From: Christine
Beuermann <Christine.Beuermann@newcastle.ac.uk>
Sent: Wednesday
25 March 2026 21:34
To: obligations
Subject: Sir
Anthony Mason, Former Chief Justice High Court of Australia - 21/4/1925 -
17/3/2026
I thought it important to note the sad passing of Sir Anthony
Mason last week.
The private law judgments of the Mason High Court will be known to
many on this list.
On being appointed as Chief Justice to the High Court of
Australia, Sir Gerard Brennan wrote the following in a tribute to Sir Anthony
Mason in a speech given on 8 September 1995:
"In the areas of private law, the Mason judgments were
marked by an accurate knowledge of existing authority and a refusal to be
bound by a rule of law when, consistently with the judicial method, it could be
recast to be more useful or more attuned to contemporary needs. His judgments
on waiver and estoppel, on fiduciary relationships, unjust enrichment,
negligence and company law have illuminated these fields. It is chiefly in the
fields of private law that his avidity for ideas and his search for assistance
from other jurisdictions can be detected. For the first time, academic writing
was encouraged on cases pending in the High Court. The research capacity of the
Court library was strengthened and, more importantly, utilised. In Waltons
Stores, for example, within four printed pages you will find references not
only to the usual sources but also to cases in Massachusetts and Malaysia, New
York and New Zealand as well as a number of academic texts.
Perhaps the most significant feature of his writings is not in the
solutions propounded to particular problems but, rather, in his approach to the
roles of precedent and policy. Sir Owen Dixon's "strict and complete
legalism", which had served the Court well in shielding it from
controversy, could no longer be defended as an adequate explanation of the
judicial method. In a final court of appeal, precedent has to pass through
informed and critical scrutiny before its authority is fully recognized.
Lecturing on "The Use and Abuse of Precedent", Sir Anthony attacked
the transformation of precedent from a judicial policy to a state of mind
and he concluded that the problem of stare decisis is not a problem to be
solved automatically by the application of precise rules or formulae. He
saw stare decisis as "an exercise in judicial policy which calls for an
assessment of a variety of factors in which judges balance the need for
continuity, consistency and predictability against the competing need for
justice, flexibility and rationality". If precedent was not automatically
to be applied, policy had an overt role to play. So much was not only
accepted but welcomed. He wrote: " Because policy oriented
interpretation exposes underlying values for debate it would enhance the open
character of the judicial decision-making process and promote legal reasoning
that is more comprehensible and persuasive to society as a whole. This
development would lead to a better understanding of constitutional judgments
and, no doubt, to a greater capacity and
willingness to criticize them. But criticism is a small price to pay if the
approach is one that contributes ... to a stronger sense of constitutional
awareness on the part of the community and a more accurate appreciation of the
issues arising for decision." This was a wind of change.
To be sure, controversy was inevitable.
Statements of judicial policy would be perceived by some as though they
were statements of political policy. Judicial policy, informed by precedent
and disciplined by analogy, confines the scope of discretionary judgment.
But the risk of confusion between judicial policy and political policy had to
be run in order to guarantee the integrity of the judicial process and to bring
the influence of contemporary values to bear on modern expositions of
legal principle."