This insightful, rewarding and highly readable volume is a generous selection of the best of Dyson Heydon’s speeches and papers. Most have a legal theme, although the book is of broader interest. As the Hon Ian Callinan observes in his Foreword, in these papers the author “combines the arts of the essayist, historian, orator, obituarist, reviewer, critic, teacher and advocate”.
The Honourable J D Heydon AC QC was a Rhodes Scholar for New South Wales, elected Dean of the University of Sydney Law School (aged 34), practised as a barrister (including as Queen’s Counsel after practising as a junior for a mere 8 years), before being appointed a Judge of Appeal and Justice of the High Court. He was the Commissioner of the Royal Commission into Trade Union Governance and Corruption in 2014-2015.
“Any reader of the Papers will be struck by the depth and width of the author’s scholarship. There is not one of the Papers that is not rich in unaffected literary, historical and legal allusion. They are a mine of interesting facts and intelligent fresh insights” (from the Foreword by Ian Callinan).
From the Book Launch, 15 August 2018:
The Hon Tom Bathurst AC, Chief Justice of the Supreme Court of New South Wales
“There is much to say about Dyson Heydon’s achievements to date. This is attested to not just by the 800 pages comprising this book, but the fact that it represents a mere drop in the ocean of legal writing that Dyson has contributed both to this country and abroad. … To put it simply, this book stands out because of the breadth of the subjects the author has covered, and most extraordinarily, the depth to which he covers them. It reveals unparalleled ability in innumerable subjects including criminal, constitutional and comparative law. It also shows his ability to reflect deeply on the lives, habits and peculiarities of others, manifesting an understanding not just of the law, but of people – which some might say is a rare phenomenon in a lawyer.” Read Launch Speech…
Mr Rodney Cavalier AO
“Each chapter is devoted in good measure to a love of words – composing and arranging, sometimes meandering into tangents characteristic of an address, but always driving the thesis with purpose. The register does not matter: speaking, writing, conversation, advocacy, dissertation, book, chapter, judgment, letter. Whimsy or solemn. Dyson loves words. For that reason, he loves books (every element of them) and he loves the private library, the essential statement of a thinking person. What he admires is not secret, they permeate the consideration of every profile, living and dead – writing and scholarship, proficiency in other languages, war service, assuming leadership.” Read Launch Speech…
Foreword by the Hon IDF Callinan
Introduction
Table of Cases
Table of Statutes
Part I: Lawyers
1. Address at the Fifteen Bobber of the Hon Justice WMC Gummow
2. Speech in Honour of JRF Lehane
3. Address to Bench and Bar Dinner
4. Outstanding Australian Judges
5. Speech in Honour of Simon and Jan Sheller
6. Address in Memory of Peter Graham Hely
7. Toast to the Hon Murray Gleeson
8. Address in Memory of John Basil Kearney
9. Speech in Honour of Lord Hoffmann
10. Address in Memory of Roderick Pitt Meagher
11. The Fortunate Life of Ninian Stephen
12. AWB Simpson’s “The Common Law and Legal Theory”
13. Tom Hughes
Part II: Outsiders and Dissenters
14. Chief Justice Gibbs: Defending the Rule of Law in a Federal System
15. The Public Life of John and Nancy Stone
16. Japanese War Crimes, Retroactive Laws and Mr Justice Pal
17. Catholic Resistance to German State Persecution: Lessons for Modern Australia
18. President De Gaulle was Wrong: The European Union, the United Kingdom and Australia
Part III: Judicial Technique
19. Judicial Activism and the Death of the Rule of Law
20. Limits to the Powers of Ultimate Appellate Courts
21. How far can Trial Courts and Intermediate Appellate Courts Develop the Law?
22. Varieties of Judicial Method in the Late 20th Century
23. Threats to Judicial Independence: The Enemy Within
24. The “Objective” Approach to Statutory Construction
Part IV: Constitutional Law
25. The Gaining and Losing of National Independence
26. One Small Point About Originalism
27. Theories of Constitutional Interpretation: A Taxonomy
28. What Do We Mean by the Rule of Law?
29. Sir Samuel Griffith and the Making of the Australian Constitution
30. Sir Samuel Griffith as Chief Justice of the High Court of Australia
31. Are Bills of Rights Necessary in Common Law Systems?
Part V: Evidence and Criminal Law
32. Common Experience, Judicial Notice and Opinion Evidence: Distinctions, Parallels, Overlaps and Contradictions
33. The Common Law of Evidence and Human Rights
34. The Origins of the Indian Evidence Act
35. The Influence of Sir James Fitzjames Stephen on the Law of Evidence
36. Reflections on James Fitzjames Stephen
37. Interactions Between the Common Law and Criminal Codes: Australia
38. Four Great Australian Legal Disasters
39. Is the Weight of Evidence Material to its Admissibility?
Part VI: Equity and Contracts
40. The Non-Fiduciary Duty of Directors to Exercise Care: A Study in Flawed Forensic Technique
41. Modern Fiduciary Liability: The Sick Man of Equity?
42. Comment on Lord Hoffmann’s “Interpretation of Contracts”
43. Comment on Lord Neuberger’s “The Remedial Constructive Trust–Fact or Fiction”
List of Speeches and Publications
Index
Regardless of whether or not one shares his political views, it is impossible for any reasonably objective reader of this collection not to have great admiration for Heydon. His learning, across multiple fields inside and outside the law, is immense and profound.
