Christopher Pearson speculated in the Weekend Oz that a Latham government might have secret plans to try to “stack” the High Court with reformist Labor appointees, by increasing the size of the current Bench from 7 to 9 (a step not constitutionally barred) as well as replacing Justices McHugh and Callinan with Labor mates when they retire in due course.
My initial reaction was fairly dismissive. History suggests that a Labor government, at least after it’s been in power for a while, is likely to be just as averse to judicial activism on the High Court as the Tories. The Hawke/Keating government is generally thought to have appointed Justices McHugh and Gummow, both of whom were seen as vaguely Labor-leaning judicial conservatives, to counterbalance the activists on the Mason Court. Given that Labor (historically anyway) tends to have more of a reformist legislative agenda than the Coalition, you might even expect a Labor government to be even more opposed to an excessively interventionist High Court.
A newly-elected Latham Cabinet might conceivably appoint judicial activists to fill the two positions created by expanding the size of the Court from 7 to 9, and possibly even another one to replace Justice McHugh when he retires next year. But that would still leave the ‘lefties’ one short of a clear majority. Surely Latham and his (mostly) equally pragmatic Cabinet colleagues will have woken up to themselves by the time Callinan J retires in 2007.
But then I read this morning’s High Court decision in Cole v South Tweed Heads Rugby League Football Club Limited. All the Coalition appointees (together with Justice Gummow) rejected an appeal by a drunken female pedestrian run down at night while walking straight towards oncoming traffic on a busy highway. The majority upheld a NSW Court of Appeal decision that in the circumstances of the case the Club proprietors did not owe Ms Cole a duty either to stop her drinking, or to ensure that she didn’t walk or drive home.
The disturbing thing is that Justice Kirby (hardly a surprise) and the usually very sensible Justice McHugh both dissented, and would have held the Club liable in negligence, despite the fact that it isn’t at all obvious how the Club could have:
(a) discerned that Ms Cole was inebriated when serving her a bottle of wine some 6 hours before the collision; or
(b) forced her to accept a lift home in the Club’s courtesy bus against her will.
The effect of holding a liquor licensee liable in negligence in such circumstances would be almost tantamount to making hoteliers absolutely liable for the well-being of their customers, to the point of being universal default insurers irrespective of negligence in any meaningful sense.
It serves to remind us that excessively activist High Court judges could have a very real effect on legal outcomes well before they achieve an absolute majority on the Bench. In Cole, for example, Justice Heydon didn’t sit, because he’d been part of the Court of Appeal majority below, so that the case was decided by a bench of six Justices. Thus, the appointment of 2 or 3 activists, to mitigate Justice Kirby’s habitual lonely dissent, could occasionally have quite dramatic and disruptive outcomes in particular cases, where the size of the bench actually sitting is reduced by illness, absence or disqualification from a particular matter.
Anyway, here are the background facts in Cole, extracted from the judgment of Callinan J. Decide for yourself: do you think Ms Cole should have recovered damages from the licensee?
CALLINAN J. Mrs Cole, the appellant, had worked in a buffet car on the railways, as a waitress in a restaurant on South Molle Island, in a nightclub for two periods, and at a tavern as a function manager at the Gold Coast. She was 45 years old at the time of the events with which this Court is concerned. It is inconceivable that by then, in 1994, she had not had ample opportunity to observe and come to understand the universal effects of the consumption of alcohol.
The appellant systematically and deliberately drank herself into a state of intoxication at or in the vicinity of the licensed premises of the first respondent (“the respondent”), starting at about 9.30am and continuing throughout the day of 26 June 1994. It is far from clear how much of the liquor that she drank during that day was supplied to her by the respondent.
The appellant spent some of the day at the premises talking to, and drinking with friends. For part of the time she played gambling games. Unsurprisingly, she could not account for her movements and activities at other times although she remembers, as the primary judge found, that “she had a very good time”. Equally unsurprisingly, by one-thirty in the afternoon the appellant was manifesting to some people signs of her inebriation. Her friend Mrs Hughes said that as early as midday the appellant was drunk, carrying on and arguing, and her speech was “a bit funny”. Mr Pringle, the manager of the respondent spoke to the appellant at about 5.30pm. He saw a bottle of wine on the table where she was seated and later described her as then being “very, very drunk”. He thought that she was being held up by someone else. He said to her “You are affected by alcohol, I won’t tolerate your behaviour, you will have to leave”. Because Mr Pringle thought the appellant needed help to reach her home safely, he offered her the use of the club’s courtesy bus and driver. The alternative of a taxi was offered, which again was a service provided by the respondent from time to time. The appellant’s response to both offers was, as Mr Pringle recalled, “Get f…..”. Mr Pringle told the appellant that he would not tolerate her behaviour. One of two Maori men who were then in the appellant’s company told Mr Pringle to “leave it with 1 and 2 look after her”. Within a matter of minutes the Maori men and the appellant left. Mr Pringle had already told the men in the group that because of their behaviour, they would not be served again. They did not however appear to him to be drunk.
