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Type: Journal article
Title: Sir Owen Dixon, strict legalism and McRae v Commonwealth Disposals Commission
Author: Gava, J.
Citation: Oxford University Commonwealth Law Journal, 2009; 9(2):141-165
Publisher: Hart Publishing
Issue Date: 2009
ISSN: 1472-9342
Statement of
John Gava
Abstract: One of the central debates in law concerns the nature of judging and, in particular, whether judicial reasoning is in any way bounded or whether it is essentially open-ended. In Australia a particularly influential view for many years was that expressed by Sir Owen Dixon that judging should be in accord with a “strict and complete legalism”. This paper considers in detail the High Court decision of McRae v Commonwealth Disposals Commission, where Dixon and Fullagar JJ reconfigured the common law's treatment of mutual mistake, to see if his reasoning is in line with his self-described judicial method. This analysis provides a case study of Dixon J's fidelity to his self-proclaimed strict legalism and illustrates the creative yet bounded nature of his understanding of the judicial role.
Rights: Copyright status unknown
DOI: 10.1080/14729342.2009.11421504
Appears in Collections:Aurora harvest
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