Wavering Alternations of Valour and Caution: Commercial and Regulatory Litigation in the French CJ High Court

Abstract

This article examines commercial and regulatory litigation in the High Court since Robert French was appointed Chief Justice in 2008. An analysis of six cases reveals a spectrum of valour and caution, courage and coyness. The French High Court has asserted judicial leadership and a public responsiveness in some areas but in others it has retreated to a narrow incrementalism that pulls away from broader issues and leaves important questions unanswered. Although the article concludes that it is too early to determine a particular judicial method of the French High Court (as compared to some of its predecessors), it raises questions about what should be expected of Australia’s highest appellate court in this area.

Keywords: judicial method, appellate courts, standing, amicus, duty of fairness, regulators, litigation funding

JEL Classification: K20, K22, K41