Conferences. After a hearing has ended and judgment has been reserved, the practices of collegiate courts vary widely. The High Court, unlike the United States Supreme Court, has had no regular system of conferences. The extent to which on a formal or informal collegiate basis Justices have conferred, joined in judgments, and circulated their reasons, has depended on the Justices’ personalities and personal relations, their sitting arrangements and places of residence, and the role and influence of the Chief Justice.
Consultation in the Griffith Court from 1903 to 1906 was probably informal, consisting of discussion among friends. After February 1905, Griffith, Barton, and O’Connor all lived in Sydney, allowing a certain degree of face-to-face discussion. They lunched together on working days and resided together on circuit. From 1903 to 1906, there were only four formal dissenting judgments, all of them by O’Connor.
The atmosphere and approach changed in 1906 when Isaacs and Higgins, who both lived in Melbourne, were appointed. Thereafter, such consultation as did occur was impeded by ideological differences and by the mix of the Justices’ temperaments—for example, by Griffith’s dominant personality and disapproval of Isaacs’ and Higgins’ views on constitutional law and constitutional interpretation; by Barton’s antipathy to Isaacs and Higgins; by Isaacs’ intransigence and incredulity that there could be another view; and by Higgins’ pride and conceit. Acting Chief Justice Barton wrote to Griffith about the Engine Drivers Case in 1913: ‘I think the end of it will be that four will agree upon one view, and that the most mischievous one. We have not consulted together since the argument closed so that I am not quite sure how they stand’ (Isaacs, Higgins, Gavan Duffy, and Rich adopted ‘the mischievous’ view; Barton and Powers dissented). Barton wrote about a time when the Justices did meet to discuss a case: ‘We consulted as to the judgement last Saturday’; but because of the diversity of opinion among the Justices on different aspects of the case, ‘the whole affair collapsed’. Despite the differences of opinion, the exchange of reasons after 1906 was not confined to Griffith, Barton, and O’Connor. Griffith sent a copy of his draft judgment in Barnes v Sharpe (1910) to Higgins, for example.
In 1924, Gavan Duffy described to Higgins the procedure in the Knox Court: ‘Isaacs & Rich retire to their tents (or perhaps I should say to Isaacs’s tent) and excogitate judgments which I never see till they are delivered.’ Knox, Starke, and Gavan Duffy himself:
exchange views as we go to or leave Court and on the strength of this interchange of ideas produce something which does not exactly express the opinion of any one of us, but endeavours to say nothing to which any one of us objects. I am beginning to think that I could render most service by limiting my observations to a statement that I think the appeal should, or should not, be allowed.
In Commonwealth and Commonwealth Oil Refineries v SA (1926), Higgins confirmed the lack of consultation between the Justices: ‘I had no idea that any of my colleagues [Knox, Isaacs, and Starke] wished to overrule Duncan’s Case until their judgments were published’ (see also Roughley v NSW; Ex Parte Beavis (1928)).
When Latham became Chief Justice in 1935, he ‘at once endeavoured to make a change by introducing a sensible system of consultation’; but by 1939, ‘the position … remained unchanged … in spite of my endeavours to improve it’. The lack of consultation prompted Evatt to ask Latham to amend the High Court Rules, so as to require the Justices to exchange their reasons:
The present position as to consultation and inter-change of opinions has become very unsatisfactory. While Dixon is away, you, and you alone, receive all the opinions. You communicate to the other judges as much or as little as you choose of any opinion of which you become possessed … But all judges should have the judgments of all others made available … I am not content with your oral interpretations to me of the judgments of others, or of mine to others.
Latham agreed that there was a lack of proper consultation, but reminded Evatt:
You would not attend conferences with a certain justice [Starke] … Other justices hold similar views and they similarly decline to confer … Each justice makes his own distribution [of their reasons]. You do not send your reasons to one justice and he does not send his to you. If you agree to send yours to him I will do my best to get him to receive them and to reciprocate, as he ought to do.
According to Evatt, the situation was ‘a good deal worse than when Duffy was forced off the Bench by a combination which included one member of the present Bench’. Evatt said that under Gavan Duffy, it was ‘practically understood’ that the Justices would not be ‘deprived of the light and learning’ of those who held differing opinions ‘except on grounds of overwhelming urgency’. Starke gave a different, probably more accurate, description of Gavan Duffy’s practice as Chief Justice—‘He had none’.
