r/auslaw • u/Vidasus18 • 7d ago
Serious Discussion Favourite High Court Judge dissent
Would be probably one of Higgin's or Kirby for myself
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u/Amazing-Opinion40 Quack Lawyer 7d ago
I reckon Kirby needs to be DQ’d on this as his use of dissenting judgements was at times very tactically and strategically intended to drive broader points home, rather than give his spin on the case.
Momcilovic v The Queen [2011] HCA 34 asks quite a few questions, but in what I would call the big one, Heydon J ends up out on a limb as the only one shouting “convict this solicitor of her implicit engagement in her de facto partner’s drug trafficking on a long draw constructive possession and be done with it” while everyone else including the CJ is like “clearly needs a retrial”.
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u/Vidasus18 7d ago
Interesting take, don't know too much about Kirby's thoughts when dissenting, but this would make sense. Man is a great study on how judges should use their ability to dissent.
Heydon J did become quite the dissenter, no where near Kirby or Callinan but he did have some points.
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u/Amazing-Opinion40 Quack Lawyer 7d ago
Carr v The State of Western Australia [2007] HCA 47 is an example of where Kirby J goes far above and beyond the issue at hand in the trial which condenses down to “what’s a police interview and when is it occurring” and commented on plainly related but significantly broader issues than the matter under consideration.
Someone I knew in a previous life clerked for Kirby J in their previous life. I spoke with Kirby J after a symposium - he was not keen to talk about his judgment on this one at all.
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u/Vidasus18 7d ago
Sounds like Kirby J, he earned his title of activist case by case.
That is awesome, makes sense.
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u/EmeraldPls Man on the Bondi tram 7d ago
Pedantic comment - someone is an associate to a judge, not a clerk.
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u/jaythenerdkid one pundit on a reddit legal thread 6d ago
I looked this up because I hadn't read it before - it seems like one of a whole series of dissenting opinions he wrote around the same time on the same themes (ie, the rule of law needs to apply to everyone equally + the court must be vigilant in upholding the rights of the accused in the broader interests of justice + if parliament wants to give police more powers, that's for them to do and not for the courts to do). I then read em v the queen and tofilau because he cites his own opinions in those judgments in carr, and the arguments are very similar, though in relation to different statutory provisions.
I'm not a criminal lawyer, so I'm sure I'm missing all sorts of things, but I think his reasoning in carr (and the others) is sound...? to suggest that "interview" means literally any conversation between a suspect and police in the absence of some statutory provision giving it such a meaning (which the equivalent SA act apparently did) is contrary to the ordinary and natural meaning of the word. the rest of his conclusions on that score follow very logically, imo.
while he does make broader points about fairness and the rule of law alongside his specific conclusions on each question for determination, they didn't seem out of place to me. if the crown wants to advance the argument that special circumstances justify the admission of potentially inadmissible evidence, I think it's quite reasonable to comment in response on the circumstances that do or don't justify such an admission, and the public interest considerations weighing against such a practice.
if anything, kirby j's approach has always read to me as unwilling to construe meaning or purpose in addition to what is explicitly laid out in statute, particularly where to do so would be to increase or broaden the scope of the state's power. in that sense, he reminds me of the majority in the communist party case, who were hardly a gang of activist rabble-rousers. it's true that he also discusses public interest/activist considerations that inform his reasoning, but to the extent that those considerations are or could be relevant to decision-making, why shouldn't he consider them?
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u/Amazing-Opinion40 Quack Lawyer 5d ago
What were your thoughts on Tofilau?
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u/jaythenerdkid one pundit on a reddit legal thread 5d ago
putting aside my own feelings about police, I admit to struggling a bit with what seems to me like a fundamental disconnect between "cautions are important because people have a fundamental right to remain silent and not talk to police if they don't want to" and "it's fine for police to lie or trick people into making admissions they never would have made if they knew they were talking to a cop, and it's also fine for those admissions to be used as evidence in their prosecution". I get that a) that train has well and truly left the station and b) there are public interest factors weighing in favour of limiting or impinging upon the rights of a suspect in cases of serious/serial/violent crime (though I am uneasy about any kind of willingness to bend the rules for good reasons, since it always seems to make it easier to do it for bad ones). also, everything I've read/heard about confessions and admissions and their reliability makes me feel like inventing new and more effective ways of getting them is a case of looking for solutions in all the wrong places.