The appellant must have consumed a very great quantity of alcoholic liquor. All of her consumption was entirely voluntary. Some time after she finished drinking the content of alcohol in her blood was 0.238. The evidence, contrary to the finding of the primary judge, did not establish that the respondent had supplied the appellant with any alcohol after about 12.30pm. In fact Mrs Pringle, who was assisting at the club, had refused to serve her at about 3.00pm.
The appellant’s last recollection of events before she was injured was of speaking to the driver of a taxi cab to tell him the address to which her friend should be taken, and of returning to the club to watch a football match in progress on a playing field in front of it. Her next recollection is of waking up in hospital in Brisbane.
A further sighting of the appellant, a very brief one, was made by Mrs Lawrence in the headlights of the motor vehicle that she was driving in a southerly direction along Fraser Drive in the vicinity of the respondent’s premises at about 6.20pm in darkness. The appellant was walking towards her on Mrs Lawrence’s side of the roadway but near the edge of the bitumen carriageway. The appellant was wearing dark clothing. Mrs Lawrence initially saw only her face. The vehicle struck the appellant. She suffered serious injuries.
The appellant sued Mrs Lawrence and the respondent in the Supreme Court of New South Wales. The case was heard by Hulme J. In one passage in his judgment he described the appellant’s conduct in walking on the roadway in this fashion:
“Thus, despite the almost unbelievable stupidity (at least for a sober person) of continuing to walk towards, or stand in the way of, a lighted oncoming car at night, it seems to me that the probabilities are that that is what the 3 did. Of course, it may be that it was a case of her just not moving off the carriage way in time and for enough time for the car to pass.”
His Honour found both Mrs Lawrence and the respondent to be negligent. His conclusion in relation to the respondent was as follows:
“There can be no doubt that the supply of alcohol in the form of what I may call the 12.30 bottle and the later one, was a contributing cause of the injury she later suffered.”
The primary judge apportioned liability for the appellant’s injuries, as to the appellant herself 40 percent, and as to Mrs Lawrence and the respondent, 30 percent each.
Both Mrs Lawrence and the respondent successfully appealed to the Court of Appeal of New South Wales (Heydon and Santow JJA and Ipp AJA) and in consequence, the appellant’s action was dismissed with costs. As will appear, I agree with the decision of the Court of Appeal which I regard as an inevitable one.
The Court of Appeal held that when the appellant purchased a bottle of wine from the respondent at 12.30pm her state of intoxication would not have been known to the respondent’s employees. Likewise, the evidence was not capable of establishing on the balance of probabilities that, after 12.30pm, the appellant bought alcohol from the respondent or that it supplied alcohol to her. The source of alcohol she acquired during the afternoon is a matter of speculation. Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess. The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law. The respondent owed the appellant only the ordinary general duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held that to extend the duty to the protection of patrons from self-induced harm caused by intoxication would subvert many other principles of law and statute which strike a balance between rights and obligations, and duties and freedoms. …
Let me assume, contrary to what I would hold to be the case, that the respondent owed a duty of care of the kind suggested, to the appellant before and at about the time that she left its premises. There was no breach of such a duty. The notion that the appellant, as far gone and as offensively abusive as she was, would have been amenable to counselling, or simple restraint, or indeed to any measures intended to restore her composure, is fanciful. Forceful restraint was out of the question. No sensible person would ever remotely contemplate such a course, capable, as it would be, of leading to a physical altercation, an assault, and the possibility of criminal and civil proceedings in relation to it. The same consequences could equally flow from any attempt to induce the appellant to regain her sobriety in a room or other quiet place at the respondent’s premises. As for the suggestion made in oral argument, that a police officer could and should have been called, these responses should be made. It is highly improbable that a heavily pressed police force would have had, or would have been likely if it did have them, to provide, sufficient personnel to enable a police officer or officers to make a timely and effective visit to the premises. And in the unlikely event that a police officer did make a timely call at the premises, it is equally unlikely that his or her official duty could have been discharged otherwise than by doing what the respondent itself did, that is, “turn 4 out … of the premises of the club”. There is another complete answer to this ground of appeal. It is that the appellant when she left did so voluntarily and apparently with a group of men. The men said that they would look after her. In those circumstances there was nothing that the respondent could do. There is no obligation upon anyone to engage in a futility.
