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Date:
Thu, 17 Nov 2005 14:33:18
From:
Robert Stevens
Subject:
High Court of Australia on causation and policy issues
I
do admire Justice Kirby, but not really for his abilities as a torts
lawyer.
Oh
for the days in the nineteenth century when judgments were a few
pages long, didn't involve cutting and pasting chunks of skeleton
arguments, avoided lengthy quotation (usually from the judge himself),
had no need for breadth of reading being defensively shown off and
when personal animosity was kept discreetly out of view.
TCF
v Tambree was a dull little case, which did not require the
ridiculous showboating the HC of A went in for.
RS
Jason
Neyers writes:
Dear
Colleagues:
It
is amazing how different people can have such different perceptions
of things. I would have thought that over the last ten years, the
High Court has been the strongest appellate court in the Commonwealth
on matters of private law (with the HL a distant second). I would
rather have people write their own judgments when they disagree
on matters of fundamental importance (like the role of policy in
the law) than to sign on to some hodge-podge unanimous judgment.
Although I agree with Robert that I wish that the HC judges who
had very similar things to say (usually everyone except Kirby) would
find a way to say them together more often.
Robert,
I am also a bit surprised that you seem to like Kirby since I would
have rated him the weakest member of the HC in regard to elucidating
matters of private law in an intelligible and principled manner,
concerns that you outline in almost all your contributions to the
ODG. His judgments read like SCC judgments in that they say that
everything is policy and yet they never take the policies fully
seriously (i.e. apply them to their natural conclusions). Thus,
I would be interested to know why you hold him in such high regard.
Personally, I have always found the judgments of McHugh, Kirby and
Glesson to be of a much higher quality in regard to the principled
and intelligible application of the private law than those of Kirby.
What
I found interesting about Neil's e-mail is that it seems there is
still a lot of debate in Australia over causation whereas in Canada
I would have thought that most would have agreed that there are
questions of factual causation which are followed by questions of
scope of liability (remoteness, legal cause) and that the two questions
are largely separate.
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