable of destabilising title to property unless the award of relief is carefully controlled. As a matter of equity history, control has been exercised by a combination of regulated discretion
19 The inquiry is limited to a consideration of constructive trusts which, in at least some of their applications, confer proprietary protection on the beneficiary. Constructive trusteeship awarded as a formula for personal relief, for example for knowingly assisting the commission of a breach of fiduciary duty: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Westpac Banking Corp v Bell Group Ltd (in liq) [2012] WASCA 157, on appeal to HCA: [2013] HCA Trans 49. Cf Pauline Ridge ‘Constructive Trusts, Accessorial Liability & Judicial Discretion’ in, E Bant and M Bryan (eds), The Principles of Proprietary Remedies (Thomson Reuters, 2013), suggesting that ‘knowing assistance’ liability may in rare cases attract proprietary relief. 20 American Law Institute, 2011. Reporter: Andrew Kull. 21 Title is not necessarily legal. See Halloran v Minister Administering National Parks & Wildlife Act 1974, (2006) 229 CLR 545 [72]–[73] on the application of constructive trusts to equitable title. 22 (1676) 3 Swanst 600–1, 36 ER 987. See Mike McNair, ‘Coke v Fountain’ in Charles and Paul Mitchell (eds), Landmark Cases in Equity, (Hart Publishing, 2012) 32. McNair notes at 58–9 that Lord Nottingham did not consistently apply the classification of trusts expounded inCoke v Fountain although his insistence that trusts should be parsimoniously implied represented his settled opinion, as well as that of the legal profession of his day. What Exactly is a Remedial Constructive Trust? 317
(exemplified by the bars to relief, such as laches and hardship) and by limiting the award of a constructive trust to discrete categories of equitable intervention, such as breaches of trust and other fiduciary obligations. The credit or blame for importing the term ‘remedial constructive trust’ into the equity lawyers’ lexicon belongs to the American legal philosopher and polymath, Roscoe Pound.23 In a Harvard Law Review article published in 1920 Pound rounded off an analysis of some contemporary American constructive trust decisions with the observation that the constructive trust was, functionally speaking, a remedy.24 While conceding that some decisions treated the trust as ‘something substantive’25 Pound left the reader in no doubt that such thinking was in his view erroneous. He drew attention to the distinction between substantive and remedial constructive trusts only for the purpose of rejecting it. Although its award depended on the application of recognised equitable means, the trust itself was simply the ‘end’ to which the ‘means’ were directed. This meant, as the reporters of the First Restatement of Restitution 26 duly recognised, that the trustee did not have to perform the duties to which the trustee of an express trust was ordinarily subject, but was compelled only to convey the subject-matter of the trust to the beneficiary. Australian equity did not engage with the concept of the remedial constructive trust for another fifty years. In Muschinski v Dodds27 Deane J drew attention to the ongoing debate as to whether constructive trusts should be classified as ‘institutional’ or ‘remedial’, and opined that the trust was a ‘remedial institution’.28 The award of the constructive trust in Muschinski v Dodds was remedial in one sense of that word, namely it resembled other remedies in taking effect from the date on which the High Court delivered judgment. This was done ‘[l]est the legitimate claims of third parties be adversely affected’.29 The ‘date of judgment’ constructive trust imposed in Muschinski v Dodds has since played only a minor role in constructive trust adjudication. The jurisdiction to make such an order undoubtedly exists. But very few Australian decisions since Muschinski v Dodds have imposed a ‘date of judgment’ constructive trust, and some of those decisions have later been disapproved.30 Moreover, some judgments confuse the imposition of a ‘date of judgment’ constructive trust with postponing enforcement of the equitable interest under the trust to a later-created interest. The latter is simply an application of the principles governing priority of interests which have been settled for centuries and has nothing to do with awarding a remedial constructive trust.31
23 Roscoe Pound (1870–1964) was a botanist before establishing a reputation as a pioneer of sociological jurisprudence. The fungus Roscoepoundia is named after him. See David Wigdor, Roscoe Pound: Philosopher of Law (Greenwood Press, 1974) chs 7&8; Neil Duxbury, Patterns of American Jurisprudence (OUP 1995) 54–63. 24 R Pound, ‘The Progress of the Law 1918–1919’ (1920) 33 Harvard Law Review 420, 420–1. 25 Ibid 422. 26 § 160 Restatement (First) of Restitution, American Law Institute, 1937, reporters: Austin Scott and Warren Seavey. 27 (1985) 160 CLR 583. 28 Ibid 613–14. 29 Ibid 623. 30 Re Osborn (1989) 25 FCR 547, disapproved in Parsons v McBain (2001) 109 FCR 120 [8]–[13]. An unusual case of post-dating is O’Brien v Sheahan [2002] FCA 1292 where the official receiver made representations to the bankrupt inducing the latter to make improvements to his own property. The constructive trust awarded in favour of the bankrupt was postdated to the date of discharge from bankruptcy. 31 Shropshire Union Railways & Canal Co v The Queen(1875) LR 7 HL 486, 506, Lord Cairns LC. See also the discussion of Secretary, Department of Social Security v Agnew [2000] FCA 59 in Parsons v McBain [2001] FCA 376 [14]–[16]. 318 Queensland Legal Yearbook 2013
Dicta in High Court judgments handed down since Muschinski v Dodds have emphasised a second meaning of ‘remedial’. In Bathurst City Council v PWC Properties Pty Ltd 32 the Court stipulated that constructive trust relief must not be ordered where ‘there are other means available to quell the controversy’.33 In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd34 the High Court recognised the concept of the remedial constructive trust although the principal issue in the case was whether a joint venture agreement created fiduciary obligations. Passages in the judgment were directed to two aspects to remedialism. One was whether, assuming that breach of the agreement had been proved, an account of profits or equitable compensation were more proportionate responses to the breach than a constructive trust.35 The other remedial aspect was directed to identifying third parties who might be prejudiced by the imposition of the constructive trust. A third party claiming to be an equitable mortgagee of the presumptive trust property identified itself at a relatively late stage in the litigation. The High Court held that any person who would be affected by the making of a proprietary order is a ‘necessary party’ who must be joined to the litigation.36 Further, if for any reason the third party has not been joined, that party has standing to have the constructive trust set aside.37 This part of the judgment is unabashedly consequentialist: the High Court has established a process for enabling parties affected by the imposition of a trust to argue against the imposition. The Third Restatement
Paragraph 55(1) of the third Restatement on Restitution and Unjust Enrichment provides: ‘if a recipient is unjustly enriched by the acquisition of legal title to identifiable property at the expense of the claimant or in violation of the claimant’s rights, the recipient may be declared a constructive trustee, for the benefit of the claimant, of the property in question and its traceable product.’ The paragraph applies to cases of unjust enrichment and of ‘violation of the claimant’s rights’. ‘Violation of rights’ is the phrasing used to describe restitution for wrongs — the bribe taking fiduciary, for example. An award of a constructive trust under the Restatement is discretionary, and later paragraphs specify circumstances in which full trust relief is not permitted. The trustee is subject to only one obligation under §55(2), namely ‘to surrender the constructive-trust property to the claimant, on such conditions as the court may direct.’ Most of the analysis of the constructive trust provisions of the Restatement has focused on the limitations to trust relief. One restriction relates to the defendant’s knowledge of the ground on which the plaintiff claims a constructive trust. A claimant is not entitled to a constructive trust over consequential gains made by an innocent defendant that would not have been recoverable in a personal claim for unjust enrichment.38 So, in the second example, if D was unaware of P’s mistake in paying him $1 million prior to P claiming relief, P is confined to an equitable lien over the beach house to secure repayment of $1 million, together with interest. Another restriction effects a compromise between the claimant and
32 (1998) 195 CLR 566. See also Giumelli v Giumelli (1999) 196 CLR 101, emphasising the remedial alternatives available in estoppel. 33 Ibid [42]. 34 (2010) 241 CLR 1. 35 Ibid [37]. 36 Ibid [31]. 37 Ibid [37]. 38 Restatement Third §50 (4.) What Exactly is a Remedial Constructive Trust? 319 the defendant’s creditors. The former will not be permitted to obtain a profitable recovery in restitution at the expense of adequate provision for creditors and dependants of the recipient.39 The Third Restatementhas become the lightning conductor for a debate about judicial method, as applied to private law litigation, in England and the United States. The constructive trust provisions feature prominently in the debate. Critics argue that there can be no justification, absent legislation, for remitting the holder of a right under a constructive trust to the secured status enjoyed by the holder of an equitable lien. Property rights are — or should be — applied consistently across private law. The incidents enjoyed by a beneficiary under a trust, including the right to profits generated from property and to its appreciated value, should not be cut down by the exercise of curial discretion. The constructive trust, on this view, is not simply a remedy. The rights enjoyed by the beneficiary, and the duties to which the trustee is subject, assist in explaining the criteria for its award. The vice of a constructive trust dependent on the presence or absence of creditor and family interests for a determination of its scope is ascribed to ‘the American legal culture’, specifically ‘[t]he pervasive and enduring influence of legal realism.’40 This analysis rejects the Third Restatement’s conception of the constructive trust as being exclusively a remedy.41 When, if at all, is Consequentialism Permissible in Awarding Constructive Trust Relief?
Dicta in the High Court decisions of Bathurst City Council v PWC Properties Pty Ltd and John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd, discussed above, are commonly cited in support of the proposition that Australian law recognises the remedial constructive trust.42 The treatment of constructive trusteeship by the Third Restatement provides intellectual support for that recognition. But what manner of beast is the remedial constructive trust in Australia? Leaving aside the availability of the ‘date of judgment’ constructive trust (which is a rare and sometimes misidentified bird in Australian constructive trust jurisprudence), its principal features can be summarised as follows: (a) The constructive trust will not be awarded as a proprietary remedy if another remedy can more appropriately do justice to the merits of the case;
(b) In assessing the appropriateness of a constructive trust, the potential impact of the remedy on identified third parties is a relevant consideration.43 These propositions are viewed as no more than common sense by many lawyers. After all, courts are constantly assessing the appropriateness of proposed orders in many different kinds of litigation. Why should the law of constructive trusts be any different? There are, however, two dangers which have to be guarded against in constructive trust disputes. One is
39 Third Restatement,§61. 40 McFarlane, above n 17, 29. 41 Not all writers who characterise the constructive trust as remedial are American realists. See W Swadling, ‘The Fiction of the Constructive Trust’ (2011) Current Legal Problems 399. 42 Robins v Incentive Dynamics Pty Ltd (in liq) [2003] NSWCA 71 [57]; Wambo Coal Co Pty Ltd v Ariff, above n 9 [40]; Grimaldi v Chameleon Mining NL ( No 2), above n 7, [281] & [505]–[512]. See also Keith Mason, ‘Deconstructing Constructive Trusts in Australia’ (2010) 4 Journal of Equity 98; Keith Mason, ‘The Distinctiveness of Law and Equity and the Taxonomy of the Constructive Trust’ in C Mitchell and W Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment (Hart Publishing, 2013), ch 8. 43 The dicta in John Alexander giving standing to third parties as ‘necessary parties’ to the litigation are designed to identify relevant third parties. See text at nn 36–7 above. 320 Queensland Legal Yearbook 2013 the danger that the exercise of discretion will unsettle established title to property. The other, related danger is that the process of taking into account third party interests (which include the interests of unsecured, as well as secured, creditors) may devalue the interest established by the constructive trust claimant. The following paragraphs identify two situations in which, in my view, a court is entitled to award personal relief in preference to a constructive trust, the second of which involves the application of consequential reasoning. Succeeding paragraphs then identify other categories of constructive trusteeship which ought not to lend themselves to this type of remedial approach. The final section of the paper examines the difficult borderline category of restitution for wrongs. (a) Personal Relief Where the Trust Property has Been Dissipated or Consumed
One situation in which a personal remedy will be preferred to the constructive trust is not a true example of discretionary remedialism and is not based on consequentialist reasoning. Suppose that a proprietary order would have been made but for the fact that the subject- matter of the trust had already been consumed or dissipated. Can it be doubted that the court will make a personal order against the plaintiff, assessed at the value of the property? I am not aware of any reported decision awarding compensation, as an alternative to a constructive trust, to a successful claimant under a mutual wills arrangement. Suppose that X and Y make mutual wills under which the survivor of X and Y will be entitled to the other’s property, each undertaking to leave his or her estate to Z on the death of the survivor. Suppose, further, that Y survives X and makes a new will leaving his estate to A (who of course is not a beneficiary under the mutual wills arrangement). On Y’s death his estate passes to A who dissipates or consumes everything left to him before Z can ascertain her rights under the mutual wills. Z could have claimed the estate from Y’s executor if she had known about her inheritance. Why should not Z be able to claim from A the value of the estate she ought to have received and which A in fact received? A is of course a donee, not a good faith purchaser, and will be amenable to equitable relief. The same argument can be applied to other applications of the constructive trust. If a thief pays stolen money into his wife’s bank account a constructive trust can be imposed over the chose in action constituting the wife’s contractual right to withdraw an equivalent sum of money from the account, the wife not being a good faith purchaser for value without notice.44 But suppose that the wife has spent the proceeds of the theft on food which has been consumed. Can the victim of the theft bring a personal claim against the wife for the money received? The New South Wales Court of Appeal denied the existence of the claim in Heperu Pty Ltd v Belle,45 although a personal claim to the amount remaining to her credit succeeded under the puzzling label of ‘liability as a volunteer’. But there is no reason why, subject to the application of the defence of change of position, a personal remedy for ‘value received’ should not be available against the wife.46 There are various reasons why the personal remedy alternative to a proprietary constructive trust has not often been recognised. Some applications of the constructive trust, such as that arising under the mutual wills doctrine, make only rare appearances in the law reports so that opportunities to explore remedial alternatives have been lacking. In the case of
44 Black v S Freedman & Co Ltd (1910) 12 CLR 105. 45 [2009] NSWCA 252 [130]–[132], Allsop P. 46 Gertsch v Atsas [1999] 10 BPR 97, 855 suggests that a strict liability personal claim is available, although in that case personal restitution of money paid under a forged will was based on Re Diplock, and not on Black v Freedman. What Exactly is a Remedial Constructive Trust? 321 constructive trusts imposed over family homes, statute occupies most of the field, applying its own discretionary regime to the disputed family assets.47 In yet other cases, such as restitution of a mistaken payment, the personal remedial alternative to the constructive trust can only be claimed in a distinct cause of action, the action for money had and received. This is of course a function of the separation of common law and equity. American law, on the evidence of the Third Restatement, allows the proprietary and personal claims to a mistaken payment to be combined in the same cause of action. The argument that every equitable claim giving rise to a proprietary constructive trust simultaneously gives rise to an equivalent personal claim, when the prospective subject- matter of the trust has been dissipated or consumed, is not radical; it says nothing significant about the remedial constructive trust or about consequential legal reasoning. This is because the court is not faced with a genuine remedial choice in this situation. The proprietary constructive trust cannot be awarded for the simple reason that the putative trust property no longer exists. What else can the court do except to award the plaintiff the personal remedy, if she is not to leave the court empty-handed? The personal remedy fills a gap in these cases but the gap has been caused only because a basic precondition of any proprietary remedy has not been satisfied. (b) Discretion and the Enforcement of Expectations
Two categories of constructive trust present Australian courts with a genuine choice between proprietary and personal relief, the choice being dictated at least in part by the consequences of awarding the remedy. The first is proprietary estoppel. The leading High Court decision, Giumelli v Giumelli,48 is a prime example of consequential reasoning determining the mode of relief. The plaintiff had done a substantial amount of work on his parents’ farm property, the farm business being structured as a partnership. His parents promised him land, including an orchard, as reward for his unpaid work on the farm. In reliance on the promise he built a house on part of the property on which he had worked. Following a family dispute the plaintiff left the house, and his brother subsequently made further improvements to the property. The High Court held that the plaintiff had made out the elements of a proprietary estoppel claim but that he was not entitled to proprietary relief. He was instead awarded compensation, assessed as the value of the property the plaintiff had improved, charged on the property. Among the considerations which the High Court took into account were the work undertaken by the plaintiff’s brother on the property and the fact that there was a partnership action pending, the outcome of which might be prejudiced by the making of a proprietary order. Third party considerations played a decisive role in the determination of relief in Giumelli. Giumelli is not some kind of Australian aberration in the application of estoppel doctrine.49 A number of English decisions have adopted an ‘in the round’ approach embracing many considerations, including third party expectations and the desirability of facilitating a ‘clean break’ between the parties to the estoppel claim.50 In Jennings v Rice51 the representee, who
47 Family Law Act 1975 s 79 (Cth). 48 (1999) 196 CLR 101. 49 The remedialism exercised in proprietary estoppel cases is recognised by rights theorists, who nonetheless deplore it. See Ben McFarlane, The Structure of Property Law(Hart Publishing, Oxford, 2008) 467–71. 50 Andrew Robertson, ‘Unconscionability and Proprietary Estoppel’ in E Bant and M Harding (eds), Exploring Private Law (Cambridge 2010) 402, 415–21. 51 2002 EWCA Civ 159; [2003] 1 P & CR 100. 322 Queensland Legal Yearbook 2013 began working as a gardener for the representor in his spare time, progressively undertook more work for the representor, all of it unremunerated over ten years, including sleeping at her house in order to provide her with security, on the basis of a commitment that he would be left her house and furniture. The Court of Appeal upheld the trial judge’s award of £200 000. Among factors identified by Walker LJ as being relevant in an estoppel case were the reprehensibility of the representor’s conduct, the need for a clean break between the parties, alteration in the representor’s circumstances, the likely effect of taxation on a proposed order, and other legal or moral claims on the representor.52 Many, though not of course all,53 proprietary estoppel claims arise out of family disputes and belong to family law, in the broadest sense of that term. Claimants cannot turn to contract law, which denies that many of the promises evince an intent to create legal relations and does not award proprietary remedies. Nor can they turn to family law legislation, which offers remedial flexibility but is under-inclusive in its coverage of relationships governed by the legislation. Most other applications of the constructive trust respond either to a wrong, such as a breach of fiduciary duty, or to an event such as unjust enrichment. Estoppel cases, on the other hand, have a temporal dimension: the true impact of expectations created by a representor can often only be accurately gauged after a number of years, and that impact will not necessarily be confined to the financial circumstances of the representee. Consequential reasoning in estoppel cases could conceivably be avoided by a radical extension of the statutory powers to reallocate property when a relationship breaks down, defining ‘relationship’ broadly so as to capture the majority of family disputes, but in the absence of such legislation courts can hardly be criticised for indulging in consequentialist reasoning that takes into account third party interests. The same can be said of consequentialist reasoning found in many of the cases decided on the principles laid down in Muschinski v Dodds54 and Baumgartner v Baumgartner.55 The Baumgartner ‘unconscionability’ doctrine was the High Court’s response to the artificialities which became manifest when courts tried to adapt the common intention constructive trust to the financing of family home purchase in the 1960s and 1970s. The Canadian version of the unjust enrichment constructive trust56 (which in this context enforces expectations and does not reverse unjust enrichment) and the New Zealand ‘enforcement of expectations’ trust57 are similar responses to the well-known puzzle of trying to deduce a common intention out of family arrangements where the evidence of intention is, at best, fragmentary and inferential.58 Although it is a prerequisite to the award of this model of constructive trust that the plaintiff must have made some kind of contribution to the acquisition or improvement of the disputed property, the aim of the award is to enforce the expectations reasonably created by the plaintiff’s contribution.
52 Ibid [52]. 53 Estoppel claims can arise out of commercial negotiations: Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 2964. Such cases raise questions about the limits of the law in reallocating risk outside contract law. 54 (1986) 160 CLR 583. 55 (1987) 164 CLR 137. 56 Pettkus v Becker (1980) 117 DLR (3d) 257. 57 Gillies v Keogh [1989] 2 NZLR 327. 58 Stack v Dowden [2007] 2 AC 432; Jones v Kernott [2012] 1 AC 776 continue to grapple with the difficulties. What Exactly is a Remedial Constructive Trust? 323
Examples of awards of personal relief under the Muschinski doctrine where the original claim was for a proprietary remedy are not hard to find.59 In many instances an estoppel claim could just as easily have succeeded as the Muschinski claim. This is because the criteria for the award of the latter, namely a joint venture to which the plaintiff has contributed and which has failed without fault on the part of the plaintiff, can usually be reformulated in terms of the requirements of an estoppel claim. A recent example is the New South Wales decision of Byrnes v Byrnes.60 Title to a large cattle family farm was held by the father who worked the farm as a partnership with his wife and two sons. There was an understanding that both sons would inherit the farm on the father’s death. Severe and prolonged drought meant that the farm could not be run without government subsidy. Both sons were married and the farm could not sustain three families. The plaintiff, one of the sons, agreed to leave the farm as part of a plan to restructure the partnership in order to obtain a government subsidy. The plaintiff worked on other properties, suffered from some disabilities and had an invalid wife to support. The family agreed that the plaintiff would be compensated but the plaintiff left the farm before the amount of compensation could be agreed. In the event no agreement was reached. It was held, applying Muschinski v Dodds, that the family partnership was a joint venture which had failed without any blame attaching to the plaintiff. Taking into account the interests of other family members in the farm Lindsay J held that the plaintiff was entitled to $575 000, secured by a charge over the farm. He observed that the same result would have been reached if the case had been pleaded as one of estoppel.61 Like estoppel cases, constructive trust decisions based on the Muschinski doctrine are not based on the commission of a nominate wrong (although some involve wrongdoing, in a general sense), or from an event such as a mistake or failure of consideration which enlivens a claim in unjust enrichment. Muschinski constructive trust cases are less common than they used to be because the Family Law Act confers adjustive powers on the Family Court where the dispute relates to former spouses and de facto partners, including disputes involving the trustee in bankruptcy of one of the parties.62 But the doctrine continues to be applied in other kinds of family property litigation, including parent-child and sibling disputes, where consideration sometimes has to be given to the expectations of family members in addition to those of the claimant. It is certainly possible to analyse a proprietary estoppel or Muschinski constructive trust claim as conferring a right to enforcement once the preconditions to relief have been met, the remedy being correlative to that right.63 The right will then, in the absence of a defence, be enforceable without regard to the consequences of enforcement on third parties. But there are difficulties involved in applying a rights-based approach to estoppel and to the Muschinski doctrine. A special source of difficulty in the family property cases is the problem of conflicting expectations. An estoppel example illustrates the problem. A farmer has two sons, and represents to the elder one that if he makes improvements to a parcel of land that parcel will be transferred to him. The son makes the improvements. The farmer makes an identical promise to the younger son who also makes improvements. Upon being refused an interest
59 Early examples are documented by Pamela O’Connor, ‘Happy Partners or Strange Bedfellows: the Blending of Remedial and Institutional Features in the Evolving Constructive Trust’ (1996) 20 Melbourne University Law Rev 735. 60 [2012] NSWSC 1600 (Lindsay J). 61 Byrnes v Byrnes [2012] NSWSC 1600 [123]. See also Germanotta v Germanotta [2012] QSC 116. 62 Family Law Act 1975 (Cth) ss 4, 79. 63 McFarlane, above n 49, 444–75. 324 Queensland Legal Yearbook 2013 by the farmer, the elder son claims the parcel by virtue of an estoppel created by the father’s representation.64 How is the conflict between the sons to be resolved? The usual method of resolution is to apply the established rules for prioritising interests in property. This will result in a decision in favour of the elder son if the ingredients of that son’s claim were established before the younger son undertook work on the parcel. But the priority rules are unworkable if representations were made to both sons over a number of years, and the sons worked on the property simultaneously. Rather than characterising either son’s claim as a right, and then relying on the priority rules to sort out the clash of rights, it seems preferable to continue doing what the courts have long been doing, namely treating both sons as having expectations. Expectations are ambulatory and less concrete than rights. They will be enforced or modified, as the circumstances of the case require, and an assessment of the impact of the order on both sons’ expectations is both desirable and unavoidable. Impermissible Remedialism: Trusts Imposed to Reverse Unjust Enrichment
So far I have examined the types of constructive trust whose aim is the fulfilment of expectations. The fulfilment of an expectation involves the exercise of choice which can result in the award of proprietary or personal relief. In exercising the choice the court is entitled to examine the consequences of awarding the relief. It does not follow, however, that, just because a court will examine the practical consequences of its order in cases of expectation enforcement, it is entitled to do so in all cases when a constructive trust is under consideration. There are many categories of constructive trusteeship; not all result in the award of a proprietary remedy.65 Moreover, they pursue a number of objectives, including the perfection of imperfect or incomplete transactions, compelling wrongdoers (particularly fiduciaries) to give up property acquired in breach of obligation, and reversing unjust enrichment. In some cases there may well be grounds for doubting whether a constructive trust should be granted at all, as in the cases of the bribe received by a fiduciary. But if a proprietary remedy is justifiable, and if the basic requirements for imposing such relief (namely traceably identifiable subject-matter, and an identifiable beneficiary or beneficiaries of the trust) are met, there is generally no good reason for abating the remedy to one of personal relief, even if third parties will be disadvantaged by the constructive trust application.66 A simple example is the so-called ‘stolen money’ constructive trust, where a constructive trust is imposed over stolen money or its traceable product.67 On one view the trust is a restitutionary remedy for wrongdoing; on another, the trust reverses the unjust enrichment of the thief or of a later receiver of stolen property. On either view the victim is entitled to a constructive trust over the amount of money representing the proceeds of the theft in the thief’s or receiver’s bank account. Restitution of the money is not a matter of discretion, based on an analysis of the impact of the order on the thief or receiver, or the impact on any other creditors knocking on the defendant’s door. Moreover, if the money has been placed in an interest-bearing account, the constructive trust will extend to interest earned on the account
64 Cf the competing claims of the brothers to a portion of the farm in Guimelli, above n 48. 65 See above n 19. 66 Defences such as good faith purchase or change of position may defeat a claim, and equitable bars may preclude enforcement, but they raise different considerations. Similarly, the argument assumes that the third party does not hold a prior interest enforceable, not by virtue of an exercise of discretion, but by application of the priority rules. 67 Black v S Freedman & Co (1910) 12 CLR 105. What Exactly is a Remedial Constructive Trust? 325
This outcome has been justified in a variety of ways. One is to assert that the trust is ‘institutional’, and not ‘remedial’, unlike the constructive trust imposed in estoppel cases. But this simply pushes the inquiry further on: why is the trust classified as institutional? Another justification is that the trust protects the title to stolen property enjoyed by the victim of the theft. This reason is more convincing but requires closer analysis. Theft does not destroy a victim’s legal title to the stolen property and, strictly speaking, the victim does not need to invoke the law of constructive trusts in order to recover it, although it may be convenient to do so, given the absence, outside land law, of common law actions for specific recovery of property.68 The victim’s title is, however, lost when the thief pays the money into a bank; it is the proceeds of that money, being the increased balance in the thief’s account, which is held on trust for the victim. When the proceeds are withdrawn from the account and, as in Black v Freedman, paid into the account of the thief’s wife, the latter, not being a good faith purchaser without notice of the victim’s equitable interest, is bound by the trust.69 The trust defeats the wife’s right, being a chose in action to compel the bank to pay her an equivalent sum of money. In other words, the function of the ‘stolen money’ constructive trust is to enable the victim of a theft to claim the proceeds of a theft. Common law title protects the original stolen property. The victim’s equitable title to proceeds under the ‘stolen money’ constructive trust should not be extinguished or diminished by the exercise of judicial discretion. One can test the argument for discretion by reference to the treatment of stolen property in bankruptcy. The victim’s legal title to the original property is enforceable against everyone including the thief’s trustee in bankruptcy. It is not an asset divisible among the thief’s creditors. Why should the creditors have a stronger claim to the traceable proceeds of the theft than to the original stolen property? Even if the proceeds have been successfully invested, withholding the profitable investment from the victim is unjustifiable. After all, the thief has deprived the victim of any opportunity of making the investment.70 Judicial discretion should not be applied to extinguish or diminish equitable title if the whole point of the trust is to protect title that the claimant held prior to the event giving rise to the unjust enrichment claim. The ‘stolen money’ constructive trust entitles the victim of theft to claim the proceeds of money to which the victim held title prior to the theft and payment into the thief’s (or another’s) bank account. The fact that a thief has other creditors is not a reason for denying or qualifying constructive trust relief. The same analysis applies to other cases of unjust enrichment, such as the mistaken payment example considered earlier. We saw that whether a constructive trust ought to be imposed over a mistaken payment, and if so in what circumstances, are vigorously debated questions. But if we decide that, at least in some circumstances, a constructive trust ought to be imposed over the payment, then there are no good grounds for qualifying the trust by holding, for example, that the payer is not entitled to recover the invested value of the payment. The purpose of the constructive trust is to protect title to property which has been lost by reason of the defective transfer. The law’s conception of equitable title is not malleable. It should not be distorted by reference to factors, such as the solvency of the payee, that are
68 TheCommon Law Procedure Act 1852 (Imp) authorised specific restitution of chattels. See now RSC 1991 (Qld) r 52, and its State and Territory counterparts. 69 Robert Chambers, ‘Trust and Theft’ in E Bant and M Harding (eds), Exploring Private Law (Cambridge 2010) 223, 240–1. 70 It is conceivable that an equitable allowance might be awarded in favour of a thief who has demonstrated exceptional investment skills. This raises the controversial question as to the extent to which allowances will be awarded to deliberate wrongdoers: Boardman v Phipps [1967] 2 AC 46; Warman International Ltd v Dwyer (1995) 182 CLR 544. 326 Queensland Legal Yearbook 2013 not material to equity’s purpose in recognising and enforcing that title. If we think that the payer should not be entitled to the payee’s successful investment of the payment, we should logically oppose the recognition of a constructive trust over the payment instead of eliminating one of the incidents of title-holding. The Borderline Case: Constructive Trusts Over the Proceeds of Wrongdoing
The constructive trust imposed over the proceeds of a breach of fiduciary duty raises complex issues. This is because breaches can occur in a variety of ways. A fiduciary who misappropriates the principal’s property for his own benefit, or who buys property from the principal under a contract which is voidable for breach of duty, not only commits an equitable wrong; he is also unjustly enriched at the expense of the principal.71 The breach of duty constitutes an equitable wrong; and on these facts the fiduciary has also been unjustly enriched at the expense of the principal. The constructive trust restores to the principal title to property which he held before the breach was committed. As in the unjust enrichment cases considered in the previous section, constructive trust relief, if available, should not be refused or modified on the ground that the fiduciary is bankrupt or has creditors whose likelihood of enforcing payment will be diminished by the award of the trust. The principal’s title to the misappropriated property deserves as complete protection in equity as that provided to a victim of a theft or mistaken payment. In contrast, a fiduciary who obtains information while acting in a fiduciary capacity, and who exploits the information to obtain property for himself which should have been obtained for the principal, is not unjustly enriched at the expense of the principal.72 No question of enforcing the principal’s title to property arises because information does not constitute property in law, and anyway it was obtained from third parties and not from the principal. A constructive trust awarded in this case cannot be premised on the protection of the principal’s title since the principal had none prior to the breach. Nevertheless, a strong line of English and Australian authority supports the imposition of a constructive trust over property acquired as a result of the fiduciary’s wrongful exploitation of information.73 The trust has been rationalised in terms of the fiction that the principal has equitable title to property which the fiduciary was under a duty to obtain for the principal. The fiction in turn reinforces the public policy of protecting the integrity of the principal-fiduciary relationship. The constructive trust in this case does not protect any title to the property the fiduciary enjoyed prior to the commission of the wrong if we ignore the fiction of equitable title.
71 In the parlance of the English Court of Appeal this is a ‘category one’ breach of fiduciary duty: Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453; [2011] EWCA Civ 347, Lord Neuberger MR, [88]–[89]; FHR European Ventures LLP v Mankarious [2013] EWCA Civ 17, Etherton C [83]. In the case of the contract entered into by the fiduciary in breach of duty, the principal’s entitlement to a constructive trust is conditional on his election to rescind the contract. 72 This is a ‘category two’ case, exemplified byBoardman v Phipps [1967] 2 AC 46: see above n 71. Cf Peter Birks, An Introduction to the Law of Restitution (Clarendon, Oxford, revised edn, 1989) 320 who analysed Boardman as an application of unjust enrichment, resiled from in Peter Birks, ‘Misnomer’ in, WR Cornish et al eds, Restitution Past, Present & Future (Hart Publishing, Oxford, 1998) 15–18. 73 Boardman v Phipps, above n 70; Chan v Zacharia (1984) 154 CLR 178; FHR European Ventures LLP v Mankarious, above n 72. Joshua Getzler, ‘Rumford Market and the Genesis of Fiduciary Obligations’, in A Burrows and Lord Rodger of Earlsferry, Mapping the Law (OUP, 2006) Ch 31. For a challenge to the seminal authority of Keech v Sandford (1728) Sel. Cas. t King 61 as authority for proprietary relief see Andrew Hicks, ‘The Remedial Principle of Keech v Sandford Reconsidered’ [2010] Cambridge Law Journal 287. What Exactly is a Remedial Constructive Trust? 327
Nevertheless, the imposition of a constructive trust can be justified on the ground that the fiduciary should not be allowed to retain property realised from the exploitation of a commercial opportunity when he was under a duty to pursue that opportunity for the principal. It makes no difference to the enforcement of the duty if, as in Boardman v Phipps74 the principal could not have exploited the opportunity for himself. Finally, the case of the fiduciary who takes and invests a bribe, discussed at the beginning of the paper, is the hardest to resolve in terms of principle. Indeed, given the division of opinion among appellate courts and academic writers, it may not susceptible to principled resolution at all and will have to be settled by the brute force of a decision of a court of ultimate authority.75 But if it is authoritatively held that a fiduciary holds the proceeds of a bribe on constructive trust for the principal, there is no good reason for downgrading the equitable protection to which the principal is entitled to unsecured creditor status, or even (by virtue of the operation of an equitable lien) to secured creditor status, on the ground that other creditors are competing for the fiduciary’s assets. The concept of trust –whether express, resulting or constructive- has a settled meaning, well understood by lawyers, financial institutions and other commercial actors. The meaning is constant throughout real and personal property law.76 A beneficiary under a trust is entitled to the whole or to a proportionate share of the trust property, the share being unaffected by either appreciation or diminution in the value of the property.77 It follows that the suggestion of the Full Federal Court in Grimaldi that the principal is entitled to a constructive trust over a bribe received by the fiduciary, unless the fiduciary is bankrupt in which case the principal’s interest will be confined to an equitable lien over the bribe or its product, should not be adopted.78 Likewise, the Third Restatement’s provision that a mistaken payer is entitled to a constructive trust over the payment or its product, but that no claim can be made to a profitable investment of the payment if the payee is indebted to others, introduces undesirable plasticity into the definition of constructive trust.79 If the fiduciary is entitled to a constructive trust over the proceeds of a bribe (a highly contestable proposition, as the authorities show) the award of the remedy should not be abrogated or qualified by reason of the fiduciary’s insolvency. It is understandable that courts should want to maximise the pool of assets available to creditors in the event of a fiduciary’s bankruptcy, but it is not legitimate for a court to promote ‘fairness in bankruptcy outcomes’ as a judicial policy at the expense of enforcement of legal rights. Conclusion
Australian commentators have generally welcomed the High Court’s recognition of the remedial constructive trust.80 The purpose of this paper is not to repudiate it but to sound a note of caution. The remedial trust may well have less impact on the law of constructive trusts in Australia than its supporters hope or its detractors fear. For some categories of constructive trust, specifically the expectation-effectuating doctrines of estoppel and the Muschinski constructive trust, the remedial principles enunciated by the High Court establish a helpful
74 [1967] 2 AC 46. 75 Richard Nolan, ‘Bribes: A Reprise’, 127 (2011) LQR 19, 23. 76 ‘Invariant’, to adopt Ben McFarlane’s apt terminology: McFarlane, above n 17, 30. 77 An object of an express trust power is not an exception since he is not entitled to an interest in the trust property: Ford & Lee, The Law of Trusts[1130]. 78 Grimaldi v Chameleon Mining (No 2) [2012] FCAFC 6 [583]. 79 Third Restatement, §§55, 61. 80 See above n 43. 328 Queensland Legal Yearbook 2013 framework for adjudication — although courts applying these doctrines had travelled far down the road to remedialism long before the arrival of the remedial constructive trust had been announced. For trusts which enforce existing title or which effect restitution of a title to property previously held by the claimant, remedialism, in the sense of taking into account third party interests as an integral step in the award of the trust, should have no part to play. Constructive trusts compelling wrongdoers to make restitution of the fruits of wrongdoing are hard cases since legal logic compels no particular resolution. But once equity determines that the beneficiary of a trust, or a principal to whom fiduciary duties are owed, has a proprietary right to the proceeds of a breach of duty, the enforceability of that right should not be contingent on fiduciary solvency. Finally, no one should be under any illusions as to the conceptual potency of a remedial constructive trust to solve the hard cases of proprietary jurisprudence, such as those of the bribe-taking fiduciary and the mistaken payer. Hard cases are just as intractable in a legal system that recognises a remedial constructive trust as they are in a system which has rejected the concept. The Griffith Opinion Books
by John McKenna QC*
I
The death of Sir Samuel Walker Griffith1 on 9 August 1920 produced a wave of striking tributes from all parts of the Australian federation.2 The Judges of the Supreme Court in Brisbane adjourned their sittings for a day as a mark of respect.3 The High Court held its own brief memorial sitting in Sydney, in which the Chief Justice observed of Griffith that: Many will agree in thinking that he was in many ways the greatest man Australia has produced, but be that as it may, none can deny that by his lifelong public service he established the right to the lasting gratitude of the people of this country.4 Griffith was born on 21 June 1845 at Merthyr Tydfil in Wales. He was the second of the nine children born to a devout and dedicated Congregational minister (Rev. Edward Griffith) and his wife (Mary Griffith née Walker).
