Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia
| DOI | 10.1177/0067205X20906031 |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Author | Pamela Stewart,Anita Stuhmcke |
| Subject Matter | Articles |
Federal Law Review
2020, Vol. 48(2) 186–213
Open Justice, Efficient Justice
ª The Author(s) 2020
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DOI: 10.1177/0067205X20906031
Increasing Invisibility of Special
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Leave to Appeal Applications
in the High Court of Australia
Pamela Stewart* and Anita Stuhmcke**
Abstract
This article examines the application of the rule of law to special leave to appeal applications
(‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an
administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the
Court. As an exercise of judicial power, SLA determinations have significant impact upon the
parties to litigation and the development of substantive law. Presenting the findings of data analysis
of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss
of publicly available information brought about by changes to the High Court Rules in 2016. Using
this evidence, we argue that the current administration of SLAs preferences efficiency to the
detriment of public confidence in the administration of justice. We suggest facilitating the rule of
law through publication of the written submissions for SLAs.
I Introduction
This article argues for increased transparency in the determination of special leave to appeal
applications1 (SLAs) in the High Court of Australia. Referencing the rule of law principles
of open justice and efficient justice, we suggest that the current administration of SLAs
1. The focus of this article is upon special leave to appeal applications (‘SLAs’) rather than leave to appeal. The latter are
rare as such appeals concern judgments of Justices exercising the High Court’s original jurisdiction.
* Senior Lecturer in Law, University of Technology Sydney (UTS), New South Wales, Australia. The author may be
contacted at pam.stewart@uts.edu.au.
** Professor of Law, UTS Sydney, New South Wales, Australia. The author may be contacted at anita.stuhmcke@uts.edu.au.
We thank Professor James Brown, ABS Professor of Official Statistics, Dr Adel Rahmani and Dr Tapan Rai, all of UTS for
their interest; data scientists Passiona Cottee and Rory Angus for data analysis; Ellen O’Brien for research assistance; and
the anonymous reviewers for helpful suggestions. We thank the High Court for cooperation with this study in the provision
of electronic data from its annual reports. Any errors are our own.
Stewart and Stuhmcke
187
preferences efficiency to the detriment of public confidence in the administration of
justice.2
SLAs are a fusion of administrative and judicial functions. Administratively, the High Court
utilises the process of special leave to control its own workload.3 It selects the cases it will hear on
appeal in accordance with the public interest test in s 35A Judiciary Act 1903 (Cth). As the grant or
refusal of special leave is an ‘unfettered discretion’,4 written reasons are not given and determina-
tions may be made by a panel of any two Justices. This is efficient justice. SLAs are also an
exercise of Commonwealth Constitutional judicial power. Determinations of special leave affect
both the rights of parties and the development of substantive law, allowing the High Court to select
and determine which questions of law require judicial consideration. The outcomes of SLAs are
disseminated in the High Court Annual Reports, in published Special Leave Dispositions and in the
transcripts of SLAs heard orally. Parties’ written submissions for final appeal hearings (though not
SLAs) are publicly available on the High Court website. This is open justice.
We make the case for increased transparency in the determination of SLAs, firstly, by engaging
with the rule of law and the open justice jurisprudence of the High Court and, secondly, by
examining the exceptionalism of SLAs. Tension between efficient justice and open justice, both
of which are critical to the rule of law,5 is resolved by the express jurisprudential preference of the
High Court for efficiency in determining SLAs. Utilising the results of a data study of High Court
SLAs from 2013 to 2015, we demonstrate the reduction in publicly available information about
SLAs as a result of the High Court Rule changes in 2016 governing the filing and determination
of SLAs and leave to appeal applications.6 These changes to pt 41 of the High Court Rules 2004
(Cth)7 reflect the practical necessity to control the ever increasing volume of work funnelled to the
High Court8 through streamlining procedures and reducing9 oral hearings of SLAs.10 Finally,
2. Note the difference here between administration and the administration of justice. The former is an administrative
function and the latter is a judicial function: Hon Justice Kiefel, ‘Judicial Independence’ (Conference Paper, North
Queensland Law Association, 30 May 2008) 3.