Even assuming a relevant duty of care the respondent would have fully discharged it by doing what it did, offering the appellant the use of a courtesy bus, or a taxi.
No argument with the outcome, but what’s with the pompous and sneering tone of the writing (not to mention its extreme turgidity)?
So what did Kirby say?
Mork:
Hmm it’s law, it’s supposed to be turgid, I didn’t notice it to be pompous or sneering though.
In reading the linked to page, erm, which bits did Kirby write? Just 84, or 84 to 86? If it is 84 to 86 this document is formatted in a rather confusing manner.. :(
Would the full bench of the High Court still have a maximum of seven justices sitting at once?
Who do you think is behind this? The only ones that seem to have anything to gain by changing the composition of the court would be those on the left of the party. If Latham appreciates that two activist appointees would frustrate his agenda, why would he go along with it? Is it that he doesnt appreciate the effect?
Kirby’s opinion is in paragraphs 84 to 111. The document is very clear as to who wrote which opinions.
I have my own prejudices against judicial acivists like Kirby, but in this case I’m surprised Ken classifies his and McHugh’s opinions as attempted activism. McHugh’s reasons in particular appear to me to be very coherent and logical and in accordance with the facts. This woman had been drinking at the Club’s premises all day. Even if the Club refused to sell her any more liquor some hours before her final ejection she plainly had become drunk AT the Club drinking alcohol supplied BY the Club, even if not sold to her directly. McHugh makes a very strong case that the Club had breached its duty of care quite early in the day by not taking firm action on her obvious drunkenness when they should have. The events immediately prior to the actual ejection were irrelevant. The points about using physical force or not calling the police at that point are red herrings.
As McHugh said: “But once it is seen that the Club had a legal duty to prevent her drinking herself into a state where she was liable to suffer injury, the case wears a different complexion. The Club has a legal responsibility for the injury. Instinct must give way to the logic of the common law.” The last sentence is particularly apposite, regardless of my (or Ken’s) instinct.
I’m usually very willing to decry Kirby’s judicial activism. But this is not a good example.
Hmm it’s law, it’s supposed to be turgid…
Bollocks it is. These guys get paid to write. They should be better at it. Sounding legalistic doesn’t make it legally sound.
Who do you think is behind this?
Um, as far as I can tell, Christopher Pearson is.
As to the substantive issue… Ken, I think it’s a bit silly to bag the dissenters, praise the conservatives, then quote the most conservative Justice at length, offering it as some kind of neutral yardstick of the merits of the case.
The least you could have done is sum up Kirby’s ratio. Perhaps you decided not to because, as Ron Mead pointed out, this is not a very good example of judicial activism.
“activist judge” = “He/she wrote or supported a decision I didn’t like.”
And why is Chris “the Human Wine Cask” Pearson sticking his wheezing nose (This is not a gratutious insult. You should hear the guy now. Sounds like a Dolby-enhanced re-release of “Thomas the Tank Engine,”) into this.
Could it be the magic word “Latham”, stiffening his pen?
First of all, what’s wrong with 9 High Court Justices? The US Supreme Court has 9, and nowadays we don’t hesitate to copy everything else they do. You could even argue that the US Australia Free Trade Agreement implicitly obligates us to have the same number of justices on our highest court as they do on theirs. (Don’t like the argument? Too bad. It’s no worse than what Christopher Peqarson writes on these matters.)
Latham can stack the court with whomever he likes. The precedent has been set by the Howard government, with their open search for a large C conservative (to use Tim Fischer’s infelicitous phrase) and their appointment of the darling of the Quadrant set,
Dyson Heydon.
I greatly look forward to seeing Julian Burnside gracing the High Court bench. That’ll really give Pearson something to write about. In the meantime, perhaps he could ruminate on the possibility that the Left is planning the murder of a couple of High Court conservatives, a la John Grisham’s “The Pelican Brief”, in order to accelerate the stack.
