Sarah-jane Morris

BY SARAH-JANE MORRIS

The High Court of Australia has repeatedly stated that it is a ‘central and pervading tenet of the judicial system’ that ‘controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances’, such as through statutory appeals. The ‘principle of finality’, so understood, manifests in various aspects of both the rules and structure of the Australian legal system. This year, for example, the High Court relied upon the finality (and certainty) of judicial determinations to justify the continued existence of advocates’ immunity in Australia, despite its demise in England and New Zealand.  Most recently, the High Court has held that finality precluded a court from looking behind a jury foreperson’s (erroneous) statement that a majority of at least 10 of the jury had reached verdicts of not guilty in a murder trial.

Notwithstanding the extent to which finality is presently lauded, the principle of finality does, at times, give way to revisionist concerns. This blog explores the High Court’s decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531 (‘Kirk’) to draw insight into when finality will be trumped beyond the statutory appellate context.

The concept of finality

The concept of finality in law is, at its broadest, a reference to the finality of adjudications that settle controversies. There is no agreement as to how ‘finality’ should be labelled. The term ‘principle’ has been adopted to reflect its frequent use since D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. Nonetheless, it is acknowledged that this appellation comes with baggage, not least its positivist implications. Further, even the High Court uses different terminology. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 (‘Attwells’), decided in May this year, the High Court seemingly retreated from describing finality as a principle, referring to it, along with certainty, as a ‘value’, ‘public policy’ and ‘public interest’. However, in NH [2016] HCA 33, decided in August, it has reverted to ‘principle’.

Finality is an attribute of many diverse legal systems, both common law and civil. But its value and weight differ. Finality is reflected in several Latin legal maxims, including: interest reipublicae ut sit finis litium (it is in the interests of the state that there be an end to litigation) and nemo debet bis vexari pro una et eadem causa (a person ought not be twice vexed for one and the same cause). Finality is considered to be an organising principle that is manifested or reflected in various legal rules including res judicata, double jeopardy and rules concerning the reopening of judicial orders, as well as the scope and manner of appeals. It is also reflected in statutory adjudicative structures, that is, in restricted appellate mechanisms.

Finality in adjudication is said to be a critical feature of the rule of law because it enables a legal system to carry out its primary function – dispute resolution. There is, however, a tension here: if adjudications are final, how is conformity to the law by judicial decision-makers, as the rule of law requires, achieved where an error is made?

The rationale for the finality of adjudication is multi-faceted. Finality supports the settlement of controversies. It enhances certainty of legal rights and individual autonomy. It preserves the winning party’s victory. It satisfies the psychological need for repose. It avoids expense and delay for the parties. More broadly, finality ensures harmony, avoids inconsistent decisions, safeguards the authority and morale of the judiciary, encourages more efficient legal representation, and preserves scarce judicial resources.

Finality as a relative feature of a legal system

It is widely acknowledged that the principle of finality is not absolute. Rather, it is in tension with, and so must be balanced against, other competing factors, most prominently that adjudications should be just and ‘correct’. This tension arises because of the inability of the judicial system to achieve rectitude in all cases: not only is this because the actors in the judicial system are fallible and its methods imperfect, but there are competing efficiency considerations. Error correction is not the sole justification for seeking the revision of adjudications. Other reasons include accommodating normative and factual change, enabling clarification and harmonisation of the law, and improving standards of adjudication. The American academic Judith Resnik has referred to the bundle of factors opposing finality and justifying revision of adjudications as ‘revisionism’.

Recognising that the principle of finality is not absolute, it can be said that there are, rather, points in a legal system where finality prevails over revisionism; that is, points of determinative finality. To say, therefore, that the principle of finality is manifested in certain legal rules and structures is to acknowledge that those rules and structures prioritise finality over revisionism. In this way, the principle of finality can be seen as an expression of a normative conclusion about the relative importance of finality. There is, indeed, considerable variation in normative discussions about the points of determinative finality depending on the perceived goal of the legal system, confidence in its operation and, more fundamentally, underlying political theory.

The principle of finality in the Australian legal context

Generally speaking, the High Court strikes the finality-revisionism balance heavily in favour of finality. It has repeatedly indicated that the principle of finality is of central importance, explaining that it finds reflection in various aspects of the legal system. In the last few years the principle of finality has taken on a presumptive quality in the interpretation of statutory powers to reopen judicial determinations and it limits the inherent power of a superior court to do the same.  In Attwells, finality and certainty were described as ‘values at the heart of the rule of law’.

The High Court’s analysis of finality draws on authorities considering the role of the judiciary in quelling controversies through the exercise of judicial power in the context of Ch III of the Commonwealth Constitution. However, it is apparent that finality, even in this context, is not absolute – a degree of revisionism is contemplated. To say that an exercise of judicial power generally results in the making of a ‘binding and authoritative decision’, does not mean that it is immune from statutory appeal or judicial review.

Kirk demonstrates that judicial review is one of the contexts in which the finality of some judicial determinations is potentially trumped.

Kirk and the principle of finality

Kirk has, of course, been the subject of extensive analysis in academic literature. This has primarily focussed on its conclusion as to the inability of a State privative clause to preclude a State supreme court from exercising its supervisory jurisdiction for jurisdictional error, and the constitutional underpinnings of this. However, Kirk also makes a useful study for what it says about the principle of finality in the context of supervising the exercise of judicial power in judicial review proceedings. Importantly, the High Court in Kirk expressly recognised the tension between preserving the finality of decisions of ‘inferior courts’ (in this context, those beneath the apex court in each jurisdiction) and compelling those courts to observe the law; that is, the finality-revisionism balance.

