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Poor old Mason gets a serve from the mainstream media in The Australian newspaper today.

He has had a rough trot.

I would agree that federalism complicates the picture - the NSWCA is not entirely analogous with the English CA, because there are 5 other State Courts of Appeal also making law (which might be different to that of NSW).

I think Mason's comments about the role of the High Court also have to be understood in the context of an earlier NSWCA decision on which he and Heydon JA were at odds (when Heydon was still on the NSWCA): Harris v Digital Pulse Pty Ltd [2003] NSWCA 10.

In Harris, Heydon JA had this to say about the role of creativity and the judiciary at [456] - [458]:

As to Sir George Jessel MR’s account of the development of equity in Re Hallett’s Estate, it is true that the rules of equity have changed from time to time, and true that individual Chancellors - and Masters of the Rolls, Lord Keepers and Vice Chancellors - have effected these changes. It is also true that the rules can be changed in future. But those deeds of single judges were done when there was no appellate jurisdiction in the House of Lords, or very limited access to it, at a time before modern parliamentary democracy had developed, and members of parliaments consisted largely of wealthy men who in turn supported Cabinets composed largely of aristocratic oligarchs whom it was difficult to interest in the details of private law. What individual judges did in those constitutional and forensic conditions is not a sound guide to what modern Australian courts, at least at levels below the High Court, can do. A single equity judge in the time of Sir George Jessel MR had the power, the competence, the authority and the capacity to compel acceptance from other judges which only the High Court has now, at least where the change goes beyond the application of existing principles in a new way or marginal extensions of the law.

In In re Diplock, Diplock v Wintle [1948] Ch 465 at 481-2 Lord Greene MR, Wrottesley and Evershed LJJ said of the equitable claim made in that case by next-of-kin against persons who had wrongly received the testator’s assets under an invalid bequest:

if the claim in equity exists it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.

The defendants relied on those words. That is a sound modern approach, at least for courts below the High Court, and at least where anything more than non-radical change is involved.

Sir George Jessel MR’s judicial life coincided with the time when democracy in a modern form was beginning and the responsiveness of Parliament to social or legal ills was starting to develop. It was a time when the judiciary was small, highly skilled and united. It is now large, less skilled, and far from entirely united. For courts below the High Court to act in the manner of the single judges sitting in Chancery who made modern equity is to invite the spread of a wilderness of single instances, a proliferation of discordant and idiosyncratic opinions, and ultimately an anarchic “system” operating according to the forms, but not the realities, of law.