* Chair, History and Publications Committee, Supreme Court Library Queensland. This paper was presented at the Current Legal Issues Seminar in the Banco Court, 22 August 2013. It is the first of a series of studies to be undertaken by the Queensland Supreme Court Library of an extensive collection of counsels’ opinions held by the Queensland firm of Feez Ruthning. I would like to thank Peter Allen and the other former partners of Feez Ruthning (now Allens Linklaters) for their foresight in preserving this unique record of Australian legal history and for their generosity in making it available to the Queensland Supreme Court Library for research purposes. I would also like to thank Helen Jeffcoat, Yvette Simonson, Courtney Coyne and the staff of the Queensland Supreme Court Library for their ongoing work in preserving, digitising, transcribing, analysing and investigating the accessible contents of this material. I am also very grateful to Mr Greg Cooper, Crown Solicitor, for allowing the Supreme Court Library confidential access, for the purposes of this study, to the collection of Griffith opinions which are held by the State, but which remain subject to legal professional privilege. 1 The most extensive account of Griffith’s life, written from an historian’s perspective, remains Roger Joyce’s Samuel Walker Griffith (UQP, 1984). See also R Joyce ‘Sir Samuel Walker Griffith (1845– 1920)’ in Australian Dictionary of Biography Volume 9 (MUP, 1983). For a personal memoir of Griffith and his legal achievements, written by a distinguished lawyer who was once one of Griffith’s associates, see AD Graham The Life of Sir Samuel Griffith (Powells & Pughs, 1939). For assessments of Griffith’s judicial work, see Sir HT Gibbs ‘Samuel Walker Griffith’ in T Blackshield, M Coper & G Williams (eds) Oxford Companion to the High Court of Australia (OUP, 2001); Sir HT Gibbs and PA Keane ‘Sir Samuel Griffith’ in M White and A Rahemtula (eds) Queensland Judges on the High Court (SCL, 2003); and M White and A Rahemtula (eds) Sir Samuel Griffith: The Law and the Constitution(LBC, 2002). 2 Lengthy tributes appeared in all major Australian newspapers, including the Brisbane Courier, 10 August 1920 7; Sydney Morning Herald, 10 August 1920 at 6 and the West Australian, 10 August 1920, at 6. 3 Brisbane Courier, 10 August 1920, 7. 4 Knox CJ, Ceremonial sitting of the High Court, 10 August 1920, reported in Sydney Morning Herald, 11 August 1920, 12.
329 330 Queensland Legal Yearbook 2013
In 1853, at the age of eight, Griffith sailed with his family to Australia, to allow his father to assist in the work of the Colonial Missionary Society. This work brought the family to Ipswich in 1854. By this time, Griffith had shown promise as a student. With the support of various scholarships, he completed his schooling at Maitland (1856–59) and then at the University of Sydney (1860–63). On 11 May 1863, at the age of only 17, he returned to Queensland to commence his articles of clerkship under the tutelage of a prominent Ipswich solicitor, Arthur Macalister.5 At the completion of his articles in 1867, at the age of 22, he obtained admission to the Queensland Bar.6 Griffith’s career at the Queensland Bar spanned 25 years (1867–93). Upon commencing practice, he joined the small group of barristers who practised from chambers in the Brisbane Town Hall.7 This building stood on the western side of Queen Street, between George and Albert Streets, adjacent to the former Convict Barracks in which the Supreme Court and Queensland Parliament were then based.8 On 11 May 1876, at the age of 30, he became the fourth member of the Queensland Bar to take silk.9 About 10 years later, in October 1886, Griffith moved his practice to Lutwyche Chambers.10 These were new premises, which had been built on the eastern side of Adelaide Street (near the corner of George Street), to provide the legal profession with accommodation closer to the new Supreme and District Courthouse in George Street.11 In 1893, at the age of 47, Griffith’s career at the Bar ended when he was appointed Chief Justice of Queensland. For much of his 25 years in practice at the Bar, Griffith was the pre-eminent counsel of his generation. For evidence of his dominance, one need only consult the law reports. In the first volume of published law reports in Queensland, the Queensland Law Reports (1876–78), Griffith was recorded as appearing in 36 of the 44 reported cases. Griffith’s prodigious court work ranged over all fields of the law — from criminal law to constitutional law — and was sourced from a wide cross-section of Queensland solicitors.
5 Macalister was one of the leading legal and political figures in early Queensland. After playing an active role in the movement for Queensland’s separation, he was elected to Queensland’s first Legislative Assembly. At the commencement of Griffith’s articles, Macalister was dividing his time between practice as a solicitor and serving in Herbert’s government as Secretary for Land and Works. By the end of Griffith’s articles, Macalister had succeeded Herbert and served two short terms as Premier of Queensland (1866, 1866–67). When Griffith commenced practice at the Bar, Macalister’s firm was one of his early supporters. See Paul D Wilson ‘Arthur Macalister (1818–1883)’ in Australian Dictionary of Biography Vol 5 (MUP, 1874). 6 Griffith was admitted to the Bar on 14 October 1867, at a sitting of the Full Court comprising Cockle CJ and Lutwyche J. His admission was moved by Charles Lilley QC. See Brisbane Courier, 15 October 1867, 2. At the time, the Queensland Bar comprised fewer than 20 practising members (including only two silks): see Pugh’s Almanac 1868, 75. 7 The Town Hall, which was opened in 1864, was designed to include professional offices. An early photograph of the façade of the Town Hall (which was demolished in 1937) can be seen in JD McKenna Supreme Court of Queensland: A Concise History (UQP, 2012) 61 (‘Concise History’). Macalister was one of the solicitors who kept an office in the building: see, eg, The Brisbane Courier, 7 October 1864, 1. This seems to have been the office where Griffith was based during the latter period of his articles. When Griffith commenced practice at the Bar, he began by sharing chambers in the Town Hall with George Paul (later a Judge of the District Court). All Griffith’s early opinions are signed ‘Town Hall Chambers’: Concise History, 68. 8 Plans and early photographs of the Convict Barracks can be seen in the Concise History 29, 42 and 44. 9 Roll of Her Majesty’s Counsel, Concise History 47. 10 This appears from the Griffith Opinions which, from November 1886, are signed ‘Lutwyche Chambers’. 11 Lutwyche Chambers, which opened in 1885, stood at 11/13 Adelaide Street. It was a two-storied building which accommodated, on the ground floor, the solicitors’ firm of Macpherson, Miskin & Feez (later Feez Ruthning & Baynes) and three barristers’ chambers, with chambers for five more barristers on the first floor. See Pugh’s Almanac (1915) 479. A photograph showing Lutwyche Chambers in the 1950s appears in the Concise History, 159 (far right). The Griffith Opinion Books 331
What is truly remarkable, however, is that this dominant practice at the Bar could be maintained at the same time as Griffith pursued a parallel life at the summit of Queensland politics. Griffith was first elected to the Legislative Assembly in 1872 (aged 26). He then served as Attorney-General (1874–78), Leader of the Opposition (1879–83), Premier (1883– 88), and after a short period in opposition, a second term as Premier and Attorney-General (1890–93). To meet the demands of this parallel life, Griffith’s working week often exceeded 80 hours,12 with his efforts extending long into the night: he could not, accordingly to his own description, work comfortably at night until the household had retired. He would then set his table just as he wanted it, with everything in its exact place. He began work with a fresh bottle of whisky beside him. When the bottle was empty he went to bed.13 The duties of an Attorney-General during this period were onerous. At the time, the whole of the Department of Justice comprised only about 11 staff (from the Crown Solicitor down to the messengers) — with no office of Parliamentary Counsel.14 As well as undertaking the usual parliamentary and administrative responsibilities of a Minister of the Crown, the Attorney-General was required to draft all significant legislative reforms and appear as counsel for the Crown in all major court proceedings (including criminal prosecutions). Griffith relished each of these public duties. From the time he entered Parliament — even when in opposition — Griffith was a prolific source of legislative reforms.15 As in his practice at the Bar, his enthusiasm and interest was not narrowly focussed. His interest in the reform of technical aspects of the law16 was matched by his interest in social matters, avidly reading Karl Marx17 and advancing progressive reforms of industrial laws.18 From his life in politics, perhaps Griffith’s most enduring achievement was as one of the fathers of Australian federation. In 1883, as Premier, he encouraged the colonial governments to form a Federal Council — then drafted the statute which became the Federal Council of Australasia Act 1885 (Imp).19 When the colonies later gathered for the National Australasian Convention in Sydney in 1891, it was Griffith who assumed principal responsibility for the drafting of a constitution which was capable of enduring the scrutiny of Australia’s leading legal and political figures.20 In the words of Sir Alfred Deakin, the Constitution ‘as a whole and in every clause bore the stamp of Sir Samuel Griffith’s patient and untiring handiwork, his terse, clear style and force of expression’.21 A more tangible measure of Griffith’s pre-eminence as a lawyer appears from the circumstances which led to his appointment as Chief Justice. To induce him to leave the Bar and take on a judicial role, a special Act of Parliament was passed to increase the salary of the Chief Justice by 40% — from £2500 to £3500.22 This unprecedented inducement —
12 Joyce, above n 1, 90. 13 AB Piddington Worshipful Masters (A&R, 1929) 234. 14 See Pugh’s Almanac 1893, ‘Department of Justice’, 128. 15 In his first two years in Parliament, Griffith drafted and introduced the Telegraphic Messages Act 1872 (Qld) and the Equity Procedure Act 1873 (Qld): Joyce, above n 1, 31–2. 16 Griffith, as Attorney-General, was responsible for the introduction to Queensland of the most significant reforms in court procedures of this era: Judicature Act 1876 (Qld). 17 Joyce, above n 1, 150. 18 For example, the legalisation of trade unions (Trade Unions Act 1886 (Qld)). 19 Joyce, above n 1, 90. 20 The various drafts which were produced, in quick succession, by Griffith are collected in J Williams The Australian Constitution: A Documentary History (MUP, 2005). 21 A Deakin The Federal Story (MUP, 1963) 52. 22 Chief Justice’s Salary Act 1892 (Qld). 332 Queensland Legal Yearbook 2013 which was immediately reversed for his successor23 — was rewarded by Griffith’s remarkable achievements during his ten years as Chief Justice (1893–1903). During this period, Griffith not only led the court to a new level of excellence, but also continued to pursue his drive for law reform — being principally responsible for the massive task of drafting a Criminal Code, new Rules of the Supreme Court and new Criminal Practice Rules.24 Upon the establishment of the High Court of Australia in 1903, Griffith was appointed its first Chief Justice. He served in this position for the next 16 years (1903–1919). After suffering a stroke, Griffith died at the age of 75 in 1920. There are many lawyers and Judges who were pre-eminent in their era, but whose writings are now little more than historical curiosities. As Sir Harry Gibbs has noted, however, Griffith cannot be so characterised.25 He is perhaps the only Australian Judge of the 19th century whose observations are still regularly followed and applied by modern Australian courts.26 These judicial writings, however, derive from only the last 25 years of his working life. What of the first 25 years? Whilst Griffith’s papers are extensive, they do not include a collection of his opinions as a barrister or as Attorney-General. Nor do the records of the Department of Justice, which are held by the Queensland State Archives, contain more than a scattering of Griffith’s opinions.27 In these circumstances, after the passage of more than 100 years, it may have been feared that all of the remaining opinions had been lost. It was in this context that the Feez Ruthning Opinion Books came to light. II
Feez Ruthning (1911–96) was one of the leading law firms in Queensland.28 On 1 December 1911, 29 the firm was created through a merger of two of the State’s earliest legal practices, one founded by Robert Little (1846) and the second by Peter Macpherson (1865). Each of these original practices had developed an enviable array of clients and commanded a significant share of the civil court work in Queensland. They had also developed a close relationship with many of the leading members of the early Queensland Bar, including Griffith. This relationship was not confined to appearance work. Written opinions were regularly sought from counsel on matters of difficulty. The first of the original legal practices was founded by Robert Little.30 Little was born in Londonderry, Ireland, in 1822. At the age of 23, after qualifying as a solicitor, he emigrated to New South Wales. On 23 June 1846, he was admitted to practice in the Supreme Court of New South Wales.31 In December 1846, he commenced practice in Brisbane from his home,
23 Chief Justice’s Salary Act 1902 (Qld). 24 BH McPherson The Supreme Court of Queensland (Butterworths, 1989) 191. 25 Sir HT Gibbs ‘Sir Samuel Griffith’ in M White and A Rahemtula (eds) Queensland Judges on the High Court (SCL, 2003) 33. 26 Griffith CJ’s famous judgment in Butt v McDonald (1896) 7 QLJ 68, for example, has been referred to more than 15 times by Australian superior courts since 2010. 27 More significant Griffith opinions, which remain the subject of legal professional privilege, are held in the office of the Crown Solicitor. 28 For a history of the firm, by a long-serving senior partner, see GO Morris Feez Ruthning: The First 100 Years (2004) (http://www.lexscripta.com/articles/FR.html). 29 Public Notice, The Brisbane Courier, 4 December 1911. The merged firm was initially known as Feez, Ruthning and Baynes. 30 Ross Johnson ‘Robert Little (1822–1890)’ Australian Dictionary of Biography Vol 5 (MUP, 1974). A photography of Little and his family home ‘Whytecliffe’ appears in the Concise History, 34. 31 Robert Little’s admission was moved by the Attorney-General, who introduced him to the Court as a ‘gentleman of respectability’: Sydney Morning Herald, 10 August 1846, 2. The Griffith Opinion Books 333 a small cottage which stood on the north-western corner of George and Adelaide Streets.32 At that time, only four years after the Moreton Bay district had been opened for free settlement, the population of this district comprised only about 2300 colonists.33 Little appears to have been the third solicitor to commence practice in Brisbane,34 but his practice was the first to survive and prosper. From 1857, when a resident Supreme Court Judge (Mr Justice Milford) was first appointed to Moreton Bay, Little was engaged to serve (on a part time basis) as the Crown Solicitor for the Moreton Bay District. These arrangements continued after Queensland’s foundation in 1859, with Little becoming Queensland’s first Crown Solicitor. In 1860, Robert Little entered a partnership with a newly arrived English solicitor, Mr Eyles Browne.35 They began to practice under the name Little & Browne from offices in the former convict barracks in Queen Street,36 with Browne attaining wider prominence as a Member of the Legislative Council (1863–82) and as one of the proprietors of the Brisbane Courier (1873–86). As well as acting in court proceedings for the State and for Brisbane Newspapers, the firm acquired a number of banking clients including the Bank of New South Wales. As the pre-eminent law firm in Queensland — and a firm with a close family connection to another new barrister in Brisbane37 — Little & Browne was not quick to brief the young Samuel Griffith. In 1869, the firm briefed Griffith as the second junior (to Lilley and Harding) in the winding up of the Bank of Queensland.38 However, even after Griffith became Attorney-General (1874) and took silk (1876), he seems not to have become one of this firm’s preferred counsel until the 1880s.39 From that period until his appointment as Chief Justice, however, Griffith’s opinions provide the greatest contribution to the Opinion Books of the firm.40 During the 1880s, leadership of the firm passed to Mr HLE Ruthning.41 Ruthning was born in Paderborn, Germany, in 1841. He emigrated to Adelaide with his family at the age of eight. As a young man, he came to Brisbane to work as a bank officer, before joining Little & Browne as an articled clerk. He was admitted as a solicitor, at the age of 35, on 11 March 1876.42 In 1879, he was admitted to the partnership,43 and within a short time, he found himself the sole principal of the firm. This occurred when Little, in 1882, retired from private
32 The Brisbane Courier, 21 January 1890, 4. 33 Queensland Government Statistician Historical Tables Demography 1823–2008 (http://www.oesr.qld. gov.au/products/tables/historical-tables-demography/index.php) 34 The 1846 editions of the Moreton Bay Courier suggest that there were earlier practices commenced by John Ocock and Thomas Adams. 35 Nan Phillips ‘Eyles Irwin Caulfield Browne (1819–1886)’ Australian Dictionary of Biography Vol 3 (MUP, 1969). 36 The Brisbane Courier, 21 January 1890, 4. 37 George Harding (later Harding J) who arrived in Brisbane in 1866 and Eyles Browne were married to sisters. 38 The Brisbane Courier, 20 November 1869, 5. And see re The Bank of Queensland Limited(1870) 2 QSCR 113. 39 Griffith’s relationship with the firm appears to have become closer after Harding was appointed to the Supreme Court in 1879. See, for example, King & Sons v Co-operative Butchering Company, The Brisbane Courier, 12 August 1879, 3; and Spent v Australasian Joint Stock Bank, The Brisbane Courier, 8 April 1880, 3. 40 The position prior to 1887 remains uncertain because the Opinion Book from this period remains too fragile to inspect. In the period from 1887 to 1993, however, 17 of the 49 opinions from counsel are from Griffith. 41 For an outline of Mr Ruthning’s life, see his obituary in The Queenslander, 7 October 1916, 40. 42 Supreme Court of Queensland, Roll of Solicitors, 11 March 1876. 43 Public Notice, The Brisbane Courier, 27 January 1879, 1. 334 Queensland Legal Yearbook 2013 practice to devote all his energies to his official role as Crown Solicitor44 and Browne was forced by ill-health to retire in 1883.45 By this time, the firm had moved from the Convict Barracks to new offices in Queen Street, which were a little closer to George Street.46 Ruthing had also written one of the few Queensland legal texts from this period, a commentary on the new Bills of Exchange Act.47 For a few years, Ruthning practised in partnership with Mr WJ Byram (1888–1893),48 before forming with Magnus Jensen the more enduring firm of Ruthning & Jensen (1893– 1911).49 In 1899, the practice relocated from Queen Street to premises adjacent to the Supreme Court, on the southern side of George Street (between Queen & Adelaide Streets),50 with Ruthning’s son (Mr APT Ruthning) commencing work with the firm as an employed solicitor.51 By 1911, however, this arrangement seems to have generated some disharmony. The firm was dissolved, with Jensen leaving the practice to form the firm of Morris, Fletcher and Jensen,52 and the new firm of Ruthning & Co (comprising Messrs HLE and APT Ruthning) preparing for an imminent merger into the new firm of Feez, Ruthning and Baynes. The second of the original practices was founded in 1865 by Peter Macpherson.53 Macpherson was a little older than Griffith. He was born in Arbroath, Scotland, in 1841, and came to Sydney with his family at the age of 14. After completing his articles of clerkship, he was admitted as a solicitor in Sydney in 1864. The following year, Macpherson moved to Brisbane and established his own practice in Queen Street54 — just two years before Griffith commenced at the Bar (1867). Whilst Macpherson was known more for his geniality than his legal brilliance,55 he soon established a very strong legal practice. A key client was the Brisbane Municipal Council — with Macpherson serving as the City Solicitor for almost 50 years.56 Over time, the firm gathered a number of banking clients, including the Union Bank and the Australian Joint Stock Bank. Unlike Little & Browne, this firm began to regularly brief Griffith almost immediately after he commenced practice.57 Thereafter, as the reports of court proceedings from this era record, Griffith became the firm’s counsel of choice.58 As a consequence, Macpherson and Griffith became the preferred legal advisers to the Brisbane Municipal Council for much of Griffith’s life in practice.59
44 Public Notice, The Queenslander, 18 November 1882, 692. 45 The Brisbane Courier, 3 October 1883, 1. 46 The Brisbane Courier, 21 December 1881, 1. 47 HLE Ruthning Bills of Exchange Act 1884 (Watson Ferguson, 1884). 48 Public Notices, Brisbane Courier, 20 October 1888 at 11 and 2 February 1993, 1. For a brief account of Mr Byram’s career, see his obituary in The Brisbane Courier, 18 March 1922, 12. 49 Public Notices, The Brisbane Courier, 29 October 1893, 3 and 4 December 1911, 2. For a brief account of Mr Jensen’s career, see his obituary in The Queenslander, 22 May 1915, 15. 50 The Brisbane Courier, 10 October 1899, 8. 51 Supreme Court of Queensland, Roll of Solicitors, 5 December 1899. 52 The Queenslander, 22 May 1915, 15. 53 For a brief outline of Macpherson’s career, see his obituary in the The Brisbane Courier, 13 September 1913, 6. 54 Supreme Court of Queensland, Roll of Solicitors, 8 September 1865; The Brisbane Courier, 22 September 1866 3. 55 Cairns Post, 25 September 1913, 2. 56 The Brisbane Courier, 13 September 1913, 6. 57 See, for example, Hugh v Cribb, The Brisbane Courier, 15 December 1868, 2. 58 The first reported case is re Loudon (1870) 2 QSCR 70, when Griffith (instructed by Macpherson) appeared unsuccessfully in the Full Court against Harding (instructed by Little & Browne). 59 Reported cases include Hobbs v Municipality of Brisbane (1876) 4 QSCR 214 and Brisbane Municipal Council v Watson (1883) 1 QLJ 127. In the Opinion Books of this firm, numerous opinions were prepared by Griffith in matters for the Council. The Griffith Opinion Books 335
Macpherson’s practice steadily grew. For a time, he practised in partnership with Mr Maurice Lyons (1870–1873). He also wrote two early Queensland works on the subject of insolvency.60 After acting for many years on the instructions of Mr WH Miskin, the Official Assignee, Macpherson engaged Miskin as an articled clerk (1878) then brought him into the firm (1884).61 In 1885, the firm moved from the National Mutual Buildings, at 150 Queen Street,62 to offices on the ground floor of Lutwyche Chambers.63 Shortly afterwards, the newly admitted Adolph Feez began with the firm.64 Adoph Feez was the older brother of one of the rising stars of the Queensland Bar, Arthur Feez, whose chambers were across the hallway from the offices of Macpherson & Miskin in Lutwyche Chambers.65 The Feez brothers were grandsons of Mr Justice Milford, but of quite different dispositions. Arthur Feez was a studious and cultured man, who obtained a degree in law from the University of Sydney, before being admitted to the Queensland Bar on 6 September 1881. He went on to take silk (1909) and become one of the leaders of the Bar. Adolph Feez, on the other hand, was of a more adventurous disposition. Rather than undertake further studies, he worked with a survey party in outback Queensland for a number of years, before undertaking articles of clerkship with a number of regional firms. Adolph Feez represented Queensland in rugby and was one of the founders of the Queensland Lawn Tennis Association. Whilst Adolph Feez was admitted to practice some four years after his younger brother, he soon became a partner of the firm of Macpherson, Miskin & Feez on 7 December 1886.66 The next 12 years were very successful for this practice. As a firm with a strong banking and insolvency practice, the economic collapse of the late 1880s resulted in a heavy involvement in numerous pieces of litigation — often with the assistance of Griffith or Arthur Feez.67 In 1898, however, there was a public falling out between Macpherson and Feez, with a receiver being appointed to the practice.68 In the result, Feez was left with the firm’s premises in Lutwyche Chambers (and associated materials such as the Opinion Books), but some major clients (including the Brisbane Municipal Council) left with Macpherson. In the years which immediately followed, Adolph Feez’s practice appeared to falter for a time. By 1906, however, the practice had sufficiently recovered for Arthur Baynes to join Feez as a partner. In 1911, these two firms — Ruthning & Co and Feez & Baynes — merged to form the firm of Feez, Ruthning and Baynes. The firm continued to conduct its practice from
60 P Macpherson The Insolvency Act 1874 (Watson, 1874); G Harding and P Macpherson The Acts and Rules Relating to Insolvency (Watson Ferguson, 1887). 61 From 1884, the firm became known for a time as Macpherson and Miskin. However, in 1891, Miskin left the firm in unusual circumstances. He was reported to have left the Colony ‘without leaving any indication of his intended movements’: The Queenslander, 30 January 1892, 234. After a time, he returned to practice in Rockhampton, where he remained until his death in 1913: Rockhampton Morning Bulletin, 15 October 1913, 6. 62 The Brisbane Courier, 20 April 1885, 8. 63 The Brisbane Courier, 2 April 1885, 2. 64 Feez was admitted as a solicitor on 1 December 1885: The Brisbane Courier, 2 December 1885, 5. His appearances, as a solicitor from the offices of Macpherson and Miskin, begin to be mentioned in 1886: eg The Brisbane Courier, 11 May 1886, 4. 65 See JCH Gill, ‘Adolph Frederick Feez (1854–1944)’ and ‘Arthur Herman Feez (1860–1935)’ Australian Dictionary of Biography Vol 8 (MUP) 1981. And see The Brisbane Courier, 17 October 1944, 4. 66 The Brisbane Courier 16 December 1886, 7. 67 As solicitor for the Brisbane Municipal Council, the firm was also involved in two cases which went on to the Privy Council: Martin v Muncipality of Brisbane (1893) 5 QLJ 3 (FC); [1894] AC 249 (PC); Clark & Fauset v Muncipality of Brisbane (1896) 6 QLJ 131 (FC — PC unreported Brisbane Courier, 9 April 1896, 6). 68 The Brisbane Courier, 14 February 1898, 4. 336 Queensland Legal Yearbook 2013
Lutwcyhe Chambers until 1925, when it moved to the 6th Floor of the T & G Building on the north-eastern corner of Queen and Albert Streets. With two subsequent name changes (to Feez Ruthning & Co in 1927 and to Feez Ruthning in 1986) and various changes of offices, this Queensland practice continued until it became part of the national practice of Allens Allens & Hemsley 1996. Within the library of this thoroughly modern firm, an object of both veneration and curiosity was a collection of some 30 bound volumes of the firm’s Opinion Books. These volumes — five of which were fragile volumes dating from the 19th century — contained the collected opinions of the leading counsel retained by the firm throughout its history. Conscious of their historic significance and increasingly fragile state, the firm began to explore options for their preservation. Legal concerns arose, however, about the propriety of depositing the confidential and privileged opinions of even historic clients with a public archive. These concerns could only be overcome by a special legislative measure. With the support and assistance of the Crown Solicitor, such a measure was put in place by an amendment to the Supreme Court Library Act 1968 (Qld) which came into force on 8 December 2005.69 This provision authorised the deposit of historic legal documents with the Library, and their use for historical or educational purposes. On 30 August 2006, at a ceremony in the Banco Court of the former Supreme Court building, the Chief Justice of Queensland (Paul de Jersey CJ) accepted on behalf of the Supreme Court Library a deposit of the entire set of the Feez Ruthning Opinion Books. Whilst only those opinions which are more than 100 years old are presently available for research purposes, the remaining opinions are being preserved by the Library for future researchers, as they gradually fall into the realms of the historic. III
There is no surviving account, from those involved in compiling the early Opinion Books, to answer the many questions which a modern researcher finds puzzling. When were the Opinion Books first compiled? Why were they compiled? How were they compiled? What were they used for in practice? Was the compilation of opinion books a common practice at the time? If so, what led this firm alone to continue the practice into the modern era? In seeking to answer these questions, we are left to draw inferences from the documentary record itself. The Opinion Books from the period to 1912 comprise five, folio-sized volumes, bound in half calf. The spines identify the volumes, somewhat unhelpfully, as merely: ‘Counsel’s Opinions No. 1’, ‘Counsel’s Opinions No. 2’, ‘Opinion Book No. 1’, ‘Opinion Book No. 2’ and a patently later volume entitled again ‘Counsel’s Opinions No. 1’. None of the early volumes contains any notation which might identify the firm which created it. All the volumes are paginated and contain separate index pages, with the opinions indexed alphabetically by client name. One of the opinion books — Opinion Book No. 1 — is too fragile for its contents to be inspected without the benefit of further conservation. An examination of the contents of the Opinion Books — to the extent that is possible — is more revealing. In total, the Opinion Books contain approximately 600 opinions.70 Almost all the opinions begin by identifying the client’s name, and end with the name of the author of the opinion and the date upon which it was provided. The list of authors includes virtually
69 Supreme Court Library Act 1968 (Qld) s 7A. 70 There are 456 opinions in the four volumes which are available for inspection, with an estimated 150 further opinions in Opinion Book No 1. The Griffith Opinion Books 337 all the leading counsel who were in practice in Brisbane at that time, many of whom went on to notable judicial careers: Ratcliffe Pring, Charles Lilley and his son Edwyn Lilley, Samuel Griffith, George Harding, Patrick Real, James Garrick, Williams Shand, Charles Chubb, Virgil Power, Arthur Feez and Hugh Macrossan. The four volumes which contain opinions from the nineteenth century are entirely handwritten. An examination of the handwriting suggests that the Opinion Books were prepared, over time, by a series of office clerks who copied by hand the text of the original opinions into these volumes. This assessment is supported by what is known of Griffith’s work practices. Griffith prepared his legal work in his own handwriting, at an astonishing rate of about 75 words per minute.71 Unfortunately, his handwriting was virtually illegible. Accordingly, when Griffith was a Judge, one of his associate’s tasks was to rewrite the judgments into legible form.72 It seems that a similar practice was adopted by Griffith at the Bar. From the one original Griffith opinion which has been located to date, it is apparent that the body of the opinion was written by a clerk onto plain paper, and then signed and dated by Griffith himself. It seems, from a notation on the backsheet of the opinion, that the opinion was issued by Griffith in duplicate. This would be consistent with a practice in which one of the originals would be prepared for the client and one for the solicitor’s file. It is clear that the Opinion Books are not a bound set of these original opinions, but rather an internally prepared set of copies of the original opinions, conveniently assembled by the firm for reference purposes. To determine whether particular Opinion Books can be traced to a particular firm, a search of early newspaper reports of court proceedings is of assistance. These very detailed reports identify the names of the clients and their legal representatives, and can often be matched to opinions held in the Opinion Books. This exercise is also illuminating in identifying the clients of each of the firms and the nature of their practice. Whilst this time-consuming exercise is only partially completed, it suggests that two of the early volumes (Counsel’s Opinions Vols 1 and 2) relate to the practice founded by Peter Macpherson (later Feez & Baynes) and that the other two early volumes (Opinion Books Vols 1 and 2) relate to the practice founded by Robert Little (later Ruthning & Jensen). The more recent volume (Counsel’s Opinions Vol 1) spans the period in which the two firms merged (1911), but appears to have originated from Feez & Baynes. To examine when these various Opinion Books were prepared, an examination of the date sequence of the opinions provides the most helpful guidance. The first opinion book from the Macpherson practice begins with an opinion of Samuel Griffith dated 28 August 1885. The opinions which follow are not in strict chronological order, but broadly reflect a chronological sequence (with some older opinions interspersed) through the years to 1896. The second opinion book from this practice appears to begin as a continuation of the first. The initial opinions are from Edwyn Lilley and Arthur Feez in 1896. The remainder of the volume, however, is comprised largely of opinions from the period prior to 1885 collected in no particular order. Interspersed amongst these opinions are further opinions from the period 1896 to 1899. There is then a gap of more than 10 years in the sequence of opinions from this practice, until the more recent volume of Counsel’s Opinions commences again with a chronological sequence beginning in 1908. These indications suggest that, in this firm, the practice of compiling Opinion Books commenced in about 1885. This was about the time that Adoph Feez joined the practice, and its offices moved to Lutwyche Chambers, adjacent to the chambers of Arthur Feez. It is easy
71 AD Graham The Life of Sir Samuel Griffith (Powells & Pughs, 1939) 87, 93. 72 Ibid. 338 Queensland Legal Yearbook 2013 to understand why the firm might commence a practice of this kind at about this time. The early 1880s were a period of commercial expansion in the Queensland economy, with new ventures and new legislation introducing greater complexity to legal practice. Legal reference materials, however, did not keep pace with these developments. An initial attempt to publish a set of Queensland Law Reports had faltered (1876–78), and a new Queensland Law Journal and Reports had only just begun (1881). Legal textbooks dealing with Queensland law were also rare. In these circumstances, the considered opinions of leading practitioners on points of recurring interest would have been of considerable value. In a firm which had long-standing clients such as the Brisbane Municipal Council, a reference set of opinions would also assist in ensuring that consistent advice was being provided over time and in helping to educate new practitioners in aspects of the law affecting these clients. It is difficult to know what prompted the major effort, which appears to have been made in about 1896, to collect older opinions from the firm’s files and copy them into the Opinion Books. This was a period of relative stagnation in the economy. It was also a period in which a falling out between Feez and Macpherson, and a potential division of the practice, was looming. Both factors may have combined to prompt an effort to assemble some of the firm’s more valuable information. The lengthy lapse in activity in the Opinion Books after 1899 is also puzzling, but is consistent with the disruption to the practice which occurred during this period when Adolph Feez found himself in sole practice. Without full access to the first volume of the Opinion Books from the Ruthning side of the practice, it is difficult to undertake a similar analysis of their origins and history. The second volume commences with an opinion of Patrick Real dated 24 February 1887. Thereafter, the volume continues in broad chronological order (with some earlier opinions interspersed) over the years to 1907. This suggests that the practice of compiling Opinion Books commenced on this side of the practice a little earlier, perhaps through the scholarly interests of Mr HLE Ruthning. In this more stable practice, the updating of the Opinion Books continued into the 20th century. IV
Of all the 456 opinions which are available for inspection in the early volumes of the Feez Ruthning Opinion Books (1869–1912), about 40% (183) are the work of Samuel Griffith. This level of reliance upon Griffith is quite remarkable, particularly given that he was in practice for only about half of this period (1867–93). Griffith’s opinions span almost the whole of his career. The earliest opinion was provided to Peter Macpherson on 6 April 1869,73 only about 18 months after Griffith commenced practice at the Bar. Griffith was then only 23 years old, and was briefed to consider a problem which had arisen in registering a mortgage under the newly-established Torrens system of land registration.74 The flow of opinions then continued steadily over the next 24 years, including the periods in which Griffith served as Attorney- General and Premier. The last of the opinions was provided to Macpherson & Feez on 11 January 1893,75 only two months before Griffith was sworn in as Chief Justice of Queensland at the age of 47.76 This opinion again concerned a problem involving unregistered securities. More surprisingly,
73 re Bridgeman (1869). 74 Queensland was one of the first colonies to adopt the Torrens system of land registration, with the enactment of the Real Property Act 1861 (Qld). 75 Ex parte Bank of Australasia (1893). 76 For an account of the swearing in, on 14 March 1893, see The Brisbane Courier, 15 March 1893, 5. The Griffith Opinion Books 339 however, it fell within one of the rarest categories of counsel’s opinions — the joint opinion in which a junior expressly dissents from the views of his leader. In this case, the junior counsel was Shand, who ‘whilst feeling some hesitation in differing from Sir Samuel Griffith’ adhered to his view that an unregistered mortgage of livestock was unenforceable. Fortunately for Griffith, perhaps, these divergent views did not fall to be tested in court. Griffith’s opinions are quite revealing about the practices of the time. First, and most strikingly, the opinions were very brief. Almost all the opinions are only between 400–600 words in length. Griffith achieved this economy of expression by avoiding long recitations of the facts or analysis of the authorities. The opinions conventionally begin with either a short statement of the key event which was the subject of dispute, or a succinct statement of the legal principle which was to be applied. The opinion then set out the key steps in the logic which led Griffith to a conclusion, which was almost invariably expressed with firmness and clarity.77 This style presents challenges for modern readers who are unfamiliar with the background of the matter in question. However, it would have been refreshingly clear to the solicitor and client for whom the opinion was written. A typical example of a Griffith opinion, expressed in fewer than 200 words, is the following opinion provided to the Brisbane Municipal Council in 1878:78 In order to deprive the owner of land of his rights of ownership on the ground that it has become a public highway it is necessary to show that he or his predecessor in title has dedicated it to the public as a highway. In the present case the only evidence of dedication appears to be the fact that a plan showing a proposed subdivision of the land with the portion now in question delineated as a street was lodged in the real property office some years ago by the then owner. But no land abutting on the alleged road appears to have been sold nor has the road been ever used or marked on the ground as a public highway. I think that the mere deposit of the plan is insufficient to prove a dedication of the land to the public. I am therefore of opinion upon the facts as stated that the supposed road is not a public thoroughfare and that the council have no right to interfere with the erection of the fence across it. Secondly, as appears from the opinion just quoted, the analysis is often undertaken by reference only to underlying principle, with little or no reference to case law. As Graham has neatly described him, Griffith was a lawyer ‘governed by principle rather than by precedents’.79 In all 183 opinions by Griffith, only about 200 cases are mentioned, with about half of the opinions containing no reference to authority at all. When authorities are cited, they are conventionally used to support a proposition formulated by Griffith, without the need for any further elaboration or discussion. Thirdly, to the extent that Griffith does refer to case law, the authorities were almost invariably English. Apart from decisions in related cases,80 the whole collection of opinions
