James Farmer

LEGAL COMMENTARY

LEGAL COMMENTARY HOW GOOD IS OUR SUPREME COURT?

Wednesday, November 16, 2011

Some time ago I decided to establish a web site, not because I was short of work but because, when googling myself (because others had apparently done it), I was at first gratified that I had apparently made the list of “Best lawyers” in a US publication but perturbed to find on further reading this was in the category of arbitrators and mediators.  Never having been either and not wanting to be charged with misleading conduct, I decided that a web site which at least summarised my legal career and fields of practice was a necessary self-defence mechanism.  Hence this web site.

Having gone that far, I then wondered if there was a way of inducing people to return to the web site from time to time if they ever ventured there in the first place. I did think that now and then I had views and thoughts about legal matters that others might be interested in, if only to express strong disagreement with them.  And so I decided to incorporate into the web site what will hopefully be a regular (every few weeks) comment on contemporary issues.  It is possible to “subscribe” for them by entering an email address on the home page in which case a message will be automatically sent advising of a new commentary as it is posted, at which point it is entirely up to the recipient to decide whether or not to come back to the web site to read that commentary. All of us, I am sure, are fed up with receiving unsolicited emails and I am intending to avoid that.

So for the first column, I have chosen the deliberately provocative title “How good is our Supreme Court?” Having perhaps seduced the reader to read this far, I should however now disclose that I do not intend to undertake a comprehensive review of the Court or to revive debates around whether we should have replaced appeals to the Privy Council.  That is history. 

It was for that reason perhaps a little surprising that Justice Peter Blanchard should recently, when delivering a paper on law reform, have felt the need to defend the Court’s record at some length and to have done so by references to the Privy Council.  His basic point, as I understand it, was that the Privy Council had been the prerogative of tax and commercial litigants and that the Supreme Court has enabled the full range of litigants to seek to go to the ultimate level of appeal.  At least the second part of that statement is undoubtedly right but what the results of that may be is perhaps a matter for another column (but perhaps not, also). 

For myself, I would at this point say this much.  I have generally thought that most of the Judgments of the Court that I have read are reasonably unexceptional in outcome and any criticisms of reasoning are more the product of separate Judgments that take different lines, and thereby create confusion and uncertainty in the law, rather than of the substance of that reasoning.

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