“It is Trite and Ancient Law”: The High Court and the Use of the Obvious
| Author | Richard Haigh |
| DOI | 10.1177/0067205X9102000104 |
| Published date | 01 March 1991 |
| Date | 01 March 1991 |
| Subject Matter | Article |
"IT IS TRITE
AND
ANCIENT LAW": THE
HIGH
COURT
AND
THE USE
OF
THE OBVIOUS
RichardHaigh-
INTRODUCTION
To
be
trite is to be
worn
out
by
constant use
or
repetition,
or
to be hackneyed
or
commonplace.1The
word
IItrite
II
is derived from the Latin
word
terere
meaning
essentially
lito
rub". Thus, the
word
has physical associations, as
if
atrite
remark
actually erases its
own
origins because they are of
no
use
anymore. Obviously
the
more
used
something is, the
more
trite
it
becomes,
or
so one
would
expect. There is
even
abuilt-in pejorative connotation, as to overuse aphrase,
or
resort to trite
propositions can,
in
some cases,
II
rub
II
the listener the
wrong
way.
Since the
very
humble
beginnings of the
common
law
courts, judges
have
identified
law
that
is trite.
In
the 15
th
century, Chief Justice Brian,
in
acase
known
only as T
Pasch's case, said,
in
words
that
have
since
rung
down
the centuries:
Moreover
...
your
having
it
in
your
own
mind
is
nothing,
for
it
is trite
law
that
the
thought
of
man
is
not
triable, for
even
the
devil
does
not
know
what
the
thought
of
man
is.2
As the
common
law
continues to grow,
and
as ever more judicial decisions
are
available
in
both
reported
and
unreported
form, this
use
of triteness as alegal principle
will
no
doubt
continue unabated. But
what
is it? Where can
one
go to determine
what
the state of trite
law
is?
On
its own, the
phrase
may
constitute aform of legal
knowledge,
but
without
more rigorous analysis of
what
it
means,
when
it
is used,
and
what
it
stands
for, little of
that
knowledge
can
be
passed
down
through
generations.
This
paper
attempts to redress this failing
in
part.
It
provides
an
overview of
the
High
Court's
use
of the
phrase
as afirst
step
in
gaining
understanding
in
this little
known
area
of law,
by
examining the uses of "trite"
and
"trite law" since the 1947
High
Court
decision of Nelungaloo Pty Ltd vThe Commonwealth.3
It
then
attempts to
peer
into
•
1
2
3
Senior
Lecturer, School
of
Law,
Deakin
University. I
am
indebted
to
an
old
friend,
Graham
Law,
who
first
thought
of
the
idea
for
this
paper
when
we
were
classmates
in
law
school.
Thanks
also
to
Lona
Nallengara
who
did
some
of
the
research,
and
to
Charlotte
Davis
and
Myint
Zan,
who
commented
on
draft
versions
of
the
paper.
Shorter Oxford English Dictionary
(3
rd
ed
1975).
(1478)
17
Edw.
IV, Yearbooks,
2.
This citation is
actually
taken
from
,a
decision
by
Lord
Blackburn
in
Brogden
vMetropolitan Railway
Co
(1877) 2
App
Cas
666
at
692. I
have
been
unable
to
locate
the
original
case.
(1948) 75 CLR 495.
The
first
High
Court
case
in
which
"trite"
has
been
found
is
Federal
Commissioner
of
Taxation vAustralian
Tesselated
Tile
Co
(1925) 36 CLR 119.
However,
as
the
88
Federal
Lmv
Review
Volume
28
the
deeper
meanings
of triteness, looking
at
its place in
the
common
law
system
of
justice.
The
paper
concludes
with
a
hopeful
glance
towards
the
future
of trite law in
Australia.4
"TRITE"
IN
THE HIGH COURT
Facts
and
figures
Since 19475the
High
Court
has
employed
the
word
"trite" in
aid
of legal
doctrine
74
times.6
On
31,
or
41.9
per
cent
of
these occasions,
the
word
was
used
on
its
own;
35
times,
or
47.3
per
cent,
it
was
used
in
the
phrase
"trite law";?
and
in 8instances,
or
10.8
per
cent,
it
was
drawn
from
another
source as a
quote
(see Table 1). In all
but
two
instances, the
term
was
clearly
meant
to
apply
to alegal principle
or
doctrine.s
This is
higher
than
in
some
other
common
law
countries.