77 A rare exception to this practice was, re McManus’s Will (1885), where Griffith concluded ‘it is impossible to be confident as to the effect of the Will until the question has been decided by the Court.’ 78 Ex parte Muncipality of Brisbane (1878). 79 Graham, above n 71, 60. 80 eg ex parte Union Bank (1886), which refers to the related case of Union Bank v Echlin (1886). 340 Queensland Legal Yearbook 2013 appears to contain only one reference to Australian authority.81 This is revealing. Studies of the reported Queensland cases from this era suggest that the 1880s were a period of transition, with the profession beginning to have regard to the decisions of other colonies. It might have been expected that Griffith, with his commitment to federation and a national court system, would have found more than one occasion to consider Australian authorities when preparing this group of opinions. If they were considered, they were not mentioned. Fourthly, whilst Griffith had taken silk by 1876 and was under enormous time pressure, he conventionally provided opinions without any apparent assistance from junior counsel. In the Opinion Books, the vast majority of opinions (91%) were given by Griffith after he took silk, yet there appear to be only six joint opinions (3%). Fifthly, it was largely individuals, rather than corporations, who received Griffith’s advice. Broadly speaking, the opinions may be divided between those prepared for individuals (54%), companies (25%) and government instrumentalities (21%). The individuals came from a wide range of client types, from trustees and executors to small businesses operating in partnership. The companies were primarily involved in banking, insurance or mining. The most loyal client, however, was the Brisbane Municipal Council for whom Griffith prepared 25 opinions (13.5%). These statistics would seem to reflect the preferred business structures of the time, which continued to favour partnership over corporate arrangements. Sixthly, the subject matter of the opinions was strikingly diverse. The bulk of the opinions concerned conventional questions which lay at the core of legal practice during this period — the meaning of wills, the administration of trusts and deceased estates, priority disputes between conflicting proprietary interests, the enforcement of lending transactions and disputes about partnerships. The opinions also dealt with a range of issues which were peculiarly referable to the events of the time. The opinions analysed whether the operation of a tramway on Brisbane streets would involve a public nuisance;82 how the land over which the tramway was operated could be assessed for Council rates;83 whether ships using the Brisbane River were entitled to be moored at a wharf extending across a neighbouring riverfront property;84 whether a strike by Brisbane Newspaper’s printers and compositors would be a breach of the criminal law;85 and the status of property held by a married woman under the Torrens system 86 and under Crown lands legislation.87 The flood of new inventions also gave rise to legal difficulties, including the question of whether the newly invented sewing machine could be sold door-to-door without infringing the Hawkers and Pedlers Act of 1849: No doubt sewing machines were not invented when the Act was passed, and their sale could not have been contemplated by the Legislature. But the word ‘goods’ is I think large enough to include anything capable of being carried about and the fact that the kind of goods in question has been invented since the passing of the Act is not, I think, sufficient to exclude its operationParkyns ( v Preist 7 QBD 313) where it was held that a newly invented steam tricycle was a locomotive within the meaning of the older Acts.88
81 re Landsborough Wills (1886) which refers to the unreported case of Bright v Attorney General, Brisbane Courier, 16 Dec 1873. 82 ex parte Brisbane (1880). 83 ex parte Brisbane (1891). 84 ex parte DL Brown & Co (1883). 85 ex parte Brisbane Newspaper Company Limited (1889). 86 re Interest of Husband in Wife’s Lands (1886). 87 ex parte O’Brien (1885). 88 ex parte Stenson (1889). The Griffith Opinion Books 341
Novel questions also emerged from the Courts. Even before the advent of motor vehicle traffic, the Chief Justice (Sir Charles Lilley) was sensitive to the problem of traffic noise. In Rockhampton, Lilley CJ appears to have responded to this interference with the administration of justice by roping off the adjacent street during his circuit visits.89 On 16 March 1885, the Chief Justice appears to have expressed similar intentions in open court in Brisbane:90 His Honour had yesterday great cause to complain of the disagreeable noise, which he compared to a discharge of artillery and jingle of bells, made by the heavy traffic in the streets in the vicinity of the court. He remarked that the Municipal Council ought to devise some means for preventing a recurrence which interfered with the administration of justice. These remarks appear to have generated concern, by the Brisbane Municipal Council, that the Chief Justice was proposing to personally involve himself in the management of Brisbane traffic. The next day, Griffith provided the Council with an opinion which analysed the powers of the court under the laws of contempt: Applying this rule, I think that if the noise of traffic in a public street is so great as to interfere with the due conduct of the business of the court, any one wilfully causing such a noise is guilty of a contempt of Court and may be punished accordingly. It follow in my opinion that although the Supreme Court has not power capriciously to direct the stoppage of traffic in a street, it has power, if the noise of traffic in the street is so great as to interfere with the business, to punish any person who causes the noise. The practical result is no doubt equivalent to stopping the traffic.91
V
Not all of Griffith’s opinions are of compelling historical interest. Many are concerned with ordinary legal issues affecting ordinary people of the time. Their primary interest, for the legal historian, is in helping to understand the character of practice at the time. Another category of opinions deals with conventional legal issues, but involves people and events of historical interest. Within Griffith’s opinions can be found advices dealing with prominent figures of the time, including leading pastoralists (eg William Graham92 and William Kent)93 and political figures (eg James Swan94 and Eyles Browne).95 There are advices concerning calamities of the era, including the wreck of The Quetta in Torres Strait,96 the collision of The Beaver and The Barcoo on the Brisbane River97 and the Brisbane flood of
89 The Brisbane Courier, 8 September 1885, 3. 90 The Brisbane Courier, 17 March 1885, 4. 91 ex part Brisbane re stoppage of traffic by Judge of Supreme Court (1885). 92 ex part Bank of Australasia re the Will of Hon W Graham (1892). 93 Turner v Kent (1891). 94 re Swan’s Will; ex parte Gailey and Ewing (1891). James Swan was a former editor of the Brisbane Courier and Mayor of Brisbane. 95 ex parte Trustees of EIC Browne (1888). 96 This calamity was reported in the The Brisbane Courier, 4 March 1890, 5. It gave rise to legal issues concerning the operation of mutual wills, when it is unknown who died first re( Nicklin’s Will (1890)) and issues concerning the publication in the press of photographs obtained of victims (Brisbane Newspaper Limited ats Waugh (1890)). 97 ex parte Barcoo and Beaver (1889). 342 Queensland Legal Yearbook 2013
1889.98 Major ventures of the time were also the subject of advice, including the promotion of mining companies,99 the construction of the Victoria Bridge100 and the development of Brisbane’s first tramways.101 There are, however, three further categories of opinion which are of particular interest. First, there is a group of opinions in which Griffith considered matters which clearly flagged the need for law reform — reforms which Griffith (as parliamentarian) was later able to effect by legislative means. The most poignant example of this concerned a mining accident which occurred near Gympie in 1874.102 This accident occurred when a mine worker, Alfred West, who was clearing a work site, struck a stray charge of lithofracteur (nitroglycerin) which exploded in his face. The most likely cause of the accident was the negligence of a fellow workman, who was in the habit of carrying these explosives around the site in his pocket. The accident cost West his sight and his right hand. When the matter was submitted to Griffith for advice, however, he considered that no cause of action against the mining company was likely to succeed. At the time, the common law doctrine of common employment meant that employers were not legally responsible to their workers for the negligent acts of a co-worker, and Griffith was unable to find evidence of personal fault by the employer. It is difficult to imagine that a case of such apparent injustice would not have remained with Griffith when, as Premier, he was in a position to influence the reform of industrial laws. It was under Griffith’s tenure as Premier in 1886, that the doctrine of common employment was finally abolished.103 A more prosaic example concerns the early shortcomings of the Torrens system in Queensland, which caused Griffith difficulty in the very first of his opinions.104 This difficulty was able to be overcome by the passage of the Real Property Act 1877 (Qld). Secondly, there is a group of opinions which concern the legal complications which dogged Australian colonists in the period prior to federation, because of the separate legal systems operated by each colony on the Australian continent. In modern Australia, for example, we take for granted that a company formed in Queensland can own land in New South Wales. In Griffith’s time, however, this was highly controversial. On 23 July 1883, Griffith advised Burns Philp & Co that105 There has been a considerable conflict of opinion amongst lawyers in Australia on the question whether a Company incorporated by the law of one Colony can hold land in another. I am very clearly of opinion that it cannot. Without entering into details it may be sufficient to say that no country has ever recognised the law of another as affecting its real property and that it would be impossible in the event of the winding up or other dissolution of the corporation to give effect to the provisions of the laws of the country of its domicile for the distribution of its assets … This advice appears to have caused some consternation to the client, which provided Griffith with the opinions of other distinguished lawyers to the contrary (including Mr MH
98 ex parte Wm Jones & Sons (1889). 99 ex parte Sugarloaf Tin Company (1874). 100 ex parte Corporation of Brisbane (1874); Brisbane v Lord Brassey (1888). 101 ex parte Brisbane (1880). 102 This accident was reported in The Queenslander, 29 August 1874, 6. The opinion of Griffith was provided later that year: ex parte Alfred Thomas West (1874). 103 Employers Liability Act 1886 (Qld). 104 ex parte Bridgeman (1869). The difficulty arose, in part, because of the concern that titles were governed purely by the requirements for registration and not by equitable principles. 105 ex parte Burns Philp & Co (1883). The Griffith Opinion Books 343
Stephen QC of the New South Wales Bar). Griffith, however, was unmoved. On 25 August 1883, in one of his longest opinions, but again without reference to authority, he explained the basis for this views.106 The practical problems arising from dealings between colonies are a recurrent theme in the Griffith opinions. Even in the case of simple estates, the existence of assets or liabilities in two colonies usually called for the appointment of two sets of administrators.107 The existence of these unnecessary and costly obstacles to the ordinary exercise of legal rights provide an important context in which the movement towards Australian federation took place. Finally, there is a group of opinions which cast light upon the intriguing question of how a leading political figure, serving as Attorney-General or Premier, can properly serve as a source of private legal advice. Whilst there is no suggestion of Griffith placing himself in a position of actual conflict with his public duties, there are many instances in which he strays into difficult territory. These include cases where he provided advice to a party who was seeking a mining title from the Crown;108 advice to a party seeking a deed of grant from the Crown, in which he noted that ‘the law in this respect is likely to be altered shortly’;109 advice upon the meaning of Queensland legislation;110 advice upon the lawfulness of a conviction for breach of a local authority by-law;111 and advice based upon his own views of legislative intent (‘… as I said in the Legislative Assembly when the Legislative Assembly omitted the declaratory words which were inserted to remove any doubt on the question …’).112 As a legislator, Griffith also seems to have been approached to consider the possibility of a legislative solution to some of the more intractable problems facing his clients. It seems that the only case in which legislation was actually passed to solve such a problem involved the establishment of a tramway in Brisbane, which occurred whilst Griffith was in opposition.113 However, the possibility of a legislative solution was alluded to and rejected in a number of opinions, including a case involving doubt about the legal structure of the Union Bank (‘I do not think that any legislative action is necessary. The steps I have suggested will effectively protect and secure the Bank’);114 a will with unfortunate consequences (‘I do however see any immediate need for inviting legislative aid in the present case’);115 and a structural problem with a charitable trust.116 Whilst Griffith successfully navigated these difficult issues, they demonstrate the wisdom of requiring political leaders to separate themselves from any private practice they may have conducted as a lawyer.
106 ex parte Burns Philp & Co (Limited Further Opinion) (1883). This opinion, at 1200 words, is approximately double the length of Griffith’s usual opinions. 107 ex parte Clapperton (1877); re Cullens Will (1880). 108 Anon (18 July 1887). 109 re Landsborough’s Will (1886). 110 ex parte Mortimers Executors (1888); re Undue Subdivision of Land Prevention Act 1885 (1887); ex parte City and Suburban United Muncipality (1885). 111 ex parte Hyne (1891). 112 ex parte Mayor of South Brisbane (1886). 113 ex parte Brisbane (1880); Railways and Tramways Extension Act 1880 (Qld). 114 ex parte Union Bank of Australia (1886). 115 re Hollands Will (1884). 116 ex parte Ann Street Presbyterian Church (1883). 344 Queensland Legal Yearbook 2013
VI
This study of the Griffith Opinions represents the first stage of research into the Feez Ruthning Opinion Books. There is conservation work to be done on Opinion Book 1, to provide access to what would seem to be the earliest of the opinions. There is transcription work required, to provide a clear and accurate version of faded text. There is also extensive research needed, to place the opinions in their proper context of the events and court proceedings of the time. Archive searches will also continue, to seek to unearth further opinions stored in the records of public institutions in Queensland. From this material will emerge a clearer picture of the professional lives of the principal figures of Queensland’s early legal history. A Commentary on The Griffith Opinion Books
by Associate Professor Warren Swain*
Nearly a century after his death it is interesting to speculate what Sir Samuel Griffith would make of the rediscovery of his opinion books. One contemporary description of his character as ‘lean, ascetic, cold, clear, collected and acidulated … [with a] … sceptical and almost cynical manner’1 is rather unpromising. But Griffith was a complex and rather vain man.2 It is not uncommon for outwardly cynical men to be possessed of an emotional or sentimental element in their makeup. There is plenty of evidence that this was so in Griffith’s case.3 On balance I suspect that he would probably be pleased. Legal historians and indeed anyone who cares about the legal history of Queensland and Australia should be pleased as well. Since the days of Frederic Maitland there has been a strong manuscript tradition amongst legal historians working in the Middle Ages. This may be something of a mixed blessing.4 Closer to modern times more printed sources are available. As a result manuscripts have, until quite recently, played a less prominent role. In the last 25 years legal historians have begun to engage rather more with manuscript sources from the post-medieval period. Lord Mansfield’s, trial notes, edited by Professor James Oldham and published as The Mansfield Manuscripts is the best example.5 Those of you in the audience who are members of the Selden Society should shortly receive the transcribed trial notes of a lesser known eighteenth century judge, Sir Soulden Lawrence. The notes of Sir Dudley Ryder, a Chief Justice of the King’s Bench in the 1750s, have also been mined to good effect.6 There is still a great deal to do. Lord Hardwicke’s7 and Lord Ellenborough’s notebooks8 are just two major collections which are yet to be transcribed.9 Both men were significant figures in the history of Equity and the Common law respectively. But their notes have wider importance. Trial notes fill in
* MA, BCL, D.Phil (Oxon.), Associate Professor, TC Beirne School of Law, University of Queensland, Academic in Residence Supreme Court Library Queensland 2014. This paper was presented at the Bar Association of Queensland Current Legal Issues Seminar Series 2013, in the Banco Court, 22 August 2013 in response to the paper given by Mr John McKenna QC The Griffith Opinion Books. 1 Roger Joyce, Samuel Walker Griffith (UQP, 1984), 89. 2 Ibid 22. 3 Joyce, above n 1, 251–4. 4 David J Seipp, ‘The Law’s Many Bodies, and the Manuscript Tradition in English Legal History’ (2004) 25 Journal of Legal History 74. 5 James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century2 vols (University of North Carolina Press, 1992). 6 John H Langbein, ‘Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources’ (1983) 50 University of Chicago Law Review 1. 7 In addition to his trial notes (BL Add MS 36045–36069) some of Lord Hardwicke’s legal opinions as Attorney General are also in the collection (BL Add MS 35908). 8 These are deposited at Harvard HLS MS 1267 and contain a wide selection of Lord Ellenborough’s trial notes mostly written whilst he was Chief Justice of the King’s Bench. 9 For a valuable starting point in relation to Lord Hardwicke, see Henry Horwitz, ‘The nisi prius Trial Notes of Lord Chancellor Hardwicke’ (2002) 23 Journal of Legal History 152.
345 346 Queensland Legal Yearbook 2013 the gaps in printed reports and enhance them in numerous other ways.10 Members of the Bar took and collected trial notes as well. These were an essential part of keeping up to date with legal developments. A handful of these collections were published as law reports.11 The most comprehensive extant set of trial notes belonged to Serjeant George Hill, nicknamed Serjeant Labyrinth because ‘his memory of case law was so extensive that he was utterly confused by his own learning’,12 remain in manuscript form.13 Law reporting in England was a private enterprise, without any official sanction until 1865.14 Even cases in the Central Courts at Westminster went unreported. Trials at nisi prius were hardly reported at all before the 1790s.15 Fellow barristers sought advice from men like Hill and manuscript reports were sometimes cited in court.16 Manuscripts are equally valuable for legal historians wanting to fill in the gaps in printed reports, although this particular resource has not so far been exploited to anywhere like its full potential.17 The private material of lawyers including correspondence, precedents and indeed opinion books also contain important material for historians. These are even more neglected than the trial notes.18 Opinion books exist from a century after the inception of the Common law. The earliest examples of legal opinions are unusual. They were written by a judge, Chief Justice Hengham, as part of a consultation process with his fellow judges, in the late thirteenth century.19 Counsel of course gave opinions to clients. Before the 16th century these were given orally, often in the vicinity of the courts at Westminster Hall, Guildhall, or St Pauls.20 The tavern, the Cardinal’s Hat was also a popular and no doubt more congenial meeting place for lawyers and their clients.21 Because they were spoken rather than written, these opinions only survive in the correspondence or minutes of clients.22 By the early 17th century opinions started to be written down for the first time.23 From the mid-18th century the phrase ‘to take counsel’s opinion’ entered common usage.24 There is a good survival rate amongst opinions of government
10 James Oldham, ‘Eighteenth Century Judges’ Notes: How They Explain, Correct and Enhance the Reports’ (1987) 31 American Journal of Legal History 9. 11 Notable examples include the reports of Sir John Strange and Edward Hyde East. 12 AWB Simpson (ed), Biographical Dictionary of the Common Law (Butterworths, 1984), 242. Hill, who was born in 1716, did not die until 1808. 13 Preserved as, LI MS Hill, for details see JH Baker, English Legal Manuscripts, 2 vols. (Inter Documentation Co., 1978), vol II, 80–90. 14 When The Council for Law Reporting was established. 15 James Oldham, ‘Law Making at Nisi Prius in the Early 1800s’ (2004) 25 Journal of Legal History 221, 223. 16 James Oldham, ‘Underreported and Underrated: The Court of Common Pleas in the Eighteenth Century’ in Hendrik Hartog et al (eds), Law as Culture and Culture as Law (Madison House, 2000), 119, 127. 17 James Oldham, ‘The Indispensability of Manuscript Case Notes to Eighteenth Century Barristers and Judges’ in Anthony Musson and Chantel Stebbings (eds), Making Legal History (Cambridge University Press, 2012), 30–71. 18 Sir John Baker, ‘Reflections on ‘Doing’ Legal History’ in Anthony Musson and Chantel Stebbings (eds), Making Legal History (Cambridge University Press, 2012), 7, 10. 19 Paul Brand, The Making of the Common Law (The Hambledon Press, 1992), 393–443. 20 JH Baker, The Legal Profession and the Common Law (The Hambledon Press, 1986), 101–102. 21 JH Baker, The Law’s Two Bodies (Oxford University Press, 2001), 69, n 38; EW Ives, The Common Lawyers of Pre-Reformation England (Cambridge University Press, 1983), 106. For some contemporary evidence from the mid-15th century, see JS Davies (ed), The Tropenell Cartulary, 2 vols (Wiltshire Archaeological Society, 1908), vol II, 348. 22 For examples see Baker, ibid, 171–73. 23 There is an early surviving example from the mid-16th century, Baker, above n 21, 87. 24 Baker, above n 21, 87. Examples include, Le Neve v Le Neve (1747) Amb 436, 441; Hervart v Guis (1752) 1 Lee 160, 165. 0 A Commentary on The Griffith Opinion Books 347 law officers.25 Collections of private opinions are rarer. Most are scattered amongst client papers in County archives.26 A few sets of opinions belonging to individual barristers have also survived.27 A fair number are in depositories in the United States. One set belonging to Matthew Hale, later Chief Justice of the Kings Bench and who found posthumous fame as a legal writer, re-side in Los Angeles.28 By the 18th century attorneys also began to collect counsel’s opinions and retention rates are greater.29 The opinions were seen as a useful source of reference in advising future clients. Such was the demand that before too long the opinions of some eminent counsel were appearing in printed form. The publishers of Cases in Law and Equity, with the Opinions of Eminent Counsel30 unsurprisingly emphasised the value of printed opinions for an attorney. It was said that the work would ‘assist his judgment’ and ‘make it in some degree unnecessary for him to have the further opinion of counsel in almost any case that can occur’. Another similar but larger work appeared in 1791.31 The well-known antiquarian and political writer George Chalmers published a set of opinions in 1814.32 A subsequent edition appeared posthumously in 1858.33 The fashion for producing printed opinions was brief. Like other older forms of legal literature including the abridgments published opinions were eclipsed by the emergence of the legal treatise in the nineteenth century.34 It would be another hundred years before a major series of opinions were published. Once again these were the opinions of the law officers.35 In Australia the opinions of the Commonwealth Law Officers are deposited in the Australian National Archives.36 Selections taken from these opinions from the birth of the Federation until 1945 have been published and are now available on-line.37 There are older examples of published opinions as far back as the nineteenth century. These are listed in Castles’ Annotated Bibliography of Printed Materials on Australian Law.38 The vast majority concern issues relating to the Crown or governance of the colony.39 The opinion of Frederick Darley, later Chief Justice of New South Wales, is more unusual because it deals with an issue of private law — loss or damage to goods carried by sea.40 The story is much the same in
25 Examples include, BL MS Hargrave 145; BL MS Add 22675; BL MS Add 36134–36144. 26 There are not many examples, but the few include: Cumbria Record Office (D Ing); Cornwall Record Office (LR/140); Warwickshire County Record Office (CR 1998/LCB/22). 27 There are a number of examples from the seventeenth century: JH Baker, English Legal Manuscripts in the USA, 2 vols (Selden Society, 1990), vol II, nos. 229, 230, 251, 1042, 1043, 1121, 1122. 28 Baker, ibid, vol II, no 251. 29 Opinions also circulated amongst barristers. Precisely how this happened is not certain. Some extensive examples of collections of opinion from the eighteenth century are to be found at Cambridge University: JH Baker, A Catalogue of English Legal Manuscripts in Cambridge University Library (Boydell Press, 1996), Add 6628; CUA Collect. Admin. 33. A important collection which includes opinions by William Murray, later Lord Mansfield, is held by Kansas University, Baker, above n 27, no 1124. 30 (1776). 31 Cases, with Opinions of Eminent Counsel, in Matters of Law, Equity, and Conveyancing, 2 vols (1791). 32 G Chalmers (ed), Opinions of Eminent Lawyers on Various Points of English Jurisprudence, chiefly concerning the Colonies, Fisheries and Commerce of Great Britain 2 vols (1814). 33 (1858). 34 AWB Simpson, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ (1981) 48 University of Chicago Law Review 632. 35 In 97 volumes and edited by Clive Parry, Law Officers Opinions to the Foreign Office 1793–1860 (Gregg International, 1970–3). 36 These are largely listed as series no A425 but appear elsewhere as well. 37 http://legalopinions.ags.gov.au/ 38 A Castles, Annotated Bibliography of Printed Materials on Australian Law 1788–1900 (Law Book Company, 1994). 39 Examples include, ibid 595. 40 Ibid 695: FM Darley, Ex parte The Steamship Owner’s Association (1880). 348 Queensland Legal Yearbook 2013
Queensland where the State Archives preserve the opinions of the Crown Solicitor.41 With the exception of a selection of legal opinions relating to local government law edited by William Morris and dated 1907,42 there are no surviving published opinions from Queensland. The trial notes of judge’s in the High Court of Australia have not always been systematically preserved.43 Those belonging to Sir Edmund Barton,44 Sir Adrian Knox45 and Sir Isaac Isaacs46 have survived but so far they have been little used by historians.47 In Queensland the judges’ trial notes from the Supreme Court from its beginnings in Moreton Bay are retained by the State Archives.48 Legal opinions are much rarer. There none to be found amongst the private papers of Isaacs and Sir Owen Dixon.49 Sir John Latham’s private papers exceptionally contain a set of opinions.50 Aside from the opinions of law officers and High Court judges, tracking down legal opinions in Australia is far from easy. Some have probably survived in the sets of personal papers of lawyers or clients. A few of these can be identified.51 A few more may come to light. It is unlikely that there are a large volume of opinion books waiting to be discovered. Unless some hidden treasure is recovered then the Feez Ruthning collection is unique and significant. In considering the value of legal opinion books, it is worth reflecting on the words of the two greatest legal historians since Maitland. Professor SFC Milsom has reminded us that: Fundamental change [in the law] happens slowly and by stages so small that nobody at the time could see them as in any way important … legal history more than most kinds of history, depends upon the assumptions by which the materials are read … people do not formulate their assumptions for themselves, let alone spell them out for the benefit of future historians, and in the case of the law there is never the occasion to write down what everybody once knew.52 It is here that opinion books really matter. They help legal historians unpick assumptions. But they need to be used with care. Legal opinions can only tell us so much. Professor Sir John Baker has said that: What a single barrister thought can only be of limited weight as evidence of a general opinion. Still opinions show us what was thinkable and arguable, or what was thought safe and reliable, throw light on branches of law and practice which are not well covered in the law reports, and give us a direct insight into the practitioner’s mind.53
41 Queensland State Archives Series ID 12261, 12262, Opinion Books. 42 Legal Opinions on Local Government Laws in Queensland Obtained from Leading Counsel and Solicitors by the Local Authorities Association of Queensland between the Years 1896 and 1907 (1907). 43 Tony Thew, ‘Judges’ notebooks’ in Tony Blackshield et al (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001). 44 NAA MS A10612. 45 NAA MS A10638. 46 NLA MS 2755. 47 For an exception see, Sir Gerard Brennan, ‘Three Cheers for Engineers’ in Michael Coper and George Williams (eds), How Many Cheers for Engineers? (Federation Press, 1997) 144, 146. 48 Queensland State Archives Series ID 18554, Judges’ Notebooks (Supreme Court). 49 NLA MS Acc09.166. 50 NLA MS 1009 series 13. 51 Examples can be found in the National Library of Australia: NLA MS 2688 (Papers of Geoffrey Sawyer); NLA MS 8220 (Papers of Fitzherbert Adams Marriot); NLA MS 1624 (Papers of Geelong and Dutigalla Association). 52 SFC Milsom, The Natural History of the Common Law (Columbia University Press, 2003), 75–6. 53 Baker, above n 21, 89. A Commentary on The Griffith Opinion Books 349
Legal historians have sometimes been tempted to ignore the mundane every-day of which sources like opinion books are part. Forty years ago at Harvard, the illegitimate child of legal realism, the Critical Legal Studies movement was born.54 The older traditional of legal history was suddenly seen as passé. What lawyers and judges said and wrote was no more than window dressing. Legal change was the product of bigger political and economic forces. The law and lawyers were not politically neutral but manifestations of political power whether they were conscious of it or not. Morton Horvitz who was sympathetic to these ideas produced his brilliant the Transformation of American Law.55 Patrick Atiyah applied these lessons to England in his Rise and Fall of Freedom of Contract.56 Although these writers provide a valuable reminder that the law does not develop in a vacuum, unfortunately these works were, on closer examination, found to be flawed.57 Facts were passed over in the cause of a good story. Legal history which sidelines lawyers and judges or fails to recognise the role of the individual is doomed to fail. The sort of legal history which engages properly with primary sources rather than the latest fashionable theory suffers some disadvantages of course. It is both difficult and time consuming to do properly. Some of the Feez Ruthning collection cannot be transcribed. The paper has disintegrated beyond repair. Even that which survives is fragile. The paper is thin and of poor quality. Legal opinions are not after all intended to be a record for posterity. The opinions are handwritten which even in the relatively clear hand of clerks still present a challenge to modern readers. But it is worth the effort. The judgements of the superior courts, whether our own Supreme Court or the High Court of Australia, are of course important for legal historians, yet legal history that stops there is incomplete. Legal development is a product of the possible. The majority of disputes never reach the superior courts. They are settled or go before a local tribunal. To concentrate attention on the superior courts alone gives a false picture. Surprisingly little attention has been paid to the working practices of lawyers. Historians are only now beginning to take an interest in legal publishing.58 The tools of lawyers, the books and law reports, which were available to them, can help to explain a great deal about legal development. Legal opinions are a crucial part of this story as well. As Mr McKenna has shown, Griffith was not one to cite authority unnecessarily and when he did so those that he did cite were largely English. What this tells us about the Australian legal culture of the 19th century cannot be determined by this evidence alone. But nor can it be ignored, especially when set against the fact that there were no officially sanctioned Queensland law reports until 1901.59 For some of the time newspaper reports were all that was available.60 Sir Samuel Griffith was a civilised man and like many educated men of his day took great delight in the classics.61 In his spare time he enjoyed translating the gloomier parts of
54 For a useful statement of the aims and assumptions of CLS, see Roberto Unger, The Critical Legal Studies Movement (Harvard University Press, 1983). 55 (Harvard University Press, 1977). 56 (Oxford University Press, 1979). 57 AWB Simpson, ‘The Horwitz Thesis and the History of Contracts’ (1979) 46 University of Chicago Law Review 533. A detailed critique of Atiyah is contained with W Swain, The History of the Law of Contract 1670–1850 (Cambridge University Press, 2015) forthcoming. 58 It may be that this is changing, for examples see: MH Hoeflich, Legal Publishing in Antebellum America (Cambridge University Press, 2010); Angela Fernandez and Markus Dubber, Law Books in Action Essays on the Anglos American Legal Treatise (Hart, 2012). 59 John McKenna, Supreme Court of Queensland A Concise History (UQP, 2012), 81–2. 60 Elaborate collections of scrap books of newspaper case reports were kept by lawyers, ibid 58. English cases were also reported in the newspapers for example: The Sydney Gazette, 10 September 1832. 61 His undergraduate lecture notes on Law and Greek have survived: NLA MS 3461. 350 Queensland Legal Yearbook 2013 the writings of Dante. This is an appropriate note on which to end. In Canto 8 of the Divine Comedy, Virgil and Dante are initially rebuffed when trying to gain access to the City of Dis or lower Hell. Dante pleads: ‘Do not, I beg you, leave me here undone. If we are denied a clear way on, then let us quickly trace our footsteps back’.62 Legal history which takes no account of the everyday working of the law is indeed ‘undone’. Mr McKenna’s valuable work on Sir Samuel Griffiths’ opinion books is already bearing fruit. When complete it will, like all good legal history, allow us better to trace our footsteps back.
62 Robin Kirkpatrick (trans), Dante, The Divine Comedy (Penguin, 2012), 37. The Challenge of Principled Gap-Filling — A Study of Implied Terms in a Comparative Context
by The Honourable Justice Andrew Phang Boon Leong*
There has been a veritable wealth of literature on implied terms — ranging from doctoral theses1 to book chapters,2 articles3 and (more recently) a book.4 What accounts for this interest? Perhaps the simplest explanation is that it is an extremely important topic with at least two important functions — one substantive, the other theoretical. As it has turned out, its continued success has (unsurprisingly, for reasons that will be apparent in a moment) been with respect to the former rather than the latter. The substantive function of implied terms has — as its very nomenclature suggests — been in the sphere of gap-filling. Put simply, where the court encounters a gap in the overall contractual matrix which constitutes the nub of controversy between the parties, it must have recourse to a legal mechanism by which it can decide whether this gap can be filled (and, if so, how it should be filled). Even more simply put, this gap arises because an express term has been inadvertently omitted by the parties at the time they entered into the contract. Unsurprisingly, therefore, an implied term must (if it is appropriate in the circumstances) be called in to aid the filling of this particular gap so as to provide a legal solution to the dispute between the parties. Unsurprisingly, too, this is the substantive — and, indeed, inexorably direct — function of the implied term. More to the point, perhaps, the implied term is (in this particular regard) itself a legal doctrine. I should point out, at the outset, that this first function will be the focus
* Judge of Appeal, Supreme Court of Singapore. This paper has been published in the Journal of Business Law and we gratefully acknowledge the permission of the editor, Professor Robert Merkin, to reprint it in the Yearbook. A version of this essay was delivered at the Current Legal Issues Seminar Series 2013, in the Banco Court on 12 September 2013. I would like to express my deepest appreciation to Ms Andrea Gan and Mr Jonathan Yap, Justices’ Law Clerks, Supreme Court of Singapore, as well as to Asst Prof Goh Yihan of the Faculty of Law, National University of Singapore, for their helpful comments and suggestions. I would also like to dedicate this essay to all the participants who displayed an extraordinary (and, I might add, rare) degree of enthusiasm and (above all) friendship. All errors remain mine alone. Further, all views expressed in this essay are personal views only and do not reflect the views of the Supreme Court of Singapore. 1 At least two doctoral theses on implied terms hail from the University of Cambridge: see Jacob Petrus Vorster, Implied Terms in the Law of Contract in England and South Africa (1987) and Elisabeth Peden, A Rationalisation of Implied Terms in Contract Law (1998). 2 See eg MP Furmston, Cheshire, Fifoot and Furmston’s Law of Contract, (Oxford University Press, 16th ed, 2012), Ch 6; Edwin Peel, Treitel: The Law of Contract, (Sweet & Maxwell, 13th ed, 2011), Ch 6; Chitty on Contracts Vol 1, (Sweet & Maxwell, 31st ed, 2012), Ch 13; Gerard McMeel, The Construction of Contracts — Interpretation, Implication and Rectification, (Oxford University Press, 2nd ed, 2011), Ch 10; and Sir Kim Lewison, The Interpretation of Contracts, (Sweet & Maxwell, 5th ed, 2011), Ch 6. 3 There are far too many articles on the topic of implied terms and it would be impossible to cite a fair sampling. That this is the case will be evident if the reader avails himself or herself of a search through the various legal electronic databases. 4 See Richard Austen-Baker, Implied Terms in English Contract Law (Edward Elgar, 2011).
351 352 Queensland Legal Yearbook 2013 of the present essay. And it is — for me at least — a fascinating journey which I first began (at least in the sphere of publications as a legal academic then) some 23 years ago. It has led me to the high realm of abstract theory and also (as I shall elaborate upon below) to literally the bowels of Langdell Library at Harvard Law School, thankfully to emerge with a publication on, inter alia, something which I had often wondered about but could hitherto never locate. This fascinating journey is a historical one as well which reaffirmed, once again, my faith in the use of legal history.5 On all this, more in a moment. However, as mentioned earlier, there is a second — and inherently theoretical — function which, as we shall see in a moment, is an indirect one. More specifically, the implied term has been utilised as a rationale to justify a distinct and separate legal doctrine — as opposed, under the first function just mentioned, to being a legal doctrine in and of itself. This distinct and separate doctrine is, of course, the doctrine of frustration. But, alas, this particular function of the implied term met with swift — and it appears (at the present time at least) quite final — legal critique as well as condemnation. I do not propose to attempt to resurrect this particular function of the implied term in this essay (at least in the form it originally appeared). However, I will nevertheless attempt — albeit in the briefest of fashions — to consider this particular use of the implied term to ascertain whether (even in this day and age) an at least potential argument can in fact be made to utilise a quite different form of the implied term as a rationale to justify the doctrine of frustration. Let me turn, first, to what I have indicated will be the focus of this essay, viz, the utilisation of the implied term as a substantive gap-filling measure. As the title of this essay suggests, I will attempt to present my study in a comparative common law context. Indeed, the development of a coherent system of contract law entails decisions which are consistent with logic, justice and fairness as well as common sense. In this regard, reference to decisions from other common law jurisdictions is an integral part of the search for principle.6 That having been said, although English law necessarily constitutes the starting-point in many instances (as it must since it is the source of the entire common law system), it is not an end in itself. Adherence to subsequent developments in English law is justified only if to do so would be consistent with (as just mentioned) logic, justice and fairness, as well as common sense. Indeed, one significant instance where an important subsequent (and relatively recent) development in the (at least ostensible) English law of implied terms7 was explicitly not followed in the Singapore context will be dealt with later in this essay. Implied Terms and Gap-Filling Last-Resort or Gap-Filling?