My reading of history in the Western world is that governments that attempt to ‘stack’ high courts usually end up getting bitten on the buttocks.
It takes a lot of imagination to think Iron Mark would attempt this in his first term.
For the several commenters who suggested that this High Court decision isn’t a good example of judicial activism, you should really read the NSW Court of Appeal judgment, which can be found here.
Justice Ipp (with whom Justices Heydon and Santow agreed) reviewd the evidence in detail, and concluded that it simply wasn’t capable of supporting an inference that Club employees could/should have observed that Ms Cole was inebriated when she purchased a bottle of Spumante at about 12.30pm (as the trial judge had found). One of the problems with the various High Court judgments is that none of them traverse this evidence in any detail. You need to keep in mind the limited role of an appellate court (as opposed to a trial judge). The appellate court can only interfere with the trial judge’s findings of fact when an error of law is apparent. That includes making a factual inference in the absence of primary evidence that would enable it properly to be drawn. In this case, the Court of Appeal found that there simply wasn’t any evidence to enable the trial judge to find (a) that Club employees had any way of knowing how much alcohol Ms Cole had drunk prior to 12.30 pm; or (b) that they could/should have noticed that she was drunk at that time. How Justices Kirby and McHugh could conclude that the Court of Appeal was in error without examining the evidence in detail is beyond me. It’s largely because of that failure that I think one can reasonably suggest the minority judgments are an example of judicial activism.
After canvassing the evidence of the morning’s events, Ipp J continues:
“123 All patrons who had had breakfast that day were sitting (or had been sitting) at tables and, furthermore, the vast majority of patrons who were within the Club building were part of groups. When free Spumante was no longer available, alcohol could be purchased from the bar. Those, such as Ms Cole, wishing to purchase Spumante, were so able to obtain bottles of Spumante (not individual glasses). It would have been difficult if not impossible for the three bar attendants to discern how much of the Spumante bottles purchased was for sharing among members of the groups at the tables or for individual consumption.
124 In these circumstances, in my opinion, it cannot be inferred that at any relevant time prior to 12.30 pm the Club employees knew or should have known how much alcohol Ms Cole had consumed.
125 Thus, until 12.30 pm, the obviousness of Ms Cole’s state of intoxication was dependent on the employees observing her “carrying on,” arguing with Mr Hughes and Mr Watson about whether she should leave, and her general state of excitement and extroverted behaviour during that period. Only these matters could then have led to a perception that Ms Cole was intoxicated.
126 There was no evidence, however, that any employee observed or would have observed Ms Cole arguing with Mr Hughes and Mr Watson. This argument does not appear to have endured for more than about 20 minutes and may well have been of shorter duration. The issue was not explored at the trial.
127 While it was open to Hulme J to find that a member of the Club staff must have observed Ms Cole “prior to about 12.20”, it was simply not possible to say precisely when such observation occurred, and in particular whether it was a few minutes before that time, or half an hour or an hour or more earlier. It is also not possible to say with any degree of precision to what extent Ms Cole was intoxicated, and displayed signs of intoxication, at any particular point of time over the period from 10.00 am to midday or thereabouts.
128 Ms Cole’s state of intoxication appears to have increased significantly after 12.30 pm. It was only at about 1.30 pm that she was seen to be “flitting around” and dancing, and it was then that Mrs Hughes observed that her speech was “a bit funny”. I have previously stated that Mrs Hughes said that at 1.45 pm Ms Cole was “absolutely drunk” and by 2.20 pm “totally inebriated,” “very joyous and happy,” and “an embarrassment”. The inference from Mrs Hughes’ evidence is that Ms Cole’s state of intoxication at 2.30 pm was noticeably worse than at 12.30 pm.
129 The difficulties of determining whether a person is intoxicated, and to what degree, when that person manifests behaviour of the kind described are well-known. Some persons become uninhibited and boisterous after consuming very little alcohol; they may be affected by the occasion and other matters more than by alcohol. Others may drink a great deal and become highly intoxicated while remaining immobile and silent. These difficulties of perception would have been increased by the boisterous atmosphere, the large number of patrons and their movement within the Club building on the day.
