BACKGROUND

The High Court of Australia is the final appellate and constitutional court in Australia. It comprises seven justices. An appeal brought in its appellate jurisdiction requires a grant of special leave. Some 400 – 500 applications for special leave are determined each year and about 60 cases proceed to full oral hearing. Judgments are currently delivered within six months from the date of hearing and often earlier.

Argument on an appeal is usually heard by five justices. It may be increased to all seven justices, for example where it is sought to have a previous decision of the Court overruled. In matters in the original jurisdiction of the Court, such as constitutional matters, it is usual for all justices to sit.

The time taken for hearings, generally speaking, ranges from a half-day to two days. Estimates of time are provided by the parties and considered by the Court. The Court provides an allocation of time for the hearing and the lawyers are expected to divide that time amongst themselves. It is not usual for a matter to exceed the time allocated, but the Court will extend time if it considers it to be necessary. This circumstance does not often arise.

Some time prior to a sitting, a document is circulated amongst the justices identifying the matters to be heard, those matters which require all available justices to hear them, and otherwise the justices who will constitute a panel of five. The document is in the nature of a proposal about which other views may be stated. For obvious reasons the Court tries to avoid sitting in even numbers, but there are statutory mechanisms for resolving a matter where the opinion as to the outcome is equally divided.

The ways in which the justices of the High Court deliberate and decide matters necessarily reflects a balance drawn between institutional values and competing external pressures. The judgments of the High Court in more recent times reflect a shift away from individualism in favour of a more collegiate approach that places greater weight on the timely delivery of judgments and provision of guidance for lower courts.