Hero Judges and social justice

Hero Judges and social justice

Paxton & Paxton

Impermissible deviations from the holding in “Stanford”

69. Mr Hall placed reliance upon the decision of Federal Magistrate Walters (as he then was) in Erdem v Ozsoy (“Erdem”).^[42] Mr Hall contended that the decision in that case was particularly illuminating in the determination of this case. Whatever may be said about the authority of that decision, it does not bind me. Judgment in that case was delivered on 5 December 2012, less than a month after the decision of the High Court in Stanford, judgment in which was handed down on 15 November 2012. The facts of Erdem differed to those with which I am concerned in this case although the two pieces of litigation have the common theme that each involved a spouse who died after separation and after the commencement of a proceeding under s.79 of the Act and which were continued by the legal personal representative of the deceased spouse. In the decision of Erdem, the federal magistrate specifically addressed the decision of the High Court of Australia in Stanford, pointing out that the decision in Stanford had been very recently handed down.
70. In several places in the decision in Erdem, the federal magistrate spoke of “steps” through which a court must pass when considering the operation of s.79 of the Act. For example, at paragraph 113 of his reasons, the federal magistrate referred to the three fundamental propositions set out in Stanford and then said that the court’s first step was to undertake the examination prescribed in Stanford as the first of three fundamental propositions. It is erroneous to describe the three fundamental propositions recorded by the High Court in Stanford as “steps”. They were not described as “steps” by the High Court nor did the High Court in Stanford embrace the nomenclature of “steps” that the federal magistrate examined at length in his reasons in Erdem in paragraphs 100 and following. At no stage in Stanford did the High Court even use the word “step” or “steps”. Between paragraphs 100 and 116 of his reasons in Erdem, the federal magistrate examined an array of decisions, some of which were handed down by the Full Court of the Family Court of Australia in respect of the operation of s.79 of the Act prior to Stanford.
71. Then, in paragraph 116 of his reasons in Erdem, the federal magistrate said that it was arguable that the effect of the decision in Stanford was “that the first step in the property settlement exercise”^[43] was to identify, according to ordinary common law and equal principles, the existing legal and equitable interests of the parties in their property. In Stanford, the court did not describe that as “the first step”. The court in Stanford described that activity as the first of “three fundamental propositions” but at no stage did the High Court use the phrase “the first step”.
72. Returning to Erdem, the federal magistrate said that the second step involved ascertaining whether it was just and equitable to make an order altering the interests of the parties in the property. The High Court said no such thing. The High Court did not describe any “second step”.
73. In paragraph 38 of its reasons in Stanford, the High Court said that the second of the three fundamental propositions related to the judicial discretion conferred by s.79 of the Act. At no stage in paragraph 38 of its reasons in Stanforddid the High Court use the word “step”. It was wholly erroneous in paragraph 116 in the decision in Erdem to speak of the second step involving the ascertainment of whether it is just and equitable to make an order. It was equally wrong for the Federal Magistrate in paragraph 116 of his reasons in Erdem to say, as was said, that it was only after the court had concluded that it is just and equitable to make “such orders” (whatever that means) that the court should proceed to take what might be regarded as the third and fourth steps. Under no circumstances could any legitimate reading of paragraphs 37, 38, 39 and 40 of the reasons of the High Court in Stanford be construed in the way reported in paragraph 116 of the decision in Erdem.
74. I make those observations about the erroneous construction by the federal magistrate of the decision of the High Court in Stanford because subsequent learning on the point by the same federal magistrate, later a judge, perpetuated that erroneous reasoning. For example, in Jewel v Jewel (“Jewel”)^[44] the court quoted from the decision in Erdem making the erroneous observations to which I have averted above. In paragraph 72 of the reasons in Jewel, the court, again erroneously, said that it was arguable that the effect of the High Court’s decision in Stanford stood for a five-step approach in making a determination under s.79 of the Act. The High Court said no such thing. The observations in paragraph 72 of the decision in Jewel have been taken from some case but not from the decision of the High Court in Stanford. To my mind it is important to point up precisely where the metes and bounds of the decision in Stanfordhave been drawn. The observations in paragraph 72 of the decision in Jewel do not accurately convey the holdings of the High Court in Stanford and paragraph 72 of the decision in Jewel should not be understood as having the imprimatur of the decision of the High Court in Stanford.