In the famous (and oft-cited) words of the late Sir Robert Megarry, implied terms are ‘so often the last desperate resort of counsel in distress’.8 Although this observation contains much truth, is it, on balance, a fair characterisation when viewed against the larger canvass of the common law of contract? It is certainly true that there is an element of last-resort in as much
5 See generally Andrew Phang, ‘Which Road to the Past? — Some Reflections on Legal History’ [2013] Sing JLS 1. 6 See also Andrew Phang, ‘Recent Developments in Singapore Contract Law — The Search for Principle’ (2011) 28 JCL 3, 3. 7 See the Privy Council decision of Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988; discussed in the main text below to nn 60–76. 8 See RE Megarry, Miscellany-At-Law: A Diversion for Lawyers and Others (Stevens & Sons Limited, 1955), 210. The CHallenge of Principled Gap-Filling 353 as there is no choice but to have recourse to an implied term in a situation where a gap arises in the manner outlined right at the outset of this essay; there is no other legal mechanism which can assist the court concerned. It is also true that there may well be an element of desperation, given what I have just said, but I do not take Sir Robert to be intending anything of a pejorative nature, given the nature of the situation at hand. Put simply, counsel often find themselves in a situation ofinvoluntary desperation which is due more to the fault of the parties to the contract who, ex hypothesi, have failed to include an appropriate express term in the first place; hence, the ‘desperate’ need for counsel for one of the parties to argue that a term ought to be implied instead. Indeed, Sir Robert’s words (quoted at the outset of the present paragraph) have, in my view, more to do with the central criterion of necessity which at once possesses both theoretical as well as (if I may be permitted to say) practical implications. Indeed, I shall return to the criterion of necessity below. It suffices for the moment to state that the concept of the implied term is (in most cases at least) simultaneously a measure of last-resort and a gap-filling legal mechanism. The question posed in the sub-heading to this part of the essay is therefore actually a misnomer of sorts. It is important to be clear as to what kind of ‘gap’ an implied term is concerned with filling, lest unnecessary uncertainty and unpredictability ensue as a result of an illegitimate re-writing of the contract (in substance at least) by the courts. In this regard, in a very recent decision handed down by the Singapore Court of Appeal after an initial draft of this essay had been prepared, the court, in Sembcorp Marine Ltd v PPL Holdings Pte Ltd,9 clarified, as follows: … Although the prayer to imply a term might imply that there is a gap in a contract, which needs to be filled, not all gaps in a contract are ‘true’ gaps in the sense that they can be remedied by the implication of a term. There are at least three ways in which a gap could arise:
(a) the parties did not contemplate the issue at all and so left a gap; (b) the parties contemplated the issue but chose not to provide a term for it because they mistakenly thought that the express terms of the contract had adequately addressed it; and (c) the parties contemplated the issue but chose not to provide any term for it because they could not agree on a solution. In our view, scenario (a) is the only instance where it would be appropriate for the court to even consider if it will imply a term into the parties’ contract (see Socimer International Bank Ltd (In Liquidation) v Standard Bank London Ltd (No 2) [2008] 1 Lloyd’s Rep 558 at [105]). This pertains to what the parties would be presumed to have agreed on had the gap been pointed out to them at the time of the contract. Scenario (c) is not a proper instance for implication because the parties had actually considered the gap but were unable to agree and therefore left the gap as it was. To imply a term would go against their actual intentions. Scenario (b), also, is not a proper situation in which to imply a term. What drives this scenario is not the parties’ presumed intentions, but rather their objectively ascertained actual intentions. Oftentimes, what is sought to be corrected through the process of implication is the mistaken belief that ‘the document accurately records the transaction’ (see for instance, Etablissements Georges et Paul Levy v Adderley Navigation Co Panama SA (The ‘Olympic Pride’) [1980] 2 Lloyd’s Rep 67
9 [2013] 4 SLR 193. 354 Queensland Legal Yearbook 2013
at 72). The proper remedy for such a situation is the rectification of the instrument in equity: see Codelfa Construction Prop Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 348.10
The Categories of Implied Terms
That having been said, how have the courts set about ascertaining whether or not a term ought to be implied? It is important, at this juncture, to note that there are four broad categories of implied terms, viz, ‘terms implied in fact’, ‘terms implied in law’, terms implied by custom, and terms implied by statute. In this essay, I will be focusing only on the first two. The third is relatively rare11 and the fourth is statutory in nature.12 More importantly, by their very nature, the first two categories of implied terms are those which are most commonly canvassed in practice, with the first category being even more commonly referred to compared to the second. However, before proceeding to consider each of these two categories seriatim,13 it would perhaps be useful to highlight what would clearly not constitute a proper category of implied terms. This category is the so-called ‘third variety’ of implied terms referred to by Lord Wilberforce in the following observations made in the House of Lords decision of Liverpool City Council v Irwin: To say that the construction of a complete contract out of these elements involves a process of ‘implication’ may be correct; it would be so if implication means the supplying of what is not expressed. But there are varieties of implications which the courts think fit to make and they do not necessarily involve the same process. Where there is, on the face of it, a complete, bilateral contract, the courts are sometimes willing to add terms to it, as implied terms: this is very common in mercantile contracts where there is an established usage: in that case the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain. In other cases, where there is an apparently complete bargain, the courts are willing to add a term on the ground that without it the contract will not work — this is the case, if not of The Moorcock (1889) 14 PD 64 itself on its facts, at least of the doctrine of The Moorcock as usually applied. This is, as was pointed out by the majority in the Court of Appeal, a strict test — though the degree of strictness seems to vary with the current legal trend — and I think that they were right not to accept it as applicable here. There is a third variety of implication, that which I think Lord Denning MR favours, or at least did favour in this case, and that is the implication of reasonable terms. But though I agree with many of his instances, which in fact fall under one or other of the preceding heads, I cannot go so far as to endorse his principle; indeed, it seems to me, with respect, to extend a long, and undesirable, way beyond sound authority. Thepresent case, in my opinion, represents a fourth category, or I would rather say a fourth shade on a continuous spectrum. The court here is simply concerned to establish
10 [2013] 4 SLR 193 [94]–[96] (emphasis in original). 11 See generally Edwin Peel, Treitel: The Law of Contract,(Sweet & Maxwell, 13th ed, 2011), Ch 6 as well as Pearlie Koh and Andrew Phang, ‘Express and Implied Terms’ in Ch 6 of The Law of Contract in Singapore, Andrew Phang Boon Leong (ed), (Academy Publishing, 2012), paras 6–078–6–090. 12 The foremost example is, of course, the English Sale of Goods Act (which, for example, applies in Singapore as the Sale of Goods Act (Cap 393, revised ed, 1999). 13 Much of the discussion on Singapore law is drawn from Pearlie Koh & Andrew Phang, ‘Express and Implied Terms’ in Ch 6 of Andrew Phang Boon Leong (ed), The Law of Contract in Singapore(Academy Publishing, 2012), paras 6–078–6–090. The CHallenge of Principled Gap-Filling 355
what the contract is, the parties not having themselves fully stated the terms. In this sense the court is searching for what must be implied.14 The learned Law Lord’s nomenclature as embodied within the above quotation is, with respect, not altogether clear. Perhaps this is because, in his view, all the categories (or, in his view, ‘varieties’) of implied terms mentioned are merely ‘[shades] on a continuous spectrum’.15 Be that as it may, it would appear that Lord Wilberforce’s first category of implied terms relates to terms implied by custom.16 His second category is much more clearly identifiable, viz, the ‘business efficacy’ test which finds its origin in the seminal English Court of Appeal decision in The Moorcock,17 and which (as we shall see) constitutes one of the two main tests for ‘terms implied in fact’. I would pause to observe — parenthetically — that the learned Law Lord does hint at the other main test for ‘terms implied in fact’ (viz, the ‘officious bystander’ test), although it is in relation to his first category (which therefore appears to conflate it with terms implied by custom). As alluded to above, the point of focus for present purposes is the third category referred to by Lord Wilberforce. It is, in fact, a ‘non-category’ inasmuch as he mentions it only to reject it out of hand — and with good reason. This third ‘category’ refers to Lord Denning MR’s approach in the court below in this very case itself; put simply, the learned Master of the Rolls had attempted to imply a ‘term in fact’ based only on the criterion of reasonableness. Lord Denning MR’s approach was, in my view, correctly rejected by Lord Wilberforce for the simple reason that it would have conferred upon the courts too large a discretion to imply ‘terms in fact’. It will be recalled that, generally speaking, the approach towards the implication of terms must, by its very nature, be strict. The criterion that should therefore be utilised is that of necessity (as opposed to reasonableness, which is much broader). Lord Wilberforce’s fourth (and last) category is also ambiguous. As I have argued in an earlier article,18 this category — applied to the very case at hand — refers (in substance at least) to the more general category of ‘terms implied in law’. Hence, the only (and remaining) category of implied terms which the learned Law Lord does not include in the extract just quoted relates to terms implied by statute,19 which (in the nature of things) is understandable since this particular category is a clear one. Let us turn now to first consider the category of ‘terms implied in fact’ in more detail. ‘Terms Implied in Fact’ General
The process of implying terms ‘in fact’ into a contract is described, in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd,20 as relating to:
14 [1977] AC 239, 253–4 (emphasis added in italics and bold italics). And, for an analysis which is very similar to that soon to be proffered, see Gerard McMeel, The Construction of Contracts — Interpretation, Implication and Rectification (Oxford University Press, 2nd ed, 2011), para 10.43. 15 [1977] AC 239, 253. 16 See above n 11. 17 (1889) 14 PD 64. And see generally Richard Austen-Baker, ‘Implied Terms in English Contract Law: The Long Voyage of The Moorcock’ (2009) 38 Common Law World Review 56. But cf. (albeit in the context of South African law) JP Vorster, ‘The Influence of English Law on the Implication of Terms in the South African Law of Contract’ (1987) 104 S African LJ 588 and, by the same author, ‘The Bases for the Implication of Contractual Terms’ [1988] JS Afr L 161. 18 See Andrew Phang, ‘Implied Terms Revisited’ [1990] JBL 394, 400–1. 19 See above n 12. 20 [2006] 1 SLR(R) 927 (emphasis in original). 356 Queensland Legal Yearbook 2013
the possible implication of a particular term or terms into particular contracts. In other words, the court concerned would examine the particular factual matrix concerned in order to ascertain whether or not a term ought to be implied.21 As this particular process is highly fact-dependent, the court proceeded in the case just cited to observe thus: There are practical consequences to such an approach, the most important of which is that the implication of a term or terms in a particular contract creates no precedent for future cases. In other words, the court is only concerned about arriving at a just and fair result via implication of the term or terms in question in that case — and that case alone. The court is only concerned about the presumed intention of the particular contracting parties – and those contracting parties alone.22 Hence, the implication of a term ‘in fact’ is, looked at in this light, a one-off event. Unlike a term implied ‘in law’, a term which is implied ‘in fact’ is¸ ex hypothesi, fact-centric, with no (normative) precedent being set for the future. More importantly, it was — and for a fairly long time at that — thought that the tests for ascertaining whether or not a term ought to be implied ‘in fact’ were straightforward. In this regard, the reader would undoubtedly be familiar with the two tests which were almost routinely applied by the courts in ascertaining whether a term ought to be implied ‘in fact’. They are, of course, the ‘business efficacy’ and the ‘officious bystander’ tests, respectively. I trust that the reader will forgive me for proceeding to set out these tests which he or she must already know by heart — if only because they are so fundamental not only in themselves but also to this part of the essay. The ‘Business Efficacy’ Test
The first test, viz, the ‘business efficacy’ test, is embodied in the classic formulation by Bowen LJ in the English Court of Appeal decision of The Moorcock,23 where the learned judge observed thus: Now, an implied warranty, or, as it is called, a covenant in law, as distinguished from an express contract or express warranty, really is in all cases founded on the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side; and I believe if one were to take all the cases, and there are many, of implied warranties or covenants in law, it will be found that in all of them the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have. In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.24
21 [2006] 1 SLR(R) 927 [41] (emphasis in original). 22 [2006] 1 SLR(R) 927 [41] (emphasis in original). 23 (1889) 14 PD 64. 24 (1889) 14 PD 64, 68. The CHallenge of Principled Gap-Filling 357
It should be noted — parenthetically — that although the classic formulation just referred to has been the most often cited, as the court noted in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd: Indeed, Lord Esher MR adopted a similar approach, although it is Bowen LJ’s judgment that is most often cited. This is probably due to the fact that a close perusal of Lord Esher MR’s judgment will reveal that the learned Master of the Rolls did not explicitly adopt the ‘business efficacy’ test as such. It might be usefully observed at this juncture that the third judge, Fry LJ, agreed with both Bowen LJ and Lord Esher MR (see [The Moorcock (1889) 14 PD 64] at 71).25 It should also be noted that, in a very recent decision handed down after an initial draft of this essay had been prepared, the Singapore Court of Appeal, in Sembcorp Marine Ltd v PPL Holdings Pte Ltd, pointed to the possible limitations in the ‘business efficacy’ test, as follows: The business efficacy test has its share of criticism. Indeed, MacKinnon LJ in Shirlaw expressed concern (at 227) at the trend of over — and seemingly undue — reliance on The Moorcock. First, it must be remembered that the test was propounded in the context of what must have been intended by parties to a business transaction. But not all contracts involve commercial transactions between businessmen. Depending on the nature of and the parties to the contract, for instance one between family members, there could conceivably be some other external normative standards which may be more appropriate than business efficacy in distilling the parties’ presumed intentions. Second, the business efficacy test suffers from an inherent blind spot: what does it mean to invoke business efficacy? The efficacy of a contract or a transaction invariably straddles a spectrum. Many contracts might, to some degree, be efficacious and inefficacious at the same time. This explains why the contracting parties often end up in disagreements and disputes. Even if a contract or transaction can be said to be efficacious, there might be room for it to be more efficacious. Where then should the line be drawn? Indeed, this was alluded to by Bowen LJ himself in The Moorcock (at 69): Now the question is how much of the peril of the safety of this berth is it necessary to assume that the shipowner and the jetty owner intended respectively to bear — in order that a minimum of efficacy should be secured for the transaction, as both parties must have intended it to bear? … [emphasis added in italics and bold italics] What is the ‘minimum of efficacy’ and why should the court stop there? Is it the bare minimum without which, as Bowen LJ said (at 71), ‘business could not be carried on’? It is also useful to note the oft-overlooked judgment of Lord Esher MR in The Moorcock in which he justified (at 67) the implication of the term on the basis that ‘honest business could not [otherwise] be carried on’. In the same breath, he framed the term necessary to be implied as the ‘least onerous’ one that could be implied. But why should the court stop at implying the ‘least onerous’ outcome or the ‘minimum of efficacy’? If the court is presuming what the parties must have intended, might it not be sensible to transpose the most efficacious outcome that the parties must have sought or could have secured?26
25 [2006] 1 SLR(R) 927 [30] (emphasis in original). 26 [2013] 4 SLR 193 [85]–[87] (emphasis in original). 358 Queensland Legal Yearbook 2013
The ‘Officious Bystander’ Test
The second test — the ‘officious bystander’ test — is embodied within the famous and oft- cited observations of MacKinnon LJ in the English Court of Appeal decision of Shirlaw v Southern Foundries (1926), Limited, as follows: If I may quote from an essay which I wrote some years ago, I then said: ‘Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’ At least it is true, I think, that, if a term were never implied by a judge unless it could pass that test, he could not be held to be wrong.27 Whilst the observations are clear, the origins of the essay referred to by MacKinnon LJ in those observations were — for a great many years — unclear and, indeed, unknown. Ever since I was a first-year student studying the law of contract, I had often wondered what the title of that essay was and why it was not to be found anywhere in the major (and, for that matter, minor) contract law textbooks. The essay itself was ‘unearthed’ — at least on an academic plane — in an article published almost six decades after this case was decided. I must, perhaps somewhat embarrassingly, make full disclosure by stating that that article was written by me.28 If I may digress somewhat, the discovery of that essay was purely fortuitous. In the first place, I did not, despite my best efforts, discover the essay in either England or Singapore. As alluded to earlier, I discovered it, in fact, literally in the bowels of Langdell Library in Harvard Law School whilst on sabbatical leave there about two decades ago whilst still in legal academia. The discovery of the essay was itself fortuitous inasmuch as I was scanning casually through HOLLIS, the library catalogue for Harvard University, for works by ‘Frank MacKinnon’ in various formats (including abbreviations). I unearthed what I would consider a most unexpected academic archaeological find when the following entry greeted my eyes onscreen: Some Aspects of Commercial Law — A Lecture Delivered at the London School of Economics on 3 March 1926.29 The title looked promising, but I still needed to check the work — which I duly did by extricating it from the shelf located some floors below. It was, in fact, a slim pamphlet only a mere twenty four pages long. I eagerly leafed through this work. Approximately mid-way through it — page 13, to be precise — I slowed down to read more carefully. There was definitely something here that fit the bill. There it was — the passage which MacKinnon LJ had cited in the Shirlaw case. I had finally found the essay which I had wondered about since I was a first-year law student! But, more importantly, did it shed any light on what the author subsequently stated30 in Shirlaw v Southern Foundries (1926), Limited?31 After a further analysis of the relevant portion of this work as well as more research into the English case law (both past and present) and the biographies of the key judges (including both Bowen and MacKinnon LJJ), I wrote the article I have already referred to. It was subsequently published in the Journal of Business Law.32 This was, on a personal
27 See [1939] 2 KB 206, 227 (affirmed Southern Foundries (1926), Limited v Shirlaw [1940] AC 701). 28 See generally Andrew Phang, ‘Implied Terms, Business Efficacy and the Officious Bystander — A Modern History’ [1998] 1 JBL 1. 29 Published in London by Humphrey Milford, Oxford University Press, 1926. 30 See above n 27. 31 See above n 27. 32 See Phang, above n 28. The CHallenge of Principled Gap-Filling 359 level, of some significance because my first article on implied terms had been published some eight years earlier in the same journal,33 which was followed by another two pieces in that journal.34 This particular article was, however, somewhat different and that difference was reflected in the title itself (‘Implied Terms, Business Efficacy and the Officious Bystander — A Modern History’). Put simply, it was not the traditional exercise in legal analysis as it also incorporated historical and biographical elements as well. Perhaps the abstract of this article captures — as abstracts are, of course, supposed to do — the essence of what I was attempting to say (utilising, inter alia, MacKinnon LJ’s extralegal essay (which is referred to in the words in parentheses in the following abstract)): Adopting a primarily historical as well as biographical approach, the present article examines the underlying rationale and development of the two major tests for terms implied in fact: the business efficacy and officious bystander tests, respectively. Apart from interesting individual points that arise (such as the suggested origin of the officious bystander test as opposed to the source traditionally cited), this approach also provides us with valuable information as to the probable relationship between both tests. This probable relationship, it will also be argued, also finds support in the more recent caselaw. The article also explores some broader underpinnings and implications that might serve as points of departure for further research in this area.35 I am unsure whether readers of the article referred to above would agree with the theses and/or arguments contained therein, but there appears to be at least one clear benefit that has resulted from the publication of that article — the aforementioned ‘unearthing’ of MacKinnon LJ’s essay which he had referred to in Shirlaw v Southern Foundries (1926), Limited.36 It had — on one or two occasions — become the topic of conversation with other legal academics interested in the topic of implied terms. Indeed, some writers37 and even courts38 have simply cited the article (which, in turn, cited the essay) instead. Hence, whatever view one adopts of the merits (or otherwise) of the article, it cannot be said to have been in vain — at least when this particular (admittedly, less than stellar) perspective is taken into account! But what precisely was it in this essay that shed light on the test for terms ‘implied in fact’ in general and which led to the subsequent formulation of the ‘officious bystander’ test in particular? I have, in fact, attempted to answer this question in the article which I have already referred to above. However, in the interests of saving the reader the time and trouble of locating as well as trekking through that article, I trust that you will permit me the liberty of drawing heavily (and even setting out almost verbatim actual text) from the relevant pages of that article (simply because I do not think that I can express the relevant content any more clearly or felicitously).39 The essay in question was (as already mentioned) really the text of a lecture delivered at the London School of Economics on March 3, 1926 entitled Some Aspects of Commercial
33 See Phang, above n 18. 34 See Andrew Phang, ‘Implied Terms in English Law — Some Recent Developments’ [1993] JBL 242 and, by the same author, ‘Implied Terms Again’ [1994] JBL 255. 35 See Phang, above n 28, 1. 36 See above n 27. 37 See eg, Michael Bryan and MP Ellinghaus, ‘Fault Lines in the Law of Obligations: Roxborough v Rothmans of Pall Mall Australia Ltd’ (2000) 22 Sydney L Rev 636, 643–4. 38 See eg, Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR. 516, 576. 39 See Phang, above n 28, 14–15. 360 Queensland Legal Yearbook 2013
Law40 by Justice MacKinnon before he was elevated to the Court of Appeal. The actual text of the lecture itself runs to 20 of the total of 24 printed pages in the pamphlet. I assume that this is the only form in which the full text of the lecture is to be found, although, as already mentioned, I located it several thousand miles away from England41 and at least two reports of the lecture (both identical and both not containing the critical passage on the implication of terms) exist.42 Further, a note by Justice MacKinnon himself (on the third printed page of the text) reads as follows: ‘This lecture was given at the invitation of the Senate of the University of London, and is now printed by their request’. As also mentioned, the crucial passage is to be found on page 13 of the text. However, a brief examination of the rest of the text, ie, the context in which the crucial passage occurs, may be of some assistance. Justice MacKinnon’s main thesis is, in many ways, ahead of its time, for in it he expresses his view that it is ‘profitable’ to look at commercial law ‘as a set of rules for the construction of the various contracts that are used by commercial people’,43 although he did admit that it was ‘of course, untrue to say that the whole body of commercial law is concerned with rules of construction’.44 And the examples he gives are varied, including the doctrine of frustration.45 If Justice MacKinnon’s lecture is looked at in this light, one begins to realise the pivotal importance that probably has to be accorded to the passage cited in the Shirlaw case.46 Indeed, the other main point he makes is with regard to ‘the desirability for good draftsmanship’ for ‘prevention is better than cure’.47 This point emphasises the need to minimise the raising of issues (and concomitant problems) of construction. The sentence immediately following
40 The full title and author is Some Aspects of Commercial Law — A Lecture Delivered at the London School of Economics by Sir Frank MacKinnon (Of Trinity College, Oxford, and the Inner Temple; a Judge of the King’s Bench Division), Humphrey Milford (Oxford University Press, 1926); see also above n 29. See also, Lord Hoffmann’s reference in his Lord Upjohn Lecture entitled ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 Law Teacher 127, 138, as follows: ‘Mackinnon LJ invented them [the parties and the officious bystander] in a public lecture and afterwards gave them wider currency in his judgment in Shirlaw v Southern Foundries Ltd…’ (emphasis added). This is, to the best of the author’s knowledge, virtually the only (if not the only) reference to this lecture. Slightly more controversial, perhaps, is his Lordship’s statement that the officious bystander ‘is plainly based upon the contemporary cartoons of Bateman’ (ibid) — unless, of course, Scrutton LJ was himself influenced by these cartoons some two decades earlier; see the argument below. See also, Masters of Caricature — from Hogarth and Gillray to Scarfe and Levine, edited by Gould (1981), 153, for a capsule summary of the career of Henry Mayo Bateman. And see, especially, Anthony Anderson, ‘The Man Who … And Other Situations’ in Ch 13 of The Man Who Was HM Bateman(Webb & Bower (Publishers) Limited, 1982). And for a very ample representation of Bateman’s actual works, see HM Bateman — The Man Who … and Other Drawings, edited by Jensen (1975; reprinted 1991). 41 As already mentioned, in the depths of the Langdell Library at Harvard Law School; the work was received on August 27, 1926. Given the date that the lecture was delivered, the turnaround time from delivery to printing and receipt is impressive indeed. 42 See The Law Times, vol 161, 6 March 1926, 198–9 and The Solicitors’ Journal & Weekly Reporter, vol 70, 13 March 1926, 468–9. 43 See MacKinnon, above n 40, 5 (emphasis added), cf the view, for example, that there is no doctrine of common mistake at common law or even frustration for that matter, and that everything boils down to a question of construction in the final analysis; see eg, PS Atiyah, ‘Judicial Techniques and the English Law of Contract’ (1968) 2 Ottawa L Rev 337 (Reprinted as Essay 9 in PS Atiyah, Essays on Contract (Clarendon Press, 1986)). 44 See MacKinnon, above n 40, 6. 45 Ibid 11–12. The implied term theory is now generally thought to have been discredited, although with the recent advent of terms implied ‘in law’, this negative attitude may need to be re-examined (and see the main text accompanying below nn 128–47). 46 See above n 27. 47 See MacKinnon, above n 40, 17. See, also ibid, 24: ‘The task of the lawyer, in any case, whether as draftsman or advocate, in prevention of dispute or its cure, involves those two primary qualities–accurate thought, and clear expression. And for that reason it is that the profession of the law is one worthy of a man of ability and learning.’ The CHallenge of Principled Gap-Filling 361 the critical passage (ie on page 13 of the lecture and as embodied in the Shirlaw case) is also important, and reads as follows: But in most of these cases the Court has, as a matter of construction to find what is the implied term, if any, ie the obvious common agreement, upon a matter as to which it must have the strongest suspicion that neither party ever thought of it at all, and that, if they had, they would very likely have been in hopeless disagreement what provision to make about it.48 The passage I have just quoted is very important inasmuch as it acknowledges the realities of the situation at hand, in particular, the fact that in the heat — indeed very event — of litigation itself, the implied term is a device that is utilised by the court in arriving at what it perceives to be a just outcome. The implication of this ie,( whether a sceptical view should be adopted as a consequence or not) has been briefly mentioned above. Perhaps it was the perceived controversy that would probably have been generated in this respect that persuaded MacKinnon LJ to leave this passage out of his judgment in the Shirlaw case, for as Professor Patrick Atiyah perceptively points out, what judges state in their formal judgments often differs from what they state in their extrajudicial capacity.49 Perhaps it was left out simply because it would affect the pithiness of that portion of the judgment in the Shirlaw case, or he could have changed his mind since then. At this juncture, something more ought to be said about the Shirlaw case itself, and the starting-point is best expressed in the actual language utilised by MacKinnon LJ in Shirlaw itself: I recognize that the right or duty of a Court to find the existence of an implied term or implied terms in a written contract is a matter to be exercised with care; and a Court is too often invited to do so upon vague and uncertain grounds. Too often also such an invitation is backed by the citation of a sentence or two from the judgment of Bowen LJ in The Moorcock.They are sentences from an extempore judgment as sound and sensible as all the utterances of that great judge; but I fancy that he would have been rather surprised if he could have foreseen that these general remarks of his would come to be a favourite citation of a supposed principle of law, and I even think that he might sympathize with the occasional impatience of his successors when The Moorcockis so often flushed for them in that guise. For my part, I think that there is a test that may be at least as useful as such generalities.50 It is significant that the passage just quoted immediately precedes the text of the famous ‘officious bystander’ test in Shirlaw itself. One major issue that arises from this is whether the ‘officious bystander’ test is, in substance, an advance over Bowen LJ’s ‘business efficacy’ test as enunciated in The Moorcock. In so far as MacKinnon LJ is concerned, however, it is clear that he intended the ‘officious bystander’ test to supersede the ‘business efficacy’ test, or at least being ‘at least as useful’.51 In addition, we find that the learned judge perceives the test he advocates as being more specific than the ‘business efficacy’ test laid down in The Moorcock which he describes as encompassing ‘generalities’.52 But what he does not make clear is whether his (‘officious bystander’) test is an elaboration of the ‘business efficacy’ test or is intended as a wholly separate test. He certainly did not reject the ‘business efficacy’ test, but,
48 Ibid 13 (emphasis added). 49 See PS Atiyah, ‘Judges and Policy’ (1980) 15 Israel L Rev 346. 50 See [1939] 2 KB 206 at 227 (emphasis added). 51 [1939] 2 KB 206 227. 52 [1939] 2 KB 206 227. 362 Queensland Legal Yearbook 2013 on the other hand, was not in the final analysis overwhelmingly positive about it either, to say the least.53 But, at this juncture, it is suggested that we have only a part of the story; for a complete picture, we require an examination of the views of yet a third judge, Scrutton LJ, whose judgment in Reigate v Union Manufacturing Company (Ramsbottom), Limited54 is often cited, without a realisation of the significance of that decision on the precise relationship between the ‘business efficacy’ and ‘officious bystander’ tests. I will, in fact, deal with this other part of the story (including the role of Reigate) when I examine the relationship between the ‘business efficacy’ and ‘officious bystander’ tests a little later on in this essay. Suffice it to state at this juncture that Scrutton LJ’s judgment in Reigate not only sheds light on the relationship between these tests but also suggests that he ought perhaps to be credited as being the first to actually formulate the ‘officious bystander’ test, although he did not (unlike MacKinnon LJ in Shirlaw) expressly utilise this particular terminology. It is important, at this juncture, to elaborate on a point made in an earlier footnote55 — that Lord Hoffmann had a somewhat different take on the possible origins of the ‘officious bystander’ test. In particular, the learned Law Lord, in his Lord Upjohn Lecture, observed as follows: With the omnibus passing down the Clapham Road and approaching its destination, we must hurry on to the trio at the back who are engaged in fixing a charterparty. Mackinnon LJ invented them [viz, the parties and the officious bystander in relation to the ‘officious bystander’ test] ina public lecture and afterwards came them wider currency in his judgment in Shirlaw v Southern Foundries Ltd [1939] 2 KB 206. This time we have not merely one imaginary person but an entire musical hall act, in which the officious bystander asks his question and the two reasonable contracting parties reply in carefully rehearsed unison with their stock catch phrase ‘But of course!’ Lord Justice Mackinnon was a witty and cultured man, for many years president of the Jane Austen Society. His little scene is plainly based upon the contemporary cartoons of Bateman, in which some unfortunate person is always asking a question which causes general astonishment all around him. But I do not imagine Lord Justice Mackinnon ever thought how seriously this little jeu d’esprit would be taken, how many times it would be cited, analysed, applied or distinguished in courts all over the world.56 As I also noted — in the text of that very same footnote — I think that the true origin of the ‘officious bystander’ test is in the lecture (by MacKinnon LJ) to which I have already referred57 (and which, significantly in my view, Lord Hoffmann also refers to), but would respectfully differ from the learned Law Lord’s further observation that the ‘little scene [involving the parties and the officious bystander] is plainly based upon the contemporary cartoons of Bateman’ in so far as it suggests that the ‘officious bystander’ test originated directly from the cartoons themselves. However, it seems to me that this is not what Lord Hoffmann meant. What he seems to me to be stating is that, whilst the legal test is to be found in MacKinnon LJ’s lecture,58 the pictorial device (or, in the learned Law Lord’s words, the ‘little scene’) which inspired the legal concept or idea is to be found in this series of cartoons by the famous British artist, HM Bateman. Indeed, it might well be that the cartoon
53 See the quotation at above n 50. 54 [1918] 1 KB 592, 605. 55 See above n 40. 56 Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 Law Teacher 127, 138 (emphasis added). 57 See above n 40. 58 Ibid. The CHallenge of Principled Gap-Filling 363 and the legal concept were created in an interactive fashion in MacKinnon LJ’s mind but, in the nature of things, we will of course never know. However, that there is some relationship or connection between the ‘officious bystander’ test and the series of Bateman cartoons is probably undeniable, given the timeframe as well as the context in which the latter is concerned. However, what is equally clear is that the cartoons themselves are insufficient, in and of themselves, to constitute the ‘officious bystander’ test itself. At this particular juncture, it might be appropriate to note that — almost a decade and a half later — Lord Hoffmann articulated (this time in a judicial context) a quite different test for ‘terms implied in fact’, departing (in substance at least) from the traditional ‘business efficacy’ and ‘officious bystander’ tests. Indeed, this would be an appropriate point at which to turn to that particular test which was laid down by Lord Hoffmann, delivering the advice of the Judicial Committee of the Privy Council (on appeal from the Court of Appeal of Belize) in Attorney General of Belize v Belize Telecom Ltd59 (which I will hereafter refer to as ‘the Belize test’). The Belize test
In Belize, Lord Hoffmann, delivering the advice of the Board, was of the view that ‘[t]he proposition that the implication of a term is an exercise in the construction of the instrument as a whole is … a matter of logic’.60 The learned Law Lord then reformulated the test for ‘terms implied in fact’, as follows: It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson’s speech [in Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 at 609] that this question can be reformulated in various ways which a court may find helpful in providing an answer — the implied term must ‘go without saying’, it must be ‘necessary to give business efficacy to the contract’ and so on — but these are not in the Board’s opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?61 More significantly, perhaps, Lord Hoffmann was of the view that the ‘business efficacy’ and ‘officious bystander’ tests merely represented different ways in which the courts have expressed the key question italicised in the quotation in the preceding paragraph; indeed, the learned Law Lord warned of the ‘dangers in treating these alternative formulations of the question as if they had a life of their own’.62 The result is that both these traditional tests are no longer the main focus. The central focus or test is premised, instead, onthe reasonable person. However, there are, with respect, a number of difficulties with the Belize test. These were, in fact, considered in some detail in the recent Singapore Court of Appeal decision of
59 [2009] 1 WLR 1988. 60 [2009] 1 WLR 1988 [19] (emphasis added). 61 [2009] 1 WLR 1988 [21] (emphasis added). 62 [2009] 1 WLR 1988 [22]. 364 Queensland Legal Yearbook 2013
Foo Jong Peng v Phua Kiah Mai,63 which rejected the Belize test in so far as that test suggests that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of terms ‘in fact’. In that case, the appellants concerned were committee members of the management committee of a Chinese clan association. The first appellant was the vice-president of that association and had convened a meeting to remove the respondents from their offices as president and honorary secretary general of the association, respectively. Resolutions were passed at the said meeting to remove the respondents from their offices. The rules of the said association were silent on the power of the management committee to remove office bearers. The respondents filed an application to the Singapore High Court seeking declarations, inter alia, that the management committee had no power to remove them from their offices and that the meeting convened was void and invalid. The High Court declined to imply a term permitting the management committee to remove management committee members before the expiry of their fixed two-year term of office and the appellants appealed against that decision. The Singapore Court of Appeal held, inter alia, that, applying the ‘business efficacy’ and ‘officious bystander’ tests, a term conferring power on the management committee to remove office bearers could not be implied. In the court’s view, it was not necessary for the effective management of the association’s affairs (based on the ‘business efficacy’ test) nor was this power of removal so obvious that (based on the ‘officious bystander’ test) the members of the association would have considered that it would go without saying that the management committee itself should be free to remove an office bearer.64 Of more significance (for our present purposes) are the court’s observations with respect to theBelize test. In particular, the court observed as follows: There has, in fact, been a dearth of local authority considering the Belize test. Whilst the recent Singapore High Court decision of Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2012] 3 SLR 801 referred to the Belize test, we refrain from commenting on it as we understand that appeals are pending before this court.65 There was also an observation, by way of obiter dicta, by this court in MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd [2011] 1 SLR 150 (‘MFM’), where it was stated as follows (at [98]; see also at [100], where there is a further reference in the context of terms ‘implied in law’): It is interesting to note, at this juncture, that the broad underlying thread of interpretation which Lord Hoffmann utilises in advocating his approach centring on assumption of responsibility by the defendant (a point perceptively made by Wee [Paul C K Wee, ‘Contractual interpretation and remoteness’ [2010] LMCLQ 150] … has also been utilised by the learned law lord in the area of implied terms as well (in particular, to terms implied in fact) — hence, the analogy drawn by Lord Hoffmann between both these aforementioned areas. However, and with the greatest of respect, the uncertainty generated in the latter area would, in our view, apply equally to the former area. In the recent Privy Council decision (on appeal from the Court of Appeal of Belize) of Attorney General of Belize v Belize Telecom Limited [2009] 1 WLR 1988, for
63 [2012] 4 SLR 1267; noted both comprehensively and perceptively by Goh Yihan, ‘Terms Implied in Fact Clarified in Singapore’ [2013] JBL 237. See also, by the same author, ‘Contractual Interpretation in Singapore — Continued Refinement after Zurich Insurance’ (2012) 24 SAcLJ 275, 279–82 and ‘The Relationship between Interpretation, Implication and Rectification in Singapore’ (2012) 30 Sing L Rev 97, 101–5 and 110–18. 64 [2012] 4 SLR 1267 [46] and [47]. 65 See now Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193, discussed in the main text accompanying above nn 9–10 and 26 as well as below nn 70–74. The CHallenge of Principled Gap-Filling 365
example, Lord Hoffmann, delivering the judgment of the Board, adopted an extremely broad approach towards the implication of terms in fact, effectively effacing the distinction between the time-honoured ‘business efficacy’ and ‘officious bystander’ tests (for a general account of these two tests (as well as their possible relationship), see the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927 at [29]–[40]). This results, however, in a lack of concrete rules (and consequent normative guidance) as well as uncertainty in the practical sphere (a point which is also emphasised by Wee at 162–166; reference may also be made to Elizabeth Macdonald, ‘Casting Aside “Officious Bystanders” and “Business Efficacy”?’ (2009) 26 JCL 97). One should not, in fact, be surprised at such a result as the lack of guidance as well as uncertainty is likely to be the result when the umbrella concept of interpretation, which is pitched at a necessarily high level of abstraction, is utilised (in substance, if not form) as the legal basis for different and disparate areas of law (cf also the collected essays in Brian Coote, Contract as Assumption — Essays on a Theme (Hart Publishing, 2010) (Rick Bigwood ed); in so far as The Achilleas itself is concerned, see the very recent comment by Brian Coote, ‘Contract as Assumption and Remoteness of Damage’ (2010) 26 JCL 211 (‘Coote’)). The lack of guidance stems from the absence of a sufficiently specific set of concrete rules and principles whilst the resultant uncertainty is the natural consequence when legal rules and principles lacking specific and concrete guidance are sought to be applied to the various sets of facts (which are themselves necessarily myriad in nature) (in this regard, see also generally this court’s observations in Mühlbauer AG v Manufacturing Integration Technology Ltd [2010] 2 SLR 724 (‘Mühlbauer’) (at [40]–[43]) about the danger of over-generalisation and over-abstraction in making legal arguments). Put simply, whilst it is desirable from a conceptual perspective to have umbrella doctrines that make for theoretical ‘neatness’, there is a limit to which one can have ‘one-size-fits-all’ doctrines that will not ultimately become legal procrustean beds (see also Wee at 166 and 175– 176). Indeed, the necessity for specific rules and principles has always been the hallmark of the development of the common law. Such specificity has, in fact, been (perhaps paradoxically) one of the key strengths of the common law itself, which is why Prof S F C Milsom perceptively observed that the common law system developed in a strikingly systematic fashion, notwithstanding the apparent absence of a clear blueprint as such (see generally S F C Milsom, ‘Reason in the Development of the Common Law’ (1965) 81 LQR 496; see also Mühlbauer (at [42]) where it is observed that there is an interactive process between the universal and the particular or the general and the specific in law and decision-making). [emphasis in original]
As we shall see, the observations in MFM, although rendered by way of obiter dicta, are significant inasmuch as they embody what is, with respect, the fundamental difficulty with the Belize test. And it is that whilst the process of implication (of terms) is, when viewed in a more general sense, also a process of interpretation, the process of implication itself is, in the final analysis, just one specific conception of the broader concept of ‘interpretation’. In particular, the process of implication is separate and distinct from the more general process relating to the interpretation of documents. Indeed, the process of implication of terms proceeds, ex hypothesi, on the absence of an express term of the contract. Hence, the implication of a term, whether in fact or in law (for the distinction between these two categories 366 Queensland Legal Yearbook 2013
of implied terms, see generally Forefront ([2006] 1 SLR(R) 927] at [41]–[44]); reference may also be made to the decision of this court in Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR(R) 769 at [90]−[91]), involves tests as well as techniques that are not only specific but also different from those which operate in relation to the interpretation of documents in general and the (express) terms contained therein in particular (see also the observation of Lord Steyn in the House of Lords decision of Equitable Life Assurance Society v Hyman [2002] 1 AC 408 at 458 as well as the perceptive observations by Prof Gerard McMeel in The Construction of Contracts — Interpretation, Implication, and Rectification (Oxford University Press, 2nd Ed, 2011) at para 10.04). The (general) concept of ‘interpretation’ has much in common with the implication of terms inasmuch as both entail an objective approach. However, it is, in our view, incorrect to conflate the tests as well as techniques which accompany both the aforementioned processes. Before proceeding to elaborate further, it would be appropriate at this juncture — consistently with the views just expressed — to note the very pertinent observations by a learned author, as follows (see Paul S Davies, ‘Recent developments in the law of implied terms’ [2010] LMCLQ 140 (‘Davies’) at 144): Lord Hoffmann’s speech in Belize may be seen to assimilate further implication within interpretation. Indeed, this was Lord Hoffmann’s stated aim, since ‘the implication of the term is not an addition to the instrument. It only spells out what the instrument means’. Yet this is questionable as a matter of logic: if the contract is silent on a point, by implying a term the court is supplementing, or replacing, this silence. It is submitted that it is stretching the boundaries of interpretation too far to suggest that implication is not an addition to the instrument, or that it simply gives effect to what the instrument means. An implied term may give effect to what the instrument should, ideally, have expressly provided for, but not what the instrument means in the form in which it was agreed by the parties. There is no utility in artificially forcing the doctrine of implication within the confines of interpretation. Indeed, it may actually be dangerous. This is exemplified by the fact that it no longer matters if the parties would not have responded to the officious bystander with a cursory, ‘Oh, of course!’ Why should a term be imposed upon a party if it would not have instantly agreed to such a term upon being asked by a bystander? … Belize suggests that the subjective intentions of the parties are now irrelevant, and that the only matter of importance is what the reasonable observer would understand the contract to mean. Returning to Belize … as is evident from Lord Hoffmann’s approach in that case … the central focus or test is premised on — to use more general terminology — the concept of the reasonable person. As a learned author put it, ‘the approach to be derived from Belize seems to entail, in the context of contractual implied terms, the replacement of the officious bystander by another character from legal folklore, formerly referred to as the man on the Clapham omnibus’ (see John McCaughran, ‘Implied Terms: The Journey of the Man on the Clapham Omnibus’ [2011] CLJ 607 (‘McCaughran’) at 614). It is important to note that this particular concept of the reasonable person is to be viewed as a single (and, hence, objective) standard inasmuch as it is the court which stands in the shoes of ‘the reasonable person’ in determining what the contractual instrument, read as a whole against the relevant background, would reasonably be understood to mean. Indeed, despite his more general misgivings on the concept of the reasonable person when it is in effect The CHallenge of Principled Gap-Filling 367
used in a subjective manner, the invocation of this particular (objective) concept of the reasonable person in the context of implied terms is one which appears to have been mooted by the learned law lord at least as far back as 1995 in the 24th Lord Upjohn Lecture which was delivered on 12 May 1995 at the Inns of Court School of Law (see Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 The Law Teacher 127 (‘Anthropomorphic Justice’) (especially at 138–140); see also, by the same author, ‘The Intolerable Wrestle with Words and Meanings’ (1997) 114 South African LJ 656 at 662 and, more recently, ‘A conversation with Lord Hoffmann’ [2010] Law and Financial Markets Review 242 at 243). Significantly, though, the following (and oft-cited) observations by Lord Radcliffe in the House of Lords decision of Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 (at 728), which were relied upon by Lord Hoffmann in Anthropomorphic Justice in support of the ‘reasonable man’ approach in the context of the implication of terms, were made in the context of the doctrine of frustration (a point which the learned law lord himself noted (see Anthropomorphic Justice at 127−128) and which, very importantly in our view, is a doctrine that applies by operation of law and therefore does not concern the search for the presumed intention of the contracting parties (which is the case where the implication of terms is concerned)): By this time it might seem that the parties themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself. As already alluded to above, inasmuch as the concept of the reasonable person implies an objective approach, that concept must surely be an integral part of the process of the implication of terms. However, the adoption of an objective approach does not, in and of itself, tell us how a particular term ought — or ought not — to be implied (ex hypothesi, on an objective basis). Put simply, a particular test (or tests) of implication are imperative. In so far as ‘terms implied in fact’ are concerned, these would, in our view, take the form of the ‘business efficacy’ and ‘officious bystander’ tests. These tests constitute (in the manner set out above at [28]) specific as well as concrete guidance for the courts in a situation where the contracting parties have not, ex hypothesi, made express provision for the situation concerned in the first place by providing default background guidelines on when the parties may be presumed to have — or not have — a particular unexpressed intention. More importantly, underlying both the ‘business efficacy’ and the ‘officious bystander’ tests is a criterion that is not necessarily present when applying the broader concept of interpretation, viz (with no pun intended), that of necessity. In this regard, the following observations by Lord Clarke MR in the English Court of Appeal decision of Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc; The Reborn [2010] 1 All ER (Comm) 1 (‘Mediterranean Salvage and Towage’) (at [15]) are particularly significant (reference may also be made to the English Court of Appeal decision of Eastleigh BC v Town Quay Developments Ltd [2010] 2 P & CR 2 at [32] (per Arden L.J.) as well as Lord Grabiner QC, ‘The Iterative Process of Contractual Interpretation’ (2012) 28 LQR 41 at 58–61): [A]s I read Lord Hoffmann’s analysis [in Belize], although he is emphasising that the process of implication is part of the process of construction of the 368 Queensland Legal Yearbook 2013
contract, he is not in any way resiling from the often stated proposition that it must be necessary to imply the proposed term. It should be noted that the threshold of necessity is of little guidance in isolation, and the ‘business efficacy’ and ‘officious bystander’ tests give practical meaning to this criterion. In contrast, a direct practical relationship with the presumed intentions of the contracting parties is absent from the threshold of ‘reasonable meaning’ as a standalone concept.
