Judicial Method And the Example of Owen Dixon

By ©Dato' Cyrus Das

Sir Owen Dixon’s thirty-five years on the High Court of Australia is often spoken of in mythical-terms due probably to the accolades he received from the greats like Justice Felix Frankfurter of the US Supreme Court and English Law Lords like Simmonds and Denning, as the greatest exponent of the common law of his generation.

The recently released biography of Owen Dixon by Philip Ayres (The Miegunyah Press, Melbourne) brings to the fore the outstanding judicial qualities of Dixon that transformed the Australian High Court during his tenure as Chief Justice (1952-1964) to one of the leading courts in the common law world.

It was not always so. Dixon had inherited a fractious court from his predecessor, Sir John Latham. The lack of consensus was evident in the major cases like the great Australian Communist Party case (1951) 83 CLR 1, where Latham CJ stood apart as his brethren struck down the bill outlawing the Australian Communist Party. It was quite a different scene from the happenings in the United States at about the same time where Earl Warren CJ carried his disputatious court with him in the great desegregation case of Brown v Board of Education 347 U.S. 483 and invalidated the ‘separate but equal’ doctrine which forever changed the face of American society.

The outstanding quality of Dixon, as emerges, was his judicial conduct on the bench – his conduct towards his brethren inter se and to counsel appearing before the court. He had inherited a fractured court where disharmony prevailed. It was known to all then that Justice Starke did not speak to Justice McTiernan and Justice Rich did not carry his load (Dixon helped him with his judgments, if not, wrote some of them).

Dixon found among his first tasks to establish a working and cordial court. Ayres does not say much of it other than to observe that under Dixon’s leadership ‘the tone of the Court was generally excellent’ and the judges conducted themselves ‘with amiability one to another’. But Dixon obviously led by his intellect and with a keen understanding of what an apex court is all about.

Dixon’s thinking is found in his collected papers entitled ‘Jesting Pilate’ (the title is taken from the rhetorical question Pilate posed to Our Lord ‘And What is Truth?’) rather than Ayre’s work.

Although the Chief Justice is primus inter pares, Dixon says ‘the court is a cooperative institution; the position of the man who presides differs very little from that of any other judge. Perhaps he receives a little more attention from the Bar than he deserves because he announces the conclusion of the court first, but all my judicial experience tells me that a man’s influence on the court does not depend on where he sits’.

Another significant area where Dixon’s leadership was felt was the Court’s demeanour towards Counsel arguing before it. Dixon was very opposed to the practice at the time when he was at the Bar when the Court conducted an inquisition and cross-examined counsel in every case. Dixon said: ‘when I came to the Bench I had formed a conviction that it was not a desirable one. I felt that the process by which arguments were torn to shreds before they were fully admitted to the mind led to a lack of coherence in the presentation of a case and a failure of the Bench to understand the complete and full case of the parties, and I therefore resolved, so far as I was able to restrain my impetuosity, that I should not follow that method and I should dissuade others from it’ (Jesting Pilate).

Ayres records an incident when Dixon expressed open displeasure to his brethren at Justice Taylor’s excessive interruption of Counsel’s arguments. Taylor had interrupted incessantly during a hearing and arguing with counsel destroying any sequence or utility in the arguments. When Taylor remarked later that counsel was either stupid or incompetent, Dixon replied testily: ‘Counsel’s position was made very difficult, and he did not deserve such disparagement; to follow his argument we should listen’.

Justice Menzies who sat with Dixon for many years observes of Dixon’s style. He would not want to argue with counsel but ‘if Dixon thought counsel appearing before the Court was in substantial trouble – either by overlooking an argument or not doing an argument justice – he would, perhaps, five minutes before the Court was due to rise, say ‘Mr. So-and-So, perhaps there is nothing in it, but I wonder whether you might like to take into account such-and-such (or whether the case of X v Y is relevant, or whatsoever), I think we shall adjourn now’, and the Court would arise’.

