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Callinan takes aim at fellow judges

smh.com.au  24 November 2007

THE retired High Court judge Ian Callinan has accused fellow judges of carrying "personal baggage" when handing down decisions.

Mr Callinan, who was appointed to the High Court in 1998 and retired a day before his 70th birthday in September, yesterday criticised some colleagues as well as aspects of the legal system itself. His comments came as he was appointed an honorary fellow of the Institute of Arbitrators and Mediators Australia at a function in Brisbane.

"If a judge is bringing to a constitutional question his philosophical baggage, and he or she probably will have some sort of philosophical baggage, there is an obligation I think to make it clear what that philosophy is and to be absolutely candid about it," Mr Callinan said.

"When I was at the bar, I sometimes thought, and not just in constitutional cases, that judges were not always as candid about their real reasons for deciding a case as they might have been."

Mr Callinan, who heads the national commission of inquiry into the equine influenza outbreak, criticised High Court judgments as "too long, too wordy and too numerous".

"The three or four separate judgments, often quite long judgments, reaching the same conclusions but involving either quite different or slightly different reasoning, are unnecessary, productive of uncertainty and self-indulgent," he said.

Judges often strayed beyond issues, there were too many citations and quotations and a trend to "rubber-stamp" the findings of facts, he said.

"There has also been, in my opinion, a collective defensiveness on the part of some judges about reversing other judgments," Mr Callinan said.

He pointed to deficiencies in the adversarial system, such as cases taking too long and costing too much money.

"We have to be careful in the admirable endeavour of making litigation more efficient."

Mr Callinan also reflected on retired life, describing himself as a "free spirit", and saying his time as a High Court judge had been "onerous and constraining".

"In retirement I do feel something of a sense of liberation," he said.

Mr Callinan, who once wrote an anti-activist paper called An Over Mighty Court, was an early appointment by the Howard Government.

He was greeted as the "capital C conservative" demanded by the then deputy prime minister, Tim Fischer.

On his retirement, Mr Callinan was replaced by Susan Kiefel.

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