Sir Gerard Brennan (formerly Chief Justice of the High Court of Australia) has warned against allowing governments to appoint “judicial clones” who will just follow the government’s wishes. I do share Sir Gerard’s concern about the appointment of willing judges who will countenance any extension of the law. But I’m not sure how to resolve it.
Sir Gerard has suggested the institution of a more formal and transparent process, including a judicial selection committee. I’ve written about this issue before. I suspect that if the government wants a certain type of judge appointed, they can stack the judicial selection committee with appointees.
I am disappointed with the current High Court, though, speaking as a lawyer and academic who is passionate about property law, restitution and equity. Take, for example, the recent decision of Farah Constructions Pty Ltd v Saydee Pty Ltd  HCA 22. I’ve never read such a profoundly negative and snarky judgment in my whole life. It doesn’t assist in outlining what the law is – it just says what it isn’t.
The whole judgment smacks of a personally motivated desire to smack those uppity restitution lawyers on the head and put them back in the box which they belong. I suspect Heydon J is behind it, given the nitpicking factual approach, and his Honour’s general attitude (expressed in the Introduction to Meagher Gummow and Lehane) that restitution lawyers represent “the enemy”. The Court of Appeal’s judgment preceding it erred in the other direction, with an overly enthusiastic embrace of restitution (finding restitutionary principles to be a basis for knowing receipt for breach of fiduciary duty, when the parties did not raise this argument or have a chance to respond to it). I think either approach is inappropriate. One cannot let one’s personal enthusiasms or dislikes for a particular area of law into a judgment. It’s not about point-scoring.
To my mind, it is important for judges to keep in mind that you are not fighting a personal battle championing a particular interpretation of the law, you are making a decision which will affect individuals involved in profound ways. Of course, one can’t divorce politics from the law, and indeed, as I have discussed earlier, it is intrinsic to the law. But one can try to minimise personal concerns and try to make the law conherent and fair. What does it matter whether a principle is restitutionary, equitable or based in the common law, as long as it works fairly and produces just and predictable outcomes? (Yes, I’m a fusion fallacist, and proud of it.)