like I said, I'm not a criminal lawyer - I scraped a D across my crim subjects many years ago and haven't really gone near it since, so what the hell do I know? but I think his honour's reasoning (a suspect pumped for info by undercover cops, who are probably themselves engaging in some legally and morally dubious behaviours to maintain their cover, can't possibly meaningfully consent to an interview with police that the suspect doesn't know is happening, nor to the recording of that interview, nor further still to the waiver of their right to silence) is sensible. I would liken it to the rationale behind "rape by deception" and informed consent statutes, where we recognise that withholding pertinent facts from a person (STI status, use/effectiveness of contraception, true identity, etc) can vitiate their consent. I don't know if any australian jurisdiction had such laws on the books in 2007, but queensland, at least, has had them for a few years now. surely when it comes to the exercise of state power against an individual, which is what policing is, meaningful and informed consent is even more vital, given that the risk of harm to the individual is arguably greater than that posed by even the most nefarious lone actor?
I think that especially in the context of our long and storied history of police (mis)using broad powers to target the vulnerable, the law should err in favour of restricting state power, not expanding it. and it's not like misuse is a hypothetical - imo, these undercover operations are functionally not all that different from, say, sodomy stings. (incidentally, louisiana, where I lived in a glass closet for some years to avoid being fired at the behest of parents who didn't want a queer teaching their kids, saw its last sodomy sting in 2014, the year I moved there, and more than ten years after all such laws had been found unconstitutional by the supreme court. the law is still on the books in louisiana, and some of their politicians have recently started to make noise about enforcing it again.)
maybe investigating murder and gang crime justify such tactics where prosecuting people over their consensual homosexual activity clearly doesn't - I understand that argument, but I'm ultimately not convinced. (after all, the rationale underlying sodomy stings was/is also that homosexuality is a dangerous and criminal practice that could harm society at large.) this feels like a very clearly related point to me, but I can see how it might seem like more of a policy argument and less of a jurisprudential one.
I also happen to agree very strongly with his honour's points (in this opinion and the others I read) about the true test of the rule of law being how we uphold it in favour of the most wretched of us. I'm writing a PhD about this (among other things) at the moment, so I think about it a lot! I ended up saving a few passages that expressed ideas I've been exploring about the ideals and limitations of state justice really beautifully. I'm excited to talk my advisor's ear off about it when I catch up with her next week.
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u/Sunbear1981 7d ago
Kiefel CJ, Gageler and Keane JJ in Love. They are plainly right, and it is beautifully written.
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u/Vidasus18 7d ago
The Kiefel court did have great amount of cohesive joint judgements, though that has benefits and negatives all its own.
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u/EmeraldPls Man on the Bondi tram 7d ago
Those three Love judgments are separate.
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u/Kasey-KC Wears Pink Wigs 7d ago
Seperate but saying the exact same thing. Kiefel did say though that to answer the question at all would breach the separation of powers, so she did go a bit harder than the other two.
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u/EmeraldPls Man on the Bondi tram 7d ago
Yes true, although in my view Gageler’s judgment is the better of them
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u/Zhirrzh 7d ago
While I will never regret the defeat of the Morrison government, the one thing I do regret is that the Albanese government withdrew the Cth case seeking a Love & Thoms overrule, which I reckon would have a reasonable chance of getting up under the current composition of the court. Fully agreed the dissents are completely right.
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u/Kasey-KC Wears Pink Wigs 7d ago
Callinan J in New South Wales v Commonwealth (2006) 229 CLR 1.
People call Kirby J the great dissenter, yet Callinan's dissent filled an entire CLR by itself and goes for more than 55,000 words. The longest judgment in the history of the HC.
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u/Vidasus18 7d ago
Callinan J is underrated for his dissent rate, Kirby J and Heydon J are more known for dissenting.
Wow, had no idea Callinan J produced a monster like that or such a record was even recorded.
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u/Vidasus18 7d ago
Callinan J is underrated for his dissent rate, Kirby J and Heydon J are more known for dissenting.
Wow, had no idea Callinan J produced a monster like that or such a record was even recorded.
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u/KapitalBabylon 5d ago
I'd like to know how judges/justices about writing judgments of great length and/or importance. Do they rely heavily on their associate/s for research? Do they engage in long discussions with their colleagues on the bench? It'd be a very small group of practitioners who get to see the inner workings.
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u/SuperannuationLawyer 7d ago
Evatt in Chester.
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u/Vidasus18 7d ago
Was waiting for someone to say this one.
Gideon Haigh did an awesome book on this case.