On assuming office as Chief Justice, Dixon expressed the view that there was no more important contribution to the doing of justice than counsel presenting to court what a case is all about, and when it is done with ability and character ‘in my opinion (it) makes a greater contribution to justice than the judge himself ’ (see Jesting Pilate p. 246).

Bacon had said centuries ago that a much-talking judge is an ‘ill–tuned cymbal’ but it had done nothing to diminish the pervasiveness of the problem as seen in other courts as well where the legal culture allows writing about it. Justice Scalia of the U.S. Supreme Court, known for interruptions and sometimes for even a bullying interruption of oral arguments, once drew this audible remark from the mild Justice Powell: ‘Do you suppose he knows the rest of us are here’ (Alan Dershowitz, Supreme Injustice p.250).

In Dixon’s view the status of the judiciary is first and foremost the responsibility of the judges themselves. He said: ‘The respect for the courts must depend upon the wisdom and discretion, the learning and ability, the dignity and restraint the judges exhibit’ (Jesting Pilate p. 249).

It might be fitting to say something about his theory of ‘complete legalism’ in relation to some of the great and controversial cases that came before the Court like the Communist Party case and the Bank Nationalisation case 79 CLR 497: ‘close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’ (Jesting Pilate p. 247)

The ‘business of judging’ (to borrow the title from Lord Bingham’s collection of speeches) is bound to be more difficult in the years ahead as greater and more controversial cases come before the courts. Adherence to ‘complete legalism’ may be the answer to fend-off accusations of ideological or other indicators of partisanship but it would be a mistake to read the method as sanctioning a literalist approach to judicial decision-making. A judge who passively interprets the printed words of a statute without regard to its setting achieves little other than to establish himself as an interpreter of statutes. In a recent lecture at the BIICL (53 ICLQ 274), Lord Cooke of Thorndon identified four (4) cases that changed the common law. They were Salomon v Salomon & Co Ltd (1897) AC 22 (separate corporate personality); DPP v Woolmington (1935) AC 462 (golden thread on burden of proof); Hedley Byrne v. Heller (1964) 2AC 465 (negligent misrepresentation); and, Anisminic v Foreign Compensation Commission (1969) 2AC 147 (ouster clauses). None of these cases would have made their mark if the judges were, to use Lord Woolf’s words, ‘reactive’ rather than ‘proactive’ (2004 2 CLJi).

In particular, Anisminic see Re Racal Communications Ltd (1980) 2 ALL ER 634 at 638g revolutionised public law in the common law world. Lord Diplock’s acknowledgement is all the more significant because as Diplock LJ he was overruled in Anisminic a fact he took in good grace saying he was decidedly wrong and the House of Lords was decidedly right. Anisminic which had to deal with a ‘no-certiorari’ clause in a statute would not have made the mark if it were decided by judges with a literalist bent of mind. Its’ immense contribution to the rule of law by checking on bureaucratic abuse of power is felt everyday.

It is entirely possible that Dixon’s doctrine of ‘complete legalism’ would not sit comfortably with the remarkable growth in judicial review in later years as reflected in cases like Anisminic, supra, or even Mabo (No. 2) (1992) 175 CLR 1 in Australia that reversed 150 years of established law on aboriginal land rights. The Dixon approach was the archetypal doctrine of judicial restraint. It was good in the sedate years when society was more homogeneous and less in ferment and rights-based jurisprudence had not yet taken root everywhere. But the modern judge deals with legal problems presented by a rapidly changing society and the conflicts that spring from multi-cultural societies. In such cases Judges would be required to find the most just and fair solution. It helps little in such circumstances to discuss the divide between judicial restraint and judicial activism. In the hard cases that now come before the courts it is apposite to hearken to the words of another great Australian Judge, Justice Michael Kirby, who rightly emphasised community expectation of the judiciary as the important consideration rather than judicial method: ‘Of Judges, the community expects detachment, honesty, integrity and learning. Increasingly, it also expects efficiency…Prejudice and partiality have no place in the judicial function’. (Kirby, Through The World’s Eye, Sydney 2000 p. 108). On this grundnorm both Dixon and Kirby, albeit of a different era, would be completely in agreement.