Brew Basics: The High Court

7 min read

This week, we look to the High Court of Australia, which has decided on cases of importance over the past century (and a bit).

The High Court of Australia is, as its name suggests, the highest court in the judicial hierarchy binding all other lower courts. It is also known as the “HCA” and “final court of appeal”.

This can get confusing for non-lawyers given that in jurisdictions like Canada, India, or the US—the Supreme Court is their highest court *mind blown*.

Only important cases, please!

As the final court of appeal, the High Court decides on important appeals from  Federal, State/Territory, or Family courts on all aspects of Australian law. This includes matters relating to the Constitution, in which the High Court arguably plays its most important role. It makes for an interesting comparison with the Constitutional courts which exist predominantly in civil law jurisdictions (like Germany, France, Italy, Poland, Turkey) and which can give rise to decision-making tension with its supreme courts.

There is no automatic right to the High Court hearing your case. First, the High Court will grant or refuse special leave. You can only receive special leave if your case is important enough. In other words, if your case:

  • involves a matter of importance;
  • raises a matter of legal principle;
  • raises differences in opinion amongst State courts; or
  • involves a serious error in the administration of justice (e.g. criminal matters).

Early days

The High Court was established in 1901 by section 71 of the Australian Constitution. However, the first judges were only appointed in 1903 after the Judiciary Act was passed. These first three judges were:

  • The Chief Justice, Sir Samuel Griffith, former Premier and former Chief Justice of Queensland
  • Sir Edmund Barton, the first Prime Minister of Australia
  • Richard Edward O’Connor, a former Minister of Justice and Solicitor-General of New South Wales and the first Leader of the Government in the Senate.
“At least you can’t have a bad hair day, right?”

Some features of the early High Court Justices are unlikely to occur today. One of the Justices, Sir Edmund Barton, was both a Prime Minister and High Court Justice!

The first High Court case reported in the Commonwealth Law Reports was Dalgarno v Hannah (1903) 1 CLR 1. It was an appeal from the Full Court of the Supreme Court of New South Wales about a cab driver (plaintiff) who sued the Commonwealth government (defendant) after he was injured by falling telephone wires. Amusingly, a Dr Sly appeared for the cab driver and a Mr Bernhard Wise KC represented the Commonwealth. The High Court, in a single judgment delivered by Chief Justice Griffith on behalf of all three judges, agreed that the cab driver should be entitled to £200 in damages.

The first sitting of the High Court was in Melbourne in 1903. If you walk past the Victorian Supreme Court along Little Bourke Street, you’ll see the old High Court building which was built in 1928 and housed the Principal Registry until 1973.

The High Court is now in Canberra, after opening about 40 years ago on 26 May 1980.

Justices of the Court

In the early days of Federation, there was some doubt around the impact of the High Court’s work. Critics were proved wrong. The High Court quickly cemented its reputation and expanded from three to five Justices in 1906, and then to seven in 1913.

Current Justices of the High Court and the dates they were sworn in are:

In 1977, there was a major change with the Constitution Alteration (Retirement of Judges) Act 1977 (Cth), which limited the life tenure of High Court Justices. The legislation required all Justices to retire once they reach the age of 70. Two judges (Bell J and Keane J will retire soon within the next two or so years).

It is interesting to compare this with the US Supreme Court, where no age limit applies. This led a Republican Senator to recently urge (rather inappropriately) older conservative judges to retire so that their places can be filled before the November election in a move that would help “change the judiciary for several generations”.

What does the High Court do?

As mentioned above, the High Court mostly hears appeals from lower courts. These cases can span anything from criminal law, contracts, personal injury (known as torts), taxation, bankruptcy, corporations law, property law, equity, copyright, consumer law, family law, and so on.

Then there are certain constitutional disputes which can be determined at first instance by the High Court sitting as the Court of Disputed Returns. For example, a prominent example was the dual citizenship saga relating to certain members of Federal Parliament under section 44 of the Australian Constitution.

Most importantly, the High Court’s job is not one of fact-finding—but of resolving complex legal questions. This means that there will be no cross-examination of witnesses, which is a misleading feature of TV courtroom dramas.

So how many Justices sit? It depends on the importance and complexity of the case:

“Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit.

Other cases which come to the High Court for final determination involve appeals against the decisions of the Supreme Courts of the States and Territories, of the Federal Court of Australia and of the Family Court of Australia and these are dealt with by a full court of not less than two Justices. In addition there are certain matters which can be heard and determined by a single Justice.”

—High Court of Australia, “Operation of the High Court”, www.hcourt.gov.au/about/operation (accessed 31 May 2020).

The High Court has two weeks of hearings, and then two weeks of non-hearing (i.e. judgment writing period). It spends about two-thirds of its sitting days in Canberra. The remaining time is spent in other major cities across Australia—mostly Sydney and Melbourne. If you’re keen, the High Court’s calendar is publicly available (noting COVID-19 measures may restrict attendances at this stage).

A flavour of recent matters

To finish, it’s worth exploring some of the more recent judgments handed down by the High Court.

The first is Coughlan v The Queen [2020] HCA 15 (24 Apr 2020), concerning a rather bizarre criminal matter from the Court of Appeal of the Supreme Court of Queensland. The appellant was convicted after trial for arson and attempted fraud of an insurance company. The courts below found that the appellant ran out of his house after a fiery explosion and rode away on a motorbike. He reported the matter at the local police station later that evening, claiming that someone was out to kill him. He then made an insurance claim for property damage. The question before the High Court was whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. The High Court found that there was not enough evidence for a criminal conviction.

The second is Moore v Scenic Tours Pty Ltd [2020] HCA 17 (24 Apr 2020), an appeal from the Court of Appeal of the Supreme Court of New South Wales relating to a Europe cruise experience gone sour. The appellant, a Mr Moore, spent his life savings on a cruise for his wife and him that would conclude in Budapest. Unfortunately, bad weather struck. They ended up getting a bus ride for most of the trip which was disappointing, to say the least. He sued the cruise company as part of a class action for damages under contract and consumer law. His claim also extended to damages for “disappointment and distress”, which law students know as “non-economic loss”. The High Court found in favour of Mr Moore, after doing some legal gymnastics around whether “disappointment and distress” fell within the definition of “non-economic loss” which the Civil Liability Act 2002 (NSW) prevented the award of damages.

The third and most recent is Hocking v Director-General of the National Archives of Australia [2020] HCA 19 (29 May 2020), involving a question of whether letters between the Queen and the former Governor-General, Sir John Kerr (who infamously sacked the Prime Minister Whitlam) could be released. These letters were later given to the National Archives of Australia for safekeeping and future release in 60 years (later reduced to 50 years to December 2027). The case started when Professor Jennifer Hocking, academic historian and writer, made a request in 2016 to the National Archives to give her access to these letters. The National Archives rejected her request and this case wound its way to the High Court. In short, the High Court had to interpret the meaning of “Commonwealth record” in the Archives Act 1983 (Cth). The High Court found that the letters were a “Commonwealth record” and could be released.

If you’re curious…

Check out the High Court’s website, as well as the High Court Bulletin. The Bulletin lists the matters:

  • handed down (that is, already decided)
  • reserved (which means the Justices are still writing their judgments)
  • granted special leave (and will be heard in the future)
  • refused special leave (such that the lower court decision stands).

For the 280 character-limited, the High Court also has a Twitter account @HighCourtofAus.

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