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Wednesday, 22 August 1906


Senator BEST (Victoria) .- My honorable friend who has just resumed his seat has raised the question, of the desirableness of appointing one or two additional Justices. I quite agree with him that if the Senate were satisfied that a fourth Judge would be sufficient for the purpose of effectively carrying on the work of the High Court, we should not be justified in appointing a fifth. I do not see any objection to having four Judges instead of five, from the mere fact of an odd number being desirable. That would not be a substantial objection to a Bench of four Judges, if we were satisfied that four could do the work. As one having considerable experience in regard to High Court work, and speaking generally, I say that the High Court has been a very great success. There are, in fact, many persons who were bitterly opposed to Federation who have not hesitated to express the opinion that the shining success of Federation has been in respect to the High Court. I do not for one moment agree with the view that that is the only success Federation has accomplished, but I do agree that the High Court has been both popular and successful from a judicial stand-point.


Senator O'Keefe - I have met people - unsuccessful litigants - who are by no means pleased with the High Court ; though I do not think that their opinion is a good one.,


Senator BEST - We have to be satisfied from the point of view that my honorable friend, Senator O'Keefe, has put, that two additional Judges should be appointed. That the Court has worked at very high pressure cannot be doubted for a moment. I believe that the most conscientious attention has been given by the members of the Court to the highly responsible duties attached to their position. It has been one of the features of the Court that its members have never spared themselves. Their judgments have never been delayed, but have been most promptly and expeditiously delivered - a matter of very great importance indeed to litigants. But, at the same time, working as they have done in order that the public demands might be met, the members of the Court have been obliged to subject themselves to great pressure.


Senator Millen - Does not the honorable senator think that an additional appointment would afford considerable relief?


Senator BEST - It would afford great relief. But the Chief Justice is a man in whose judgment we must have some confidence. On the 59th June, he was invited by the present Attorney-General to indicate the opinion of their Honours as to what increase in the strength of the Court was necessary to meet public requirements. On the 20th June, the Chief Justice replied as follows: -

I have the honour to acknowledge your letter of yesterday's date, referring to previous correspondence on the subject of the business of the High Court, and asking the opinion of the Justices as to what increase of the strength of the Court is necessary to meet public requirements.

Having regard to the risk of interruption of the appellate business of the Court by the temporary illness or absence of one of the Justices, the importance of making provision for the exercise of the original jurisdiction of the Court, which is now, of necessity, practically in abeyance, and the discharge of the functions of President of the Arbitration Court by one of the Justices, >\ve are of opinion that the strength of the Bench should be increased by the -appointment of two additional Justices.


Senator Keating - That is from a man who is notoriously industrious.


Senator BEST - It is a piece of advice conveyed to us by the Chief Justice on behalf of the present, occupants of the Bench, that we cannot afford to disregard lightly. I have referred to the popularity of the High Court Bench. I know that my honorable friend, Senator Symon, does not agree as to the expediency of appeals being made direct from the judgment of a single Judge of a State Court to the High Court. But I think that he will admit this much at all events : that when litigants have chosen to appeal direct to the High Court in the numbers in which they have done, it at least betokens the greatest confidence in the judgment of the High Court and in the justice which litigants may expect to get from it.


Senator Sir Josiah Symon - At any rale, so long as the Judiciary Act remains as it is, those appeals must be heard.


Senator BEST - That is so. There is considerable unanimity of feeling that, instead of taking the risk of going to the Full Courts of the several States, appeals should be made direct to the High Court. I am aware, moreover, and I speak from personal experience, that litigants have preferred to go to the High Court, as was originally hoped they would, instead of to the Privy Council.


Senator Millen - Is that not largely traceable to the fact that a considerable percentage of appeals have been successful?


Senator BEST - Both sides cannot be successful.


Senator Millen - Both sides are not satisfied.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - But the losing side in the Full Court knows very well that the other side will take the case to the High Court, and it is to save expense that they go to the latter direct.


Senator BEST - That may or may not be; but the fact remains, that the High Court is largely accepted as a final Court.


Senator Sir Josiah Symon - It is a pity there is that provision in the Judiciary Act for direct appeal.


Senator BEST - We have to accept the fact that there can be direct appeal to the High Court; and, personally, I think it is a wise provision, though I know other honorable senators do not accept the same view. I have been before the Privy Council with several of my cases, and, so- far as I can influence my clients by advice, I shall never have any hesitation in advising them to go to our own High Court, so long as we' have the same high standard of legal ability and acumen as at present on the Bench. I do not wish for one moment to discount the great ability to be found on the Benches of the States Courts, but, at the same time, the judgments of the High Court have commanded a great amount of confidence and respect. I agree with. Senator Symon that this is not so much a matter of increasing the numerical strength. The more important point is to increase the intellectual strength of the Bench, so as to secure for it a dignity and high position which will command confidence.


Senator O'Keefe - We cannot get increased numerical strength without increased intellectual strength, because we take it for granted that the men appointed will be intellectual.


Senator BEST - That is so, and I am glad to say we have in our midst men who certainly would adorn the Bench. I have no hesitation in saying that the men appointed will be of the highest legal calibre, and will do justice to. the great and responsible work attached to the position.


Senator O'Keefe - That applies whether one or two be appointed.


Senator BEST - Yes; but I feel that we cannot ignore the advice of the High Court, the members of which know what the work is, and that it is increasing. Above all things, we cannot afford to overwork the members of our High Court; the interests of litigants are too great and serious to permit that condition of affairs to last for any extended time. The present Judges have been working at high pressure, and it is now proposed to relieve them. In view of the increasing work of the Bench, we are called upon to accept the advice of those? who are capable of assisting us, and to appoint two additional Judges. I hope the Bill will be carried into law ; and I am. quite certain that the effect will be to further add to the lustre of this great institution.







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