On a related (and no less important) note, the search under the rubric of implied terms is a search for the presumed intention of the contracting parties. In other words, the court ought not to — and, indeed, cannot — simply substitute its view as to that intention. Put simply, the intention may be presumed, but the court cannot be presumptuous. We accept that a sceptic might well argue that such a search by the court is a fiction. However, even if we accept that argument, not all legal fictions are necessarily fictitious in the pejorative sense that the turn of phrase is utilised by a layperson. Indeed, we would go further: We are of the view that there is no legal fiction involved inasmuch as the court concerned does indeed sift through the objective evidence before it in order to ascertain what the presumed intention of the contracting parties is. In doing this, the court is constantly cognisant of the cardinal (and guiding) principle that it will not re-write the contract for the contracting parties. It is true that the very nature of an implied term necessitates some investigation of sorts on the part of the court. However, it bears reiterating that the court does not substitute its own view of what the contracting parties should have intended had the gap in their contract been brought to their attention at the time they entered into the contract.
Indeed, there are legal boundaries or parameters which the court will not transgress. One of these is an obvious one: Where there is already an express term covering the situation at hand, the court will not imply a term which contradicts that particular express term (see, for example, Pearlie Koh & Andrew Phang Boon Leong, ‘Express and Implied Terms’ in ch 6 of The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) at para 06.054). Another relates to a principle already emphasised above, viz, the criterion of necessity. The very nature of this criterion means that the court will imply terms ‘in fact’ sparingly. In order to arrive at its decision whether or not to imply a term ‘in fact’, it will utilise the two tests mentioned above (viz, the ‘business efficacy’ and ‘officious bystander’ tests) which, by their very nature, are directly related to ascertaining how the contracting parties would (or would not) have filled the gap which ought not to have existed had it been covered by an express term in the first place. Again, one must, in our view, resist the approach of the sceptic merely because the court is involved in this exercise. To put it bluntly, this is the court’s task, regardless of the views of the sceptic. More importantly, the court strives, from its external vantage point, to ascertain (through the objective evidence available) the internal intention of the contracting parties had they been apprised of the situation concerned. This is why the search is for the presumed — as opposed to the actual and subjective — intention of the contracting parties. The concern of the sceptic is, with respect, a misplaced one. No one would seriously controvert the sceptic’s concerns if all that he or she is saying is that the process is an imperfect one. After all, it was indeed the imperfection of the contracting parties in leaving a gap in their contract in the first place that created the necessity for implying the term. Utilising the criterion of necessity as embodied within the two tests referred to above, the court attempts its The CHallenge of Principled Gap-Filling 369
level best to ascertain the presumed intention of the contracting parties in order to ascertain whether or not it will imply the term concerned. Indeed, on a more general level, the law of contract is not — owing to a variety of both theoretical as well as practical reasons — concerned with the actual subjective intentions of contracting parties per se but, rather, is (as already alluded to above) concerned with ascertaining such intentions via objective evidence (and on the concept of objectivity, see generally the analysis (as well as the literature cited therein) in Andrew Phang Boon Leong & Goh Yihan, ‘Offer and Acceptance’ in ch 3 of The Law of Contract in Singapore at paras 03.006−03.020). What is clear, however, is that adopting the approach of the sceptic is to regress down a slippery slope into legal oblivion and disempowerment. In this regard, it would not, perhaps, be inappropriate to refer to some observations from a lecture delivered at the University of Hong Kong in 2009 which were also referred to in MFM ([30] supra at [138]) (see Andrew Phang, ‘Doctrine and Fairness in the Law of Contract’ in The Common Law Lecture Series 2008–2009 (Jessica Young & Rebecca Lee gen eds) (The University of Hong Kong, 2010) pp 17−100 at pp 18−24) …’66 The court then summarised the status of the Belize test in Singapore, as follows: In summary, although the process of the implication of terms does involve the concept of interpretation, it entails a specific form or conception of interpretation which is separate and distinct from the more general process of interpretation (in particular, interpretation of the express terms of a particular document). Indeed, the process of the implication of terms necessarily involves a situation where it is precisely because the express term(s) are missing that the court is compelled to ascertain the presumed intention of the parties via the ‘business efficacy’ and the ‘officious bystander’ tests (both of which are premised on the concept of necessity). In this context, terms will not be implied easily or lightly. Neither does the court imply terms based on its idea of what it thinks ought to be the contractual relationship between the contracting parties. The court is concerned only with the presumed intention of the contracting parties because it can ascertain the subjective intention of the contracting parties only through the objective evidence which is available before it in the case concerned. In our view, therefore, although the Belize test is helpful in reminding us of the importance of the general concept of interpretation (and its accompanying emphasis on the need for objective evidence), we would respectfully reject that test in so far as it suggests that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of terms. On the contrary, both these tests (premised as they are on the concept of necessity) are an integral as well as indispensable part of the law relating to implied terms in Singapore …67 The relevant part of the reasoning of the court inFoo Jong Peng in relation to the Belize test has been cited in extenso in this essay simply because it embodies not only the very detailed reasoning of the court but also because it cites the relevant case law as well as secondary literature (also in some detail). By way of a comparative coda, after proceeding to examine in some detail the relevant English case law handed down after Belize68 as well as the relevant academic literature, the court in Foo Jong Peng arrived at the following conclusion:
66 [2012] 4 SLR 1267 [30]–[35] (emphasis in original). 67 [2012] 4 SLR 1267 [36] (emphasis in original). 68 [2012] 4 SLR 1267 [37]–[42]. 370 Queensland Legal Yearbook 2013
In summary, therefore, neither the English case law nor the academic literature furnishes clear support for the Belize test. The entire picture is mixed at best and ambiguous at worst, and constitutes further support for the approach adopted by this court (set out above at [36]).69 As already noted, after an initial draft of this essay had been prepared, the Singapore Court of Appeal delivered its decision in Sembcorp Marine,70 to which reference has already been made.71 In this case, the court confirmed the distinction that was earlier drawn inFoo Jong Peng between interpretation on the one hand and implication on the other.72 In this regard, it also helpfully clarified the relevant terminology, drawing a (further) distinction between construction on the one hand and interpretation on the other; in so far as Lord Hoffmann intended the Belize test to cover only the former (as opposed to the latter), there would be no conflict of views, so to speak. The court in Sembcorp Marine observed thus: In Foo Jong Peng, we recognised (at [31] and [36]) that it is possible to fit the implication of terms within the concept of interpretation ‘in a more general sense’, which is what we have referred to above as construction of the document as a whole. This may be contrasted with ‘the interpretation of the express terms of a particular document’: 31 As we shall see, the observations in MFM, although rendered by way of obiter dicta, are significant inasmuch as they embody what is, with respect, the fundamental difficulty with the Belize test. And it is that whilst the process of implication (of terms) is, when viewed in a more general sense, also a process of interpretation, the process of implication itself is, in the final analysis, just one specific conception of the broader concept of ‘interpretation’. In particular, the process of implication is separate and distinct from the more general process relating to the interpretation of documents. … Hence, the implication of a term, whether in fact or in law … involves tests as well as techniques that are not only specific, but also different from those which operate in relation to the interpretation of documents in general and the (express) terms contained therein in particular … The (general) concept of ‘interpretation’ has much in common with the implication of terms inasmuch as both entail an objective approach. However, it is, in our view, incorrect to conflate the tests as well as techniques which accompany both the aforementioned processes. ... 36 In summary, although the process of the implication of terms does involve the concept of interpretation, it entails a specific form or conception of interpretation which is separate and distinct from the more general process of interpretation (in particular, interpretation of the express terms of a particular document). …
69 [2012] 4 SLR 1267 [43] (emphasis added in italics and bold italics). Reference may also be made to the English High Court decision of Wuhan Ocean Economic and Technical Cooperation Company Ltd v Schiffahrts-Gesellschaft ‘Hansa Murcia’ mbH & Co KG [2013] 1 All ER (Comm) 1277, especially at [15]–[25] as well as the recent UK0000 Supreme Court decision of Société Générale, London Branch v Geys [2013] 1 All ER 1061 at [55] (per Lady Hale SCJ), which, with respect, whilst expressly citing the Belize test, does not really consider it in any detail (and also cites only the ‘business efficacy’ test in the process). Further, none of the other judges considers the Belize test as such. See also Chitty on Contracts, vol 1, (Sweet & Maxwell, 31st ed, 2013), para 13–005 and Goh Yihan, ‘Terms Implied in Fact Clarified in Singapore’ [2013] JBL 237, 240 –3. 70 [2013] 4 SLR 193. 71 See the main text accompanying above nn 9 and 26. 72 See [2013] 4 SLR 193 [77]–[82]. The CHallenge of Principled Gap-Filling 371
[original emphasis omitted; emphasis added in italics and bold italics] In our judgment, it is possible to bridge the gap with Belize on this point, if one concludes that Lord Hoffmann was saying that the implication of terms is to be seen as part of the overall process of construing the document as a whole, and no more. In this regard, it is pertinent that the relevant passages in Belize do not use the word ‘interpretation’, but rather, ‘construction’. Moreover, they also speak of the construction of the instrument or document as a whole rather than of specific express terms: see especially Belize at [16]–[19], [21], [25] and [27].73 It is, however, respectfully submitted that if Lord Hoffmann’s judgment in the Belize case is analysed closely and read in its context, it would appear that the learned Law Lord had — in so far as the above observations just quoted are concerned — been utilising the concept of ‘construction’ as meaning ‘interpretation’. Indeed, as the court in Sembcorp Marine also observed as follows: But this does not help us with the other parts of Belize. In so far as Lord Hoffmann in Belize proposed a standard of reasonableness for the implication of terms, we had respectfully registered our disagreement in Foo Jong Peng (at [36]), and we reaffirm that disagreement here. The standard for the implication of terms remains one of necessity, not reasonableness. Reasonableness is a necessary but insufficient condition for the implication of a term: Reigate v Union Manufacturing Company (Ramsbottom), Limited and Elton Dyeing Company, Limited [1918] 1 KB 592 (‘Reigate’) at 605.74 In this regard, I would also commend to the reader an excellent — and very recent — analysis by Wayne Courtney who painstakingly and perceptively analyses the Belize test (particularly in relation to the concept of ‘construction’), pointing out that: Because Belize ignores the distinction between construction (to determine linguistic meaning) and the application of doctrine by construction, it does not come to terms with the question of the role which doctrine was designed to fulfill. As has been explained, the major role is the introduction of system — something which is inherent in doctrine. But by eliminating doctrine, and focusing simply on the linguistic issue of what a contract means, the decision in Belize denies to courts the comfort of doctrine. The fact that nothing is put in its place means that the whole issue of implication in fact is based on construction rules which are themselves underdeveloped. It would be easy to understand eliminating doctrine in favour of construction if implied terms formed an exception to the rules which deny the use of raw material such as the prior negotiations of the parties. But given the rationale in Belize — that the issue is one of meaning — it would not be possible to do that without changing the whole law of construction. Perhaps that is why Lord Hoffmann does not debate the issue.” 75
73 [2013] 4 SLR 193 [78]–[79] (emphasis in original). 74 [2013] 4 SLR 193 [82]. 75 See Wayne Courtney, ‘Implied Terms: What is the Role of Construction?’ (Paper delivered at the Journal of Contract Law Conference held at the Singapore Management University on 2 and 3 May 2013 entitled ‘Future Developments of Contract Law and the Relationship Between the Contract Laws of the Commonwealth’, and forthcoming in the Journal of Contract Law), 22. 372 Queensland Legal Yearbook 2013
Finally, reference may also be made to the following observations by Professor Carter in relation to the Belize test in a recent (and seminal) work on the construction of commercial contracts: Issue can be taken with the utility of saying that the implication of a term is always about what the contract ‘means’. For example, implication may relate to the scope or legal effect of the contract, not its ‘meaning’. That point aside, the view that construction determines what terms are implied into a contract must be correct. However, the view necessarily contradicts the idea that the law associates implication with specific (doctrinal) rules applied by construction, and it seems clear that neither of the two cases referred to by Lord Hoffmann suggested that those rules should be abandoned. Indeed, in Equitable Life Assurance Society v Hyman, Lord Steyn said it was ‘necessary to distinguish between the processes of interpretation and implication’. It is more consistent with the prior case law to emphasise the ‘close relationship between the process of construction and the process of implication’. Lord Hoffmann’s views in Attorney General of Belize v Belize Telecom Ltd are significant and clearly have important implications, not all of which have been worked out. First, it is difficult to deny that the existence of specific requirements has been regarded as providing a degree of certainty in relation to implication. Although the degree of certainty may be slight, treating the whole issue as one of construction tends to beg the question whether the role of the specific requirements for implied terms is to facilitate implication or to limit implication. Second, under Lord Hoffmann’s approach, extrinsic evidence is not admissible in the implication of a term. Whether that is correct may vary according to the basis for implication. However, the authorities do not support the view that extrinsic evidence is never admissible. Third, and perhaps most important of all, if specific rules do not need to be applied, because the content of the implied term is worked out simply by construing the contract, any term which is implied must be largely formal or even redundant. It is simply the formal expression of an intention which can be inferred by construction of the document in the light of context.” 76
The ‘Business Efficacy’ Test and ‘Officious Bystander’ Test are the Most Appropriate Tests
In light of the analysis proffered above, it is my respectful view that the ‘business efficacy’ and ‘officious bystander’ tests are still the most appropriate tests — not merely because of their longevity (because bad or flawed law can also (unfortunately) have long ‘lives’) but, rather, because they are theoretically, logically as well as practically sound and (perhaps most importantly) they enable the courts to arrive at just and fair decisions in a principled manner. They are, again I say this with the greatest respect, far more concrete and helpful compared to the Belize test for the reasons canvassed earlier. Before proceeding to the next area of ‘terms implied in law’, I would like to deal with one remaining (and important) issue in relation to ‘terms implied in fact’. Put simply, having argued that the ‘business efficacy’ and ‘officious bystander’ tests are still the most appropriate
76 See JW Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), para 3–27 (emphasis added). The CHallenge of Principled Gap-Filling 373 tests, how should they be applied? In particular, what is the precise relationship between them? And it is to this particular issue that our attention must now turn. The Relationship between the ‘Business Efficacy’ Test and ‘Officious Bystander’ Test
What is the relationship between the ‘business efficacy’ and ‘officious bystander’ tests? As was pointed out in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd,77 ‘[t]he relationship … between the tests is not wholly clear’.78 However, this was (apparently) not the case only in Singapore; in the decision just cited, it was also pointed out as follows: Surprisingly, this appears to be the situation not only in the local context but also in England as well. In the recent English High Court decision of John Roberts Architects Limited v Parkcare Homes (No 2) Limited [2005] EWHC 1637 (TCC), for example, Judge Richard Havery QC was of the view (at [15]) that it was unnecessary for him to decide the point. And in the equally recent House of Lords decision of Concord Trust v Law Debenture Trust Corpn plc [2005] 1 WLR 1591, Lord Scott of Foscote merely referred (at [37]) to the fact that ‘[v]arious tests for the implication of terms into a contract have been formulated in various well known cases’, and then proceeded to refer specifically (only) to the ‘business efficacy’ test in The Moorcock… 79 In this same decision (viz, Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd),80 the court expressed the following (detailed) views with regard to this particular issue: On one view, the ‘business efficacy’ and ‘officious bystander’ tests are viewed as being wholly different tests (see, for example, the cases cited at [39] below). Looked at in this light, both tests could be utilised as alternatives. Such an approach, however, tends towards more complexity (and, possibly, confusion) in what is an already relatively general (even vague) area of the law. On another view, however, the two tests are complementary. This is the view [is preferred] as it is not only simple, albeit not simplistic, but is also consistent with the relevant historical context. In the English Court of Appeal decision of Reigate v Union Manufacturing Company (Ramsbottom), Limited and Elton Copdyeing Company, Limited [1918] 1 KB 592 (‘Reigate’), for example, that great commercial judge, Scrutton LJ, observed (at 605) thus: A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, ‘What will happen in such a case,’ they would both have replied, ‘Of course, so and so will happen; we did not trouble to say that; it is too clear.’ Unless the Court comes to some such conclusion as that, it ought not to imply a term which the parties themselves have not expressed. [emphasis added] An even cursory perusal of the above statement of principle by Scrutton LJ will reveal the integration as well as complementarity of the ‘business efficacy’ and ‘officious bystander’ tests. This is especially evident by the learned judge’s use of
77 [2006] 1 SLR(R) 927. 78 [2006] 1 SLR(R) 927 [33]. 79 [2006] 1 SLR(R) 927 [33]. 80 [2006] 1 SLR(R) 927 [33]. 374 Queensland Legal Yearbook 2013
the linking phrase ‘that is’ in the above quotation. Indeed, the plain and natural meaning of this quotation is too clear to admit of any other reasonable construction or interpretation. And it is this: that the ‘officious bystander’ test is the practical mode by which the ‘business efficacy’ test is implemented. It is significant that the observations of Scrutton LJ in Reigate ([35] supra) antedated the more prominent pronouncement of the ‘officious bystander’ test by Mackinnon LJ inShirlaw ([31] supra) by some two decades. Of not insignificant historical interest, in this regard, is the fact that MacKinnon LJ was in fact Scrutton LJ’s pupil and had close ties with him: on both professional as well as academic levels (see generally The Dictionary of National Biography 1941–1950 (LG Wickham Legg & ET Williams eds) (Oxford University Press, 1959) pp 557–559 at p 557). The following observations by Cross J in the English High Court decision of Gardner v Coutts & Company [1968] 1 WLR 173 at 176 may also be usefully noted: When one hears the words ‘implied term’ one thinks at once of MacKinnon LJ and his officious bystander. It appears, however, that the individual, though not yet so characterised, first made his appearance as long ago as 1918 in a judgment of Scrutton LJ … [emphasis added] [It should be mentioned] that there is now local authority that supports this approach as well: see the recent Singapore High Court decision of Judith Prakash J in Telestop Pte Ltd v Telecom Equipment Pte Ltd [2004] SGHC 267 at [68]. Reference may also be made to the following observation by Colman J in the English High Court decision of South Caribbean Trading Ltd v Trafigura Beheer BV [2005] 1 Lloyd’s Rep 128 at [37], which is, however, rather more cryptic (and may, on one reading at least be the opposite of that proposed in this judgment at [35] above): The conceptual basis for any such implication [of a contractual term] could consist either of that derived from the other express terms or that derived from business efficacy under the ‘officious bystander’ approach in The Moorcock (1889) 4 PD 64. [emphasis added] It should, however, be noted that there are other possible approaches as well. For example, there is some authority in the local context which suggests that the ‘business efficacy’ and ‘officious bystander’ tests can be utilised interchangeably, thus signalling that there is no real difference in substance between the two tests (see, for example, the Singapore Court of Appeal decisions of Bank of America National Trust and Savings Association v Herman Iskandar [1998] 2 SLR 265 at [45]; Miller Freeman Exhibitions Pte Ltd v Singapore Industrial Automation Association [2000] 4 SLR 137 at [42]; Hiap Hong & Co Pte Ltd v Hong Huat Development Co (Pte) Ltd [2001] 2 SLR 458 at [18]; Tan Chin Seng v Raffles Town Club Pte Ltd (No 2) [2003] 3 SLR 307 at [33]; and Romar Positioning Equipment Pte Ltd v Merriwa Nominees Pty Ltd [2004] 4 SLR 574 at [29]; as well as the Singapore High Court decision of Loh Siok Wah v American International Assurance Co Ltd [1999] 1 SLR 281 at [32]). There is yet other authority suggesting that these two tests are cumulative (see, for example, the Malaysian Federal Court decision of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151 at 170). It might well be that the approach from complementarity may be very close, in practical terms, to this suggested approach. However, the former could nevertheless still lead to different results and, in any event, does not comport with the background described briefly above. Finally, there is some authority suggesting that both the ‘business efficacy’ and ‘officious bystander’ tests are not only different but that the criterion of ‘necessity’ is only applicable to the former test (see the Malaysian The CHallenge of Principled Gap-Filling 375
High Court decision of Chua Soong Kow & Anak-Anak Sdn Bhd v Syarikat Soon Heng (sued as a firm) [1984] 1 CLJ 364 at [7]). This last-mentioned approach is probably the least persuasive of all since the criterion of ‘necessity’ ought to be equally applicable to both tests (see, in this regard, Miller Freeman Exhibitions Pte Ltd v Singapore Industrial Automation Association, cited earlier in this paragraph). Given the persuasive historical and judicial background as well as the general logic concerned, [it is suggested] that the approach from complementarity ought to prevail (see [36] above). It should also be noted that none of the cases in the preceding paragraph suggesting different approaches actually canvasses the rationale behind the respective approaches advocated.81 Let me elaborate a little more on the approach just referred to, viz, that the ‘business efficacy’ and ‘officious bystander’ tests are complementary inasmuch as the ‘officious bystander’ test is the practical mode by which the ‘business efficacy’ test is implemented. As already noted, this is clearly the view of Scrutton LJ in the English Court of Appeal decision of Reigate v Union Manufacturing Company (Ramsbottom), Limited and Elton Copdyeing Company, Limited.82 However, in addition to judicial precedent, I would suggest that there are good reasons from both logical and practical points of view why this complementary approach ought to be adopted. When we refer to the ‘business efficacy’ test, we are, in essence, referring to what is necessary in order to help the parties achieve business efficacy in so far as their contractual relationship is concerned, and this depends (in turn) on ascertaining their presumed intention. As a statement of general principle, it is, in my view, impeccable. However, there is — simultaneously — the need for a more specific or concrete criterion that will aid the courts in ascertaining the presumed intention of the parties. This is where the ‘officious bystander’ test comes in inasmuch as it epitomises the essence of what the court is required (and is indeed seeking) to do, viz, ascertaining the presumed intention of the parties on the basis of what they would — having regard to the existing terms as well as the context of the contract itself — have agreed upon as a common intention in so far as the gap or lacuna is concerned. Admittedly, even the ‘officious bystander’ test is not a perfect test. However, I would suggest that it is — for the most part — still more specific (especially when viewed from a practical perspective) than the (more general) ‘business efficacy’ test. In particular, the ‘officious bystander’ test focuses the court’s attention on what the parties would have unhesitatingly agreed to had the gap concerned been in fact pointed out to them (here, by the officious bystander) at the time they entered into the contract. This explains, in my view at least, the approach which Scrutton LJ adopted in the cases (including Reigate) which formed (as we have already noted) the backdrop of (and even the inspiration for) the ‘officious bystander’ test enunciated by MacKinnon LJ in Shirlaw v Southern Foundries (1926), Limited83 approximately two decades later. Seen in this light, Scrutton LJ ought perhaps to be credited as being the first to have actually formulated the ‘officious bystander’ test.84
81 [2006] 1 SLR(R) 927 [34]–[40] (emphasis in original). 82 [1918] 1 KB 592, 605. 83 See above n 27. But cf Brandon Kain, ‘The Implication of Contractual Terms in the New Millennium’ (2011) 51 Canadian Business LJ 170, 185 (which is a comment on the Belize test, but which also argues that the ‘business efficacy’ test focuses on the performance of the contract whereas the ‘officious bystander’ test focuses on ensuring business efficacy in the formation of the contract — a distinction which, with respect, whilst interesting, is not only unpersuasive but also inconsistent with the existing case law). 84 And see the analysis set out in the extract from the Forefront case set out above at n 81. 376 Queensland Legal Yearbook 2013
It should, at this juncture, be noted that the very recent Singapore Court of Appeal decision in the Sembcorp Marine case85 confirmed the approach from complementarity proffered above (in the Forefront case86), observing thus: Nor do the judicial authorities sing a common tune, as Phang J (as he then was) illustrated in Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927 (‘Forefront Medical’) at [34]–[39]. In so far as the law in Singapore is concerned, we affirm the ‘complementarity’ characterisation of the business efficacy and officious bystander tests inForefront Medical at [35]–[38], for the reasons provided by Phang J. As Phang J observed at [35] of Forefront Medical, Scrutton LJ in Reigate clearly had in mind business efficacy as the basis for the implication of a term (Reigate at 605): A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said of the parties, ‘What will happen in such a case’, they would both have replied, ‘Of course, so and so will happen; we did not trouble to say that; it is too clear’. [emphasis added in italics and bold italics] Not only was business efficacy at the forefront of Scrutton LJ’s mind, it is also telling from the use of the words ‘that is’ that Scrutton LJ’s articulation of the officious bystander yardstick was intended to serve as an elaboration of the business efficacy test. We find the following excerpt from Jacob Petrus Vorster, ‘The Bases for the Implication of Contractual Terms’ (1988) Journal of South African Law 161 illuminating (at p 171): … The absence of business efficacy is at best an indication that the parties may have intended to agree on some unexpressed term. More than one term may conceivably render a contract which contains a lacuna, efficacious. Whereas the business efficacy test may indicate the existence of a lacuna, it cannot necessarily be used to define the term with which the parties intended to fill the gap. [original emphasis omitted; emphasis added in italics and bold italics] In our judgment, this excerpt precisely isolates the core of the officious bystander test: it is the device that enables the court to define that term which can be said to reflect the parties’ presumed intentionvis-à-vis the gap in the contract. While the business efficacy test is helpful to identify the existence of lacunaa , that is to say that for the sake of the efficacy of the contract something more needs to be added into the contract, it does not assist in identifying what that ‘something more’ is with any degree of precision. That is where the officious bystander test serves an instrumental function.
