A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001
| Author | Russell Smyth,Matthew Groves |
| DOI | 10.22145/flr.32.2.4 |
| Published date | 01 June 2004 |
| Date | 01 June 2004 |
| Subject Matter | Article |
IN JUDGMENT WRITING ON THE HIGH COURT 1903–2001
Matthew Groves∗ and Russell Smyth#
INTRODUCTION
In a recent issue of the Australian Law Journal Enid Campbell argued that both the
length of High Court judgments and the number of multiple separate High Court
judgments has increased and that this is counterproductive.1 This view echoes similar
concerns expressed by some judges2 and others in the profession.3 This argument is
based on several assumptions about the High Court that are widely held among
lawyers, but which have not been subject to any detailed empirical research.4 Those
assumptions are:
(a) High Court judgments have become significantly longer in recent times.
(b) There is an increase in the number of concurring judgments on the High Court.
(c) There is an increase in the number of dissenting judgments on the High Court.
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∗ BA LLB (Hons) PhD (Monash), Lecturer, Faculty of Law, Monash University.
# BEc (Hons) LLB (Hons) MEc (Monash), PhD (London), Professor, Department of
Economics, Faculty of Business & Economics, Monash University. The authors are grateful
to Enid Campbell and an anonymous referee for helpful comments on this article.
1 Enid Campbell, 'Reasons for Judgment: Some Consumer Perspectives' (2003) 77 Australian
Law Journal 62.
2
Justice Brian Beaumont, 'Contemporary Judgment Writing: The Problem Restated' (1999) 73
Australian Law Journal 743; Chief Justice John Doyle, 'Judgment Writing: Are There Needs
for Change?' (1999) 73 Australian Law Journal 737. The current Chief Justice of the High
Court recently remarked '[a]s for style in judgment writing, this is a subject worthy of a
paper of its own. By saying nothing about it on this occasion, I hope to set an example of
judicial restraint': Chief Justice Murray Gleeson, 'The Centenary of the High Court: Lessons
From History' (Speech delivered at the Thirteenth AIJA Oration in Judicial Administration,
The Banco Court, Supreme Court of Victoria, Melbourne, Friday 3 October 2003) 11.
3 See Graeme Orr, 'Verbosity and Richness: Current Trends in the Craft of the High Court'
(1998) 6 Torts Law Journal 291.
4 Recently some attempt has been made to document trends in judgment writing over a
limited specified period. For example, for a recent study which offers statistics for the
Gleeson Court see Andrew Lynch, 'The Gleeson Court on Constitutional Law: An
Empirical Analysis Of Its First Five Years' (2003) 26 University of New South Wales Law
Journal 32. However, there are no studies which document trends in judgment writing over
the history of the Court.
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This article attempts to test these assumptions using hard data. To do this, we analyse
trends in High Court judgments using data on all cases reported in the Commonwealth
Law Reports over the period 1903–2001. We present findings on trends in the length of
High Court judgments and the proportion of joint, concurring and dissenting
judgments over this period. We also present statistics on the judgment length and the
number of joint, concurring and dissenting judgments authored by each Justice.
In addition to testing speculation about recent trends in judgment writing on the
High Court, an empirical exercise such as this may assist in appreciating the way in
which the work of the Court is performed and the complexity of the legal controversies
which it faces.5 It can also provide insights into how judicial reasoning and the Court
as a policy-making institution have evolved over time. As Lawrence Friedman and his
colleagues explained:
The style of opinions is as good an indicator as we have of what counts as sound legal
reasoning for any given era. … Moreover, a more policy-oriented conception of the
judicial role arguably could be reflected in another 'objective' facet of appellate opinions
— a higher incidence of dissenting and separate concurring opinions.6
At the level of individual Justices, statistics on differences in concurrences and dissents
could reflect differences in ideology or methodology between Justices which, once
documented, deserve further discussion and scrutiny by legal commentators.7
DATA AND METHODOLOGY
We use data on all High Court cases in which there were panels of at least three
Justices reported in the Commonwealth Law Reports decided between 1903 and 2001.
