Reproduced with permission. From David Bennett, "Argument Before the Court" in Tony Blackshield, Michael Coper, and George Williams (eds), Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007). The Companion is available online through Oxford Reference Online.]

Argument before the Court has been influenced both in style and substance by the Justices who have comprised the Bench during any given period of the Court’s history. While counsel have rarely been able to present oral submissions without interruption from the Bench, the nature and degree of judicial involvement in argument has varied over time. Ideally, the object of oral argument is to enable the parties to present and refine their respective cases and, in conjunction with the Bench, to focus attention on the central and significant issues raised in the proceedings. As Barwick noted on his swearing-in as Chief Justice in 1964, ‘the period of argument in court is an opportunity for the meeting of minds in the search for truth in relation to the matter at hand’.

Some periods during the Court’s history have been characterised by a predilection for intense judicial interrogation of counsel—an approach favoured particularly by Justices such as Isaacs, Gavan Duffy, Starke, Taylor and Barwick. Starke was even moved to observe rather dryly at the commencement of his judgment in FCT v Hoffnung (1928) that the appeal had been ‘argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties’.

Dixon recognised this practice and resolved to change it. On being sworn in as Chief Justice in 1952, he noted that the earlier methods of the Court ‘were entirely dialectical, the minds of all the judges were actively expressed in support or in criticism of arguments’, and that ‘cross-examination of counsel was indulged in as part of the common course of argument’. Dixon came to regard this method as unsatisfactory:

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 to a failure of the Bench to understand the complete and full cases 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.

However successful Dixon may have been in curbing these judicial methods, there was a revival of the ‘Socratic’ approach to oral argument under the Barwick Court. This was no doubt largely due to the influence of Barwick himself, who on his retirement noted that ‘no one has ever had to stretch himself much to make me talk, I’m afraid, and no one has had to work very hard to find out what the tendency of my mind may be’. Barwick regarded the time of hearing in court as ‘work time’, and stated:

It is not a time for quiescence, it is a time for trying to move, first of all, to identify the problem, to isolate the irrelevant and to bend the mind to the centre and thereafter to begin to work towards a conclusion. You might not get there, but you would get on the way.

Although Barwick described this process as involving a ‘dialogue between friends’, his tendency to cross-examine counsel in the course of argument ensured that an appearance before the High Court during that period was not for the faint-hearted.

After Barwick’s retirement, the Court retreated once again from this approach, as appears from the observation made by Mason in 1985 that ‘the Court does not in general subject counsel to the gruelling interrogation, dignified by the description “Socratic dialogue”, which was so fashionable in the 1960s and the first half of the 1970s’. Mason characterised the role of the Bench during oral argument as one of drawing attention to and seeking explanation of the critical aspects of counsel’s case, and exploring the implications and consequences of the legal propositions advanced by the parties.

In more recent times, the Court appears to be returning to a more active and interventionist role during oral argument, and counsel are expected to deal with frequent questions and observations from the Bench.

The duration of oral argument for individual cases is generally shorter in modern times than it was at earlier periods in the Court’s history. Although perhaps an extreme example, argument in the Bank Nationalisation Case (1948) occupied 39 hearing days before the High Court (and a further 36 hearing days on appeal to the Privy Council). Similarly, the Communist Party Case (1951) was argued over 24 hearing days. With its increased workload, the Court cannot afford to allow anything approaching this length of hearing in modern times. For example, significant cases such as Wik (1996), Cole v Whitfield (1988), or Ha v NSW (1997) (see Excise duties) were heard over three, four and five hearing days respectively. Most appeal hearings now occupy only one or two hearing days.

Unlike the United States Supreme Court, however, the High Court has never introduced formal time limits on oral argument in appeal hearings. In major cases involving numerous parties and interveners, the Brennan Court occasionally adopted a practice of giving directions that allocated time for oral submissions, dividing the available hearing days between the parties. However, this practice has not been continued under Chief Justice Gleeson. In contrast, time limits have been applicable since February 1994 to the hearing of applications for special leave to appeal to the Court. The High Court Rules currently provide that each of the applicant and the respondent have a maximum of 20 minutes to present oral submissions, and the applicant has a maximum of five minutes in reply, although the Court has power to extend the time allocated to either party. Further, the Rules provide that a party may elect not to present any oral argument on a special leave application, instead relying exclusively on the written summary of argument prepared pursuant to the Rules.

