Insights into litigation, sports law, media and legal culture

Learning about James Edelman, Australia’s first Generation X High Court judge

Barristers love speculating about the identity of the next High Court judge.  With Chief Justice French shortly to retire, a Positions Vacant sign hung prominently over the High Court front door. For the punters, Susan Kiefel was at short odds to take over the Chief Justice top spot.  Who though, would fill the last remaining vacancy on the bench?

Over in the East, we had heard about a Western Australian called James Edelman. His name had emerged in gossip over morning coffee as a possible candidate. Apparently, he was young, and he was good.

Sources proved sound, because James Edelman has indeed been appointed to the High Court of Australia. He will be 43 when he formally commences his role.

There is no right of appeal from the High Court.  The court’s decisions are the ‘last legal word’ in our country.  Therefore, the identity of High Court judges is important.  They are the final arbiters of disputes arising in contemporary society.  A diverse bench is therefore healthy for the court, and for those appearing before it.

Now, Australians have a Gen-Xer forming part of this formidable judicial team.

What is Generation X?

Members of Generation X are said to be those born near the end of the 1960s and before 1977.  In fairness to Justice Michelle Gordon of the High Court, at the age of 52 she is on the “cusp” of being Generation X, as she was born on 19 November 1964.  The minimum Gen X starting point is generally suggested though to be 1965.

For those of you who wonder what being Generation X means, one of the most popular definitions in Urban Dictionary (a favourite cynical resource) suggests:

“The title Generation X was designated by the media to indicate a distinct group population for marketing purposes. Generation X members are generally considered laid back (slackers), market savvy (having been inundated by the mass media and MTV since their pre-teen years), prone to psychological disorders (the first generation with a majority to have grown up with absent or divorced parents), and considered less important than baby boomers. Generational trends however suggest that Gen Xers are smarter than people think, are more capable and hard-working than expected, and will eventually rule the world.”

What might being Generation X mean for Edelman J?

James Edelman’s contemporaries, at least in the celebrity world, are Leonardo Di Caprio, Christian Bale, Joaquin Phoenix, Joel Edgerton and Jimmy Fallon.

Initially, I wondered whether James Edelman was the sort of person who grew up watching Growing Pains or Roseanne, and who might have found himself late at night, at a party at Magdalen College in Oxford, singing:

Yo, I’ll tell you what I want, what I really really want,

So tell me what you want, what you really really want

I wanna, I wanna, I wanna, I wanna really really really wanna zigazig ha.

But having read the transcript of Edelman J’s welcome speeches when he joined the Supreme Court of Western Australia (25 July 2011) and then the Federal Court of Australia – Brisbane Registry (20 April 2015), I’m no longer so sure the Spice Girls were high on his agenda.

Take this anecdote told by Edelman J – in his own words – at his Federal Court Welcome:

My close family are almost all lawyers and they come from a broad mix of religious traditions with a diverse range of opinions.  Probably my first memory of legal argument was at the age of 12, when two of the lawyers in my family were engaged in a vociferous dispute with my mother, who is not a lawyer, as the lawyers attempted without success, to define the word estoppel.  The debate was particularly protracted because it occurred in the context where the word estoppel had been formed on a triple word score.  The members of my family here this afternoon range in ages from five to 87, although neither person whose ages I have just mentioned will thank me for that remark.”

Query who on the planet can succinctly define ‘estoppel’ now.  Also, not to be a pedant, but why on earth were so many people debating the definition of estoppel if they were playing Scrabble?  The issue was whether the spelling was correct.  A debate about ‘two p’s’ or ‘one p’, one can understand.

Or his fond memories at Oxford University: “There were debates (and there always were debates) over lunch every day in the Inner Temple, always with the middle row for 1 Essex Court.”

Accordingly, the prospect that Edelman J spent hours contemplating whether he was more like “Mav” or “Iceman” in Top Gun appears inherently unlikely, and his reputed lack of proclivity in team sports suggests that the ‘Volleyball’ scene was not likely high on his radar either.

This is not to suggest, given Edelman J’s membership of the Australian lifesaving team 1996, that one should necessarily draw comparisons with Revenge of the Nerds.

Rather, one’s impression is of a person steeped in the law.  His friends were like that: “I will miss Simon’s encyclopaedic understanding of legal practice and procedure”. With the visual picture completed by, “I will not miss being hit by the rubber ball that he used to throw at the wall as we discussed cases in his office.”

His contemporaries also illuminate: “Sarah has been my confidante and the backbone of my life for every single day since the first day we met, almost exactly a decade ago, when Justice Nye Perram deliberately contrived our first date.”