James Goudkamp, Keble College, University of Oxford, Law Quarterly Review, Vol 135, October 2019
John Sackar and Thomas Prince have done a remarkable job of selecting and presenting the works of this great Australian jurist.
The editors’ task was made exceedingly difficult by the fact that Heydon has authored seminal works in so many different areas of law. Although best known for his writing on evidence and equity, Heydon has also made significant contributions in the fields of judicial method, constitutional law, contracts, criminal law, Australian legal history and judicial biography. Unsurprisingly, then, there is something in this book for everyone, including such varied subjects as: the history of evidence law in India, American constitutional interpretation, the remedial constructive trust, and the formalist theory of the Rule of Law.
Whether or not one agrees with Heydon’s rather conservative judicial philosophy, the depth and the breadth of the scholarship here confirm Heydon as a titan of modern Australian jurisprudence. Incredibly, however, the works in this edition comprise only a fraction of Heydon’s published work and the editors intimate that we can expect a second edition sometime in the future. Until then, there is plenty to ponder in this rewarding first instalment.
Julian R Murphy, InPrint, Law Institute Journal Victoria, January/February 2019
For a profession that has produced few biographies of its pre-eminent members, Heydon fills many gaps. He has written detailed sketches – encompassing personal background, characteristics and virtues of many judges and some barristers and academics. Judges such as Griffith, Windeyer, Glass, Sheller, Hely, Gleeson, Gummow, Wells, Kearney, Meagher, Gibbs, Walsh and Stephen, also receive a close assessment of the important cases they decided.
Many other lawyers and judges receive shorter, often pithy but pointed, assessments which will enrich future writing on our legal history. They include Dixon, Barwick, O’Connor, Murphy, Smythe, Hughes, Byers. Deane gets a hypercritical assessment and Kirby and Mason have transitory barbs thrown at them. Only those the author admires are treated in the round. …
It is not a well-kept secret in the Australian legal profession that Dyson Heydon’s jurisprudence is of a conservative inclination. So, as appears throughout the work, is his personal disposition. There are many who do not share that inclination in either respect. A signal virtue of this collection is that the philosophy underlying his approach is set out in a fully reasoned manner over a wide range of legal topics.
The Hon James Spigelman AC QC, Australian Law Journal, 2018, 92
This is a genuinely important book. Any real barrister – one with an interest in the history, the philosophy and the development of the law – must acquire a copy of this book. This book will stand alongside Dyson Heydon’s judicial work, textbook writing and other academic work, as a lasting tribute to a true Australian intellectual. The breadth of issues dealt with is astonishing. The selected speeches and papers of Heydon touch upon the philosophy of the law, the foundations of common law and equity, methods of judicial decision-making, and substantive law. These are interspersed with poignant observations on the rule of law, the independence of the judiciary, and on the preservation of social and political freedoms. … there is plenty here to attract the thoughtful lawyer, practitioners, academics and gossips alike. …
Heydon’s book will be a point of reference for legal thinkers, and this will continue for many, many years. I repeat – this is an important book. I praise the work of the editors – Justice John Sackar and Thomas Prince. It is through their industry that this book exists. Theirs was a labour of love, not inspired by money. I hope they retain sufficient vigour to consider a second volume. Finally, the support for the publication of this book cements the position of The Federation Press as one of the leading Australian publishers of legal texts. Read full review…
Geoffrey Watson SC, Bar News, NSW Bar Association, Summer 2018
One might expect that the editors of this rewarding text – John Sackar and Thomas Prince – might have had a difficult task to distil into one book the extraordinary expanse of legal writing produced to date by the Honourable Dyson Heydon AC QC. The result of their efforts is nearly 750 pages of both legal analysis and commentary on eminent legal figures, written in the author’s careful and compelling style.
The text is divided into six parts, but the speeches and writings included within it are near boundless in their variety. They span from eulogies and other expositions of prominent or significant figures to analysis of judicial method; and from articles addressing, and demonstrating the author’s well-known acuity for, all reaches of the laws and principles of evidence to a chapter in defence of the remedial constructive trust. The breadth of subjects covered, however, is surpassed arguably only by the depth and rigour with which the author addresses them.
This book is a delight to read, both for its substance and its form. It is a commendable addition to the library of any lawyer.
Queensland Law Reporter – 7 September 2018 – [2018] 35 QLR
