Justice Callinan's Contribution to the Law of Torts
Taylor, Greg, University of Queensland Law Journal
Justice Michael Kirby has recently, and very rightly, praised the common law's great tradition of appointing independent barristers to judicial office, contrasting it with the practice followed in many civil-law countries, in which judicial office is a lifetime career and Judges are promoted through the ranks like any other species of bureaucrat. In Justice Kirby's words, which (with respect) are hard to endorse with adequate enthusiasm, the common law's tradition is 'virtually certain to result in a Judiciary comprising strong-minded, experienced senior-advocates-turned-Judges, not accustomed to thinking of themselves as members of an institutional unit or government service'. (1) That being so, occasional promotions to the judicial office on the highest Court direct from the Bar are not to be resented, but rather to be welcomed in principle. [TEXT NOT REPRODUCIBLE IN ASCII.] (2)
Despite the murmurings at the time of Justice Callinan's appointment and for a short time thereafter from some--but certainly not all--quarters, (3) his Honour's judicial record has shown him to be indeed a worthy coinheritor of this long and proud tradition, and a reminder of the benefits that can come from appointments directly from the Bar to even the very highest level of the Bench. His Honour repeatedly displayed his independent cast of mind and dispelled the caricature of himself as the Howard appointee who would automatically take the simplistic no-change line on all imaginable occasions and regardless of the issue in question. (4)
Justice Callinan's recent barristerial experience expressed itself not only in minor things such as a propensity to include long quotations from judgments, statutes and other definitive sources in his judgments, and in secondary judicial virtues such as an unwillingness to accept unnecessary, (5) obviously biased (6) or 'preposterous' (7) expert reports--but above all in the persuasiveness of his judgments. In many cases in which Callinan J dissented, one reads the majority judgments first and is convinced of their correctness, only to have that certainty dispelled by his Honour's equally, if not more convincing reasoning. (8) In other cases again, his Honour was able to see arguments that were not revealed even to those colleagues who joined him in the orders of the Court. His judicial career was marked throughout by a healthy scepticism of exaggerated claims by persons as diverse as media representatives and plaintiffs in negligence.
In this essay, I propose to demonstrate these assertions by a review of his Honour's record in the cases in the law of torts in which he participated during his tenure of judicial office. My survey will encompass almost all of the torts cases in which his Honour sat, and concentrate on those in which he wrote a judgment of his own. These cases are a good vehicle for demonstrating the propositions just mentioned.
II A REALIST JUDGE (PART 1)
First, however, attention should be drawn to the most striking feature of Callinan J's judgments in the law of torts--particularly given what appeared, at the time of his appointment, to be the bien-pensant caricature of his Honour as a voice of another, pre-realist era of the common law, a conservative who would attempt to deny the reality of judicial choice while at the same time himself silently pursuing an automatic and mindlessly conservative line. The most striking feature of his Honour's judgments to which I refer is the extent to which judicial choice and the necessity for making value judgments on the part of Judges is openly admitted. In this sense his Honour was clearly a realist, if I may thereby adopt a working definition of that protean term as a means of countering the aforementioned caricature of Callinan J. On the other hand his Honour was wary of casting the net too widely for his value judgments, believing that many things were appropriate only for legislatures to do and that Judges might too readily assume that they are able to make decisions when in fact the material available for them to do so was inadequate. …