Gummow tended his flock
Illustration: Pat Campbell
No lawyer makes it to the High Court without a considerable ego, ambition and ability, but few have come to the court with a stronger reputation for scholarship and learning - or with more self-confidence in his intellectual ability - than Dyson Heydon.
He had been a brilliant scholar and academic, and a jewel of the upper reaches of the Sydney bar. With an array of other brilliant lawyers - Rod Meagher, John Lehane and Bill Gummow - he had written a textbook on equity widely regarded as the best in the common law world. Some of his scholarship - on economic torts, for example - had anticipated and shaped major developments in the law. He had powerful admirers and patrons, some of whom went out of their way to make it clear to politicians - John Howard, for example - that here at last was a man who could stand in the shoes of Owen Dixon, Australia's most internationally celebrated jurist.
That admiration was matched by his own ambition for further judicial preferment, not least as when, as a NSW Court of Appeal judge addressing a dinner of Quadrant luvvies, he attacked activist judges, including former chief justice Sir Anthony Mason, as threats to the rule of law.
Some judges thought they could right every social wrong, and achieve immortality by doing so, and that they had the right to rewrite legislation to conform to their own world views, he said.
The speech - ripe with sneers and jokes about Mason, Michael Kirby, Lionel Murphy and others - was widely seen as a job application to the Howard government for a High Court vacancy. If so, it worked.
But Heydon's term on the court has now finished without his having made much impact on the court or, more humiliatingly, on the law. Somehow, he simply did not live up to his promise.
His fame did not increase. Nor did his influence on other judges. Instead he ended up as a judicial hermit, often in dissent. He ended writing his own judgments even when he agreed with the outcomes. Rarely did he make a difference, either with reasoning or result. Waspish and mostly seemingly furious at his fellow judges, he found his approach, reasoning and conclusions were being simply ignored by the rest.
Heydon, who had earlier attacked other judges for making frankly political statements, was now to be found making open sneers about judges he thought politically correct, in the process making obvious his own conservative world view.
The judge who claimed to be the intellectual heir of Owen Dixon and (dubiously) that Dixon had not made judicial policy of his personal opinions, now used his own personal opinions to resolve some policy questions (such as in the wrongful birth case).
The judge who mocked activist judges for using computers to troll the world for law reports proposing novel propositions undermining established ones, or using huge footnotes and copious references and asides, began filling judgments with footnotes, asides, recondite allusions to obscure history and personal attacks on his colleagues.
How did a man of such promise find himself utterly sidelined?
It was, it seems, because he was no good at judicial politics. If brilliant in the law, he could not give great committee. He might have had marked success as an advocate addressing judges but, as a judge, seemed to lack persuasive capacity with colleagues, either in conferences discussing cases or with his own draft judgments. His colleagues had their own ideas or followed other leaders. How galling!
The primary villain - if villain it is - was his old colleague and once close friend and fellow author, Bill Gummow - also an outstanding intellect but in most respects far less outgoing, self-confident and domineering. He consistently rang rings around Heydon getting others to agree with him.
Heydon thinks such politicking injudicious or dangerous, especially when some judges behave as sheep.
It seems he thought his former friend - the outwardly quietest, shiest man - to be a bully. Here's Heydon speaking of such a judge - in London eight weeks ago. No names, no pack drill, of course.
''Stronger judicial personalities tend to push the weaker into decision. They stare out of their judgments with the superb arrogance of noblemen in renaissance portraits, utterly confident of their own ability; pretty sure that no other judge has yet grasped the key points and that some may never do; certain that the parties have not grasped the points; glorying in their own self-perceived terribilita.
''It is no sin to have a strong judicial personality. Independent judges often need to display gumption. But a combination of those personalities taken with judicial herd behaviour can I think cause grave dangers.
''That is particularly so in relation to the now-fashionable judicial conferences, whether the conference is held before oral argument commences or just after it is concluded. Those … are antithetical to the common law adversary tradition … The leaders of the judicial herd have much less power in open court because their activities can be detected and disrupted by barristers. But they have considerable power before oral argument begins. [They can create] … a premature closure of the mind before a word of oral argument has been uttered.
''Chief justice Dixon … spoke of arguments being torn to shreds before they had been properly admitted to the mind. Some counsel in our day think that they're often torn to shreds before they've fully left counsel's mouth.
''The danger is that the secret debate among the bench … can move further and further from the parameters of the public debate between bench and bar …
''The meeting can be seduced by suave glittering phrases. Each bright idea, each brilliant phrase, can move the participants away from what the parties said, away from the particular facts of the case, towards general pronouncements about the future of the law unaided by the submissions or the particular predicament of the parties.
''By a process of self-hypnosis those at the meeting can begin to drift away from their duty to solve the parties' problem and to begin a process of regulating the affairs of much wider classes.''
He hasn't even mentioned the final seductive ploy that worked so well for Gummow. Gummow seduced the sheep by rapid circulation of a draft judgment. He was ever willing to canvass its content, to agree to suggestions and to incorporate ideas of others. In early days Heydon did not greatly mind joining with other judges, particularly Gummow. In his final days, he regarded himself as duty-bound to not have his own exquisite reasoning contaminated by anyone else's.
Gummow was rarely in dissent. He was a success who has left an indelible impression on the law.
As significantly, Gummow was in a joint judgment - often the joint judgment - in which his own authorial hand, style and philosophy was clear. So far, the court has no obvious dominating successor (although Stephen Gageler is showing himself a good bet).
What Heydon and Gummow also had in common was long and almost impenetrable judgments, not easily understood by mere mortals. Both gave long sentence.
With people seemingly regarded as sheep by Heydon in charge, no doubt the politics will disappear.
Jack Waterford is Editor-at-Large.