High Court of Australia

Free choice and compulsion

The Chief Justice starts to speculate about philosophy with characteristic dry wit. Then comes a classic dodge, if ever there was one, from Mr Tehan QC.

GLEESON CJ: What do you mean by “free choice”?

TEHAN QC: What we mean by “free choice”, your Honour, is a choice unconstrained by any pressure, hope of advantage or benefit or force or coercion or compulsion, a true free choice.

GLEESON CJ: You would be surprised to know that there are places I would rather be than here at the moment and the psychiatrists might explain my presence at the moment by reference to a number of influences or pressures that
produce that consequence, but I thought I was here as a result of a free choice. How is that consistent with your

HAYNE J: Good luck, Mr Tehan.

TEHAN QC: It is always a matter of degree, your Honour.

KIRBY J: I could not think of a better place to be than here.

GLEESON CJ: I am sure that is probably right.

Citation: Tofilau, Marks, Hill & Clarke v The Queen [2007] HCATrans 81

The Lesson

Two High Court justices give a self-represented litigant a lesson in constitutional interpretation.

GAUDRON J: Now, would you like to read section 80 of the Constitution, Mr Wilson?

MR WILSON: Read section 80?

GAUDRON J: Yes, that is what - and see exactly what it relates to.

MR WILSON: I will read section 80 of the Constitution. It says:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury - - -

GAUDRON J: That is right, “against any law of the Commonwealth”. You are charged with contempt of court of the Supreme Court of New South Wales.

MR WILSON: Which is part of the Commonwealth.

GAUDRON J: Well, it may be part of the Commonwealth, but it deals with - - -

MR WILSON: You cannot exclude New South Wales from the Commonwealth.

GAUDRON J: - - - it deals with a distinct area of judicial power. It involves a distinct area of judicial power.

CALLINAN J: Mr Wilson, both the Commonwealth - - -

MR WILSON: I am a bit hard of hearing and I ask you to speak louder.

CALLINAN J: Both the Commonwealth and the States in Australia can make laws.

MR WILSON: And any law of a State - - -

CALLINAN J: No, no, you just listen to me for a moment - - -

MR WILSON: - - - which is inconsistent with a law of the Commonwealth is invalid under section 109.

CALLINAN J: No, Mr Wilson, you are not understanding what I am saying. They each can have laws within their own areas of power and the States have power to make laws for the regulation of the State courts, and that is, in effect, what you are charged with, breaking a law made for the regulation of proceedings in the State courts.

Citation: Wilson v The Prothonotary (S127/1998) [1999] HCATrans 108 (16 April 1999)

The Dictator

When the self-represented litigant accuses Gummow J of being a dictator, you know the special leave application is not going well. With thanks to Duncan for the reference.

MR WILSON: Down in Canberra they have erect the Magna Carta monument. Have you been to see it? You will not answer? Mr Callinan, have you seen it?

CALLINAN J: Look, you cannot really ask me questions, but, yes, I did see it, Mr Wilson.

MR WILSON: Well, this is a two-way thing, you were asking me questions and I am asking you.

GUMMOW J: No, it is not a two-way thing, actually.

MR WILSON: It is not?


MR WILSON: You are a dictator, are you?


MR WILSON: “You just lay down and I say nothing.”


MR WILSON: It is not on.

GUMMOW J: No, you are here to make your submissions on which we then rule.


GUMMOW J: We try to assist you by asking questions so that you can respond to what is on our mind.

MR WILSON: Your job - - -

GUMMOW J: Do not lecture us on what our job is, please.

MR WILSON: Your job is to ensure fairness.

GUMMOW J: No, it is not.

MR WILSON: It is not?

GUMMOW J: It is to apply justice, according to law.

MR WILSON: And what is justice? Justice is the protection of rights and the punishment of wrongs and justice is what I am after. Justice means - - -

GUMMOW J: Justice, according to law.