75. Likewise, the same erroneous reasoning was perpetuated in paragraph 116 of the decision in Dekker v Dekker (“Dekker”)^[45] where the so-called five step process attributed to the High Court’s decision in Stanford was set out. At the risk of repetition, no such stepped approach was prescribed by Stanford. It is wrong to say as was said in Dekker that “it is arguable that the effect of the High Court’s decision in Stanford”^[46] was to prescribe a five-step approach. No such stepped approach was mentioned by the High Court. By no means was it therefore arguable that Stanford embraced, expressly or impliedly, any such stepped approach.
76. Having regard to what was in fact said by the High Court in Stanford, it is important to point out that according to principles of stare decisis, a single judge exercising federal jurisdiction is bound by the ratio decidendi of decisions of the High Court of Australia, as is this court (along with single judges and Full Courts of the Family Court of Australia). So much was held by the High Court of Australia in Trident General Insurance Co Ltd v McNiece Bros Pty Limited (“Trident”)^[47] where Brennan J held as follows –
    Courts are bound to apply the principles laid down by courts higher in the appellate hierarchy and observance of that rule avoids the futility of delivering judgments which will be reversed on appeal.^[48]
77. More recently Palmer J made similar observations in Tryam Pty Ltd v Grainco Australia Ltd.^[49]
78. The doctrinal rationale for the sensible application of precedent was explained by Sir Anthony Mason, writing extra-judicially where the former Chief Justice wrote –
    Precedent plays an important part in eliminating inconsistency, thereby promoting justice and rationality. Likewise, precedent enhances continuity and predictability which are also essential qualities in an acceptable system of law. In order that the citizen may order his affairs and make decisions, the courts must apply uniformly rules and principles that are ascertainable in advance.^[50]
79. Foretelling of the dangers of ambitious judicial activism in 2003 The Honourable Justice J D Heydon (as former High Court Justice Heydon then was) wrote his acclaimed article ‘Judicial Activism and the Death of the Rule of Law’^[51]in which his Honour said the following –
    However, a fundamental change in the judiciary has taken place which has caused two new types of pressure on probity. The fundamental change is that it has a different character from that of a generation ago. There is within its increased ranks a large segment of ambitious, vigorous, energetic and proud judges. Ambition, vigour, energy and pride can each be virtues. But together they can be an explosive compound. Rightly or wrongly, many modern judges think that they can not only right every social wrong, but achieve some form of immortality in doing so … Trial judges permit themselves considerable liberties in distinguishing High Court decisions on very narrow grounds. They do not limit themselves to reported cases, but use computers to obtain access to unreported ones … John Gava has rightly described the judges so affected as ‘hero judges’.^[52]
80. The reference to ‘hero judges’ was a reference to an article by John Gava entitled “The Rise of the Hero Judge”.^[53] I do not wish to be a hero judge by departing from Stanford.
81. There is no doubt that in the High Court’s decision in Stanford, principles intended for widespread application in cases concerning s.79 of the Act were laid down. Single judges such as me or the federal magistrate in Erdem have no choice but to apply such principles. There is no scope to interpret principles of the sort laid down in Stanford saying that the case “arguably” gives credence to a five-stage approach in the construction of s.79 of the Act. The decision inStanford laid down what it described as “three fundamental propositions”.^[54] They are easy to read, easy to understand and easy to apply. They do not “arguably” invite application of any stepped approach towards the interpretation ofs.79 of the Act. If a single judge fails to follow Stanford, that judge acts in contravention of the admonition given by Brennan J in Trident.^[55] In this case, I regard myself bound by the decision in Stanford, I propose to apply it and I expressly reject adherence to any authority that qualifies it, countermands it or which loosely interprets what are the express statements of principle in it.