As is well known, the Industrial Court of NSW (‘Industrial Court’) convicted Kirk Group Holdings and Mr Kirk with offences under NSW occupational health and safety legislation. After an unsuccessful attempt to seek appeal and judicial review in the NSW Court of Criminal Appeal and the NSW Court of Appeal, respectively, the Kirk defendants sought leave to appeal their convictions to the Full Bench of the Industrial Court. When their appeal proceedings were ultimately dismissed, they commenced judicial review proceedings in the Court of Appeal, seeking orders in the nature of certiorari to quash the decisions of the Industrial Court, both at first instance and on appeal. The Court of Appeal dismissed the application and the Kirk defendants obtained leave to appeal to the High Court. The High Court upheld the appeal, and quashed the Industrial Court’s decisions, finding that it had misapprehended the limits of its functions and powers, and so committed jurisdictional error, in two respects. It had misconstrued the occupational health and safety legislation as not requiring the prosecutor to properly particularise the charges against the defendants; and it had allowed the prosecution to call one of the defendants, Mr Kirk, as a witness, contrary to the Evidence Act 1995 (NSW).

The decision in Kirk can be seen to tend away from the finality of adjudications in two overarching respects. First, the presence of jurisdictional error led to the quashing of the Industrial Court’s decisions, despite the existence of a statutory clause designed to protect the finality of its decisions. Secondly, the High Court took a broad approach to the circumstances in which decisions of inferior courts will be quashed.

1. Supervision of jurisdictional error prevailed over statutory attempt to preserve finality

Section 179 of the Industrial Relations Act 1996 (NSW), entitled ‘Finality of decisions’, sought to immunise decisions of the Industrial Court from appeal or review (aside from appeal to a Full Bench of the Industrial Court). The High Court held that a State Parliament could not, through a privative or ‘finality’ clause, purport to strip a State Supreme Court of its ability to review, in its supervisory jurisdiction, the decisions of government bodies (including the Industrial Court) affected by jurisdictional error. Its justification for this conclusion has been considered exhaustively elsewhere; however, it is sufficient to note that this rested upon the requirement in Ch III of the Commonwealth Constitution that there exist a body fitting the description of ‘the Supreme Court of a State’. This would not be the case if the NSW Supreme Court were deprived of its supervisory jurisdiction, which is the mechanism for determining and enforcing the limits on State executive and judicial power for persons and bodies other than the Supreme Court.

In reaching this conclusion, the High Court acknowledged the tension between the legislative objective of finality evident in the privative clause, and the constitutional context. In short, the High Court subordinated finality to the revisionist concern entrenched in the Constitution; that is, the need to avoid ‘islands of power immune from supervision and restraint’.

2. Readiness to re-open decisions of inferior courts

In judicial review proceedings, the grant of certiorari is one of the primary mechanisms for undermining the finality of an inferior court decision as it operates to quash the decision. As the High Court observed in Kirk, in determining whether to award certiorari, there is an ‘unresolved competition’ between two objectives: ensuring the inferior court kept within its jurisdiction and according the inferior court’s decision a ‘degree of finality’. The question of whether certiorari should be granted or an inferior court’s erroneous decisions protected is ‘at bottom one of policy, not of logic’ involving a pragmatic balancing of finality-revisionist concerns.

In Kirk, this balancing exercise firmly favoured revisionism. The High Court’s broad approach to quashing inferior court decisions is evident in a number of respects:

  • its emphasis on the breadth and flexibility of jurisdictional error, one of the bases upon which certiorari may be granted;
  • its obiter dicta critique of the rationale given in an earlier case for restricting ‘error of law on the face of the record’, the other basis upon which certiorari may be granted;
  • its weakening of the suggestion in an earlier case to the effect that jurisdictional error is less likely in inferior court decision-making as opposed to tribunals (and other government decision-makers); and
  • its willingness to exercise its discretion to grant leave to appeal and quash the Industrial Court’s decisions where the Kirk appellants had already explored 3 different appeal or review opportunities and the jurisdictional errors ultimately identified by the High Court had not been raised previously.

What does Kirk tell us about the finality-revisionism balance in Australia?

Notwithstanding rhetoric from the High Court lauding the importance of the principle of finality in Australia’s legal system, the interplay between finality and revisionism is nuanced. Kirk illustrates that judicial review by a State Supreme Court is one context, beyond statutory appeals, in which the finality of inferior court decisions may not be absolute. Ultimately this is because of a revisionist concern underpinned by the Constitution, namely, the need for a State Supreme Court to supervise the limits of inferior court decision-making and so avoid ‘distorted positions’ developing unchecked and ‘islands of power’ operating without restraint.

While finality may be a value ‘at the heart of the rule of law’, Kirk demonstrates that the rule of law ideal is served in this context by trumping finality.

Sarah-jane Morris is doctoral candidate and sessional lecturer at the University of New South Wales.

Suggested citation:  Sarah-jane Morris  ‘When is finality trumped? Kirk and the principle of finality’ on AUSPUBLAW (9 September 2016) <https://auspublaw.org/2016/09/kirk-and-finality/>