French, Justice Robert --- "Mental states in civil litigation" (FCA) [2003] FedJSchol 15

THE AUSTRALIAN INSTITUTE OF JUDICIAL ADMINISTRATION INCORPORATED

NEW CHALLENGES, FRESH SOLUTIONS

19-21 September 2003

Mental States in Civil Litigation

Justice RS French
Federal Court of Australia

Introduction – Mental States – Comfortably Factual?
There is a comforting plausibility about the proposition stated by Bowen LJ in 1885, that the state of a man’s mind is as much a fact as the state of his digestion.[1] The state of mind in issue in that case was the purpose for which directors of a company were raising money on debentures. The action was one for deceit based upon the directors’ false statement that the money was being raised to complete alterations and additions to company buildings, the purchase of horses and vans and development of the company’s trade. The true purpose of the money raising was to pay off company debts. There was a question whether the misstatement of purpose would ground deceit. Bowen LJ went on to add to his famous observation:

‘It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is therefore a misstatement of fact.’

Underlying the quoted passage is acceptance of the logical premise that mental states are objective realities, the existence of which may be ascertained by processes of inferential fact-finding. On that premise inferential processes about mental states may be difficult but can be located comfortably within the conceptual model of fact finding familiar in courts of law.

Clearly related to this premise is the assumption that the words ordinarily used to name mental states of interest to the law name things which are real and reflect common experiences and perceptions. This must be so because judges and juries in both civil and criminal cases are frequently called upon to make judgments about the existence of such named mental states without the assistance of expert evidence. So the learned authors of the Australian Edition of Cross on Evidence are able to include in the text, under the general heading ‘Facts which need not be proved by Evidence’ the proposition that:

‘General experience may be used to form opinions on matters of intention, knowledge and other mental and emotional states.’ [2]

This is not a matter of taking judicial notice. It refers to the use which triers of facts such as juries:

‘... may legitimately make of their own general knowledge in forming opinions on matters of credibility, probability, intention, knowledge and the like.’ [3]

These statements may be seen as subsumed in the wider proposition that:

‘Ordinary human nature, that of people at large is not a subject of proof by evidence, whether supposedly expert or not.’ [4]

Courts accept, of course, that there are cases in which expert evidence will be received about whether a person is suffering from a disease or disorder of the mind and if so, whether by reason of such condition, the person lacked the capacity to control his or her actions or to understand that what he or she was doing at a particular time was wrong. Such evidence may be called in cases where a mental disease or disorder is invoked as a defence to civil responsibility. It can also arise in connection with questions of testamentary or contractual capacity or whether a person was in a situation of special disadvantage for the purposes of the law relating to unconscionable conduct. But the view of the courts about the ordinary run of judgments concerning mental state is firm:

‘Psychiatry has not yet become a satisfactory substitute for the commonsense of juries or magistrates on matters within their experience of life.’ [5]

Cases involving expert psychiatric or medical evidence aside, pronouncements as to the existence of named mental states according to ordinary usage are integral to the allocation of rights and liabilities in many causes of action arising under common law and statute. The term ‘pronouncement’ is used advisedly because, as will be discussed below, the judgment as to mental states is not always properly characterised as fact finding. Indeed there may be a real theoretical question whether inferences about mental states are findings of fact at all.

Naming Mental States
Named mental states commonly the subject of pronouncements in the law include:
Belief
Expectation
Mistake
Reliance
Knowledge
Knowing concern
Intention
Purpose
Recklessness
Malice

Some of these terms may be subsets or compounds of others. There are also terms used as adjectives to describe conduct associated with a particular mental state. These include:

Voluntary
Wilful
Dishonest

Defining Mental States
The ordinary meanings of these terms, as found in the dictionaries, refer to states of mind expressly or by necessary implication and generally do not differ materially from their meanings in the various legal contexts in which they arise. A survey of definitions in the Shorter Oxford English Dictionary illustrates the point.

Extracting relevant elements from the Shorter Oxford English Dictionary, the definition of ‘belief’ includes:

‘assent of the mind to a statement, or to the truth of a fact beyond observation, on the testimony of another.’

‘Expectation’ is related to belief. It is:

‘... the action of mentally looking for some one to come, forecasting something to happen, or anticipating something to be received; anticipation; a preconceived idea or opinion with regard to what will take place.’

Mistake, in the sense relevant to the law, may be seen as a special case or subset of belief, that is to say an erroneous belief. The dictionary definition includes elements in which this is made clear:

‘Misapprehension, misunderstanding, error, misjudgment.’

Reliance is a species of belief actually or potentially causative of action or inaction. It may in some cases be a kind of expectation but is still a subset of belief.