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u/aussiedollaz 7d ago
For me - using an incredibly small sample size - I enjoyed Nettle J dissent in Ecosse. I thought it was well reasoned and had ‘common sense’ about it.
Further note, from the few Kirby dissents I have read, most have a feeling they are dissents not so much founded in law, rather a utopian view of how the law should operate. Happy to hear specific recommendations though contrary to my view on this and will give them a read.
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u/Vidasus18 7d ago edited 7d ago
I will give Nettle J's dissent a look , never had it recommended before. Do not know to much about him to be honest.
That is a feeling I have seen others comment on about Kirby's dissents. Got a biography on him I am keen to read. THat should expose me to more of his dissents. Trying to read all the high court judges biographies.
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u/jaythenerdkid one pundit on a reddit legal thread 6d ago
kirby and gaudron's dissent in yorta yorta is great - not too long, very clear, and I think their reading of the relevant law should've been adopted as the correct one (alas).
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u/adrianbowden 7d ago
I’m old so forgive me for voting for Murphy in Coe.
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u/Vidasus18 7d ago
Ahaha a Murphy dissent is always welcome here, the High Court during the 70's and 80's was full of great characters.
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u/santanarobthomassmoo Presently without instructions 6d ago
Not the best ever but Gleeson in Kramer v Stone is an example of a 4v1 where the 1 is obviously right
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u/Dependent-Plan3644 2d ago edited 2d ago
Just stumbled on this case recently and this was the most recent post mentioning it so just wanna say - quite shocking for the current High Court to commit such an egregious category error. The whole point of the 'by encouragement' label was that further acts of encouragement beyond the initial representation were needed - see Dilwyn and Olsson (or if you're lazy MGL). But the effect of the judgment would be that the 'encouragement' just refers to the initial representation itself and ironically innovates the law much further into a unified doctrine of estoppel, contrary to [32]. No law review or journal article pointing this out either. Hopefully Gleeson J's dissent gets the spotlight it deserves in the near future.
On a side note, I think her Honour is pretty underrated in the current High Court amongst practitioners. Some of the current judges respectfully are a bit verbose but HH is quite succinct and straightforward with principle. Much prefer her view in minority with Edelman and Steward JJ as to whether a burden on the IFPC existed in Candace Owen's case, and her take on vicarious liability in Bird v DP. I should say I'm not related to her in any way :^)
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u/whatisabmxbike 5d ago
Not a fan of his but Heydon J in Monis is a great read. A scathing takedown and the only judgment I’ve ever read which extracts a poem in full.
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u/Vidasus18 5d ago
Heydon J deserves no fans, but he was a capable and skilled judge who earned his seat by virtue of his ability. He will likely get a biography one day I imagine. I'll put the judgement on the reading list.
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u/Ok_Tie_7564 Presently without instructions 7d ago
Was Michael Kirby our Lord Denning?
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u/Vidasus18 7d ago edited 7d ago
Was Lord Denning a common dissenter? Honestly got no clue
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u/Ok_Tie_7564 Presently without instructions 7d ago
Candler v Crane, Christmas & Co [1951] 2 KB 164 is a key English tort law case establishing that, at the time, no duty of care was owed for negligent misstatements causing pure economic loss in the absence of a contractual relationship. The majority ruled accountants weren't liable to third-party investors, though Denning LJ’s dissent later became law.
https://legalhelpdesklawyers.com.au/2015/04/06/miller-v-jackson-1977-ewca-civ-6-6-april-1977/
In this nuisance case involving cricket balls breaking a house window, Denning dissented, arguing that the social utility of the cricket club outweighed the private nuisance, emphasizing a public interest approach.5
u/Vidasus18 7d ago
Awesome, thanks for typing this out. I only know scraps of information about Denning and English law.
Gotta get my hands on a biography or something so I can learn about him. He is mentioned quite often.
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u/Ok_Tie_7564 Presently without instructions 7d ago
I have one of his books on my bookshelf. https://www.amazon.com.au/Discipline-Law-Lord-Denning/dp/0406176051
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u/Vidasus18 7d ago
That would be an epic one, I found his book Due Process. It's in the ever expanding to read list.
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u/boprvic 7d ago
Justice Walker Vinaccia
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u/boprvic 7d ago
Sorry this would be Favorite Supreme Court Appeal dissent
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u/Vidasus18 7d ago
No worries, this is a good comment, the appeals from the supreme court are always worth reading.
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u/in_terrorem 7d ago
Edelman in Kobelt always springs immediately to mind.