Although Latham was not immediately successful in introducing a system of formal conferences, the Dixon diaries show that in the 1930s informal meetings were common. These included discussions between Rich, Dixon, Evatt, and McTiernan for the Metal Trades Case (1935) and the Tramways Case (1935); a meeting about Riverina Transport v Victoria (1937) and Hartley v Walsh (1937); and a meeting between Latham, Rich, Dixon, and Evatt over Evans v Evans (1939), ‘an application for special leave in a custody case where the fight is over religion’. By the end of the Latham Court, the Justices had developed a practice of regularly circulating their judgments to others who had sat on the case, a practice that, in the absence of conferences, Justices appreciated. Writing from Tokyo in 1948, Webb told Latham that it was ‘such a handicap to write judgments without having conferences with the other judges’, but ‘it is something to get copies of the reasons of the other judges’.
Formal conferences were held in the late 1940s and early 1950s. A conference—‘the first for many years’, as Dixon noted—was held in June 1948 for the Bank Nationalisation Case. The Justices met in the High Court library to discuss a long memorandum Latham had circulated in which he had outlined the questions requiring decision, his own answers, and counter arguments. Despite the conference, Latham failed to persuade a majority of Justices to support his views on the case. There was a more successful conference for R v Foster (1949), in which the Court delivered a unanimous judgment. Williams thanked Latham and Dixon for ‘moulding the result of the conference into such excellent shape. It is a great thing that the Court is able to speak with one voice on these important cases’. Similar techniques used for the Bank Nationalisation Case were applied to the Communist Party Case (1951). Dixon made a note about the conference in his diary: ‘At 3.30 we had a judges’ conference. The CJ began by wasting time over a request for a cooler uniform made by the tipstaffs, about which he was very strange: hostile to the tipstaffs and extreme in his expression. We then got to the case, but got nowhere.’ After Fullagar and Kitto were appointed, Latham found ways to save time by ‘consultation and by assigning one judge to write a judgment’. It was now possible to ‘adopt this method more frequently’, but ‘it has to be watched in order to prevent a tendency which … has at times been most odious in the Privy Council, to leave it to one judge to do all the work and really make up the mind of the Court’.
In the Dixon Court, meetings were held once or twice a week during sittings. The conversation—often over cups of tea in Dixon’s chambers—ranged over current cases and judgments in the course of preparation. Dixon, Fullagar, and Douglas Menzies were among the first to circulate their judgments; Windeyer often circulated his judgment later, not for want of diligence, but because of his keen interest in the history of issues. Arrangements for joint judgments were ad hoc, but in some cases, especially criminal appeals, there was a general preference for unanimity.
NSW Solicitor-General and former High Court associate, Michael Sexton, described in Uncertain Justice (2000) the procedure in the early 1970s:
After tolerating the greatest possible degree of inefficiency in the presentation of a case, the court then seemed to compound this by its method of producing a decision. At no time did all the judges of the court ever sit collectively except to actually hear a case in the courtroom. After the hearing each judge retreated to his own rooms to prepare an individual judgment in each case. This way of operating no doubt resulted from a life at the bar where there is a lot of solitary work.
Each Justice arranged for the circulation of his own judgment to the other Justices who sat in the case. Mason was often the first to circulate his draft; Jacobs completed his judgments early as well. Sexton continued:
There were some joint judgments but the overall duplication of effort raised a real question about the efficiency of the court’s operations. It was certainly a source of concern to Sir Garfield Barwick … He was interested in the US Supreme Court’s system of conferences—attended by all judges—to discuss cases and allocate the writing of majority decisions to one member of the court. But Barwick found no real support for this idea among most of his colleagues.