‘Knowledge’ includes:

‘Intellectual acquaintance with, or perception of, fact or truth; clear and certain mental apprehension; the fact, state, or condition of understanding.’

The term ‘knowingly concerned’ which appears in statutes as a criterion of both criminal and civil accessorial liability, has two components, ‘knowingly’ and ‘concerned’ which, read together on the basis of their dictionary definitions mean, ‘affected, interested or involved in a knowing manner, with knowledge, consciously, intentionally etc.’ So the term overlaps, in ordinary parlance, with the concept of intention. This overlap has been made clear by the High Court in its expositions of ‘knowingly concerned’. To be ‘knowingly concerned’ in a contravention of the law, for the purposes of accessorial criminal or civil liability, a party must have knowledge of the essential elements constituting contravention of the relevant provision. The party must ‘... be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention’.[6]

Interestingly for wider consideration of the mental state of ‘knowledge’ the kind of knowledge required for a person to be ‘knowingly concerned’ is ‘actual knowledge’. Because the term ‘knowingly concerned’ was borrowed from the provisions imposing criminal sanctions for use as a criterion of civil liability it brings with it the constraint that constructive knowledge is ‘a conception which generally speaking has no place in the criminal law’.[7] In an illuminating discussion of the authorities applicable to the concept of knowingly concerned,[8] Burchett J referred to the observation by Viscount Kilmuir LC in Director of Public Prosecutions v Smith [1961] AC 290 at 328 where quoting Holmes J he said:

‘[The] question of knowledge is a question of the actual condition of the defendant’s consciousness.’

That is a dictum confident in the assertion that a defendant’s consciousness is comprehensible and retrospectively readable by strangers.

There is a question, discussed in this context by Burchett J, of the idea of ‘wilful blindness’ and whether that involves a chink in the protective requirement of actual knowledge. In this respect his Honour made reference to the judgment in Giorgianni v R where Wilson, Deane and Dawson JJ said:

‘The fact of exposure to the obvious may warrant the inference of knowledge. The shutting of one’s eyes to the obvious is not, however, an alternative to the actual knowledge which is required as the basis of intent to aid, abet, counsel or procure.’[9]

The concept of wilful blindness may be consistent with actual knowledge where the defendant ‘... flatters himself that where ignorance is safe, tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise’.[10] Burchett J said of this application of the criterion:

‘This is not constructive, nor is it imputed, knowledge; it is actual knowledge reduced to a minimum by the defendant’s wilful act, and the point of the case was that the minimum of actual knowledge was enough: see also R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 470-1.’[11]

‘Intention’ which is important to many different areas of the law is relevantly defined as:

‘1. The action of straining or directing the mind or attention to something.

...

4. The action of intending or purposing, volition which one is minded to carry out; purpose.

5. a. That which is intended or purposed; a purpose, design;

6. a. Ultimate purpose; the aim of an action.’

This definition encompasses mental states and their content by reference to outcome.

Purpose is almost a synonym for intention in its relevant definition which includes:

‘1.a. That which one sets before oneself as a thing to be done or attained; the object which one has in view.

2. The action or fact of intending or meaning to do something; intention, resolution, determination.

3. The object for which anything is done or made, or for which it exists; the result or effect intended or sought; end, aim.’

‘Recklessness’ is equated to carelessness or heedlessness. It implies a mental state absent of care or consideration in respect of the consequences of a person’s actions. In the context of the civil law it is a state of mind which may support a finding of fraud necessary to sustain an action for deceit. Lord Herschell explained it thus in Derry v Peek[12]:

‘Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief.’

Sir Samuel Griffith put it thus:

‘If a man makes a material statement which is false in fact, careless whether it be true or false, he is as much guilty of fraud as if he knew it to be false.’[13]

So to say, is not to construct knowledge out of recklessness. It is to attach to recklessness the same consequences as knowing misstatement.

‘Malice’ is probably best described as a subset of intention. Its definition includes:

‘The intention or desire to do evil or cause injury to another person; active ill- will or hatred...’

One of its dictionary definitions is specifically directed to its use in the law:

‘Wrongful intention generally.

The state of mind required for a person to be found guilty of certain criminal offences (esp of murder)

The state of mind required for a person to be made liable for certain torts.’

In its legal sense, malice means ‘... a wrongful act done intentionally without just cause or excuse’.[14] An example of its application which has been the subject of recent case law is in connection with the tort of misfeasance in public office. Although the precise limits of that tort are still undefined, it is an intentional tort there being no liability unless there is either an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.[15] Deane J identified as its elements of the tort:

(a) an invalid or unauthorised act;

(b) done maliciously;

(c) by a public officer;

(d) in the purported discharge of his or her public duty;

(e) which causes loss or harm to the plaintiff.[16]

Malice could be made out, in such a case, if the act were done with an actual intention to cause injury or in the knowledge of its invalidity or the want of relevant power coupled with the knowledge that it would cause or be likely to cause injury. His Honour also expressed the view that if the act were done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury, malice would exist. In the subsequent decision of the House of Lords in Three Rivers District Council v Governor and Company of the Bank of England [17], Lord Steyn held that recklessness as well as actual knowledge of want of power and likely harm was sufficient to show the state of mind necessary to make out the tort:

‘It can ... now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.’