During
the
period
from
19-1:7
to
date,
the
High
Court
rendered
approximately
3600
published
decisions, so trite
5
7
Austlii
High
Court
database
begins
in
1947, this
discussion
is
restricted
to cases
from
this
date
onwards.
No
paper
of
this
type
would
be
complete
without
acknowledging
the
vast
changes
wrought
by
computers
and
electronic
search
tools
in
the
field
of
legal
scholarship.
Without
the
ability
to
search
for specific
phrases
in
the
thousands
of
High
Court
cases
decided
since
1947,
it
would
probably
have
been
both
soul
destroying
and
mind-numbingly
tedious
to
track
down
all
the
references
to
trite law. But
there
is
caution
in
every
tale,
and
it
should
be
noted
that,
whereas
electronic
searching
is
unmatched
for
this
kind
of
precise
word
or
phrase
searching,
it
can
be
much
less effective for
conceptually-based
research,
where
arguments
for
the
superiority
of
paper-based
researching
are
still
strong.
For
more
on
this
debate
see
E
Katsh,
Law
in aDigital World (1994)
and
R
Haigh,
"What
Shall
I
Wear
to
the
Computer
Revolution:
Some
Thoughts
on
Electronic
Researching
in
Law"
(1997) 89
Law
Libran) Journal 245.
The
Austlii
database
is
stated
to
include
full text
High
Court
judgments
from
1947
onwards.
In
searching
the
database
for this
paper,
two
full
text
cases
from
1925
were
obtained
which
contained
"trite", Pirrie vMcFarlane (1925) 36
CLR
170
and
Federal
Commissioner
of
Taxation vAustralian Tesselated Tile
Co
(1925)
36
CLR
119.
These
two
cases
have
not
been
included
in
the
total.
Queries
to Austlii
as
to this
anomaly
resulted
in
its
acknowledgment
that
some
stray
pre-1947
cases
may
be
found
on
the
database.
The
Austlii
database
returned
69
uses
of
"trite"
since
1947.
The
same
search
on
the
Lexis
Australian
caselaw
database
returned
an
additional
5
cases
for atotal
of
74.
This
discrepancy
is
another
instructive
example
of
the
fallibility
of
computer
databases.
This
is a
strict
reading-to
qualify,
the
word
"trite"
has
to
modify
law
or
a
distinct
body
of
law,
so
that
it
ultimately
formsa
corpus
of
law
characterised
as
"trite law".
For
example,
in
Cunliffe v
COmtrlOn1J'ealth
(1994)
182
CLR 272
at
315, BrelUlan J
stated
"All
of
this is
established,
if
not
trite,
constitutional
law."
Here
"trite" is
modifying
"constitutional
law",
so
it
qualifies
as
an
instance
of
the
body
of
law
known
as
trite
law.
Similarly
in
Thompson v
The
Queen (1989) 169 CLR 1
at
19,
Brennan
J
said
"it is trite
and
ancient
la\'/...
".
In this
case,
his
Honour
was
referring
again
to
that
specific
corpus
of
law
known
as
trite
law.
The
two
occurrences,
where
the
use
of
"trite" is
arguably
meant
non-legally
or
as
a
form
of
colloquial
speech,
rather
than
a
particularly
legal
usage,
are
in Bartter's
Farms
Pty Ltd vTodd
(1978) 139 CLR 499
at
510
per
Gibbs
J:
"It is trite to
say
that
the
deceptively
simple
words
of
s
92
conceal
many
difficulties..."
and
in
CommiSSIoner for Railways (NSI
V)
vAndersoll (1961)
105
CLR
42
at
55
per
Fullagar
J:
"A trite
example
is
that
of
an
invitee
who
walks
up
a
garden
path
in
daylight.
..
".
Even
in
these
examples,
however,
there
is a
definite
link
to a
legal
proposition.
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