President Maxwell spoke at Jason Pizer’s book launch the other night. There is no nonsense about him, and no hubris. I liked the way he sorted out Mr He’s case, one which was sufficiently memorable for him to make reference to it in passing in his speech. The President is at pains to cast the Court as a practical and fast court, correcting injustices but not interfering with first instance decision makers for a want of i dotting and t crossing. He does not aspire to a Court writing finely appeal-proofed legal treatises for the delectation of other courts of appeal. Indeed, he is advocating ex tempore judgment giving wherever possible. The President’s speech on the New Court may be found here, the latest practice note on civil appeals here.
The President sees written advocacy as very much on the rise in the Court of Appeal, a way of getting through more hearings more quickly and reducing what he properly regards as the inexcusable delays which have sometimes characterised the Court of Appeal in the past. President Maxwell actually said that justice delayed is justice denied, an admission rarely heard in the formal, public part of our grindingly slow superior court system, but one which practitioners and their clients feel keenly, all the time.
I kind of knew all this, but I was only vaguely aware of the passion with which the President is trying to clean up the archaic and uncertain bits of the law of procedure.
Jason Pizer had presented a paper on the question of ‘What is a question of law?’ for the purposes of the provision which allows appeals to the Supreme Court or Court of Appeal from a VCAT decision, s. 148 of the VCAT Act, 1998. He set out 10 propositions by reference to which a question may be divined to be either a question of fact or a question of law for this purpose. This is what might properly be described in old fashioned language as a nice question. For example, one of Jason’s 10 propositions is:
‘whether the facts, as found, answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. The position is different, however, if the statute uses words according to their common understanding and the question is whether the facts, as found, fall within those words. That question is one of fact.’
An example of the former is whether the applicant was a charitable institution. An example of the latter was whether a particular place was a highway.
If the rule is a rule at all, rather than an ever so elegant solution to an unnecessary puzzle in an exceptionally English game, it is not one of easy application.
As counsel, President Maxwell had argued the case about whether a place was a highway which gave rise to the example. His Honour replied to Jason’s paper. He spoke frankly, as no judicial officer I have ever heard before, about his frustration with some of the archaic nonsense (my words, not his) which hovers in the unnecessarily broadly cast writings down of the law. In fact he said that some of the nice points such as the uncertain distinction between a question of law and a question of fact are ‘badges of failure for the whole profession’, and foster the revulsion of the public who see ‘a self-perpetuating clique bent on keeping things as difficult as possible’.
Another example is the test for whether a decision is interlocutory (so leave to appeal to his Court is necessary) or final (so there is a right of appeal without leave), which is a different test from whether an application is interlocutory or final for the purposes of the relaxation of the rule against affidavits made on information and belief. And another is whether an injunction is in substance mandatory or prohibitive, and what consequences follow. His Honour said if things like these need fixing, he will do what he can within the judicial system, and without it, to have them fixed. I look forward to it.
Something of the fury I felt as a law student at the hopelessness of the way our law is written down was reawakened in me and I began to imagine the President infecting the other judges of the Court, and then the profession, with a passion for bright line tests capable of being applied with relative confidence by the ordinary suburban practitioner so that the ponderous processes of the law reform commissions could be bypassed by judges spilling ink in their judicially activist chambers. I began to imagine a set of uniform rules of court which litigants would actually be expected to abide by, and which they in turn could be confident would be applied according to their terms instead of according to some uncertain, unwritten commentary which exists only in the minds of experienced litigators and cannot even be found in Williams. I began to imagine them applying across all decision making tribunals in the country, with modules such as interrogatories which could be adopted or not by particular jurisdictions, or even particular lists within jursidictions, but which would otherwise be applied uniformly.