The business efficacy test nonetheless reminds the court that the implementation of the officious bystander test must be conducted within the normative framework of business efficacy as its overarching theme. In this regard, we adopt the cogent explanation of Phang JA and Asst Prof Goh in Contract Law in Singapore (Wolters Kluwer Law and Business, 2012) at para 1063: ... [I]f the ‘officious bystander’ test is the ‘practical mode’ by which the ‘business efficacy’ test is implemented, then it seems that the ‘business efficacy’ test is the
85 [2013] 4 SLR 193. 86 [2006] 1 SLR(R) 927. The CHallenge of Principled Gap-Filling 377
rationale behind the ‘officious bystander’ test. An application of the ‘officious bystander’ test needs to be informed by the necessity for business efficacy. In fact, the ‘officious bystander’ test itself refers back to the ‘business efficacy’ test because it does not matter what the officious bystander thinks about the implication of the term. The role of the officious bystander is simply to suggest a term, and the true test is whether the parties themselves would suppress that suggestion with a common ‘Oh, of course!’. Whether the parties would so suppress the officious bystander can only be decided with a normative reference point, and it is suggested that the ‘business efficacy’ test here guides the parties’ response to the officious bystander. Thus, only if a court thinks that the parties would, out of necessity for business efficacy, suppress the officious bystander’s suggestion with those famous words, would the court imply the term concerned. ... [emphasis in original in italics; emphasis added in bold italics] …87 Might it, however, be argued that, depending on the precise facts, the ‘business efficacy’ test might nevertheless be applied separately to those facts? More specifically, is this illustrated, for example, in Foo Jong Peng?88 It is suggested that, whilst this is possible, even this particular decision emphasises that the ‘officious bystander’ test is, in the final analysis, the test which has the most practical application. To elaborate, in this particular case, the court, in applying the ‘business efficacy’ test, held, as follows: We did not think it was necessary for the effective management of the Association’s affairs for the Management Committee to be given the power to remove particular office bearers. The Management Committee still retains the decisive power to supervise the conduct of the office bearers, manage finances and to formulate the general policy direction for the Association. We were cognisant of the fact that many clubs and unincorporated associations, unlike companies, are run on a non-profit basis and many office bearers take on positions of responsibility on a voluntary basis. While it is conceivable that a change in leadership may sometimes be desirable, we did not think that it was necessary for leadership change to be effected through a blunt power of removal wielded exclusively by the Management Committee, instead of through sensible compromise and consensus. It was also noted that the First Respondent averred that it was the first time in the 157-year history of the Association that a president had been removed before the expiry of his term of office. While we accept that there is always a first time when unanticipated problems arise and that this does not per se mean that a term conferring a power of removal is unnecessary, in this particular factual context, it did suggest that the Association is capable of governing itself within the existing framework set out in the Rules without an ad hoc gap filling mechanism in the form of the implied term.89 And, in applying the ‘officious bystander’ test, the court held, as follows: Further, the power of removal was not, in our view, so obvious that it would go without saying that such a term ought to be implied under the ‘officious bystander’ test. The Rules include specific rules governing the removal of trustees and expulsion of members for misconduct (see rr 14 and 19, respectively) and therefore contemplate the possibility that individuals with certain positions of responsibility
87 [2013] 4 SLR 193 [90]–[92] (emphasis in original). 88 [2012] 4 SLR 1267; discussed above at the main text accompanying nn 63–9. 89 [2012] 4 SLR 1267 [46] (emphasis in original). 378 Queensland Legal Yearbook 2013
or members may need to be removed in the interests of the Association. It is thus difficult to believe that the members did not advert themselves to the possibility of removal of office bearers or did not expressly say so because they had considered it so obvious that it would go without saying. We also do not think that the members would have considered it obvious that the Management Committee itself should have free rein to remove an office bearer. The members could have preferred the power of removal to be vested in the General Meeting or for the power to be exercised only when stringent voting margins or procedural pre-conditions are met; alternatively, as the Judge observed, the members could equally have intended that this apparent ‘gap’ in the Rules should mean precisely that office bearers cannot be removed and must be allowed to serve out their complete two-year term of office in order to ensure stability and continuity in the management of the Association. The Appellants submitted to us that the Judge’s reasoning on this point was flawed because the Rules did not expressly provide for a fixed term of office for an office bearer, but we were unable to agree with the Appellants’ — somewhat ironically — unduly literal interpretation of this aspect of the Rules. Rather, a purposive interpretation of r 9 in conjunction with r 7, which provides for a two-year term of office for Management Committee members, indicates that the term of office for an office bearer must logically also be two years. An office bearer elected from amongst the members of the Management Committee can only be an office bearer for as long as he is also a Management Committee member, and his term as an office bearer must therefore necessarily also be limited by his term as a Management Committee member. If an office bearer were to have an indefinite term of office, it would clearly contradict the express purpose of r 9(2), which places restrictions on office bearers occupying the same position for consecutive terms. Indeed, if the officious bystander had asked whether the Management Committee had the power to remove the office bearers at will, the members would not have unequivocally thought that the term was obviously necessary for the effective management of Association and unanimously suppressed him with a testy ‘Oh, of course!’ The limited term of office — both for office bearers and members of the Management Committee — ensures that control of the Association will not always fall into the hands of a single individual, and a fixed period of office without the threat of removal encourages consensus and unity, instead of divisive power struggles and acrimony. If the Management Committee or general members have irreconcilable differences with a particular office bearer, the solution is to vote him out at the next election for a new Management Committee and/or office bearers. And, if an office bearer has behaved in a particularly egregious manner, the last resort would and should be expulsion.90 It will be seen that the reasoning of the court in relation to the ‘officious bystander’ test is much more detailed and, indeed, incorporates the more general reasoning in relation to the ‘business efficacy’ test, thus illustrating precisely the point made above with regard to what ought to be the relationship between both tests. It might be appropriate, at this juncture, to note that, in so far as the general approach to be adopted towards ‘terms implied in fact’ in the Singapore context is concerned, the Singapore Court of Appeal, in the Sembcorp Marine case,91 observed, as follows:
90 [2012] 4 SLR 1267 [47]–[48] (emphasis in original). 91 [2013] 4 SLR 193. The CHallenge of Principled Gap-Filling 379
It follows from these points that the implication of terms is to be considered using a three-step process: (a) The first step is to ascertain how the gap in the contract arises. Implication will be considered only if the court discerns that the gap arose because the parties did not contemplate the gap. (b) At the second step, the court considers whether it is necessary in the business or commercial sense to imply a term in order to give the contract efficacy. (c) Finally, the court considers the specific term to be implied. This must be one which the parties, having regard to the need for business efficacy, would have responded ‘Oh, of course!’ had the proposed term been put to them at time of the contract. If it is not possible to find such a clear response, then, the gap persists and the consequences of that gap ensue.92 I pause to note — on a comparative level (leaving aside English law for the moment) — that the majority of the Board in the leading Privy Council decision (on appeal from the Full Court of the Supreme Court of Victoria) of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings93 observed, as follows: Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.94
92 [2013] 4 SLR 193 [101]. It may be the case that the lines between (a), (b) and (c) might be more fluid, particularly in the practical sphere and as illustrated by my discussion of Foo Jong Peng (just rendered above). 93 (1977) 180 CLR 266. This is a leading authority in the Australian context and has been cited numerous times (see eg the High Court of Australia decisions of Secured Income Real Estate (Australia) Limited v St Martins Investments Proprietary Limited (1979) 144 CLR 596, 605–6; Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337, 347 and 403–4; Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41, 65–6, 95 and 117–18; The Corporation of the City of Adelaide v Jennings Industries Limited (1985) 156 CLR 274 at 282; Breen v Williams (1996) 186 CLR 71, 90; and Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516, 574–5). It should, however, be noted that the Singapore Court of Appeal in the very recent decision of Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 observed at [98] that ‘these additional requirements [in the BP Refinery case] — if they may be called that — simply restate the basic overriding principle that a term is not to be implied into a contract lightly. It goes without saying that a term that is not reasonable, not equitable, unclear, or that contradicts an express term of the contract, will not be implied. Such a term will necessarily fail the officious bystander test.’ And see generally (on the topic of implied terms in the Australian context) Ch 11 of JW Carter, Contract Law in Australia, (LexisNexis Butterworths, 6th ed, 2013) and, by the same author, The Construction of Commercial Contracts (Hart Publishing, 2013), paras 3–14–3–39; as well as Sir Kim Lewison & David Hughes in Ch 6 of The Interpretation of Contracts in Australia (Lawbook Co, 2012); and JLR Davis, Contract: General Principles — The Laws of Australia, (Thomson Reuters, 2nd ed, 2012), paras 7.4.220–7.4.440. 94 (1977) 180 CLR 266, 282–3. 380 Queensland Legal Yearbook 2013
It is, with respect, unclear how the majority viewed the relationship between the ‘business efficacy’ and ‘officious bystander’ tests. On a literal reading of the quotation above, one could infer that the tests might ‘overlap’. It is significant, however, that the majority of the Board then proceeds to cite three decisions, viz, The Moorcock,95 Reigate v Union Manufacturing Company (Ramsbottom), Limited and Elton Copdyeing Company, Limited,96 and Shirlaw v Southern Foundries (1926), Limited.97 As already noted above, the first embodies the ‘business efficacy’ test, the third the ‘officious bystander’ test, and the second views both in a complementary fashion. At the risk of appearing overly technical, it might be said that there is, in the circumstances, at least some support for the approach from complementarity which has been endorsed in the present essay.98 Indeed, the analysis in a leading textbook appears to support both the approach from complementarity as well as this interpretation of the BP Refinery case; in this regard, the learned authors observe, as follows: The question of whether a term should be implied into a contract involves two principal issues: the need for implication (that is, the existence of the term); and the type of term required (that is, the contents of the term). The test of what is necessary to give business efficacy to the contract … is designed to resolve the first issue, and in the Privy Council’s formulation of the requirements for implying a term in BP Refinery (Westernport) Pty Ltd v Shire of Hastings … it would seem that the criterion of what is obvious was designed to fulfil the second function, that is, the role of defining the contents of the term that is necessary to resolve the particular difficulty that has arisen in applying the express terms of the contract.99 The Malaysian position, on the other hand, appears to suggest that the ‘business efficacy’ and ‘officious bystander’ tests are cumulative in nature.100 However, as already noted, the Singapore approach is clear, viz, that both these tests operate in a complementary fashion. Let me turn now to the other broad category of ‘terms implied in law’. ‘Terms Implied in Law’ General
The reader will recall that I had mentioned that I would also focus on another major category of implied terms, viz, ‘terms implied in law’ in this essay. As I shall elaborate upon in a moment, this particular category of implied terms is far more problematic although it is now an established part of the legal landscape in most (if not all) Commonwealth jurisdictions.101
95 (1889) 14 PD 64. 96 [1918] 1 KB 592. 97 [1939] 2 KB 206. 98 Thoughcf the recent High Court of Australia decision of TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 87 ALJR 410 [74] (but without, it appears, any detailed consideration of the precise issue presently considered in this essay). 99 See DW Greig and JLR Davis, The Law of Contract (The Law Book Company Limited, 1987), 553–4 (emphasis added in italics and bold italics). Cf JLR Davis, Contract: General Principles — The Laws of Australia, (Thomson Reuters, nd2 ed, 2012), para 7.4.260. 100 See eg the Malaysian Federal Court decision of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151, 170 (cited in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927 [39] (see also above n 81)). 101 See eg the Malaysian Federal Court decision of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151, 169 (per Peh Swee Chin FCJ) and the Australia High Court decisions of Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337, 345–6 (per Mason J) as well as Breen v Williams (1996) 186 CLR 71, 102–3 (per Gaudron and McHugh JJ). The CHallenge of Principled Gap-Filling 381
It has been described in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Private Ltd, as follows: There is a second category of implied terms which is wholly different in its nature as well as practical consequences. Under this category of implied terms, once a term has been implied, such a term will be implied in all future contracts of that particular type. The precise terminology utilised has varied. In the English Court of Appeal decision of Shell UK Ltd v Lostock Garage Ltd [1976] 1 WLR 1187 at 1196, for example, Lord Denning MR utilised the rubric of contracts ‘of common occurrence’, whilst Lloyd LJ in the (also) English Court of Appeal decision of National Bank of Greece SA v Pinios Shipping Co No 1 [1990] 1 AC 637 (reversed in the House of Lords but not on this particular point) referred to such a category as encompassing ‘contracts of a defined type’ (at 645). But the central idea is clear: it is that the term implied is implied in a general way for all specific contracts that come within the purview of a broader umbrella category of contracts (reference may also be made, for example, to the House of Lords decisions of Scally v Southern Health and Social Services Board [1992] 1 AC 294, especially at 307 and Malik v Bank of Credit and Commerce International SA [1998] AC 20 at 45).
To distinguish this particular category of implied terms from the first, legal scholars have referred to it as the category of ‘terms implied in law’ (see generally, for example, Sir Guenter Treitel, The Law of Contract (Sweet & Maxwell, 11th Ed, 2003) (‘Treitel’) at pp 206–213). The first or former category has, in turn, been referred as to the category of ‘terms implied in fact’ (see generally Treitel, at pp 201–206).102 The same case has also described the difference between this particular category of implied terms and the (narrower) category of ‘terms implied in fact’ in the following way: The rationale as well as test for this broader category of implied terms is, not surprisingly, quite different from that which obtains for terms implied under the ‘business efficacy’ and ‘officious bystander’ tests. In the first instance, the category is much broader inasmuch (as we have seen) the potential for application extends to future cases relating to the same issue with respect to the same category of contracts. In other words, the decision of the court concerned to imply a contract ‘in law’ in a particular case establishes a precedent for similar cases in the future for all contracts of that particular type, unless of course a higher court overrules this specific decision. Hence, it is my view that courts ought to be as — if not more — careful in implying terms on this basis, compared to the implication of terms under the ‘business efficacy’ and ‘officious bystander’ tests which relate to the particular contract and parties only. Secondly, the test for implying a term ‘in law’ is broader than the tests for implying a term ‘in fact’. This gives rise to difficulties that have existed for some time, but which have only begun to be articulated relatively recently in the judicial context, not least as a result of the various analyses
102 [2006] 1 SLR(R) 927 [42]−[43] (emphasis in original). 382 Queensland Legal Yearbook 2013
in the academic literature (see, for example, the English Court of Appeal decision of Crossley v Faithful & Gould Holdings Ltd [2004] 4 All ER 447 at [33]–[46]).103 There was further judicial elaboration of the category of ‘terms implied in law’ in the Court of Appeal decision of Jet Holding Ltd v Cooper (Singapore) Pte Ltd, where the court observed as follows: The category of ‘terms implied in law’ is not without its disadvantages. A certain measure of uncertainty will always be an integral part of the judicial process and, hence, of the law itself. This is inevitable because of the very nature of life itself, which is — often to a very large extent — unpredictable. Such unpredictability and consequent uncertainty is of course a double-edged sword. It engenders both the wonder and awe as well as the dangers and pitfalls in life. Given this reality, however, one of the key functions of the courts is not to add unnecessarily to the uncertainty that already exists. Looked at in this light, the category of “terms implied in law” does tend to generate some uncertainty — not least because of the broadness of the criteria utilised to imply such terms, which are grounded (in the final analysis) on reasons of public policy. However, the category of ‘terms implied in law’ has now been firmly woven into the tapestry of our local contract law. It also aids, on occasion at least, in achieving a just and fair result. Most importantly, perhaps, it has formed both the theoretical as well as practical basis for statutory implied terms, such as those found in the UK Sale of Goods Act 1979 (c 54) (applicable in Singapore via the application of English Law Act (Cap 7A, 1994 Rev Ed) and reprinted as Cap 393, 1999 Rev Ed).104 What is clear is that given the potential uncertainty that terms ‘implied in law’ could generate,105 it is important not to imply them lightly as doing so would (in the absence of subsequent reversal by the court) set a precedent for all future cases relating to that particular category of contracts. Perhaps paradoxically, therefore, although the reach as well as basis for implying terms ‘in law’ is broader than that for terms ‘implied in fact’, the need for caution is even greater. Nevertheless, as already noted, the implication of a term ‘in law’ may indeed be necessary in appropriate circumstances. It may also be argued that a ‘term implied in law’ may well be a ‘precursor’ of a term implied by statute. That having been said, there is a real as well as practical distinction between what the courts decide on the one hand and what the legislature promulgates on the other. The respective processes are quite different and have — in the jurisprudential sphere — been neatly encapsulated by the late Professor Ronald Dworkin’s distinction between ‘principle’ on the one hand and ‘policy’ on the other.106
103 [2013] 4 SLR 193 [44] (emphasis in original). For a sampling of the academic literature discussing the various difficulties with respect to ‘terms implied in law’, see Phang, above n 18 and, by the same author, ‘Implied Terms in English Law — Some Recent Developments’ [1993] JBL 242 (however, possible advantages were also acknowledged as well: see, for example, the former article at 410–11). And for judicial observations to like effect, see Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR(R) 769 [90] (quoted below n 104), although the advantage of arriving (on occasion at least) at a just and fair result is also acknowledged (at [91], also quoted below n 104). 104 [2006] 3 SLR(R) 769 [90]−[91] (emphasis in original). 105 Thoughcf Elisabeth Peden, ‘Policy Concerns Behind Implication of Terms in Law’ (2001) 117 LQR 459. Reference may also be made to Todd D Rakoff, ‘The Implied Terms of Contracts: Of “Default Rules” and “Situation-Sense”’ in Ch 8 of Jack Beatson & Daniel Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon Press, 1995). 106 See eg (amongst his very many works) ‘Hard Cases’ in Ronald Dworkin, Taking Rights Seriously, (Harvard University Press, revised ed, 1978), Ch 4. The CHallenge of Principled Gap-Filling 383
More importantly, in my view, if the focus (as I have already argued) is on the utilisation of the doctrine of the implied term to achieve justice and fairness in the case at hand in a principled manner, then that can in fact be achieved by implying a term ‘in fact’ (no pun intended), rather than having recourse to the more problematic category of ‘terms implied in law’. This can be illustrated by examining a recent Singapore decision dealing with the duty of good faith. No Implied Duty of Good Faith Based on a Term ‘Implied in Law’
In the relatively recent Singapore Court of Appeal decision of Ng Giap Hon v Westcomb Securities Pte Ltd,107 the court held that a term could not be implied into the agency agreement in that particular case premised on the broader category of ‘terms implied in law’. Consistent with the caution that we noted above, the court observed, as follows: As noted above … implying a ‘term implied in law’ into a contract not only involves broader policy considerations, but also establishes a precedent for the future. Put simply, the implication of such a term into a contract would entail implying the same term in the future for all contracts of the same type. This would, in and of itself, require that caution should be exercised on the part of the court before implying a ‘term implied in law’ (which, upon being implied into the particular contract at hand, would also, ex hypothesi, be implied into all future contracts of the same type as well). Indeed, the fact that broader policy considerations are (as just mentioned) involved where ‘terms implied in law’ are concerned furnishes a further reason for caution as well. Moreover (and this is a separate, albeit related, point), in the present case, the content of the First Implied Term (with its correspondingly broad implications) involves a concept which is itself controversial (at least at the present time). More specifically, the concept concerned relates to the doctrine of good faith, to which our attention must now briefly turn.108 The court then proceeded to consider — in some detail — the general legal status of the doctrine of good faith, as follows: The doctrine of good faith is very much a fledgling doctrine in English and (most certainly) Singapore contract law. Indeed, a cursory survey of the relevant law in other Commonwealth jurisdictions appears to suggest a similar situation. This is, perhaps, not surprising in view of the fact that, even in the academic literature (which has witnessed the most discussion as well as analysis of the doctrine), there are differing views as to what the doctrine of good faith means as well as how it is to be applied … [The] copiousness as well as the variety of (and, perhaps more importantly, the debates in) the academic literature (coupled with the relative dearth of case law) suggest that the doctrine of good faith is far from settled. The case law itself appears to be in a state of flux: see, for example (and most notably), the conflicting views expressed (in the Australian context) by Priestley JA in the New South Wales Court of Appeal decision of Renard [(1992) 26 NSWLR 234] at 263–268 on the one hand and by Gummow J in the Federal Court of Australia decision of Service
107 [2009] 3 SLR(R) 518. Reference may also be made to the recent Singapore High Court decision of Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577 [40]–[60]. 108 [2009] 3 SLR(R) 518 [46] (emphasis in original). But cf Colin Liew, ‘A Leap of Good Faith in Singapore Contract Law’ [2012] Sing JLS 416 and The Rt Hon Lady Justice Arden, ‘Coming to Terms with Good Faith’ (2013) 30 JCL 199. 384 Queensland Legal Yearbook 2013
Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 117 ALR 393 (‘Service Station Association’) at 401–407 on the other (it should be noted, however, that, in terms of the number of precedents, there appears to be some support for the approach adopted in Renard: see, for example, the Federal Court of Australia decision of Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 36–37 per Finn J (cf the Privy Council’s decision in the New Zealand case of Pratt Contractors Ltd v Transit New Zealand [2004] BLR 143, especially at [45]), the New South Wales Court of Appeal decisions of Alcatel [(1998) 44 NSWLR 349] and Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15, as well as the Federal Court of Australia decision of Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903; see also, generally, Elisabeth Peden, ‘Incorporating Terms of Good Faith in Contract Law in Australia’ (2001) 23 Syd L Rev 222 (‘Peden’s 2001 article’) and Tyrone M Carlin, ‘The Rise (and Fall?) of Implied Duties of Good Faith in Contractual Performance in Australia’ (2002) 25 UNSW LJ 99). However, two writers have recently argued vigorously that good faith is inherent in all aspects of the law of contract and that there is therefore no reason for any term concerning good faith to be implied into a contract (see generally Carter & Peden on ‘Good Faith’ [J W Carter & Elisabeth Peden, ‘Good Faith in Australian Contract Law’ (2003) 19 JCL 155] as well as Elisabeth Peden, Good Faith in the Performance of Contracts (LexisNexis Butterworths, 2003) at ch 6). Peden is of the view (at para 1.10 of Good Faith in the Performance of Contracts) that: [T]he principle of good faith should be seen not as an implied term, but rather as a principle that governs the implication of terms and [the] construction of contracts generally. In a similar vein, the learned authors of Carter & Peden on ‘Good Faith’ argue that good faith is not an independent concept, but, rather, something ‘already inherent in contract doctrines, rules and principles’ (at 163). They take the view that, where the court implies a term of good faith, the court is implying either a term which is actually redundant or a term which, by definition, would impose a more onerous requirement. Such a term must be justified, the learned authors contend, by reference to the particular circumstances of each case and not by a general principle (ie, that of good faith).109 … It is true, as Prof McKendrick pertinently points out, that ‘there are signs that the traditional English hostility towards a requirement of good faith might be abating’ (see Ewan McKendrick, Contract Law (Palgrave Macmillan, 7th Ed, 2007) (‘McKendrick’) at p 265) and that ‘[t]he courts have adopted a more sympathetic stance on a number of occasions recently’ (ibid) (see also the cases cited therein (ibid); and cf the oft-cited observations by Bingham LJ in the English Court of Appeal decision of Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 at 439, which observations were reiterated in the (also) English Court of Appeal decision of Timeload Limited v British Telecommunications plc [1995] EMLR 459 at 468 per Sir Thomas Bingham MR). However, this is still far from a ringing endorsement of the doctrine of good faith as such (and see generally Prof McKendrick’s own essay, ‘Good Faith: A Matter of Principle?’, in
109 See also (for the purposes of the present essay) JW Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), para 3–39 and, by the same author, Contract Law in Australia, (LexisNexis Butterworths, 6th ed, 2013), para 2–19. The CHallenge of Principled Gap-Filling 385
Good Faith in Contract and Property (ADM Forte ed) (Hart Publishing, 1999) at ch 3). Indeed, the more open approach under English law in recent years may be due in no small part to the fact that there are, owing to the civil law influences that have become relevant as a result of the UK’s membership of the European Community (and see in this regard Hugh Collins, ‘Good Faith in European Contract Law’ (1994) 14 OJLS 229 as well as Good Faith in European Contract Law (Richard Zimmermann & Simon Whittaker eds) (Cambridge University Press, 2000)), express references to ‘good faith’ in the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) (UK) and the Commercial Agents (Council Directive) Regulations 1993 (SI 1993 No 3053) (UK) (see McKendrick at p 265; reference may also be made to the House of Lords decision of Director General of Fair Trading v First National Bank plc [2002] 1 AC 481), none of which applies in the Singapore context. Prof Furmston confirms the observation which we have just made in the preceding paragraph, ie, that the doctrine of good faith, although not lacking in supporters, particularly from theoretical as well as aspirational perspectives (see, for example, Roger Brownsword, ‘“Good Faith in Contracts” Revisited’ (1996) 4 CLP 111 and, by the same author, ‘Two Concepts of Good Faith’ (1994) 7 JCL 197), is nevertheless still far from being an established doctrine under English law, as follows (see MP Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (Oxford University Press, 15th Ed, 2007) at pp 32–33): Do the parties owe each other a duty to negotiate in good faith? Do the parties, once the contract is concluded, owe each other a duty to perform the contract in good faith? Until recently, English lawyers would not have asked themselves these questions or, if asked, would have dismissed them with a cursory ‘of course not’. On being told that the German civil code imposed a duty to perform a contract in good faith or that the Italian civil code provides for a duty to negotiate in good faith, a thoughtful English lawyer might have responded by suggesting that the practical problems covered by these code positions were often covered in English law but in different ways. This may still be regarded as the orthodox position but the literature of English law has begun to consider much more carefully whether there might not be merit in explicitly recognising the advantages of imposing good faith duties on negotiation and performance. This view is reinforced by the fact that other common law systems have already moved in this direction [citing § 1–203 of the American Uniform Commercial Code, § 205 of the American Law Institute’s Restatement (Second) of Contracts as well as Renard ([43] supra), but not Service Station Association ([51] supra)]. … It is not inconceivable that on appropriate facts and with skilful argument, English law may make tentative steps in the same direction. [emphasis added in italics and bold italics] Indeed, it would appear that even a more limited reform in the context of recognising a duty of good faith in the negotiation of contracts is met by the obstacle presented by the House of Lords decision of Walford v Miles [1992] 2 AC 128 … It should, however, be noted that Lord Steyn has commented that the above ruling in Walford is ‘surprising’ (see Lord Steyn’s 1997 article [at 439). The learned law lord has also (in an extrajudicial lecture) stated that, ‘[w]hile [he does] not argue for the introduction of a general duty of good faith in contract law, it is difficult to see why an express agreement to negotiate in good faith should be invalid’ [emphasis added] (see Lord Steyn’s 1996 article ([48] supra) at 52) (on the issue of whether there is a duty of good faith in the context of contract 386 Queensland Legal Yearbook 2013
negotiations, reference may also be made to AF Mason, ‘Contract, Good Faith and Equitable Standards in Fair Dealing’ (2000) 116 LQR 66 at 80–83 and, generally, the contrasting approach adopted in the New South Wales Court of Appeal decisions of Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 and Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; although cf JW Carter & MP Furmston, ‘Good Faith and Fairness in the Negotiation of Contracts: Part I’ (1994) 8 JCL 1 and, by the same authors, ‘Good Faith and Fairness in the Negotiation of Contracts: Part II’ (1995) 8 JCL 93). It should also be observed that — for the moment at least — Walford appears to be good law in the Singapore context (see, for example, the Singapore High Court decisions of Climax Manufacturing Co Ltd v Colles Paragon Converters (S) Pte Ltd [2000] 1 SLR 245 at [32], United Artists Singapore Theatres Pte Ltd v Parkway Properties Pte Ltd [2003] 1 SLR 791 at [214] and Grossner Jens v Raffles Holdings Ltd [2004] 1 SLR 202 at [43]). On a broader level, in fact, discourse on the doctrine of good faith continues and the legal topography in this particular area of the law is far from settled (see, for example (in addition to the legal literature already cited above), Good Faith in Contract: Concept and Context (Roger Brownsword, Norma J Hird & Geraint Howells eds) (Ashgate, 1999) (‘Good Faith in Contract’) and Vanessa Sims, ‘Good Faith in Contract Law: Of Triggers and Concentric Circles’ (2005) 16 KCLJ 293).110 The court also observed that the situation was — from a comparative perspective — not much different from that in other jurisdictions; in particular, it surveyed briefly the respective situations in Australia, America and Canada, as follows: The situation in other jurisdictions does not appear to be much clearer. For instance, we have already seen (at [51] above [and reproduced in the preceding paragraph]) that the situation in the Australian context is, at best, ambiguous. It is also interesting to note that one learned commentator has recently pointed to the fact that the American doctrine of good faith in contract law (which is firmly established as an implied covenant under both § 1–203 of the Uniform Commercial Code and § 205 of the American Law Institute’s Restatement (Second) of Contracts, albeit in relation to the performance and enforcement of contracts as opposed to pre-contract negotiations) is no longer as settled as it used to be thought and is also apparently in a state of flux (see Howard O Hunter, ‘The Growing Uncertainty about Good Faith in American Contract Law’ (2004) 20 JCL 50, which was written almost a decade after the somewhat sanguine essay by Prof Farnsworth (see E Allan Farnsworth, ‘Good Faith in Contract Performance’ in Good Faith and Fault in Contract Law (Jack Beatson & Daniel Friedmann eds) (Clarendon Press, 1995) at ch 6)). In Canada, there was a proposal by the Ontario Law Reform Commission to the effect that legislation should give recognition to the doctrine of good faith in the performance and enforcement of contracts based on § 205 of the (American) Restatement (Second) of Contracts referred to in the preceding paragraph (see ch 9 of Ontario Law Reform Commission, Report on Amendment of the Law of Contract (1987)). However, that was over two decades ago. Further, the doctrine may well be in a state of flux not only in the American context (as noted briefly in the preceding paragraph), but also (apparently) in the Canadian context as well (see
110 [2009] 3 SLR(R) 518 [47] and [51]–[55] (emphasis in original). The CHallenge of Principled Gap-Filling 387
generally David Stack, ‘The Two Standards of Good Faith in Canadian Contract Law’ (1999) 62 Saskatchewan L Rev 201).111 A valuable (albeit somewhat dated) comparative overview of the doctrine of good faith can be found in a work already referred to, viz, Good Faith in Contract [Good Faith in Contract: Concept and Context (Roger Brownsword, Norma J Hird & Geraint Howells eds) (Ashgate, 1999)]. It is also significant in the present regard because there appear (from this particular work) to be substantive difficulties with the doctrine of good faith even in jurisdictions where it has been legislatively mandated — which difficulties appear to be general ones that are unlikely to have altered with the passage of time since this work was published.” 112 Unsurprisingly, therefore, the court concluded thus: In the circumstances, it is not surprising that the doctrine of good faith continues (as mentioned at [47] above [reproduced above at note 109]) to be a fledgling one in the Commonwealth. Much clarification is required, even on a theoretical level. Needless to say, until the theoretical foundations as well as the structure of this doctrine are settled, it would be inadvisable (to say the least) to even attempt to apply it in the practical sphere (see also Service Station Association [Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 117 ALR 393], especially at 406–407 (per Gummow J); cf Peden’s 2001 article [Elisabeth Peden, ‘Incorporating Terms of Good Faith in Contract Law in Australia’ (2001) 23 Syd L Rev 222] at 228–230). In the context of the present appeal, this is, in our view, the strongest reason as to why we cannot accede to the appellant’s argument that this court should endorse an implied duty of good faith in the Singapore context. The First Implied Term should not, therefore, be implied into the Agency Agreement.113 However, this does not mean that a duty of good faith will never be implied. In Ng Giap Hon v Westcomb Securities Pte Ltd114 itself, the court left open the possibility that such a duty could be implied by way of the narrower category of ‘terms implied in fact’; in particular, the court observed, as follows: It will also be recalled that, for this particular category of implied terms, whether the term in question ought to be implied into the contract depends upon the particular factual matrix concerned … Hence, a close scrutiny of the relevant facts of the present proceedings is imperative. It should, however, be observed at this juncture that, although it is possible to incorporate the doctrine of good faith into a contract under this narrower category of implied terms (cf Peden’s 2001 article [Elisabeth Peden, ‘Incorporating Terms of Good Faith in Contract Law in Australia’ (2001) 23 Syd L Rev 222] at 227–228), this would not, in our view, be a very persuasive argument, having regard to the state of flux that the doctrine of good faith continues to be in (see generally the analysis above at [46]–[60] [parts of which have been reproduced above at notes 108, 109, 111 and 113]). However, even if the doctrine of good faith is not directly applicable as such (ie, as a ‘term implied
111 Reference may also be made (for the purposes of the present essay) to the Ontario Court of Appeal decision of Transamerica Life Canada Inc v ING Canada Inc (2003) 234 DLR (4th) 367, especially at [51]–[53] and the Ontario Superior Court of Justice decision of Rio Algom Ltd v Canada (Attorney General) [2012] Carswell Ont 1200 [48]–[52]. 112 See [2009] 3 SLR(R) 518 [56]–[59] (emphasis in original). Reference may also be made to Maud Piers, ‘Good Faith in English Law — Could a Rule Become a Principle?’ (2011) 26 Tul Eur & Civ LF 123. 113 See [2009] 3 SLR(R) 518 [60]. 114 [2009] 3 SLR(R) 518. 388 Queensland Legal Yearbook 2013
in fact’), this does not necessarily mean that the concept of good faith would also be excluded (see also Carter & Peden on ‘Good Faith’ [J W Carter & Elisabeth Peden, ‘Good Faith in Australian Contract Law’ (2003) 19 JCL 155] and Good Faith in the Performance of Contracts ([52] supra) at ch 6). Nevertheless, what is clear in the context of an analysis based on the category of ‘terms implied in fact’ is that, whilst the concept of good faith (or, more likely, the elements thereof) might be present, the focus of the court would, as already stated earlier in the present paragraph, be on the particular factual matrix before it.115 Where, however, there is (also in the Singapore context) an express term to the effect that the parties would negotiate in good faith, this would (as the Singapore Court of Appeal held in HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd116) be given effect to.117 VK Rajah JA, who delivered the judgment of the court, observed thus: In our view, there is no good reason why an express agreement between contracting parties that they must negotiate in good faith should not be upheld. First, such an agreement is valid because it is not contrary to public policy. Parties are free to contract unless prohibited by law. Indeed, we think that such ‘negotiate in good faith’ clauses are in the public interest as they promote the consensual disposition of any potential disputes. We note, for instance, that it is fairly common practice for Asian businesses to include similar clauses in their commercial contracts. As Assoc Prof Philip J McConnaughay has insightfully observed in ‘Rethinking the Role of Law and Contracts in East-West Commercial Relationships’ (2000–2001) 41 Va J Int’l L 427 at 448–449: A core term of many Asian commercial contracts — the ‘friendly negotiations’ or ‘confer in good faith’ clause — captures the essence of contractual obligation in the Asian tradition. Such clauses typically recite that, if differences or disputes arise during the course of the contractual relationship, the parties will discuss and resolve the matter amicably. The Western view of such clauses is that they impose no real obligation at all; at most, they represent a mechanism for making unenforceable requests for novation, or perhaps an initial formality in a multiple-step dispute resolution process culminating eventually in compulsory adjudication intended to enforce precise contractual terms. But these views presuppose a Western understanding of the contract itself, which is not shared in Asia. From a traditional Asian perspective, a ‘confer in good faith’ or ‘ friendly negotiation’ clause represents an executory contractual promise no less substantive in content than a price, payment, or delivery term. It embodies and expresses the traditional Asian supposition that the written contract is tentative rather than final, unfolding rather than static, a source of guidance rather than determinative, and subordinate to other values — such as preserving the relationship, avoiding disputes, and reciprocating accommodations — that may control far more than the written contract itself how a commercial relationship adjusts to future contingencies. Characterizing a ‘confer in good faith’ or ‘ friendly negotiation’ clause as a ‘dispute resolution’ clause tempts a misapprehension of this essential nature, for no ‘dispute’ exists if all of the parties to the contract share an Asian understanding of its evolving
115 [2009] 3 SLR(R) 518 [61] (emphasis in original). 116 [2012] 4 SLR 738. 117 Distinguishing the problematic House of Lords decision of Walford v Miles [1992] 2 AC 128 in the process: see [2012] 4 SLR 738 [33]–[37] and [42]–[44]. The CHallenge of Principled Gap-Filling 389
and responsive (through good faith conferences and friendly negotiations) nature. [emphasis added in italics and bold italics] We think that the ‘friendly negotiations’ and ‘confer in good faith’ clauses highlighted in the above quotation are consistent with our cultural value of promoting consensus whenever possible. Clearly, it is in the wider public interest in Singapore as well to promote such an approach towards resolving differences. The second reason why we are of the view that ‘negotiate in good faith’ clauses should be upheld is that even though the fact that one party may not want to negotiate in good faith (for whatever reason) will lead to a breakdown in negotiations, no harm is done because the dispute can still be resolved in some other way. That said, if one party breaks the terms of a ‘negotiate in good faith’ clause and this is later discovered, there might be legal consequences, depending on the terms of the clause in question. For instance, the party which has been prejudiced could have a right to void the consequences of the other party’s breach.118 In addition to the comparative material considered in the Ng Giap Hon case,119 there has, in fact, also been continued interest in the doctrine of good faith in other jurisdictions, as evidenced by other decisions therefrom — in particular (and perhaps significantly) recent decisions from England itself. An important decision in this regard is the recent English High Court decision of Yam Seng Pte Ltd v International Trade Corporation Ltd.120 In that decision, Leggatt J furnished a very compelling argument in favour of recognising a general obligation of good faith in the common law. In particular, the learned judge observed, as follows: In refusing, however, if indeed it does refuse, to recognise any such general obligation of good faith, this jurisdiction would appear to be swimming against the tide. As noted by Bingham LJ in the Interfoto case, a general principle of good faith (derived from Roman law) is recognised by most civil law systems — including those of Germany, France and Italy. From that source references to good faith have already entered into English law via EU legislation. For example, the Unfair Terms in Consumer Contracts Regulations 1999, which give effect to a European directive, contain a requirement of good faith. Several other examples of legislation implementing EU directives which use this concept are mentioned in Chitty on Contracts, 31st Ed, volume 1 at para 1–043. Attempts to harmonise the contract law of EU member states, such as the Principles of European Contract Law proposed by the Lando Commission and the European Commission’s proposed Regulation for a Common European Sales Law on which consultation is currently taking place, also embody a general duty to act in accordance with good faith and fair dealing. There can be little doubt that the penetration of this principle into English law and the pressures towards a more unified European law of contract in which the principle plays a significant role will continue to increase.121 The judgment of Leggatt J is — if I may say so — a very comprehensive and instructive one, not least because he engages in a scholarly survey across various jurisdictions and also aptly cautions that ‘[i]t would be a mistake … to suppose that willingness to recognise a
