Justice Callinan's Judgments in Private Law: Story Telling, Legal Coherence and Corrective Justice
Bryan, Michael, University of Queensland Law Journal
Justice Ian Callinan brought important qualities to the judgments he delivered in his near-decade on the High Court bench. They included a strong desire to make judging accessible and intelligible to those who have the misfortune to be caught up in litigation; a conviction that the correct application of the law depends on the quality of fact-finding; fidelity to precedent; and a commitment to achieving practical justice. This article will examine the importance he attached to building legal analysis on solid foundations of fact-finding. But its principal aim is to argue that in his judgments on private law Ian Callinan showed a strong preference for achieving corrective justice, and a corresponding reluctance to take into account arguments based on considerations of distributive justice. The partiality for corrective justice is not surprising. It is based on clearly held and expressed views on the proper limits of the appellate judicial role. It is acceptable for judges to improve the coherence of the law, so that doctrines more fully achieve their recognised remedial aims. It is in this sense that 'the common law ... works itself pure by rules drawn from the fountain of justice.' (1) But the courtroom is not the place to evaluate the merits of distributive arguments, and attempts to do so are almost always partial and incomplete.
Academics write at their peril about philosophies of judging and the application of legal theory by judges. The most sceptical readers of this genre of legal literature are the judges themselves. (2) Any judge who announces that he or she will apply a 'philosophy' of judging will rightly be accused of deciding cases, not according to the evidence, but according to preconceived views. Indeed a judge who indulged in a programmatic philosophy would be acting in breach of the judicial oath. But academics, for their part, should not accept at face value assertions that adjudication is a matter of applying common sense or practical justice to findings of fact. Common sense and an ability to achieve practical justice are indispensable qualities at any level of adjudication, but there is more to the judicial enterprise than that.
Maynard Keynes's dictum that '[p]ractical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slave of some defunct economist' (3) is as applicable to practical lawyers as it is to practical business executives. The decisions made by 'practical judges' owe as much to legal philosophy as the decisions made by successful managing directors owe to economic theory. The only qualification we should make is that the 'defunct' economist or legal theorist is not necessarily discredited, even if he may no longer be fashionable. Legal theory leaves its mark on even the most routine legal decisions, not just in the much discussed 'hard cases', (4) but most of the time the theory remains behind the scenes.
II CORRECTIVE JUSTICE AND JUDGING
The basic idea of corrective justice is that of restoring an equilibrium or equality which has been disturbed by one person committing a wrong against another, or by some event, not being a wrong, which requires restoration of the equilibrium. (5) In the words of its leading theorist, '[c]orrective justice is the idea that liability rectifies the injustice inflicted by one person on another.' (6) The duty imposed on the party who has disturbed the equilibrium is to restore it to the other party. Restoration must be in full, but there is no duty to go any further. Additional sanctions are a matter for the criminal law, not for private law. Moreover, the factors relevant to restoring the equilibrium must relate only to the parties who have lost and gained from the disturbance of the equilibrium. External considerations, whether based on economics, morality or social policy are, for the strict corrective justice theorist, irrelevant to adjudication, however relevant they may be to the legislature or law reform agency. …