Sir Owen Dixon, strict legalism and McRae v Commonwealth Disposals Commission

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.