3. The number of substantive appeals the Court hears annually is around 80: David O’Brien, Special Leave to Appeal
(Supreme Court of Queensland Library, 2nd ed, 2007) 233. This number is confirmed by this study. Of the 783 SLAs,
80 or 10% were granted and 703 or 90% refused (see Part V). This is not unique to the High Court: see Roy B
Flemming, Tournament of Appeals: Granting Judicial Review in Canada (UBC Press, 2004) for the discussion of the
Canadian Supreme Court and 102–4 for a brief overview of other international courts.
4. Ian Callinan, ‘An Over-Mighty Court’ in Upholding the Australian Constitution (Proceedings of the Fourth Conference
of the Samuel Griffith Society, 1994) 81–113.
5. Hon Wayne Martin AC, ‘Court Administrators and the Judiciary—Partners in the Delivery of Justice’ (2014) 6(2)
International Journal for Court Administration 3.
6. Andrew Phelan, ‘Changes to High Court Procedures for Considering Applications for Special Leave’, Chief Executive
and Principal Registrar of the High Court of Australia,
Measures No 2) Rules 2016 (Cth).
7. Section 21(1) of the Judiciary Act 1903 (Cth) provides that special leave will be determined subject to the Rules.
8. This necessity is not new. Almost 60 years ago, Justice McClemens noted that ‘for purely pragmatic reasons some
thought may have to be given in the future to some form of limitation of appeals to the High Court from State courts’,
Justice McClemens, ‘Judicial Problems in a Growing State’ (1960) 3(2) Sydney Law Review 221, 232.
9. A new form (Form 23) now consolidates the draft Notice of Appeal and the Summary of argument/written case into a
single form for both leave to appeal and special leave to appeal.
10. High Court Rules 2004 (Cth) r 44.08.2 and the new form (Form 27F) which states the outline of oral submissions. The
High Court may now grant leave without an oral hearing, see Michael Pelly, ‘High Court Decides Leave Applications
on Paper’, The Australian (Sydney, 22 July 2016).
188
Federal Law Review 48(2)
acknowledging limited Court resources, we suggest enhancing the rule of law through making
publicly available all SLA submissions by parties (subject to any Court-imposed restrictions) to
redress the growing imbalance between efficient justice and open justice.
This article makes three important contributions. First, the findings provide empirical evidence
of the machinery of the SLA process. It is the first study to collate, synthesise and analyse data to
highlight the impact of the 2016 rule changes with respect to the manner in which applications are
managed and determined by the High Court.11 Second, consideration of jurisprudence and liter-
ature concerning the rule of law and open justice demonstrates the link between the administrative
role of the court and the complexity of the judicial role, whereas previous empirical work using
quantitative material alone has been criticised for its measurement of performance,12 reflections on
the quality of the work of justices or explanation of judicial efficiency.13 Instead, our analysis
supplements qualitative evaluation14 by raising awareness as to the manner the Court undertakes
its work. Third, we extend commentary on the adequacy of Court resourcing15 and the need for
public confidence and transparency of Court processes16 with respect to the loss of publicly
available information through the 2016 rule changes. We suggest that while the movement towards
paper only determinations is not itself problematic, the loss of publicly available information is. In
summary, the value of our analysis is to open for scrutiny the type or kind of work the Court is
being asked to do through SLAs and the way in which it seeks to manage that work.
II The High Court of Australia: The Rule of Law, Open Justice
and the Open Court Rule
The rule of law—that all members of a society are equally subject to publicly available legal codes
and processes17—is an overarching principle of the Australian democratic system of govern-
ment.18 The rule of law opposes the exercise of arbitrary power. In Albert Venn Dicey’s oft-
cited formulation, the rule of law ‘excludes the existence of arbitrariness, of prerogative, or even of
wide discretionary authority on the part of the government’.19 This exclusion of arbitrary power is
11. This article complements other published findings of this study as to the substance of SLAs, including parties, legal
representation, nature of cases, main...
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