Citation: Wilson v St George Bank Ltd (S284/2001) [2003] HCATrans 597

Logically incontestable

This case concerned the proper interpretation of the conciliation and arbitration power in the Australian Constitution. One submission by counsel for the states was that disputes are either industrial or non-industrial, an argument which Sir Victor Windeyer ironically described in the following terms:

Counsel for the States started with the proposition that disputes are either industrial or not industrial. That is logically incontestable; and, as was said by counsel in Repton v Hodgson in a sentence which Jordan CJ brought to light in an essay, ‘Like Sinclair’s well-known division of sleeping into two sorts, namely, sleeping with or sleeping without a nightcap, it would seem to exhaust the subject’. But the presence or absence of the quality ‘industrial’ in a dispute is not as indisputably apparent as the presence or absence of a nightcap on a sleeper.  Read more »

Citation: Ex parte Professional Engineers Association (1959) 107 CLR 208, 272.
Source: see attachment

A wrong thing

Sir Ninian Stephen’s oft-cited epigram on a fundamental matter of statutory interpretation:

To read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing …

Citation: Western Australia v Commonwealth (1975) 134 CLR 201, 251.
Source: see attachment

Learned and experienced counsel

Starke J opened judgment with the following wry observations, following in the footsteps of Scrutton LJ who, one year previously in Elliot v Duchess Mill [1927] 1 KB 182, 201 commenced his judgment with the observation that '[t]he Court, with occasional assistance from counsel, took more than a day in discussing this case'. Interestingly, both dicta were 'followed' by Sri Skanda Raja J of the Supreme Court of Sri Lanka, who commenced his Honour's judgment in Odiris Appuhamy v Caroline Nona [1964] SC 235162-D with the further observation that '[i]f I begin by remarking that this appeal was argued by this Court, with occasional assistance from the learned Counsel who appeared for the parties, I will only be following, with respectful agreement, two learned and experienced Judges, eminent in their countries, though their observations are "not binding" on this Court.'

[62] This is an appeal from the Chief Justice, which was argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties. The evidence was taken and the matter argued before the Chief Justice in two days. This case involves two questions, of no transcendent importance, which are capable of brief statement, and could have been exhaustively argued by the learned counsel in a few hours.

Citation: Federal Commissioner of Taxation v Hoffnung & Co Ltd (1928) 42 CLR 39, 62
Source: see attachment

An early funeral

Sir Heydon Erskine Starke had a reputation for his undirected and irascible wit. One -- strictly unreported and anecdotal -- quotation that is attributed to his Honour concerns a comment made at the funeral of Sir Isaac Isaacs. Reportedly, he was walking beside his colleague Rich J, who was 85 years old at the time (this being, of course, prior to the introduction of mandatory retirement ages for federal judges). When the pair encountered an open gravesite, Starke apparently leant over to Rich and asked him:

‘George, are you sure it’s worth your while to go home?’

Citation: Anecdotal

BMX bicycle: A definition

KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is.  Read more »

Citation: Leyden v Caboolture Shire Council [2007] HCATrans 475

The Sony Playstation

GLEESON CJ: You will explain to us how you find a matching bet?

MR S J GAGELER SC: I will, yes. That brings me to the little demonstration, your Honours. Your Honours ought have a bundle of material which is entitled “Demonstration of Online Betting”.

HAYNE J: How much of this is on the CD?

MR GAGELER: This is all on the CD, your Honour. On the CD it is——

KIRBY J: We had a Playstation shown to us in Sony and it was very exciting. Why did you not try that?  Read more »

Citation: Betfair Pty Ltd v Western Australia [2007] HCATrans 634

Cricket in the High Court

Especially noteworthy is his Honour's use of the plural 'forms', suggesting that the advent of one-day and twenty-twenty matches are both recent developments.

KIRBY J: Sounds like the argument at the time about the new forms of cricket.

MR GAGELER: That is right.

KIRBY J: When new international approaches came which were linked to the new technology of television everybody said this is the end of civilisation as we know it but, in fact——

MR GAGELER: That is a very good analogy, your Honour, my learned friend from the West says it was.  Read more »

Citation: Betfair Pty Ltd v Western Australia [2007] HCATrans 634
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