Source: High Court of Australia Justice Edelman's speech on 2015 Dec. 9's Transcript:

In the first of those essays in 1990 in Oxford, Bingham focused upon judicial discretion. He deliberately avoided the deep debate on that topic, from which Oxford was only just beginning to recover and perhaps still suffers. The opening paragraph of that speech began with an anecdote that caused Bingham great concern:

A judge of my acquaintance once told me that when, in the course of trying a case, he encountered any problem of unusual difficulty, it was his practice to glower at counsel in his most forbidding manner and demand "Is this not a matter within my discretion?" On counsel agreeing that it was – which it seems they readily did – he would sink back in his chair with relief, relaxed in the knowledge that no matter which he decided his decision would be immune from successful challenge on appeal.

The theme of his speech was to rail against undirected and unreviewable discretions.

  1. Am I right that the judge's question on discretion, "glower[ing]" and "forbidding manner" are scare tactics to spook the barrister to take extra care in answering? Did I overlook anything?

  2. I don't understand the bold. A matter being in trial judges' discretion, would immunize them from appeals based on justiciability, but not from appeals alleging error in facts that satisfy conditions) or in law?

1 Answer 1


Once your counsel has conceded that the matter is within the judge's discretion (which is quite likely when an irascible judge makes clear his view that it is), you are estopped from saying on appeal that it was not. And if it was within his discretion, no appeal court can overturn his finding.

As Lord Bingham says, this is not conducive to justice unless you hold the now largely obsolete view that successful appeals reduce public confidence in the system, and so should be kept to a minimum.

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