In a private international law context, judicial restraint on the ground of the desirability of legislative intervention also played a significant part in the reasoning of the High Court in Dow Jones v Gutnick (2002) 210 CLR 575, applying traditional choice of law principles to Internet defamation, and Voth v Manildra (1990) 171 CLR 538, refusing to adopt the English "more appropriate forum model" for staying proceedings.
Kind regards
Andrew
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From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Wednesday, May 18, 2011 01:45 AM
To: Volokh, Eugene <VOLOKH@law.ucla.edu>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature
Dear Eugene et al;
In Australia one case that springs to mind where there were a number of things said about not extending common law liability (also in the privacy area, like the case Benjamin mentioned, but only a century or so later!) was
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
http://www.austlii.edu.au/au/cases/cth/HCA/2001/63.html where the High Court of Australia declined to create a new tort action for breach of privacy (though they were able to hold that the old equitable action for "breach of confidence" could be extended to cases involving personal privacy in some situations.)
Sometimes the practice of judges extending tort liability where the legislature has chosen not to tread can be called "Judicial Activism". One of the current members of the High Court, Justice Dyson Heydon, wrote a (locally) celebrated article on this just before his appointment to the Court in 'Judicial Activism and the Death of the Rule of Law' (2003) 47
Quadrant 9. (I think versions of this paper are also available in more traditional law journals.) His views continue to be debated by local academics, of course. I notice that the current Chief Justice of the High Court, French CJ, has a paper on the general issue of "judicial activism" on the HC website at
http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj10Nov09.pdf .
Regards
Neil
On 18/05/2011, at 4:41 AM, Volokh, Eugene wrote:
Dear colleagues: Judges in tort cases sometimes reject a proposed extension of tort liability on the grounds that it should be left to the legislature (and not just in cases where there’s already a statute foreclosing such liability, which can indeed only be modified by the legislature). The judges obviously recognize that they have the power to create new tort law rules, and that most tort law rules were indeed created by judges; but in some situations, they conclude that they shouldn’t make certain decisions, and that it is only the legislature that should be able to make them. Are there any good articles that discuss this as a general matter, both descriptively and normatively? Many thanks,
Eugene Volokh
UCLA School of Law
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
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