In other words, when Edelman J visited a video store (and I do say ‘when’) he may have been more in the mood for a VHS of Presumed Innocent, rather than Die Hard.

When contemplating the importance of generational change and diversity, consider the comments of the Chief Justice of the Supreme Court of Western Australia who, when welcoming Edelman J to the judicial fraternity, referred to his own “brief visit to the blogosphere” and to those “who inhabit that strange netherworld”, when researching his speech.

As it happens, the courts are now replete with disputes arising from “the blogosphere”. Having a working understanding of the evidence in such a case and the attributes of its “strange” inhabitants, makes a great deal of sense.

Not so much intel about Generation X, but how about other things?

My research, perhaps disappointingly, did not reveal any Edelman J attributes specific to Generation X that would distinguish him from his Baby Boomer contemporaries.

That said, his receipt of two excellence in teaching awards during his time as a Professor at Oxford did suggest something at least as important, if not more so.  Communicating the law via well-written judgments to the parties, to lawyers and to students has been arguably a dying art, likely made worse by the ease with which one can type volumes on a computer (note to self).

Brevity and economy of expression are highly valued skills in a judge.  To test whether Edelman J had these attributes, I engaged in a random search of his judgments online.  I went no further than the first decision I landed on because I liked it very much.  It was a public urination case. Let’s have a look at it.

First, the case was heard on 12 August 2011, shortly after Edelman J was appointed to the Supreme Court of Western Australia. Judgment was delivered orally that same day.  This is a sign of confidence, because most new judges like to think about things for a while (sometimes months) before making a call and delivering reasons. Typically, Supreme Court judges deliver reasons in writing.  Some do it orally, if they are very experienced or very confident.  In other words, to deliver reasons orally or viva voce (as this is called by those who like spouting Latin phrases), is often described as ‘efficient’ by those who do it, and ‘showing off’ by those who receive it.

Secondly, the plain English reasoning is an easy read.  The case was an appeal from the Magistrates Court and concerned a “spent conviction order”.

Having a spent conviction order (SCO) is a bit like an adverse credit report that has expired. If you obtain the benefit of such an  order, in future you may not need to acknowledge that you were charged with and convicted of an offence.

There was no mention of “lavatory” or the kind of ‘judge-y’ words that suggest discomfort with subject matter concerning bodily functions. Short sentences and the word “toilet” stand out:

“In her affidavit the appellant provides substantially more information than was before the learned magistrate. It can be summarised as follows. She is completing a Bachelor of Creative Industries degree at university. She lives with her mother and four sisters. She works between 12 and 17 hours a week. She also receives Youth Allowance. She helps her family financially. She says that on the night of the offence she had gone to a nightclub. She wanted to use the toilet there but the male friends in her group were not admitted to the club. She asked to use the toilet at a kebab store but the proprietor would not permit her to do so without buying a kebab. She asked her friends if they knew where there was a toilet. They did not know. She did not realise that there was a toilet 150 m away. One of her friends pointed to an area which looked like an alley. It was dark and she urinated behind a car, thinking that she was out of a public area. She also thought that no-one could see her. But she was seen by the police. She had never been charged with anything before and she pleaded guilty without legal advice. She did not know that she would get a criminal record and did not realise that she could ask for a spent conviction order.”

Thirdly, with a hint of ‘don’t waste the court’s time’, Edelman J was prepared to express a policy view that such trivial matters as urination would be better dealt with by infringement notice.  Often, it takes a while in the Big Chair before judges are prepared to go out on a limb on questions of policy (meaning he is sending a signal to Parliament to consider amending the legislation).

Fourthly, he was sensitive about the identity of the individual which is why she was subject to a pseudonym order that did not reveal her name in the judgment.

Fifthly, a spent conviction order was made.

Dedicating one’s life to the public sector can come at a price

Whilst my search for Generation X attributes involved guess work and was largely fruitless, a point made by one speaker when welcoming Edelman J to the WA Supreme Court was well made.  That is, and accepting that judges earn a lot more than the minimum wage, at the age of 37 (and now at 42), Edelman J could have pursued a very lucrative career at the Bar.  Instead, by accepting a judicial appointment at a young age and with a young family, he has chosen to spend the most productive years of his legal life at comparatively cheap hourly rates in the service of a public sometimes quick to criticise.

Hopefully, Edelman J’s enjoyment of intellectual pursuits continues for the next 28 years. That is the remaining length of his High Court term.



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