The emphasis on brevity and efficiency in the presentation of oral submissions has been assisted by the discouragement of unnecessary repetition and of the practice of reading long passages from earlier judgments. The introduction of general requirements for written submissions has also enabled greater efficiency in the hearing of appeals. Judicial views on the utility of written submissions have differed over the years. Until recently, it was not the general practice for parties to prepare detailed written submissions, although a brief written outline of argument was usually handed to the Court by counsel at the beginning of his or her oral submissions.

As far back as the early 1950s, however, the High Court Rules provided a non-compulsory procedure by which a party to an appeal could prepare and file a ‘written case’ summarising the circumstances out of which the appeal arose, and setting out the contentions advanced by the party with supporting reasons. On his retirement in 1952, Latham drew attention to the new Rules and said that ‘it is thought by the judges that if such a practice is established, and widely used, it will help towards clarity of argument and will save both Bench and bar a great deal of time’. Mason also supported the use of written submissions to complement oral argument, noting in 1985 that they would shorten the hearing without having to resort to fixed time limits, and ‘would assist counsel in enabling the judge to appreciate more clearly the part which particular submissions play in the total context of the party’s case’. Gibbs, on the other hand, observed in 1986 that ‘written submissions are not as effective as oral argument in bringing the attention of the court quickly to the heart of the problem’ and therefore ‘can never … be a satisfactory substitute for oral argument’. Argument before the Court remains firmly in the oral tradition, in contrast with the practice of the US Supreme Court, which requires comprehensive written briefs and generally limits oral argument to half an hour per side.

Since February 1997, the Court has required the preparation of written submissions for appeal hearings, unless otherwise directed by the Court, a Justice or a Registrar. The stated objects of these requirements, set out in practice directions of the Court, are to enable the Justices to understand the contentions of the parties before the hearing of the appeal, to enhance the utility of oral argument (in particular by identifying and focusing attention upon the central issue or issues in the matter) and to avoid uncertainty about the documents relevant to the matter. To prevent the potential burdens involved in the receipt of unlimited written material, the practice direction limits both the length and the content of any written submissions.

Another innovation that has affected the conduct of oral argument before the Court is the introduction of hearings by video link, generally between the Bench sitting in Canberra and some or all counsel appearing in one of the state capital cities. The system of video link hearings has been designed, however, so as to minimise the impact on the style of oral argument, so that submissions generally proceed in much the same manner as in ordinary courtroom hearings.

Apart from the written submissions of the parties, the essential material relied on by the Court when hearing an appeal will be contained in an appeal book, which usually consists of the pleadings, the judgments of the court from which the appeal is brought, any relevant transcripts of the proceedings below, and other relevant primary documents. Each party must also file a list of the authorities they intend to cite during oral argument, to ensure that associates or tipstaves will have the relevant volumes or photocopies in court for reference by the justices. These authorities will primarily consist of previous judicial decisions and relevant statutory provisions, but may also include (where appropriate) journal articles or historical material.

The conduct of proceedings in the original jurisdiction may raise different issues, not the least of which is the time involved in conducting trials at first instance (for example, the trial conducted by Isaacs in the Coal Vend Case (1911) lasted for 73 hearing days). It is now rare for the Court to conduct a trial, given that it has broad powers to remit matters commenced within its original jurisdiction to the Federal Court or to a state or territory court. Alternatively, particularly in constitutional cases, the Court may proceed by stating a case and reserving questions of law for consideration by a Full Court. The argument in relation to such questions is then conducted in a similar manner to an appeal proceeding.

David Bennett

FURTHER READING

  • Harry Gibbs, ‘Appellate Advocacy’ (1986) 60 ALJ 496
  • Anthony Mason, ‘The Role of Counsel and Appellate Advocacy’ (1984) 58 ALJ 537
  • Anthony Mason, ‘Interveners and Amici Curiae in the High Court: A Comment’ (1998) 20 Adel L Rev 173

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