130 Taking into account the matters to which I have referred, I do not think that it could be said that the evidence is capable of supporting an inference, on a balance of probabilities, that, by 12.30 pm, one or more of the three employees of the Club who were present should have realised, merely from Ms Cole’s general excited state and extroverted behaviour, that she was significantly intoxicated. ”
Compare this with McHugh J’s judgment in the High Court, where he merely observes:
Mrs Cole commenced drinking at the Club around 9.30am. No later than lunchtime, signs of her inebriation were plain to anyone who cared to look. A friend of Mrs Cole said that at midday she was drunk and carrying on and arguing and that her speech was “a bit funny”.
But what signs? The fact that a friend (Ms Hughes) observed her arguing with someone and her speech sounding “a bit funny” says nothing at all about whether Club staff did, could or should have observed this behaviour or otherwise been able to divine that Ms Cole was drunk. Moreover, the evidence that Ms Cole was talking “a bit funny” related to 1.30pm, more than a hour after she purchased the bottle of spumante. By definition, that evidence says nothing about Ms Cole’s state of inebriation when she purchased the bottle. Given that McHugh J didn’t canvas or analyse the evidence in any detail (and significantly misstated it where he mentioned it at all), his reasoning appears tantamount to imposing strict liability on a licensee, irrespective of whether it was in a position to observe a patron’s state of inebriation.
Likewise, Kirby J also completely fails to outline or analyse the evidence, preferring to couch his reasoning as sweeping generalisations. The one cogent point Kirby J makes is in criticising Gleeson CJ and Callinan J for holding that the Club owed no duty of care at all to Ms Cole in the circumstances, whereas Gummow and Hayne JJ held that there WAS a duty of care, but that it had been satisfied by the Club refusing to serve Ms Cole later in the afternoon (when it was apparent that she was drunk) and attempting to persuade her to catch the club courtesy bus or a taxi.
What about the Club’s flagrant breach of duty of care to good taste, by serving Spumante in the first place?
For that alone, the Club should have been held liable.
Dave,
I couldn’t agree more. Do they still make Porphyry Pearl, though? That would have been even worse. We are talking about Tweed Heads though, probably not Australia’s capital of good taste.
The attempted judicial activism that I detect here shapes to be something like: “the licensee should invariably be assumed to be acting in bad faith in respect of his/her obligations under the Liquor Act when subsequent death and/or injury results to a patron.” I doubt that the legislation was framed with that view in mind. The majority of the Court seems to share that doubt. Nothing in the Liquor Act should obviate one’s own personal responsibility for the state one might be in.
I agree with Dave that the licensee was quite clearly acting in bad taste by serving Spumante, but sadly many of the legislators wouldn’t share our activist view on that point either.
Geoff, as I read the professor’s selections, the immediate question isn’t about the liquor act (although it sprung to my mind also). It’s a torts thing. I loathe torts, so I’ll just leave it there.
As for readability – actually it seemed pretty clear to me. But then I’ve been reading Property Law and Admin Law for the last few weeks: if you want turgidity, try on that stuff for size.
As for a good example of Justice Kirby’s activism, one should look up his journal article on how to go about interpeting the Constitution (“dynamism”, he calls it, from memory); then read Kartinyeri where he gives his own theory the arse in order to obtain a desired result.
Jacques,
Your comment on Kartinyeri is simply incorrect. Kirby’s reasoning in Kartinyeri is an example of ‘dynamic’ constitutional interpretation, in that he argues that the meaning of the ‘race’ power (section 51(26)) has evolved over time (especially as a result of the changes wrought by the 1966 referendum) such that, while it may have authorised any sorts of laws relating to a particular race (including ones adverse to them) at the time of federation, it can now only support federal laws that are beneficial to Aborigines.
I hate to go toe to toe with my lecturer in constitutional matters, but if I cast my memory back to Kirby’s judgement, it was awfully long on extraneous materials – parliamentary speeches, broadcasts etc – the point of which was to derive an intention for the amendments which were at the heart of the Kartinyeri case.
Now my understanding of dynamism was that it was, in part, to sever interpretation from the dead hand of the founders who wrote it: that only the text and modern meaning can be used to definitively interpret a document. Since meanings and society evolves, so to will the meaning of the document to be constructed.
My argument is that Kirby abandons that doctrine by making a direct appeal to the intention of past individuals, not to the text of the Constitution.
I felt this was a large inconsistency on Kirby’s part, for if it is not, where is the limit of “modern meaning”? Today? Last week? Ten years, fifty years, or a hundred years ago? Or whenever His Honour feels like?