Barwick did later convene a few conferences, but they did not work well, and were abandoned. Because of the complexity of the issues and because he thought some degree of consensus was desirable, Barwick convened a lengthy conference for R v Bull (1974). According to Mason, the conference consisted of lengthy and unsuccessful attempts by Barwick and Douglas Menzies to change the views of the other. The other Justices contributed little to what seemed to be, in Mason’s words:
a ritual joust between two old gladiators. The array of disparate and conflicting views in the judgments was the outcome of that conference. I think it highly unlikely that Barwick thought that a system of regular discussion failed because he sought to impose his views on others. His efforts to influence the thinking of other Justices were confined largely to his interventionist conduct of oral argument in the hearing of a case. Otherwise I did not feel that he was attempting to impose his views on me. Sometimes in discussion with me he would express his view strongly, if my view did not coincide with his, but that was all. It is more likely that he thought the conference discussion failed because others did not share his views—his judgments were never influential like Dixon’s—and because he felt that others thought he was trying to impose his views on them. In his early days, McTiernan, Kitto, Taylor, Menzies, and Windeyer may well have thought that. In any event, at the end of the day, why persevere when the discussions generate disagreement rather than consensus? That was my reaction years later after Bull.
There was no conference system in the Gibbs Court. Often, at the end of a case, Justices discussed the outcome. Meetings were convened rarely, when unanimity was thought especially desirable. Usually, a Justice worked alone to prepare his judgment; but once it had been circulated, others sometimes discussed it to indicate agreement or to suggest amendments.
Meetings were held each month in the Mason Court to monitor progress in judgment writing and to exchange views about particular judgments, especially to ascertain whether a joint judgment was possible. Sometimes, a special meeting was convened to discuss important or complex cases or if unanimity was perceived as particularly desirable. In such cases, Mason, or the presiding Justice, with the concurrence of the Justices sitting in the case, would invite a particular Justice or Justices to write the first judgment, the designated author or authors sometimes discussing the draft in progress with other Justices.
Collegiate decisions during the Mason Court such as Cole v Whitfield (1988) and Voth v Manildra Flour Mills (1990) were presumably the result of these meetings. In Voth, Mason, Deane, Dawson, and Gaudron said that in light of the diversity of opinion expressed in Oceanic Sun v Fay (1988), they had ‘put aside individual differences of emphasis in order to participate in this majority judgment’, in order to ‘enunciate authoritatively the principles and criteria to be applied by Australian courts in future cases’ (see Collective responsibility). The procedures adopted by the Mason Court continued through to the Brennan Court.
In the Gleeson Court, informal meetings commonly follow the hearing of argument and, when there is extended argument, continue during adjournments. With five of the seven Justices based in Sydney, informal discussions sometimes take place in Sydney chambers and with other Justices by telephone or facsimile. For special leave applications, meetings are convened by the presiding Justice and take place shortly before the hearing. These involve discussion, necessarily tentative, of the responses to each application, based on the written arguments filed by the parties in accordance with the High Court Rules. The procedure of analysis of the application and of the arguments of the parties is quite formal, and responsibility for each case is, by convention, assigned among the participating Justices by the presiding Justice. It not infrequently happens that a tentative view expressed at the special leave meeting is changed following oral argument. Formal conferences are now held, with all Justices participating, in the week following each sitting of the Court, to discuss reserved judgments. Commonly held in Sydney or Melbourne, these conferences are often combined with a short special leave hearing in the city of the meeting. The Court commented on the conferences in its 1998–99 Annual Report:
The discussion has contributed in some cases to agreement upon single opinions for the Court, following the concurrence of opinion amongst the Justices both as to the result and as to the reasons for the result. It has also facilitated arrangements for the acceptance of obligations, on the part of particular Justices, to prepare a first draft for the Court’s consideration. Such a division of labour promotes efficiency. It can also assist in the early delivery of decisions … The discussions will not always secure agreement between the Justices and this is not their purpose. Even where important differences exist, discussion can help clarify and refine opinions and reasoning. Such meetings also contribute to the collegiality of the Court and to relationships between the Justices and their understanding of their respective opinions.
High Court of Australia, Annual Report 1998–99, 5–6
Robert Janosik, ‘Conference, The’ in Kermit Hall et al, The Oxford Companion to the Supreme Court of the United States (1992)
Clem Lloyd, ‘Not Peace but a Sword! The High Court under JG Latham’ (1987) 11 Adel L Rev 203
GPJ McGinley, ‘The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts’ (1987) 11 Adel L Rev 175
Senate Standing Committee on Legal and Constitutional Affairs, Examination of Annual Reports: High Court of Australia (Official Hansard Report) (1986)