118 See [2012] 4 SLR 738 [40] (emphasis in original). 119 [2009] 3 SLR(R) 518. 120 [2013] 1 Lloyd’s Rep 526 (noted, Simon Whittaker, ‘Good Faith, Implied Terms and Commercial Contracts’ (2013) 129 LQR 463 and Edward Granger, ‘Sweating Over An Implied Duty of Good Faith’ [2013] LMCLQ 418; reference may also be made to The Rt Hon Lady Justice Arden, ‘Coming to Terms with Good Faith’ (2013) 30 JCL 199, 207). 121 [2013] 1 Lloyd’s Rep 526 [124] (emphasis added). 390 Queensland Legal Yearbook 2013 doctrine of good faith in the performance of contracts reflects a divide between civil law and common law systems or between continental paternalism and Anglo-Saxon individualism’.122 However, I would respectfully suggest that there is, in the final analysis, little (if any) difference between the approach adopted by Leggatt J in the Yam Seng case and that adopted by the Singapore Court of Appeal in the Ng Giap Hon case. In particular, Leggatt J observed (in the former case) thus: Under English law a duty of good faith is implied by law as an incident of certain categories of contract, for example contracts of employment and contracts between partners or others whose relationship is characterised as a fiduciary one. I doubt that English law has reached the stage, however, where it is ready to recognise a requirement of good faith as a duty implied by law, even as a default rule, into all commercial contracts. Nevertheless, there seems to me to be no difficulty, following the established methodology of English law for the implication of terms in fact, in implying such a duty in any ordinary commercial contract based on the presumed intention of the parties.123 I should also mention another English decision handed down subsequent to the Yam Seng case. This is the English Court of Appeal decision of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (Trading as Medirest),124 in which the court construed an express term (which included a duty on the part of the parties to co-operate with each other in good faith) as covering only very specific as well as limited areas (and did not therefore cover a more general obligation). Jackson LJ also observed (significantly, in my view), as follows: … I start by reminding myself that there is no general doctrine of ‘good faith’ in English contract law, although a duty of good faith is implied by law as an incident of certain categories of contract: see Horkulak at paragraph 30 and Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB) at paragraphs 120–131. If the parties wish to impose such a duty they must do so expressly.125 The observations just quoted are, in fact, consistent with what is the present legal position under Singapore law. Indeed, the learned Lord Justice’s further reference to the allowance of an express obligation is wholly consistent with the approach adopted by the Singapore Court of Appeal in the Toshin case.126 Significantly, the two other members of the court in the Mid Essex Hospital case — Lewison and Beatson LJJ — have themselves been involved in scholarly treatises on the law of contract as well.127 Both judges agreed with Jackson LJ in so far as the interpretation of the express term in question was concerned. The Implied Term as a Theoretical Concept
I turn now to consider briefly whether or not the implied term (specifically, the term implied ‘in law’) can be possibly utilised as a theoretical basis or underpinning for the doctrine of
122 [2013] 1 Lloyd’s Rep 526 [125]. 123 [2013] 1 Lloyd’s Rep 526 [131] (emphasis added in italics and bold italics). Cf also Simon Whittaker, ‘Good Faith, Implied Terms and Commercial Contracts’ (2013) 129 LQR 463, 469 and Edward Granger, ‘Sweating Over An Implied Duty of Good Faith’ [2013] LMCLQ 418, 423–424. 124 [2013] EWCA Civ 200. 125 [2013] EWCA Civ 200 [105] (emphasis added in italics and bold italics). 126 See the main text accompanying above nn 116–18. 127 See Sir Kim Lewison, The Interpretation of Contracts, (Sweet & Maxwell, 5th ed, 2011) and Sir Jack Beatson, Andrew Burrows and John Cartwright, Anson’s Law of Contract, (Oxford University Press, 29th edn, 2010). The CHallenge of Principled Gap-Filling 391 frustration. I have, in fact, dealt with this particular issue in part of an article which was published close to two decades ago.128 In that article, I first acknowledged that even though the implied term was the original basis of the doctrine of frustration, it has nevertheless ‘received little favour from the courts in modern times’.129 However, I then proceeded to note that the seminal English decision by Blackburn J in Taylor v Caldwell130 was handed down at a particular historical point in time well before the ‘business efficacy’ and ‘officious bystander’ tests were firmly settled and, a fortiori, well before the concept of a ‘term implied in law’ was even formulated.131 I then suggested that the broader category of ‘terms implied in law’ ‘would furnish a more than adequate basis for the doctrine [of frustration]’.132 As I observed: Courts imply ‘terms in law’ when broader considerations of policy and reasonableness require such terms to be implied in contracts of a certain type. It is submitted that this broad basis for the implication of ‘terms in law’ would be eminently suitable as a juridical basis for frustration. Indeed, it is precisely because of considerations of policy and reasonableness that contracts are held to be discharged by the doctrine of frustration. And just as the implication of ‘terms in law’ is within the sole purview of the court (which may even imply such a term when it would not otherwise do so ‘in fact’, or when it would even override the presumed intention of the parties to the contract), so also is the doctrine of frustration with the sole purview of the court, operating to discharge the contract by operation of law as opposed to any action on the part of the contracting parties themselves. That the doctrine of ‘terms implied in law’ has not really been linked to the doctrine of frustration is not surprising in view of the fact that the former doctrine has only been prominent relatively recently. The only problem might lie in the requirement that a term be implied ‘in law’ in relation to a certain category of contract, but can it not be argued that contracts that ought to be frustrated would constitute the required category? Admittedly, such reasoning may be a fiction of sorts, but so is the entire classification of ‘terms implied in law’ themselves; the main purpose, it would appear, is not to ensure doctrinal coherence as such but, rather, to allow justice to be achieved in certain (especially extreme) situations. To this end, it is not envisaged that terms will be easily implied under this category, and this is entirely consistent with the application of the doctrine of frustration, since it is generally well-known that frustration is a doctrine not to be liberally applied. … Indeed, and this is an important point, the present possible juridical bases for frustration will in fact be substantially incorporated within the theory of ‘terms implied in law’, involving (as it does) not only construction and implication, but also fairness to the parties owing to a radical change in obligation. One final objection might, however, be phrased thus: that it is really not very important to determine what the precise juridical basis of frustration is. Once again, the present writer has no quarrel with this view, having expressed a similar view elsewhere;133 however, inasmuch as this is perceived to be a relatively less important issue, it is suggested that it would be far better to lay it completely to rest via the suggestion proffered here, rather than to let it remain a thorn in the contractual side,
128 See Andrew Phang, ‘On Linkages in Contract Law — Mistake, Frustration and Implied Terms Reconsidered’ (1996) 15 Trading Law 481. 129 See JC Smith, ‘Contracts — Mistake, Frustration and Implied Terms’ (1994) 110 LQR 400, 402. 130 (1863) 3 B & S 826. 131 See Phang above n 128, 482. 132 Ibid. 133 As to which, see Andrew Phang, ‘Frustration in English Law — A Reappraisal’ (1992) 21 Anglo- American L Rev 278, 278–279. Reference may also be made to the oft-cited House of Lords decision of National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, 693 and 702. 392 Queensland Legal Yearbook 2013
even if only in the academic context. More importantly, it is submitted that the line between the juridical basis on the one hand and the process of application on the other is a rather artificial one to begin with; indeed, … the very concept of the implied term (here, it is submitted, ‘in law’) would necessarily entail all the so-called ‘practical’ tests for frustration, the foremost amongst which is the “radical change in obligation” test. Indeed, it might be added that the courts do not draw any real distinction between juridical basis and practical test insofar as a ‘radical change in obligation’ is concerned, treating this concept as both the basis as well as a test for frustration.134 In that same article, I also referred to135 the following observations by Lord Sumner, delivering the judgment of the Board in the Privy Council decision of Hirji Mulji v Cheong Yue Steamship Co,136 which (in my view) bore (particularly in the language utilised) a striking resemblance to the present-day formulation of a ‘term implied in law’: Frustration … is explained in theory as a condition or term of the contract, implied by the law ab initio, in order to supply what the parties would have inserted had the matter occurred to them, on the basis of what is fair and reasonable, having regard to their mutual interests concerned and of the main objects of the contract … It is irrespective of the individuals concerned, their temperaments and failings, their interest and circumstances. It is really a device, by which the rules as to absolute contracts are reconciled with a special exception which justice demands.137 Having returned to this issue once again after close to two decades, what I had proposed earlier as set out above still seemed attractive to me. However, on closer examination, I think that it might not be so persuasive after all. Let me elaborate. It is clear that a ‘term implied in fact’ is clearly not an appropriate theoretical or conceptual underpinning for the doctrine of frustration and, hence, the current antipathy towards it in the case law and literature is entirely understandable and wholly justifiable. After all, the doctrine of frustration relates to an external (and catastrophic) event which has nothing to do (as is the case with ‘terms implied in fact’) with the parties’ intention, presumed or otherwise. As already noted above,138 ‘terms implied in law’ are not subject to the same critique simply because such terms can be implied, regardless of (and even, on occasion, overriding) the parties’ presumed intention at the time that they entered into the contract concerned. However, as also noted above,139 there remains the difficulty to the effect that a ‘term implied in law’ is applied to contracts of a particular type, and not (as in the case of frustration) to all (possible) contracts. Although I did, in the earlier article,140 attempt to respond to this particular difficulty by arguing that contracts that ought to be frustrated would constitute the required category in relation to a ‘term implied in law’, I also conceded that this was ‘a fiction of sorts’.141 Perhaps the use of such a fiction might still be justified on the basis that a ‘term implied in law’ is here being utilised not to actually imply a term as such
134 See Andrew Phang, ‘On Linkages in Contract Law — Mistake, Frustration and Implied Terms Reconsidered’, (1996) 15 Trading Law 481, 482–483 (emphasis added). 135 See Andrew Phang, ‘On Linkages in Contract Law — Mistake, Frustration and Implied Terms Reconsidered’, (1996) 15 Trading Law 481, 484, n 14. 136 [1926] AC 497. 137 [1926] AC 497, 510 (emphasis added). 138 See the main text accompanying above nn 102–4. See also above, Andrew Phang, ‘Implied Terms Revisited’ [1990] JBL 394, 400. 139 See above n 133. 140 See above n 133. 141 See above n 133. The CHallenge of Principled Gap-Filling 393 but is being utilised, instead, as a theoretical rationale or underpinning (here, for the doctrine of frustration). However, a more serious difficulty is this: an implied term (whether ‘in law’ or ‘in fact’) relates to the formation of a contract, whereas the doctrine of frustration relates to the discharge of a contract. As Lord Radcliffe perceptively observed in the leading House of Lords decision of Davis Contractors Ltd v Fareham Urban District Council: Lord Loreburn [in FA Tamplin Steamship Co Ltd v Anglo-Mexican Products Co Ltd [1916] 2 AC 397] ascribes the dissolution to an implied term of the contract that was actually made. This approach is in line with the tendency of English courts to refer all the consequences of a contract to the will of those who made it. But there is something of a logical difficulty in seeing how the parties could even impliedly have provided for something which ex hypothesi they neither expected nor foresaw; and the ascription of frustration to an implied term of the contract has been criticized as obscuring the true action of the court which consists in applying an objective rule of the law of contract to the contractual obligations that the parties have imposed upon themselves. So long as each theory produces the same result as the other, as normally it does, it matters little which theory is avowed (see British Movietonews Ltd v London and District Cinemas Ltd [[1952] AC 166 at 184], per Viscount Simon). But it may still be of some importance to recall that, if the matter is to be approached by way of implied term, the solution of any particular case is not to be found by inquiring what the parties themselves would have agreed on had they been, as they were not, forewarned. It is not merely that no one can answer that hypothetical question: it is also that the decision must be given ‘irrespective of the individuals concerned, their temperaments and failings, their interest and circumstances’ (Hirji Mulji v Cheong Yue Steamship Co. Ltd [[1926] AC 497 at 510]). The legal effect of frustration ‘does not depend on their intention or their opinions, or even knowledge, as to the event.’ On the contrary, it seems that when the event occurs ‘the meaning of the contract must be taken to be, not what the parties did intend (for they had neither thought nor intention regarding it), but that which the parties, as fair and reasonable men, would presumably have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence’ (Dahl v. Nelson [(1881) 6 App Cas 38 at 59], per Lord Watson). By this time it might seem that the parties themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself. So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.” 142 In the circumstances, there appears to be a disconnect, even if we are only purporting to utilise a ‘term implied in law’ in a theoretical or conceptual manner. There is — finally — a point also touched on in my earlier article:143 that the precise juridical basis of the doctrine of
142 [1956] AC 696 at 728. 143 See above n 133. 394 Queensland Legal Yearbook 2013 frustration is of little (if any) practical moment. Indeed, as also pointed out in that particular piece, the more generally accepted test is the ‘radical change in obligation test’144 which could simultaneously constitute both a theoretical underpinning as well as a practical test. It is obvious, however, that the concept of a ‘term implied in law’ could — at best — serve only as a theoretical underpinning. One final point may be made: Lord Hoffmann did, in a lecture to which we have already referred, observe as follows: That does not mean that the judges who adopted the implied theory of frustration were wrong. They were also right because the implication of any implied term in fact is also a question of construction.145 The above observation is wholly consistent with the learned Law Lord’s formulation in the Belize test. However, with respect, at least two (closely related) difficulties are immediately apparent. The first is that the learned Law Lord is focusing on the category of ‘terms implied in fact’ which, as explained above, is wholly inappropriate as a possible juridical basis for the doctrine of frustration. Secondly, whilst it may be argued that Lord Hoffmann is relying on the concept of ‘construction’, that concept is only one amongst a number of possible juridical bases and (unlike the ‘radical change in obligation’ test just referred to)146 does not have a practical dimension to it as well. Indeed, as I have sought to argue above,147 the concept of ‘construction’ is also too abstract and general even when viewed in the context of implied terms. Conclusion
To summarise and conclude the present essay, we examined the function of implied terms in the context of gap-filling, focusing on ‘terms implied in fact’ and ‘terms implied in law’. The signal importance of the implied term (in particular a ‘term implied in fact’) is that it can be utilised by the court to achieve a just and fair result in the case at hand (and, indeed, the introduction of the concept of implied terms in English law has even been mooted by one writer as being an appropriate reform in the context of French law).148 However, it is precisely because the implied term involves the search for a just and fair result in situations where an allegation and/or perception of possible arbitrariness on the part of the court is possible that the legal mechanism (and resulting doctrine and tests) ought to be as clear as possible (which was in fact one of the criteria laid down by the majority of the Privy Council in the BP Refinery case).149 To this end, I have argued that the ‘business efficacy’ and ‘officious bystander’ tests150 in relation to ‘terms implied in fact’ have served us well in the manner
144 See eg per Lord Radcliffe in the House of Lords decision of Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 729. And, for more recent decisions, see eg the English Court of Appeal decisions of J Lauritzen AS v Wijsmuller BV (The ‘Super Servant Two’) [1990] 1 Lloyd’s Rep. 1 at 8 and Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The ‘Sea Angel’) [2007] 2 Lloyd’s Rep. 517 at [84]–[88] and [111]–[112]; as well as the English High Court decision of Bunge SA v Kyla Shipping Co Ltd (The ‘Kyla’) [2013] 1 Lloyd’s Rep 565 at [39]–[42]. 145 See Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 Law Teacher 127, 140. 146 See above n 134. 147 See generally the main text accompanying above nn 60–76. 148 See Antoine Vey, ‘Assessing the Content of Contracts: Implied Terms from a Comparative Perspective’ [2011] EBLR 501. 149 (1977) 180 CLR 266. 150 See the main text accompanying, respectively, above nn 24 and 27. The CHallenge of Principled Gap-Filling 395
(as well as priority) set out above.151 However, the relatively recent test suggested by Lord Hoffmann viz( , the Belize test152) is, with the greatest respect, not an improvement upon the two aforementioned tests (as I have attempted to explain above).153 It results, instead, in a more abstract (as opposed to concrete and precise) test, although it is not inconsistent with the ‘business efficacy’ and ‘officious bystander’ tests. After all, as we have already seen, when MacKinnon LJ formulated the ‘officious bystander’ test, his starting-point like— Lord Hoffmann’s — was also that of construction.154 However, the very general and abstract nature of the Belize test is the very antithesis of the desiderata of clarity I mentioned right at the outset of this paragraph. Returning to the ‘officious bystander’ test, what MacKinnon LJ did was to build on the ‘business efficacy’ test and (perhaps more importantly) specify a practical way in which courts could imply terms ‘in fact’ via the ‘officious bystander’ test. To be sure, there will always be a measure of uncertainty not only because of the nature and functions of the implied term but also because of the myriad fact situations which will be encountered in the sphere of the application of the test itself. What is clear is that, whilst acknowledging the inevitable tension between certainty on the one hand and the need to achieve justice and fairness on the other, the law relating to implied terms is both important as it is practical. I have been less optimistic — or at least more wary — of ‘terms implied in law’. The test for this particular category of implied terms is much broader and (more importantly) sets a precedent for all future contracts of that particular type (at least until overruled in a subsequent decision). Much (dare I say, virtually all) of the justice and fairness which are required on the facts of a given case can be achieved through the more specific (and focused) doctrine of ‘terms implied in fact’. This avoids the creation of difficult (or even dangerous) precedents for the future. Hence, for example (and as I have argued),155 the doctrine of good faith should (at best) be given effect to by way of ‘terms implied in fact’ (as opposed to ‘terms implied in law’). So the implication of terms ‘in law’ ought, in the final analysis, to be effected rarely — even when compared to ‘terms implied in fact’, which will themselves be implied sparingly and only when it is necessary.156 I spent even less time on the concept of the implied term in relation to its more theoretical application as an underlying rationale for other (distinct) doctrines — principally, the doctrine of frustration. As elaborated upon above, whilst there appeared to be scope for the utilisation of the concept of a ‘term implied in law’ as a possible theoretical undermining for the doctrine of frustration (as opposed (in my view at least) to its less promising role as a doctrine in its own right),157 this was not as promising as it first appeared to be.158 In any event, such potential application was, admittedly, of little practical moment. What is most important (in the context of the present essay) is, in the final analysis, the fact that the implied term (especially in relation to ‘terms implied in fact’) furnishes the court with a principled basis upon which to achieve a just and fair result in the case at hand.
151 See generally the main text accompanying, above nn 24–92. 152 See the main text accompanying, above nn 60–2. 153 See the main text accompanying, above nn 60–76. 154 See above n 48. 155 See generally the main text accompanying, above nn 107–27. 156 See also generally the main text accompanying, above nn 101–6. 157 See the main text accompanying, above nn 128–37. 158 See generally the main text accompanying, above nn 128–47. The Public / Private Divide; and its Implications for the Extent of Judicial Intervention in Civil Disputes
by The Honourable Justice Patrick Keane*
The author we know as St Luke tells us in Acts 18, 12–16 that while St Paul was living and teaching in Corinth: When Gallio was proconsul of Achaia, the Jews with one accord rose up against Paul and brought him to the judgment seat, saying, ‘This fellow persuades men to worship God contrary to the law.’ And when Paul was about to open his mouth, Gallio said to the Jews, ‘If it were a matter of wrongdoing or wicked crimes, O Jews, there would be reason why I should bear with you. But if it is a question of words and names and your own law, look to it yourselves; for I do not want to be a judge of such matters.’ And he drove them from the judgment seat. Apart from the characteristically anti-Semitic tone of this pro-Roman author, this passage captures something of the timeless anxiety of the judge as to the proper scope of his or her responsibility to resolve civil disputes. Gallio’s anxiety is likely to resonate with lawyers in any liberal democracy which recognises the separation of Church and State, or more generally in a secular state, of public affairs and private matters. Of course, not all societies do recognise that distinction. That is as true of Sharia as it was for the authors of the Books of Leviticus and Deuteronomy. And as it happens, it was also true of the Athens of Socrates, where lack of piety in private was regarded as a public problem warranting the intervention of the courts. Socrates saw himself as a child of the laws of Athens. He would not have dreamed of defending himself against the charges of impiety brought against him by asserting a private right to liberty of conscience or speech, or by asserting that the polis had no business with whether he or those who voluntarily chose to associate with him believed in the gods. The public worship of the gods was so intimately associated with the well‑being of the Roman state that the emperors appropriated the office and title of the chief priest, the Pontifex Maximus — which literally means ‘Bridge-builder-in-chief’ — the bridge, of course, being the connection between the citizens of Rome and the gods, on whose favour pious citizens thought their safety dependent. The worship of the appropriate gods was, for the Romans as it was for the Greeks, a matter of public duty for every citizen. Proper worship had practical implications for the economic and social life of the community as we know from undeniably reliable Roman sources.
* Justice of the High Court of Australia. This paper was presented at The Australian Academy of Law Lecture, Banco Court, 16 September 2013.
396 The Public / Private Divide 397
Pliny the Younger, appointed as governor of Bithynia in Asia Minor in about 112 AD, wrote to the Emperor Trajan for advice as to how to handle difficult local Christians who were boycotting sales of meat previously offered in sacrifice to the gods, thus adversely affecting local trade. A number of Christians had been denounced anonymously by outraged locals, and Pliny tortured the more prominent among those who had been denounced. He formed the view that they were hopelessly deluded, but otherwise harmless. In response to Pliny’s request for advice, Trajan suggested that it was best to ignore anonymous denunciations about anyone. Trajan, to his eternal credit, said that acting on such information set ‘a very bad example and [was] unworthy of our time.’1 If St Luke is an accurate historian (and that may be a big ‘if’), Gallio’s rejection of the attempt to make the resolution of a dispute about private beliefs a public problem to be resolved by the organs of the State, rather than by the individuals concerned working it out for themselves, may be one of the earliest official articulations of the insight which, eighteen centuries later, came to prevail as one of the axioms of the Western intellectual tradition. That is, that there are some things which are not required to be rendered, either unto Caesar, or unto God. Gallio was saying, in no uncertain terms, that there are some things that Caesar does not want to be rendered to him. And, indeed, as Trajan’s response to Pliny shows, there are times when Caesar would prefer it if we all just played nicely amongst ourselves. The workings of this tension between the public and the private in relation to issues of freedom of religious belief and worship, and freedom of association generally, have been both creative and destructive. The glories of medieval art, architecture and education were made possible only by the symbiosis of Christian religious belief and the organising power of the political organs of the nascent European states. On the other hand, the horrors of the religious wars and the Inquisition were driven by the willingness of organs of the State to act upon St Augustine’s mandate ‘impelle intrare’: make them come in. On this view, if one loves one’s fellow Christian, one does not allow him or her to go his or her own way in error: love requires that the erring soul be brought back, by force if necessary, to the truth. And, unfortunately for large numbers of people in Southern Europe in the Middle Ages, the Dominicans loved them very much. I venture to suggest that all of us here today are instinctively in sympathy with Gallio’s judgment because of the success in the West of the liberal democratic experiment of the last two hundred or so years. And yet it seems that Gallio’s insight does resonate more strongly with some of us than others. The distinction between the public and the private is unstable. And while that very instability is a dynamic intellectual force, much is in the eye of the beholder. Some judges and academic lawyers, especially in the United States, are concerned that the scale and scope of modern litigation and litigiousness are not only unmanageable, but are also draining civil society of its civility.2 Judge Learned Hand gave voice to something of this concern, saying: ‘After now some dozen years of experience, I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.’3 More recently, this scepticism has significantly intensified. Robert Bork, the eminent conservative American legal academic and judge, lamented in 2002 that ‘[i]t would have been
1 MacCulloch, A History of Christianity (Penguin Books, 2009) 163–4. 2 Levy, ‘Judging the Flood of Litigation’ (2013) 80 University of Chicago Law Review 1007. 3 Capper, ‘Maintenance and Champerty in Australia — Litigation in Support of Funding!’ (2007) 26 Civil Justice Quarterly 288, 290–1. 398 Queensland Legal Yearbook 2013 unthinkable until recently that so many areas of our nation and life would be controlled by judges.’4 Antonin Scalia, a kindred spirit of Judge Bork, writing extra-judicially has expressed a similar concern at what he described as the ‘overjudicialisation of the processes of [American] self‑governance.’5 These commentators identify a number of problems with ‘overjudicialisation’. One aspect concerns the expanded role of the State in the modern life. They see the State intruding on private space and limiting the free choices of private individuals: public law is trumping private right. The second aspect of their complaint is that it is the judiciary which is the active arm of government by which the State’s intrusion has been effected. It is this second aspect that I wish to discuss. Lord Sumption has recently offered one answer to those who lament the expansion of the role of the judicial branch of government in the Western democracies. Jonathan Sumption QC (as his Lordship then was) in his FA Mann Lecture 2011, ‘Judicial and Political Decision- Making: The Uncertain Boundary’, agreed that ‘[o]ne of the most significant constitutional changes to occur in Britain since the Second World War has been the rise in the political significance of the judiciary, as a result of the increasingly vigorous exercise of its powers of judicial review.’ But he went on to explain that, in the Anglophone democracies at least, the expansion of judicial review of administrative action has been driven by: [t]he arrival of a broadly based democracy … invariably followed by rising public expectations of the state: as the provider of basic standards of public amenity, as the guarantor of minimum levels of security and, increasingly, as a regulator of economic activity and a protector against misfortune of every kind. … The immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore. It is no longer sensible to view this as a power‑grab by ambitious ministers and officials, as the opponents of the Crown did in the simpler world of seventeenth century England and some commentators still do. The truth is that a powerful executive is inherent in the democratic character of the modern state. In short, the exercise of a more active role of review by the judiciary ensures the integrity of decision‑making by the executive government. Brandeis J embraced that expansive view of the judicial function, saying, with great prescience in 1936, that judicial review ensures ‘the supremacy of the law.’6 More recently in the United States, there has been a clear reaction on the part of the Supreme Court to the expansive view of the role of the courts which characterised the 70‑odd years since the New Deal. Writing in 2006, Andrew Siegel said:7 [T]he Rehnquist … Court consistently expressed little patience with lower courts that have attempted to carve out for themselves a broader role in resolving disputes and administering justice.
4 Bork, ‘Adversary Jurisprudence’, (2002) 20(9) New Criterion, 4, 19. 5 Scalia, ‘The Doctrine of Standing as an Essential Element of the Separation of Powers’ (1983) 17 Suffolk University Law Review 881. 6 St Joseph Stock Yards Co v United States (1936) 298 US 38, 84. 7 Siegel, ‘The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence’, (2006) 84 Texas Law Review 1097, 1181. The Public / Private Divide 399
Another academic commentator observed in 2009:8 If any other theme has emerged from the votes of Chief Justice Roberts and Justice Alito, it is an apparent hostility to litigation — continuing the views of their predecessors. And in 2008, President Bill Clinton’s nemesis, Kenneth Starr, commented9: [T]he Roberts Court, more than any Court in recent memory, is skeptical of the efficacy of large-scale civil litigation. The reaction within the US judiciary against a more expansive judicial role has tended to march in step with the rise of neo‑liberalism as the dominant economic theory of the New Regulatory State. In this perspective, the State should seek to guarantee only security and the efficient functioning of markets, and the outsourcing of what were previously accepted as public functions to private enterprise is positively to be desired in the interests of the primary goal of economic efficiency. I venture to suggest that, in Australia at least, managerialism and neo‑liberalism have had less influence on the judiciary, and the concern about the over‑judicialisation of our lives has not exercised anything like the claim on the judicial imagination that has been occurring in the United States. In Australia, it is, I think, fair to say that since World War II the judiciary has been more welcoming of, indeed encouraging of, an expanding role for itself in resolving civil disputes. And this attitude has manifested itself in a shift in the balance of what I am calling the public/ private divide. There has been no concerted reaction to the expanding role of the courts in the resolution of civil disputes. Indeed, to the extent that there has been a questioning of the extent of judicial expansionism, it has been largely confined to the role of the courts in respect of commercial arbitration. The Public / Private Divide
The division between the public and the private manifests itself in a variety of contexts. We speak of public law, as opposed to private law, to distinguish the law which regulates agencies of the State from the law which regulates the rights and liabilities of private persons. We speak of the public to differentiate the collective (the res publica, as the Romans called it) from the private, being that part of our lives reserved for private opinion, activity and association. Not losing sight of our friend Gallio, a further example of the public/private divide, and the example on which I wish to focus this evening, is the extent to which shifts in the claims of the public and the private affect the judicial acceptance of a role in regulating the internal affairs of members of a voluntary association where the resolution of the dispute does not involve the disposition of property. Before I come back to that topic, however, I would like to mention some other areas of civil litigation where the public/private tension can be seen to be a dynamic influence on judicial decision‑making. At the outset, it must be acknowledged that the distinction is elusive. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Gleeson CJ said:10
8 Greene, ‘Heller High Water? The Future of Originalism’, (2009) 3(2) Harvard Law and Policy Review 325, 342. 9 Starr, ‘The Roberts Court at Age Three: A Response’, (2008) 54 Wayne Law Review 1015, 1025. 10 (2001) 208 CLR 199, 226 [42]. 400 Queensland Legal Yearbook 2013
There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. It should not be surprising that we have difficulties marking out the legal boundary between what is private and what is public. English law developed, for 500 years, with the incidents of feudal land ownership providing the foundations of constitutional law, and, for nearly a thousand years, without ever developing a separate body of law such as the ‘droit administratif ’. The Diceyan orthodoxy was that the organs of the State were subject to the same laws as the subjects, and there were no special rules for public agencies.11 Administrative law was a judicial, not legislative invention, to ensure that agents of the executive government respected private rights. It may be, as I think, that it is because the public / private divide is ill-defined, and so has not been reined in, that it has been, and remains, a dynamic force influencing, subliminally perhaps, judicial responses to claims upon the courts to resolve disputes between subjects. That is the theme of the examples that follow. Standing
One respect in which we can detect a shift towards the privatisation of the public is in the liberalising of standing rules. In this regard, Antonin Scalia proposed, 30 years ago, that the courts, in order to protect themselves against overweening demands, should adhere to a narrow view that standing ‘roughly restricts courts to their traditional undemocratic role of protecting … minorities against impositions of the majority, and [exclude] them from the even more undemocratic role of prescribing how the other two branches [of government] should function in order to serve the interest of the majority itself.’12 It may fairly be said that the US case law over the subsequent three decades has not seen Scalia’s proposition adopted by the US courts;13 but in Australia the concern which he voiced has hardly affected the jurisprudence. In Australia, the trend of decisions of the High Court over the last three decades has distinctly been against the need for a would-be litigant to be able to point to an actual or apprehended adverse effect upon private rights of person or property in order to engage judicial power. The upshot of a series of cases after 1980 was the statement in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited14 that the
11 Arndt, ‘The Origins of Dicey’s Concept of the “Rule of Law”’ (1957) 31 Australian Law Journal 117. 12 Scalia, ‘The Doctrine of Standing as an Essential Element of the Separation of Powers’ (1983) 17 Suffolk University Law Review 881, 894. 13 Rahdert, ‘Forks Taken and Roads Not Taken: Standing to Challenge Faith-based Spending’ (2010– 2011) 32 Cardozo Law Review 1009, 1015: ‘In developing standing policy, the [Supreme] Court [of the United States] has encountered great difficulty. It has proven unable to move past vague generalities, although it has succeeded in generating a few abstract rules. However, the rules have such open texture that they support sharply divergent perspectives, seldom determine outcomes, and frequently produce inconsistent results — which the Court typically rationalizes by reliance on unstable and often arbitrary distinctions. This inconsistency in turn leads to suspicion that decisions on standing in close cases may be guided more by the courts’ instincts toward the merits than by an independent determination of the parties’ eligibility to invoke jurisdiction. Over time, standing doctrine has moved in the direction of greater generosity towards litigants, especially in constitutional cases’. 14 (1998) 194 CLR 247, 267 and see also, 261 and 283–4. The Public / Private Divide 401 requirement that a moving party have a ‘material interest’ in the observance of the law should be understood as ‘an enabling, not a restrictive, procedural stipulation.’15 This process of liberalisation has meant that judicial power is available to ensure that administrative decision‑making, which may not affect the legal rights of individuals, is in conformity with the law.16 The case law in the High Court has tended towards a preference to rely upon other filters to manage the workload of the judiciary, such as the need for a genuine controversy or matter17 and the ‘no advisory opinion’ rule, rather than a narrow view of standing.18 It is, of course, pertinent to observe that this judicial activity has been in step with the policy of the legislature to enlist private citizens in the enforcement of legislation. An obvious example is the provision for private actions under the Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth). The pre‑1980 perspective would decry these sorts of statutory provision as apt to make every man his own Attorney‑General. Public Values in Private Corporations
The dynamic tension between the public and the private can also be seen to be driving a trend in the opposite direction, that is, in the publicisation of the private, in the importation of the public law values of democratic legitimacy, transparency and reasonableness in private corporation decision‑making. As Jody Freeman has noted, even in the United States, there has been a marked intrusion of public law ideas, such as transparency, accountability, and stakeholder voice into private law, especially the internal regulation of commercial corporations.19 There has even been the adoption of the great public law idea of the separation of powers manifest in structures such as board audit committees, ethics committees, workplace health and safety committees, and independent directors with participation from environmental groups and unions.20 These developments reflect a growing appreciation of the public consequences of private decision‑making. Publicity of proceedings
At yet another level, a trend towards the privatising of the public can be seen in the softening of the strong stance taken by the High Court in 1976 in Russell v Russell21 against conducting judicial proceedings in private.
15 See Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 35–6, 66–7; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582; Croome v Tasmania (1997) 191 CLR 119, 126; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 393; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 599 [2], 611 [44]–[45], 626–8 [92]–[96], 652–4 [161]–[165], 667–70 [202]–[212]. 16 Forbes v New South Wales Trotting Club (1979) 143 CLR 242; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 584–5. 17 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 30–6 [34]–[53], 68–9 [151]–[158], 98–9 [271]–[274], 137–8 [399]–[401]. 18 In re Judiciary and Navigation Acts (1921) 29 CLR 257, 265; Abebe v Commonwealth (1999) 197 CLR 510, 570 [164]; White v Director of Military Prosecutions (2007) 231 CLR 570, 614–5 [118], 619 [134]. 19 Freeman, ‘Extending Public Law Norms Through Privatization’, (2003) 116 Harvard Law Review 1285. 20 Braithwaite, ‘Strategic Socialism, Strategic Privatisation and Crises’, (2013) 28 Australian Journal of Corporate Law 35, n 10. 21 (1976) 134 CLR 495, 506–7, 520–1, 533. 402 Queensland Legal Yearbook 2013
Here, I am not speaking of the establishment of special security courts as has occurred in the United States: they are unequivocally exercising public power, albeit in secret. Rather, I am speaking of the acceptance of demands by those who seek access to the courts on terms that their identities, or aspects of their affairs, will be kept private by in‑camera hearings or the deployment of suppression orders. This trend casts the third branch of government in the character of a provider of dispute resolution services, rather than the arm of government the hallmark of the operations of which is the publicity and transparency which attends those operations. The tendency to view the courts as a dispute resolution service has also, perhaps, made it easier to accept developments such as litigation funding.22 The trend towards privatised hearings and suppression orders has, it must be said, not commanded universal acceptance. In this regard, the idea that judicial proceedings should not be publicised in order to spare the privacy of litigants provoked reaction in the form of the recent amendments to Federal and State legislation which limit the making of suppression orders.23
22 Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386, 432–6 [84]–[95], 482–91 [255]–[273]. 23 TheAccess to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) made a series of amendments to the Family Law Act, the Federal Court of Australia Act, the then Federal Magistrates Act and the Judiciary Act concerning suppression and non-publication orders. The Amendment Act provided for a substantially identical regime for suppression and non-publication orders in the federal courts. The amendments were largely based upon model provisions developed by the Standing Committee of Attorneys-General in 2010. In the second reading speech, the responsible Minister adverted to recent criticism of the ‘volume and breadth’ of suppression and non-publication orders granted by some courts, particularly some state courts. The mirror provisions require a court, when considering whether to make a suppression or non- publication order, to ‘take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.’ A court may make an order only on one of the following grounds, which must be specified: • the order is necessary to prevent prejudice to the proper administration of justice; • the order is necessary for security reasons; • the order is necessary to protect the safety of a person; or • the order is necessary to avoid causing undue distress or embarrassment to a party or to a witness in criminal proceedings involving an offence of a sexual nature. Significantly, the provisions allow certain classes of person other than the parties, including ‘news publishers’, to be heard at the application for an order. ‘News publisher’ is defined broadly to mean any ‘person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.’ Several States have also thought it necessary to reform the law in this area in response to courts making an increasing number of suppression and non-publication orders. New South Wales implemented the model law developed by the Standing Committee through the Court Suppression and Non-Publication Orders Act 2010 (NSW) and proposed legislation based on the same regime is presently before the Victorian Parliament: Open Courts Bill 2013 (Vict). In 2006, amendments were introduced to South Australian Evidence Act aimed at ‘easing the number’ of suppression and non- publication orders: Evidence (Suppression Orders) Amendment Act 2006 (SA). The Attorney-General in the second reading speech for the bill lamented that ‘suppression orders are more prominent in South Australia than anywhere else in the nation.’ The Public / Private Divide 403
Judicial Review
The public / private tension has been a dynamic force in the development of judicial review of administrative action. The identification of the exercise of a decision‑making power as public in character has been treated as the key to judicial review.24 Thus in the seminal English case, R v Panel on Take-overs and Mergers; ex parte Datafin Plc,25 it was held that a decision of the Panel on Take-overs and Mergers in the United Kingdom was subject to judicial review because it operated as part of the governmental framework for the regulation of those activities in the City of London. That body exercised a range of statutory powers, including a power to impose penalties. Because its powers were regarded as public powers it was held to be subject to judicial review to ensure that its powers were exercised judicially. Sir Anthony Mason noted this aspect of Datafin, contrasting it withR v Disciplinary Committee of the Jockey Club; ex parte Aga Khan26 where, because the proceedings of the Jockey Club did not involve the exercise of public power, they were not subject to scrutiny upon judicial review. At this point it is convenient to say something about Griffith University v Tang.27 When this case was heard at first instance, there was no evidence that Ms Tang’s enrolment was governed by any form of contract between her and the university. Ms Tang’s lawyers seized upon the absence of an evidentiary basis for any suggestion by the university that Ms Tang’s enrolment had been cancelled by virtue of the exercise of any contractual right in the University. Ms Tang’s lawyers argued that, because the University had not shown a contractual power to terminate Ms Tang’s enrolment, the only possible source of such power was the university’s incorporating statute, and hence the University’s decision to terminate her enrolment was necessarily made under that enactment.28 This was a bold stratagem. Like many other bold stratagems it did not succeed. The reason the stratagem failed was that it was erroneous to assume that the contract exhausted the category of private association so that the association between Ms Tang and the University must necessarily have been a public matter, attracting the remedies of public law. In the High Court, the fallacy was exposed in the reasons of Gummow, Callinan and Heydon JJ. Their Honours said:29 [G]iven the manner in which [Ms Tang] had framed her application for judicial review, there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act. Nor, indeed, would there have been such a decision had the respondent been allowed to continue in the PhD programme.