Jacques,
I’m not a believer in Kirby’s approach, but it is certainly clearly manifested in Kartinyeri. Kirby’s approach involves searching for the meaning constitutional words have for a modern reader, rather than the meaning they may have conveyed (and been intended to convey) in 1901. In ascertaining the modern meaning, it’s permissible (even obligatory) according to Kirby to look at historical and other developments since 1901 to assess how they may have affected meaning. In one sense, section 51(26) is an easy example for Kirby, because there were specific amendments made in 1966, which allow him to argue more powerfully that the meaning of the provision has changed (at least in relation to aborigines). Of course, looking at subsequent events where those events include an amendment necessarily also involves looking at the subjective “intentions” of those who proposed that amendment, but Kirby is looking at those factors as part of his search for contemporary meaning. He doesn’t simply substitute the intentions of the 1966 referendum proponents for those of the Founding Fathers (which is what you seem to be suggesting). However, you’re correct to the limited extent that Kirby would argue for a dynamic/evolving approach to meaning even where a constitutional section has been unamended since 1901. The latter situation might be said to be a ‘purer’ example of dynamic evolution of constitutional meaning, in that the evolution is unpolluted by the subjective intentions of the proponents of those later amendments.
Get back to revising admin law!!!!
Oops!! I meant 1967 (the referendum that is).
Rob
“Who do you think is behind this?
Um, as far as I can tell, Christopher Pearson is.”
I asked a sensible question: where did the proposal come from and who might it benefit? If you don’t want to take it seriously Rob then don’t answer. I can only imagine the hissy fit you would throw if Howard or a future conservative government appointed two additional High Court judges in the hope of making judicial outcomes more favourable to their ideology. Appointing new judges as they retire is one thing, but creating new positions just to get your way sets a dangerous precedent. How about another two every time we change government?
And it wasn’t Pearson who started this anyway.
Original Story:
http://canberra.yourguide.com.au/detail.asp?story_id=307409&y=2004&m=5&class=News&subclass=National&category=General+News&class_id=7
Subsequent comment:
http://canberra.yourguide.com.au/detail.asp?story_id=308091&y=2004&m=5&class=Your+say&subclass=General&category=Editorial+%2D+Leader&class_id=11
Dave
“The precedent has been set by the Howard government…”
So what was Kirby then? Why is it suddenly so bad when the Liberals do the exact same thing? And at least the Liberals relied on natural attrition rather than radical change just to get their way.
Yes, TJW, Keating appointed Kirby – an iconoclast and a monarchist. Anybody who thinks Kirby is some sort of latter day Lionel Murphy is an idiot.
And yes, governments do appoint their mates – Murphy and Barwick are prime examples. But it was the Howard government which was the first, as a matter of explicit policy, to appoint ideological fellow travellers to the High Court.
Ironically, conservatives are supposed to want to preserve our institutions. The deliberate politicisation of the High Court will come back and bite our nation’s conservatives for decades to come.
Justice McHugh:
“However, the Club did not discharge its duty of care by refusing to sell her any more liquor at 3pm. Discharge of its duty required the Club to prevent her from drinking more alcohol after the time when it ought to have realised that any further drinking by her could result in her suffering harm.”
In McHugh’s opinion the Club should have prevented Mrs Cole from drinking further, certainly by 3 pm when the Manager’s wife refused to SELL her more alcohol because of her state of inebriation. This refusal was not enough as it is clear she continued to drink alcohol supplied by her companions (via the club) between that time and 5.30. They should have evicted her by that time.
It’s open to argue against imposing that responsibility on the Club, and obviously the majority (and Ken) argue so. But calling it judicial activism is drawing a very long bow indeed. It was just a normal difference of opinion between the judges on the Bench, and these diffeneces happen frequently.
If anything I sense a revision in the High Court’s judgements on negligence law, a pull back from the extremely appellant-supportive direction the law appears to have travelled in relatively recent times. I very much welcome this, but I suppose you could label this change of direction as activism because it acts to change the Court’s not distant past decisions supporting appellants in negligence cases that led directly to recent crises in liability insurance.
Reading McHugh’s opinion I thought he was trying to interpret the law as he saw it to actually be, not as he wished it to be. The latter would justly be called judicial activism, and certainly Kirby supports this approach as he makes clear in public orations on this topic.
Quite right, Ron. McHugh is as black letter as it gets. Anybody doubting this should study his judgments over the years.
what is the ratio decidendi of the cole v tweed heads case since the majority are not unanimous in their grounds for their decision?