Another post on the restitution vs equity divide! But this time, inspired by a MSM attack by Janet Albrechtsen on Keith Mason (former president of the NSWCA). I feel sorry for Mason – kicked in the teeth by the HCA, and then by Janet. Let’s have a look first at what Keith Mason said in his farewell speech which was so objectionable according to Albrechtsen. He speaks of the High Court’s judgment in Farah:
…the High Court’s response to this Court of Appeal’s erroneous though genuine attempt to develop legal principle go well beyond giving effect to the principle of a unitary common law of Australia. They have been read throughout the country as the assertion of a High Court monopoly in the essential developmental aspect of the common law.
In the same appeal, the High Court resolved an issue of controversial legal principle with a haughty declaration that it did not propose to examine a recently published critique on point emanating from a current English Law Lord or to examine other legal writing which “might offer support” for the legal proposition suggested by the Court of Appeal that the High Court proceeded to reject in categorical terms.
In combination, these discouraging rules of process for inferior courts and this adopted methodology for the High Court itself will have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence. In my respectful opinion, decisionmaking by these blinkered methods will be stunted unnecessarily, whether it proceeds in the particular to the affirmation of older rules of law or to their principled development. If lower courts are excluded from venturing contributions that may push the odd envelope, then the law will be the poorer for it.
Albrechtsen says of this speech:
Enter Keith Mason. The former president of the NSW Court of Appeal used his recent retirement to spit the judicial dummy, demanding that the High Court stop being so critical of judges on lower courts who aim to improve and expand the law.
In the case of traditionalists v innovators, Mason believes he is on the side of innovating angels. He says he is no traditional black-letter lawyer who defers to precedent. He prefers a sexier judicial role. He is a legal innovator, as Chief Justice Jim Spigelman described Mason in his effusive praise at the Banco Court a few weeks ago. Innovator is code for judicial activist. Still smarting from a High Court case last year that overturned a decision of the NSW Court of Appeal, Mason – the judicial innovator – is incensed that the High Court snubbed his court’s attempt to expand the law to his liking. Without boring you with the arcane details of restitution, Mason went on a frolic, trying to extend the scope of unjust enrichment. The High Court refused to join in, basically telling the NSW Court of Appeal to do the right judicial thing and apply precedent.
Behaving like a judicial version of a woman scorned, Mason attacked our most senior court for claiming a monopoly in the development of common law in Australia. “If lower courts are excluded from venturing contributions that may push the odd envelope, then the law will be poorer for it.” By refusing Mason’s attempt to enrich the law, the High Court was adhering to “blinkered methods”. It had an “unduly inward-looking focus”. It was “shutting off much of the oxygen of fresh ideas”.
Let’s tease out the claims of this malcontent. The High Court is the nation’s final appellate court entrusted with declaring the law of the land. That aside, if every innovating judge attempts to push the envelope by creating new law, then it follows that precedent – quaintly known as the rule of law – counts for naught. The law becomes a moving, unknown beast. Unfortunately, such mundane matters as legal certainty don’t much matter to judges who wish to immortalise themselves by creating law to suit their concept of justice.
Judicial kvetching reached even more ridiculous levels last year when Mason said the High Court was guilty of using personally offensive language when it graded an error by a lower court as serious.
I happen to think that the NSWCA was out of line in Farah and that it should have (a) put restitutionary liability to the parties so that they could respond before embarking on a judgment based upon it; and (b) in the absence of HCA authority on restitutionary liability, applied the ordinary law of knowing receipt, and made obiter comments about restitutionary liability (much as Hansen J of the Victorian Supreme Court did in Koorootang Nominees Pty Ltd v Australian & New Zealand Banking Group Ltd  3 VR 16). So? Sometimes courts get it wrong. It happens.
But I also think that Farah is a bad and intemperate judgment (as described here). My understanding is that many State Court judges have interpreted it as a “slap in the face”, as Mason has asserted. Certainly, it is quite acerbic, in contrast to most High Court judgments of my experience.
I believe that the High Court is behaving in a way that is also activist, just in the opposite direction. It opposes extension to the law blindly. Rather than making a principled response, it exhibits blind prejudice against anything featuring the word “restitution” or anything that suggests that equity and common law might have some kind of synergy. I don’t really care a fig about restitution or fusion fallacy. What I do care about is justice for litigants, and if there is a suggestion that an unjust result can be avoided by expanding principle, then I think the expansion needs to be carefully considered.
I do not think it is at all appropriate to let personal prejudice about a particular interpretation of the law run riot in a judgment at the expense of litigants. A plague on both their houses, say I.
I think that Mason’s speech is also responding to another judgment in which he and Heydon JA (as he then was) were at odds: Harris v Digital Pulse Pty Ltd  NSWCA 10 (featured in in another post here). I read Heydon JA’s judgment in that case as saying that no judge except one who is on the High Court can develop a new doctrine of law or equity when a novel factual scenario arises. As I said in my previous post, I think this view is unrealistic and elitist. Yes, like cases must be decided alike, but trial judges must also be given some leeway to respond to situations which are not covered by existing precedent.
I also happen to think rudeness and personal point scoring against other judges in judgments is the height of unprofessional behaviour, and extremely disrespectful to litigants. I tend to feel the same way about jokes and the like (I’m thinking of the Texan judge who made the infamous “football order” recently).
A judgment is not a personal grandstand for the judicial ego. Litigation occurs because two parties have a dispute and cannot resolve their differences otherwise. Presumably, these issues are very important to the parties if they have made it to the courtroom. They will already have spent a good deal of time, energy and money in litigation. It cannot be forgotten that judges have an immense amount of power over the lives of others.
I also think judges have to be very careful about extra-judicial statements to which they put their name. The genesis of the “rudeness” debate between Heydon and Mason arose in Harris because of some extra-judicially sanctioned comments made about the trial judge in Harris, Palmer J. As a background, in the fourth edition of Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (of which Heydon JA was one of the authors), there was a summary of Palmer J’s judgment which was very critical and indeed rude:
Palmer J (‘the poor man’s Robin Cooke’) has disregarded all this learning and principle, and decided that damages [can] be awarded in a claim for equitable compensation … but one hopes that this is a decision that will never be followed.
(See R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) at 839. Robin Cooke, for the uninitiated, was a late famed New Zealand judge, learned in law and equity.)
In Harris, Mason P said at  about the above extract “the reasons are stated with customary trenchantness, but marred by an unscholarly descent into personal abuse.” I could not agree more. But later, although his Honour disagreed with the ultimate conclusion made by Heydon JA, he did not descend into personal abuse, and indeed, he said at :
I am indebted to Heydon JA’s analysis of these matters. The profound learning in that judgment reveals why his Honour will be greatly missed when he leaves this Court to take up office as a Justice of the High Court of Australia.
That is a professional and appropriate response, in my opinion.
In conclusion, I’ve got news for you, Janet. The law is a “a moving, unknown beast.” I know that sends terror into the heart of all and sundry, but the fact of the matter is that the law changes and shifts with time (generally slowly, but it does). Otherwise we could still apply decisions from 200 years ago and not bother with any new decisions. The law has to shift or else it becomes unjust, calcified in precedent, and unable to adapt to changing circumstance. I agree with Mason’s speech, even though I did not agree with the NSW Court of Appeal’s decision in Say-Dee v Farah. I find the present High Court’s blind prejudice against any expansion of the law to be very disappointing, and what is more, potentially unjust.