This time period covers all cases reported in the first 205 volumes of the Commonwealth
Law Reports. We focus on cases in the Commonwealth Law Reports for two reasons. First,
the Commonwealth Law Reports are the authorised reports of the High Court. Secondly,
the Commonwealth Law Reports span the whole history of the Court and, therefore,
provide a continuous source of data.
The data were collected through reading and recording the outcome of each case.
While strictly speaking a judgment refers to the final orders of the Court, we use the
term to refer to the reasons for Justices' opinions on what the final orders of the Court
should be. The judgments in each case were classified into one of four categories: (a)
joint judgments; (b) concurring judgments; (c) short concurring judgments; and (d)
dissenting judgments. In adopting this approach we use these terms in a manner
consistent with the recent literature on measuring (dis)agreement on the High Court,
particularly the methodology suggested by Andrew Lynch.8 We classified a judgment
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5 Ibid. See also Jean Louis Goutal, 'Characteristics of Judicial Style in France, Britain and the
USA' (1976) 24 American Journal of Comparative Law 43.
6 Lawrence Friedman et al, 'State Supreme Courts: A Century of Style and Citation' (1981) 33
Stanford Law Review 773, 773-4.
7 Lynch, 'The Gleeson Court on Constitutional Law', above n 4. See also Andrew Lynch,
'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia'
(2003) 27 Melbourne University Law Review 724.
8
See Andrew Lynch, 'Dissent: Towards a Methodology for Measuring Judicial Disagreement
in the High Court of Australia' (2002) 24 Sydney Law Review 470. See also Lynch, 'The
Gleeson Court on Constitutional Law', above n 4; Michael Coper, 'Concurring Judgments'
in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the
2004
Changing Patterns in Judgment Writing on the High Court 1903–2001 257
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as a joint judgment if it was delivered by two or more Justices who were in the
majority, based on the orders of the Court. We divided single or separate judgments
into categories (b), (c) and (d).
We classified a separate judgment as a concurring judgment if the Justice agreed
with the reasons of the majority expressed in the orders of the Court, but did not agree
with the reasons for reaching that conclusion. We distinguished between 'concurring
judgments' and 'short concurring judgments' to take account of short concurring
judgments of the form 'I agree', which have been popular at some points in the Court's
past. Michael Coper suggests that judgments of the form 'I agree' are 'no different in
substance from being a party to a joint judgment, although care must be taken to leave
no doubt about what it is with which the Justice agrees'.9 Because of the potential for
confusion Lynch suggests that such judgments be treated separately to joint
judgments.10 While we agree with this observation we do not think that short
judgments of the form 'I agree' should be bundled with longer concurring judgments
either. If the concurring judgment was less than one quarter of a page we classified it
as a 'short concurring judgment'. We have, therefore, adopted an arbitrary cut-off mark
to attempt to capture the character of decisions that we believe can be rightly regarded
as a 'short concurring judgment'.
A judgment was classified as dissenting if the Justice disagreed with the result
proposed by the majority expressed in the orders of the Court. On this view, a dissent
may occur for several reasons. The dissenting Justice may differ with the majority on
the applicable law, or its interpretation, or some aspect of the facts of the case, or a
mixture of fact and law. In most cases determining whether a judgment is in dissent is
relatively straightforward. Lynch suggests that, in a small minority of cases, there are
shifting majority opinions within one case, and that the researcher must make choices
in identifying whether a judgment is in dissent.11 Where there are multiple issues in
the case, one option would be to record a dissent if Justice X dissented on any issue.
This approach, though, tends to exaggerate the level of dissent if Justice X agreed in the
orders and the substance of the reasoning adopted by the majority for the other issues
in the case. Therefore, in such cases we made a judgment call on which was the most
important issue or issues before the Court and recorded whether Justice X dissented on
this issue or issues.
Finally, we should explain the sense in which we use the term 'judgment'. Although
we examined entire...
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