24 Mason, ‘Lecture 3 — Australian Administrative Law Compared with Overseas Models of Administrative Law’, (2001) 31 AIAL Forum 45, 54. 25 [1987] 1 QB 815. 26 [1993] 1 WLR 909. 27 (2005) 221 CLR 99, 107–9 [12], 110 [17]. 28 cf Australian National University v Burns (1982) 64 FLR 166 and Australian National University v Lewins (1996) 68 FCR 87 where it was held that decisions made in the exercise of a power conferred on the university by contract were not made under the statute which conferred on the university capacity to make contracts. 29 Griffith University v Tang (2005) 221 CLR 99, 131–2 [91]–[93] (citations footnoted in original). 404 Queensland Legal Yearbook 2013
It may, for the purposes of argument, be accepted that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her. But such an expectation would create in the respondent no substantive rights under the general law, the affecting of which rendered the decisions she challenged decisions made under the University Act. What was said by Kiefel J30 and Lehane J31 on the point in Lewins, and subsequently by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam32, supports that conclusion. Nor were there any presently subsisting statutory rights of the respondent, or statutory rights the coming into existence of which would be contingent solely upon her re-admission to the PhD candidature programme. The respondent would still have had to satisfy the requirements for award of the degree. Had she done so, a question (which it is unnecessary to decide) may have arisen as to whether she had a statutory or other right to the award. This reasoning attracted considerable academic disapproval. Professor Aronson commented:33 Tang’s result was entirely predictable because if ADJR’s restriction to statutory decision-making is to mean anything, then the odds are that it excludes coverage of government’s commercial powers so far as these are truly consensual. Tang’s fault, though, was in failing to see the realities of public power behind a consensual, non‑statutory facade. Consensual power should not be subject to judicial review, not because it is non-statutory, but because it is not public. … The characterisation of Ms Tang’s relationship with her former university as merely consensual is nothing short of breath-taking. The characterisation of Ms Tang’s relationship with the university as ‘merely consensual’ was not ‘breath-taking’. Rather, it was inevitable having regard to the forensic choice by Ms Tang to fight her case on the explicit footing that there was no contractual relationship between her and the university. The academic criticism ofTang should be seen in the light of three circumstances: first, that courts decide the issues tendered to them by the parties; second, that Ms Tang deliberately chose not to seek a remedy under private law, as for example, under a contract between the University and herself; and third, there is nothing at all odd about speaking of the bonds of voluntary association between persons as merely consensual and inherently frangible. In civil society, freedom of association generally includes freedom to disassociate without let or hindrance by the organs of the State. That is the view which the common law had taken of the relationship of voluntary association in Cameron v Hogan,34 to which I will turn in a moment. In Tang, the Court was, of course, called upon to interpret the statute, but the process of interpretation occurred in an intellectual milieu in which it was simply not persuasive to say that, because a voluntary association does not qualify as contractual, it follows that the relationship is a creature of public law in the sense that a decision by one party to determine the relationship must be authorised by public law.
30 Lewins (1996) 68 FCR 87, 96–7. 31 Lewins (1996) 68 FCR 87, 103–4. 32 (2003) 214 CLR 1, 27–8 [81]–[83], 48 [148]. 33 Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, (2007) 35 Federal Law Review 1, 23 (footnotes omitted). 34 (1934) 51 CLR 358, 370–1. The Public / Private Divide 405
The present relevance ofTang’s Case is that because of the unusual ground on which the case was fought, it stands to make the point that contract does not exhaust the category of private voluntary associations which do not engage the remedy of judicial review which, under the AD(JR) Act and its state analogues in Australia, is concerned with the exercise of public power. Ms Tang and the University stood in a private consensual relationship with each other, and the University’s decision to terminate that association did not involve the exercise of any public power conferred on the University, whether by its incorporating statute or otherwise. Arbitration
In the decision of the High Court in Westport Insurance Corporation v Gordian Runoff Ltd,35 there was some limited acknowledgement that arbitration is rooted in private contractual arrangements, and that the parties’ interest in privacy and finality has implications for the intensity of the judicial review to which arbitral decisions are subject. It is in this area that the most forthright statement that a more modest approach to the scope of judicial power has been forthcoming. In the 2013 Sir Maurice Byers Lecture, the Hon AM Gleeson AC QC took up this theme, saying:36 There is a tendency on the part of some lawyers, and perhaps even some judges, to regard litigation as the normal method of dispute resolution, and the only method that is capable of giving appropriate recognition to the rule of law. In truth, civil litigation is not the normal method of resolving commercial disputes. The most common method of resolving commercial disputes is by agreement of the parties, without any outside intervention. Such agreements are usually based upon the parties’ appreciation of their own interests, and bargaining strengths, which may or may not reflect their strict legal rights and obligations. An agreement to settle a dispute on that basis creates its own rights and obligations, which may replace the original contract in whole or in part. Sometimes a new agreement is reached between the parties with the assistance of outside intervention by a mediator or facilitator or some other third party who may or may not be a lawyer.
Cameron v Hogan
There is one particular area in which the Australian judiciary seem to have been particularly sanguine about exercising an expanded role in resolving what would once have been regarded as domestic or social issues outside of the purview of the courts which I would like to discuss. About nineteen hundred years after the incident involving Judge Gallio described by St Luke, the High Court of Australia in Cameron v Hogan37 expressed a similar judicial world- weariness with true believers who seek to have the organs of the State decide between them upon questions of words and names and [their own] internal law. In ruling as it did, the High Court adhered to the view that disputes within voluntary associations of individuals were not the concern of the judicial power of the state.
35 (2011) 244 CLR 239, 261–2 [18]–[20]; see also Keane, ‘Judicial Support for Arbitration in Australia’ (2010) 34 Australian Bar Review 1, 4–6. 36 New South Wales Bar News, Winter 2013, 33, 39–41. 37 (1934) 51 CLR 358. 406 Queensland Legal Yearbook 2013
Since that time, Cameron v Hogan has been distinguished by the courts in a number of first instance decisions.38 It has never been overruled, but the course of subsequent decisions raises a question whether the reasons which underpinned Cameron v Hogan’s essential holding, ie that those who agree to associate with each other for political, religious, civic or sporting ends remain at liberty to disassociate from each other without attracting the intervention of the courts, still holds good. One might be tempted to see the fate of Cameron v Hogan as of a piece with the shifts in judicial attitude which in former times had kept litigants out of courts; the shift reflecting an acceptance of a more expansive role for the judiciary in the life of the community. First, let us bring to mind what was decided in Cameron v Hogan. Edmond Hogan, the Labor Premier of Victoria, agreed with the other State and Commonwealth governments to adopt what was known as the ‘Premiers’ Plan’ in response to the financial crises of the Great Depression. The Premiers’ Plan involved the reduction of government expenditure contrary to the resolution of a special federal conference of the Australian Labor Party that ‘any member[s] … openly supporting or assisting in the furtherance of the Premiers’ Plan shall cease to be members of the Australian Labor Party.’39 Hogan was disendorsed by the State executive of the party as an ALP candidate at the next election and was expelled from the party. He brought proceedings seeking declarations that he was still a member of the party, that his expulsion was wrongful, that his non‑endorsement was wrongful, an injunction to restrain his exclusion from the party, and damages. The High Court held, reversing the decision of the Supreme Court of Victoria, that Hogan had no proprietary right or interest in the property of the party as might entitle him to a declaration or injunction in respect of his exclusion, and that the rules of the party did not operate to create enforceable contractual rights and duties between members or between executive officers and members. Rich, Dixon, Evatt and McTiernan JJ said:40 Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. … One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are, for the most part, bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.
38 Green v Page [1957] Tas SR 66; Harrison v Hearn (1972) 1 NSWLR 428 (although Helsham J did not specifically refer to Cameron v Hogan in his reasons for judgment); Rendall-Short v Grier [1980] Qd R 100; Burton v Murphy [1983] 2 Qd R 321, 325; Ex parte Appleton [1982] Qd R 107. 39 (1934) 51 CLR 358, 361. 40 (1934) 51 CLR 358, 370, 371. The Public / Private Divide 407
In the same vein, Starke J said:41 Has Hogan … any redress in a Court of law for such unauthorized act? It may be unlawful in the sense that it is void. But to give him a right of relief at law or in equity, Hogan must establish some breach of contract with him, or some interference with his proprietary rights or interests. As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club. Rich, Dixon, Evatt and McTiernan JJ went on to say:42 If the action be treated as a proceeding against the members of the central executive who failed to submit the respondent’s nomination for ballot, to establish a breach of contract it would be necessary for the respondent to show that the appellants, either by accepting office, or by adhering to the rules as members of the Party, engaged with him contractually as a member to perform their duties in relation to nomination in complete accordance with the rules. Neither of these interpretations of the rules appears to be warranted. Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction.” Their Honours’ conclusion that ‘[t]he policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment’43 might be said to beg the question whether the rules of the association do in truth confer ‘civil rights’ of which the Court will take cognizance. Forty years later, in McKinnon v Grogan44 (‘McKinnon’), Wooten J cast doubt on the continued validity of the domestic presumption in Cameron v Hogan, which dealt with ‘an area of human affairs which has changed and continues to change greatly in social significance’ (at 297). Wooten J said obiter at 297: Cameron v Hogan was forty years ago, and I suspect that in that period it has been more frequently distinguished or ignored than it has been applied, simply because its application in full rigour has been increasingly out of tune with the felt needs of the time. The High Court has not had occasion to reconsider it squarely, and I venture to suggest that when such an occasion does arise there will at least be some qualification of what was there said. With the greatest respect to the eminent and forward-looking judges who gave the decision, it has tended to justify judicial abdication from areas the orderly regulation of which has become of ever‑increasing importance. The resultant categorization in legal analysis of a great political party … with a group of friends agreeing to meet for a game of tennis, is simply inadequate.45
41 (1934) 51 CLR 358, 383, 384. 42 (1934) 51 CLR 358, 376. 43 (1934) 51 CLR 358, 378. 44 [1974] 1 NSWLR 295. 45 In New Zealand and England, views similar to those of Wooten J were expressed: Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159; Breen v Amalgamated Engineering Union [1971] 2 QB 175 per Lord Denning. 408 Queensland Legal Yearbook 2013
Two points may be made here. The first is that Wooten J explicitly recognised the problem as one concerning the role of the judicial arm of government in mediating what are literally power struggles which had previously been regarded of a private or domestic character. And secondly, His Honour reversed the presumption which had hitherto prevailed as to the private nature of such disputes for reasons which had no discernible legal, as opposed to sociological, basis. In Rendall-Short v Grier,46 Lucas J referred, rather caustically, to McKinnon as a case in which, though it purported to distinguish Cameron v Hogan, ‘the judgment does not appear to reveal any hint of the basis upon which this was done, except perhaps that it was a decision which was 40 years old.’ Lucas J himself distinguished Cameron v Hogan on the orthodox basis that the case before him involved a dispute as to title to property. In Baldwin v Everingham (‘Baldwin’),47 Dowsett J concluded that internal disputes of political parties were subject to judicial review in light of their recognition by the Commonwealth Parliament in the Commonwealth Electoral Act 1918 (Cth). Baldwin concerned a dispute between an executive of the Queensland Liberal Party and one of its members over party pre‑selection irregularities. It may be noted that, in Baldwin,48 Dowsett J agreed with what Wooten J had said in McKinnon, ‘as a matter of sentiment’; but Dowsett J said: On general principles, where an albeit voluntary association fulfils a substantial public function in our society, it may appear indefensible that questions of construction concerning its constitution should be beyond judicial resolution. It is one thing to say that a small, voluntary association with limited assets, existing solely to serve the personal needs of members should be treated as beyond such supervision; it is another thing to say that a major national organisation with substantial assets, playing a critical role in the determination of the affairs of the country should be so immune. Dowsett J went on to hold, however, that this ‘sentiment’ did not justify a refusal to follow Cameron v Hogan. The legitimacy of such a course was a matter for the High Court itself. Baldwin was later followed by the South Australian Supreme Court decision in Clarke v Australian Labor Party (SA Branch)49 (‘Clarke’). One commentator has suggested that the significance of Clarke is that it ‘may indicate a trend for courts to imply and uphold minimum standards of intra‑party democracy, particularly when this objective is espoused in the party’s constitution.’50 The notion that Clarke is to be understood as facilitating participatory democracy internally where participatory democracy is an objective of the association, is perhaps not very compelling. That individuals join together to pursue changes in society does not mean that they can be taken to intend that their internal demands of each other under the rules of the association should be regulated by the judicial arm of the State.
46 [1980] Qd R 100, 109. 47 [1993] 1 Qd R 10. 48 [1993] 1 Qd R 10, 17. 49 (1999) 74 SASR 109 per Mulligan J. 50 Gauja, ‘From Hogan to Hanson: The Regulation and Changing Legal Status of Australian Political Parties’ (2006) 17 Public Law Review 282, 296. The Public / Private Divide 409
Cameron v Hogan has, on occasion, been virtually ignored;51 but it has never been overruled. It was referred to in the High Court in Stevens v Keogh52 by Latham CJ and Williams J, but not by Starke, Dixon or McTiernan JJ, and Buckley v Tutty53 without disapproval; but also without much in the way of discussion, rather like an eccentric uncle at a wedding. In Buckley v Tutty54 there is a strong statement that, quite apart from whether the rules of a sporting club are accepted as intending to affect legal relations between the members, the liberty to engage in one’s trade or to seek employment has never been seen to be a matter of purely private concern. That liberty has been an abiding value in the common law. It was celebrated by Adam Smith’s comment in the ‘Wealth of Nations’:55 The property which every man has in his own labour as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbour, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper. This consideration offers a convincing basis for reconciling the High Court’s earlier decision in Macqueen v Frackelton56 with the decision in Cameron v Hogan. In Scandrett v Dowling57 decided in the Supreme Court of New South Wales in 1992 it was suggested that where church rules are embodied in legislation, an intention to create legal relations is to be inferred. Sonya Gorman, in her article ‘Legislative Recognition of Churches and the Implications for Judicial Review’,58 argued that the reasoning in Scandrett v Dowling is persuasive: By reproducing the rules of a domestic body, such as a church, in a public Act, Parliament is endorsing those rules with the authority of the State. Whether or not the church could have exercised those powers without the aid of legislation is irrelevant. Nor is it relevant that there are other private sources (such as the consensual compact) conferring powers on the church. Public and private powers may coexist. However, the supremacy of Parliament necessarily means that statutory powers have greater force than those powers conferred by the consensual compact. That force or ‘bindingness’, as Priestley JA described it in Scandrett v Dowling, comes from the fact that, by being enshrined in legislation, the powers assume a public character. Gorman noted, in light of this decision, that:59 it appears that the intention to make church rules contained in statute legally enforceable will only be inferred by the courts where a power contained in the rules of the church could not have been conferred without legislative intervention.
51 See, for example, Rush v WA Amateur Football League (Inc) (2007) 35 WAR 101 [37] per Pullin JA. 52 (1946) 72 CLR 1, 11, 34. 53 (1971) 125 CLR 353, 374–5. 54 (1971) 125 CLR 353, 380. 55 Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, 2nd ed, 1778, 151. 56 (1909) 8 CLR 673, 691, 724. 57 27 NSWLR 483. 58 (2002) 9 Australian Journal of Administrative Law 84, 98–9. 59 Gorman, ‘Legislative Recognition of Churches and the Implications for Judicial Review’ (2002) Australian Journal of Administrative Law 84, 94. 410 Queensland Legal Yearbook 2013
On this view, the availability of judicial review depends on whether the church power required statutory authorisation. It may be argued that the replication of the rules of an unincorporated association in legislation obviates the need for the court to be satisfied of an intention on the part of the members of the association to create legal relations between themselves because the legislature has put that issue beyond argument. But the fact remains that the ultimate source of their compulsive power is the private consensual compact of the members of the association. There must be some question as to whether an exercise of an internal power originating in a consensual compact, should attract judicial review as if it were an exercise of public power. And in any event, the reasoning in Scandrett v Dowling does not provide an answer to the problem where the association’s rules are not given legislative force. It is tempting to adopt the explanation of Wooten J in McKinnon for the isolation of Cameron v Hogan in terms of the realist perspective of Oliver Wendell Holmes. In 1881 Oliver Wendell Holmes in The Common Law60 famously spoke of ‘the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.’ The realist approach to judicial decision‑making became rather more respectable in Australia, particularly in the context of constitutional interpretation, by virtue of the judgment of Sir Victor Windeyer in Victoria v The Commonwealth.61 But the realist explanation was rejected by Dowsett J in Baldwin; and there was good reason for that rejection. If a decision of the High Court is taken to be superseded as a matter of ‘sentiment’, then it becomes difficult to sustain the understanding — to which I suspect many in this room subscribe — of the law as a more or less coherent intellectual system. The realist explanation has little attraction for those of us who work within the system and owe our first loyalty to the application of legal doctrine. In an essay written in 1998, John Langbein wrote of the ‘terrible toll that the realist movement has inflicted on doctrinal study in post‑Second World War USA.’62 Few of us would readily accept that we lawyers are not the masters in our own house, that the discipline which truly explains what we do is not jurisprudence, but sociology, psychology, economics or
60 Holmes, The Common Law, (1881) 5. 61 (1971) 122 CLR 353, 396–7: ‘I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers’ Case ((1920) 28 CLR 129) as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily acceptable. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly. As I see it the Engineers’ Case … looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there. That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so.’ 62 Langbein, ‘The Later History of Restitution’ in WR Cornish et al, Restitution Past, Present and Future: Essays in Honour of Gareth Jones (1998) 61. The Public / Private Divide 411 even anthropology. For largely the same reason, one is reluctant to accept that the answer to our problem must be a matter of instinctive and untutored impression rather than principled analysis. Cameron v Hogan, and its subsequent treatment, may help us to appreciate the usefulness of the concept of intention to create legal relations in functional terms. The concept functions as a judicially imposed filter on cases with which the judicial power of the State is thought by the judges to have no business.63 But the concept of intention to create legal relations is, in truth, of limited utility as a tool of analysis. Rather, it is an expression of the conclusion that the parties have chosen to found their association on the footing that none may invoke the judicial power of the State. The necessary analysis needs to identify the good reasons why citizens associate without dependence on the organs of the State, while at the same time recognising that the internal exercise of power may have ramifications which are unacceptable in terms of identified aspects of the public interest. Conclusion
As we have seen, the distinction between the public and the private is unstable; but it is this very instability which makes it such a dynamic force in the development of the law. The spectre of excessive judicial intervention in civil disputes raised by Bork and Scalia, and their concern that excessive litigation and litigiousness will have an adverse effect on the republican virtues of civility, self‑reliance and freedom of association should not cause the judiciary to close our doors to attempts to correct the abuses of power which adversely affect our community. The workings of the power relationships which operate within voluntary associations may (as the angry butchers of Bithynia remind us) have such consequences for the peace and welfare of the general community, or even for the members, ‘inter se’ of the association, that intervention by the judicial arm of the State in the internal affairs of those whose association is purely voluntary is justified. On the other hand, the free choice of individuals to associate with others on the footing that they will not be hauled into the courts deserves respect. The judicial arm of government provides the public option for the quelling of controversies; but, as the Honourable Murray Gleeson has observed, one should not assume that a judicial determination is the only worthwhile method of civil dispute resolution or conclude that only decision‑making of a judicial standard meets the requirements of those who have bargained for private arbitration. And finally, as the history of Cameron v Hogan and its aftermath shows, putting to one side cases involving the disposition of property, or the right to carry on one’s occupation, we still have some way to go to develop a principled analysis which might enable us to improve on Gallio’s intuitive response to questions of the words and names by which we choose to associate with each other.
63 In Rose and Frank Co v JR Crompton and Bros Ltd, Scrutton LJ was clear that an intention that an agreement should not give rise to legal relations is ‘readily implied’ in ‘social and family relations’ ([1923] 2 KB 261, 288). The Work of JPs and the New QCAT Scheme
by The Honourable Justice Alan Wilson*
Executive Summary
Justices of the Peace can trace the history of the office back for seven centuries, when they were firstly called ‘Keepers’ of the Peace. Even then, your forebears’ work rested on the proposition that decent members of the community, not themselves lawyers, should nevertheless administer justice and be vested with power to do so. Over the intervening centuries the role of Justice of the Peace has, it must be acknowledged, tended to diminish. The introduction of the QCAT JP Pilot Program involves a pleasing restoration of JPs to a more central and important part in the preservation of a peaceful society, by adjudicating and deciding large numbers of civil disputes which, while not involving great sums of money, nevertheless plays a vital role in the continuation and preservation of our generally calm, peaceful and ordered society. Introduction
Justices of the Peace are trained, respected members of our community who volunteer their time to carry out a wide range of administrative duties and, in some cases, exercise judicial functions. The office of Justice of the Peace is a State institution — indeed, JPs have a special responsibility to be active in their communities by engaging with the public and contributing to the administration of justice in Queensland. They are entrusted to take on these special responsibilities on a volunteer basis — they neither seek nor receive any payment in connection with the performance of the functions of office.1 JPs are decent, hardworking members of our community, and the role they play is of immense practical importance to the Queensland public. If there was ever a need for evidence of the great benefit of volunteers, one need look no further — JPs have set a very good example. The creation and development of the office of JP has been the outcome of political, social and economic conditions which prevailed at each stage in our history. In England, JPs, or Magistrates as they are more commonly known, perform an essential public service by dispensing justice within the criminal justice system, as well as hearing a range of non- criminal matters. This year, in Queensland, a trial is underway in which JPs have been asked to hear and determine some minor civil dispute matters in QCAT.
* Judge, Supreme Court of Queensland. President of the Queensland Civil and Administrative Tribunal (2009–13). This paper was presented at The Queensland Justices Association Annual State Conference, Bundaberg, 18 October 2013. 1 Justices of the Peace and Commissioners for Declaration Act 1991 (Qld) s 35.
412 The Work of JPs and the New QCAT Scheme 413
That trial has already proved highly successful and, with whatever freedom attaches to me as the outgoing President of QCAT, I venture to say that in my view it should continue, and it should grow. History
It is useful to put this new role in its historical context. The exercise reveals a pleasing restoration to JPs of powers and responsibilities with deep veins in our history. The office of Justice of the Peace, as it is now known, was conceived in England as early as the end of the twelfth century with the practice of appointing officers to preserve order during exceptional times of crisis.2 Prior to this, there was increasing dissatisfaction with the existing means of dealing with violence and lawlessness. This discontent was, perhaps, unsurprising — at that time, in the absence of any police force, the arrest of criminals depended largely upon a system founded before the Norman Conquest: All persons over the age of 12 were made mutually responsible for each other’s behaviour. They were formed into groups of 10 or 12 … and were required to take an oath … Under this oath they undertook that if one of their group was suspected of having committed an offence the rest would produce him in court. If he fled, they must raise the hue and cry and capture him, under pain of a fine.3 The obvious shortcomings of this system called for new methods of restoring and maintaining order during the successive periods of turbulence which occurred throughout England during the reigns of Richard I, John and Henry III. It was not until nearly two centuries later, with a series of statutes in the reign of Edward III, that these peace keepers were called ‘Justices of the Peace’. Even now, Justices of the Peace may exercise many more weighty powers than what is currently associated with the role — they do not just witness the signing of official documents. That being said, their witnessing function is a duty which should not be taken lightly. The documents JPs attest have more weight than a document witnessed by someone without any official position; they are documents of immediate interest and relevance to each of our lives, including for example: oaths and affirmations, affidavits, wills and enduring powers of attorney, and land title documents. The added functions of office are not dissimilar to those of a quasi-judicial officer. JPs are able to perform certain bench duties as well as non-bench judicial duties, such as the issue of search warrants,4 the remand of defendants, the adjournment of a court and other procedural actions. In particular circumstances, two or more JPs together have the power to constitute a Magistrates Court to hear and determine a charge of a simple offence or a regulatory offence in a case where the defendant pleads guilty.5 I mention your office in historical terms not to remind you, yet again, of the many centuries of achievement which attach to the position but, rather, to show how the JP Pilot Program achieves a number of important things that might be seen as restorative:
2 Sir Thomas Skyrme, History of the Justices of the Peace (Barry Rose and the Justice of the Peace Chichester, 1991) Vol 1, xix. 3 Ibid 2. 4 Police Powers and Responsibilities Act 2000 (Qld) s 150. 5 Justices of the Peace and Commissioners for Declaration Act 1991 (Qld) s 29(4). 414 Queensland Legal Yearbook 2013
(a) The better use of the talents of Justices of the Peace. (b) Reinvigorating the use of non-lawyers as persons who can, and should, have an important role to play in the legal dispute resolution system in our society. (c) Restoring, to JPs, a more active, rewarding and challenging role than they have held in this State in recent times, and one which is closer to the role they continue to fulfil in the United Kingdom. JPs in Queensland, pre-QCAT
The most recent edition of a brochure published by the Department of Justice and Attorney- General called The Duties of Justices of the Peace (Qualified) says that ‘… your main role is to witness the signing of official documents’. That is certainly true but you will know, if only from a paper given to this conference at Cleveland in 2009 by my brother the Honourable Justice Peter Applegarth of the Supreme Court of Queensland, that in the early days of the Queensland Colony and, indeed, since the first penal colony was established in 1824, Justices of the Peace had a much more important role. The first JP, Captain Wickham, eventually became Chairman of Magistrates. One early Justice of the Peace, Sir Samuel Griffith, had an even more stellar career: he went on to become Attorney-General, then Premier of Queensland, then Chief Justice of this State and ultimately, the first Chief Justice of the High Court of Australia. He played a major role in drafting the Australian Constitution, and he left us with one of the great criminal codes of the world. In the twentieth century however, the role of JPs shrank somewhat so that by the end of the second millennium JPs spent most of their time authorising documents for the ease of commerce.6 There was scarce training for the position. Some steps were taken towards a remedy with the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) but it cannot be said that instruction and training for JPs was optimal. There were problems, e.g. when JPs swore up complaints and summonses.7 Even the records of information about JPs themselves have fallen into some disarray. I note that a document published by the QJA says there are ‘over 90 000 JPs and C.Decs’ in Queensland. An early media release from the Attorney-General’s office about the JP Pilot spoke of 84 000. When the pilot was first mooted in the middle of last year I was told by the Department that there were 34 000. Later, that jumped to 65 000 and the last figure was 91 000. On any view, it is time some resources were devoted to accurate and effective record keeping for JPs, and I am pleased to learn that some savings we made in QCAT in the initial tranche of the JP Pilot — an impressive $350 000 — may be diverted to the JP Branch for purposes like that. That is not to say that the work of witnessing documents and swearing up complaints and the like is not important. As a decision in the Magistrates Court last year shows,8 complaints made under the Justices Act 1886 (Qld) can involve important and complex issues requiring the proper exercise of a discretion on the part of a JP, and you must take great care and pains to get those things right. The Oath of Office of a QCAT Justice of the Peace is, essentially, the same oath taken by all QCAT Senior Members, Members and Adjudicators and, indeed, is very close to the Oath
6 Keith Tronc, Powers and duties of lay Justices of the Peace in Queensland (Law Book Co, 8th ed, 1994) 9. 7 See Bell & Anor v Unimin Australia Pty Ltd (No 3) [2012] QMC 16. 8 Ibid. The Work of JPs and the New QCAT Scheme 415 of Office taken by Judges of the Supreme and District Courts, and Magistrates. It reflects the fact that Justices of the Peace in the QCAT pilot program have assumed the judicial role. The JP pilot in QCAT also restores, to Justices, something like the powers you had so long ago under the Justices of the Peace Act 1361. That Act involved the completely novel proposition for those days and, indeed, still to this day to many people from other countries, that decent members of the community who are not themselves lawyers should administer justice and be vested with power to do so.9 In the United Kingdom, Magistrates have existed for more than 650 years and even today about 26 000 volunteers serve as Magistrates there. The term ‘Magistrate’ in the UK really means Justice of the Peace. I expect you have some professional contact with the UK Magistrates Group, The Magistrates Association, based in London. It is plainly an active and lively organisation which continues to play both an important and a pivotal role in the dispensation of justice throughout England.10 There is now a nice symmetry between what that association does and what your association has been, and will be doing in the future. The JP Pilot Program
The Queensland Government has committed $1.6 million over two years for a trial to expand the role of JPs in five trial sites — Brisbane, Ipswich, Maroochydore, Southport and Townsville. The announced purpose of the trial is to reduce the burden on the Court and Tribunal system, and to improve access to justice for Queenslanders. QCAT has been central in the role of setting up the program, training JPs, and instituting it. Sittings of JPs began on 3 June 2013. Two JPs sit together to hear minor civil disputes in QCAT involving sums below $5000, excluding urgent residential tenancy matters. One member of the JP Panel must be legally qualified. The trial will operate until 30 November 2013 following which a decision will be made to retain, expand or cease the program. As the outgoing President of QCAT I do not think there is anything improper in my expressing views about it. To my perception, it has gone extremely well. I have some personal experience and information which informs that view: I see appeals and statistics about appeals to the QCAT internal Appeals Tribunal and, also, all complaints about Members, Adjudicators and JPs. After almost five months, the level of appeals is pleasingly small and, proportionately, about equal to the level of appeals from QCAT Adjudicators who hear and determine minor civil disputes in Southeast Queensland, and Magistrates in the rest of the State who continue to do that work. The level of complaints is also, pleasingly, small and manageable. The program is being evaluated by Criminal Justice Research officers, in the Department of Premier and Cabinet, and they are presently compiling a mid-trial evaluation. There will be an end-of-trial evaluation early in 2014. The objectives of the trial are to reduce the average time taken to finalise minor civil disputes and improve clearance rates in the Tribunal; reduce the cost of hearings; free up QCAT Adjudicators and Magistrates to deal with other matters; and, ‘… recognise the substantial voluntary contribution of JPs to the community and provide opportunities to improve, develop and expand their role’. This is part of a commitment made by the State
9 Lord Chief Justice of England and Wales, ‘Summary Justice in and out of Court’ (Speech delivered at The Police Foundation’s John Harris Memorial Lecture, London, 7 July 2011) 1–2. 10 Magistrates Association, Active, Accessible, Engage — The Magistracy in the 21st Century (May 2012). 416 Queensland Legal Yearbook 2013 government to improve the administration of Queensland’s justice system, and the provision of frontline justice services for Queenslanders. It is useful to place this new work in context. When QCAT started, permanent QCAT Adjudicators were appointed in Southeast Queensland in Brisbane, and Southport. They took over the role of hearing and determining these proceedings from the Small Claims Tribunal, which had operated as part of the Magistrates Court and in which only Magistrates sat. Outside Southeast Queensland, Magistrates have continued to do this work. It is not improper to say that this has created some tensions within the Magistracy. The work is demanding and often unpleasant, and the City Magistrates, freed from this work, are the subject of some envy from their country cousins. When QCAT began, only one of its permanent Adjudicators in Southeast Queensland had any experience in the Small Claims Tribunal. There was, also, a very important difference between what had been required of Magistrates in the Small Claims Tribunal, and what the QCAT Act required of Adjudicators sitting in the same jurisdiction — Magistrates did not have to give reasons for their decisions and there was, in effect, no appeal process. The major difference was that under the QCAT Act all QCAT Adjudicators (and Magistrates sitting outside Southeast Queensland in minor civil disputes) must give reasons for their decisions, which are understood by the parties. Secondly, unlike every other state ‘super’ tribunal, QCAT has an internal Appeals Tribunal whereby parties dissatisfied with the decisions of Adjudicators or Magistrates can seek leave to appeal their decisions to the QCAT Appeal Tribunal — constituted, primarily, by sitting Judges, retired Judges or QCAT Senior Members. Obviously the new QCAT Adjudicators faced a great challenge. Inexperienced in the jurisdiction, unfamiliar with the work of Judges in giving reasons for their decisions, and subject to appeal they nevertheless had to deal with some 16 000 applications each year, and dispense justice to the landlords, tenants, traders and consumers of Queensland. They have done a remarkable job. I have watched them, over the past four years, develop very high levels of competence at hearing sometimes as many as 20 matters in a day, giving every party a fair hearing and the opportunity to present their case and evidence and, then, at the end of the hearing immediately giving reasons for the decision which make the necessary factual findings, identify the legal principles involved, and apply the law to those facts. Part of that facility is, of course, to be able to explain to the parties why one has lost, and one won in terms which they understand — and, importantly, accept. Again, the Adjudicators have done a remarkable job. I have seen many applications for leave to appeal over the past four years — now, number in the thousands — and I have written over 700 decisions in appeal cases in QCAT. The appeal rate is, actually, extremely low — about 0.7%. The successful appeal rate is miniscule. Overall, it is very clear that the Adjudicators have mastered their job and are dispensing good, fair justice to Queensland in circumstances where they work under great pressure. To my perception the 30 or so legally qualified JPs, and 80 non-legally qualified JPs who are now doing this work in the centres I mentioned (Townsville took a little time to come on board, but started about a fortnight ago) have shown similar talent and aptitude for the work. They are doing an excellent job. All of this did not happen, of course, by magic. QCAT was actively involved in the selection process and then developed and presented training programs, each of a weeks duration, to persons who wished to sign up for the position. The course was hard, but interesting. Not everybody passed, and not everybody who did the course was recommended for appointment. Naturally, there have been some disappointments. The Work of JPs and the New QCAT Scheme 417
The QCAT premises at 259 Queen Street, Brisbane hold over 200 Members and staff but it is still a relatively small family and I have constant interaction with the JPs who are coming in and sitting in our hearing rooms there. That has, also, been a very pleasant experience. I have been deeply impressed by the enthusiasm and interest all the new JPs have shown. Discussions with them over the last few months remind me of conversations I had with QCAT’s new Adjudicators when we began in late 2009, and early 2010. Each has already built up a fund of war stories and is exhibiting the excitement and interest we all show when we come to a new, and challenging task. The test is, of course, to see whether JPs working in the Pilot can maintain that level of interest, and enthusiasm. Plainly, as a group they bring to QCAT’s work that diversity of life experience which the present government recognised when it moved to set up the Pilot. As I hope to have shown, that recognition has sound historical roots which continue up to the present day — JPs have been doing this work in the United Kingdom, in one way or another, for almost 700 years and that, it might be thought, is sufficient time to confirm that the business of keeping the peace in the wide and diverse range of legal disputes society throws up can be effectively and efficiently undertaken by legal and non-legal Justices of the Peace who, if only by the fact that they have agreed to take on that role, have already signified their plain intention to accept and to undertake an important role in our society. There are some aspects of the trial which hold continuing interest, besides the success of the sitting JPs. The first is whether it offers the opportunity for QCAT, which only has premises in Brisbane, to spread through a network of JPs in regional Queensland. The second is remuneration which, I think, may become something of a lively topic. The third is the monetary limit upon the JPs’ jurisdiction. The fourth is the most effective use of the non- legally qualified JP: if they have no vote in the final decision is there, for example, scope for training them as mediators to work hand in hand with the legally qualified JP to assist in settling cases as they linger at the door of the hearing room? I am proud of what QCAT has achieved. The Tribunal plays a vital role in keeping the peace in our society by providing quick, inexpensive dispute resolution and restoring harmony when our citizens fall out with each other. There is, I think, a pleasing symmetry in the fact that JPs, the original ‘keepers’ of the peace, have again been given an active part to play in that important work.