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Lord Walker has been causing a stir Down Under, according to an article published by the Lawyers Weekly today. Lord Walker of Gestingthorpe gave the annual Law Oration at the Supreme Court in Victoria last night. In his address, Lord Walker warned Australian judges that they cannot simply say “pass” when faced with difficult decisions in relation to common law.

In his speech Lord Walker examined the development of UK and Australian common law and the role of judges in helping the law to keep pace with changes in society. “It is not open to judges faced with a difficult question to say ‘pass’”, he said. “When parliament refrains from addressing a new problem, the court has no option but to give the best judgment that it can.” However, by encouraging judges not to shirk from difficult decisions regarding the common law, he was not suggesting a carte blanche for judicial intervention.

“If we stand back it is not easy to discern any clear policy as to what is, and what is not, off limits for the development of the common law by a court of last resort . . . A lot seems to depend on judicial intuition. But the cases suggest that it is common law rules that might be described as ‘lawyer’s law’, such as witness immunity or mistake of law, which the judges are most ready to develop.”

Conversely, issues that potentially have large social and economic consequences, such as causation in clinical negligence and industrial diseases, are generally “best left to parliament”.

Lord Walker also referred to the increased use of injunctions in UK courts, saying that courts are attempting to find a balance between personal rights of privacy and the public interest in freedom of expression:

“The development of this branch of the law in England has undoubtedly been accelerated by the egregious conduct of the British press, and the readiness of the legal profession to encourage highly-paid footballers, TV personalities and other celebrities to seek prior restraint in the form of an ex-parte injunction . . . These so-called super injunctions – secret justice, you might say, available only to the super rich – have raised serious issues.”