Identifying Overlaps
As a general proposition it seems that the two primary mental states of concern in these definitions reduce to belief and intention. Belief encompasses:

1. Knowledge – a true belief.
2. Mistake – a wrong belief.
3. Expectation – a belief about the future.
4. Reliance – a belief causative of action or inaction.

As appears from the preceding discussion ‘intention’ includes malice as a subset broadly described as evil intentions. Intention and purpose overlap substantially in their definitions.

Adjectival Mental States
The adjective ‘voluntary’ brings in the important concept of volition and free will. So a voluntary action is:

‘... Performed or done of one’s own free will, impulse, or choice; not constrained, prompted, or suggested by another.’

The word ‘wilful’ is, in a broad sense, close to voluntary and attracts definition in those terms. But relevantly to the law it is also related to intentional action:

‘Done on purpose or wittingly; purposed, deliberate, intentional, not accidental or casual. Chiefly, now always, in bad sense, of an action either evil in itself or blameworthy in the particular case; often (with colour of sense 1) implying ‘perverse, obstinate’.’

The third adjective ‘dishonest’ is a broad evaluative term related to actions and character rather than exclusively to a mental state. The definition implies a disposition of the mind:

‘Wanting in honesty, probity, or integrity; disposed to cheats or to fraud; thievish.’

The term ‘good faith’ which deserves a literature of its own also appears to describe a combination of honesty and intention or purposes which accord with some standard of legitimacy imposed by statute or the common law. It seems to be underpinned by a mental state concept. So too, is the notion of ‘consent’ which is a combination of mental assent and action to express or otherwise give effect to that assent.

Subjective and Objective Mental States
The legal settings in which these terms are used are various. Their use is generally directed to resolution of questions of legal right or liability and entitlement to relief. So their use is closely linked to the allocation of rights and responsibilities at law. Indeed the distinction between the determination of a mental state as a matter of fact and the allocation of rights and responsibilities may be elided. A mental state may be seen to be little more than a judicial invention to support a particular outcome – analogous to the elusive concept of ‘proximity’ in the law of negligence. In the context of discussion of intention, on this view:

‘... the debate about competing conceptions of intention is just so much hot air; no actual conception in fact constraints the substantive ascriptions of responsibility in question. The function of the concept of intention in legal discourse is hence not logical, but ideological.’ [18]

Where, as not infrequently occurs, mental states such as ‘intention’ or ‘purpose’ are expressed to be ‘constructive’ or ‘objectively’ rather than subjectively determined, this sceptical approach to their use is persuasive.

In the law of contract it is still the case that along with offer, acceptance and consideration, the intention to form a legally binding relationship is a necessary condition of an enforceable contract. There is debate on whether it is in truth a logically distinct condition and it may be that it is simply a way of characterising, as legally enforceable, an agreement meeting the other three conditions. The intention to form legal relations is to be determined objectively. This seems to have little if anything to do with the business of ascertaining subjective or ‘actual’ mental states. Indeed as the learned authors of the 8th Edition of Cheshire and Fifoot, Butterworths (2002) at 5.19 observed:

‘... the notion of objective intention seems at first sight paradoxical.’

Paradoxical may be too mild a term. Oxymoronic might be better. For an objective intention is a mental state not determined but attributed.

This approach to contractual intention is made explicit in the judgment of Gaudron, McHugh, Hayne and Callinan JJ in Ermogeneous v Greek Orthodox Community of South Australia Inc.[19]

‘Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.’

That is to say the determination of the intention to create contractual relations does not require a determination of actual subjective states of mind. It may be accepted in so saying that subjective intentions, which have been communicated, may be relevant.[20]

The existence of objectively determined or constructive states of mind in the law is instructive. So too is the existence of states of mind attributed to non-human entities. For the existence of these states of mind raises the question whether in law we are ever really concerned with accessing the ‘truth’ of mental states as distinct from formulating and applying rules for their pronouncement. On this view a requirement to demonstrate subjective or objective states of mind is really a statement about the kinds of rules that are to be invoked for pronouncement of the relevant state in a particular class of case.

Fictitious Mental States - Corporations
The attribution of mental states to corporations illustrates the point. A corporation is a legal person which exists only in the virtual reality of the law. It is a fictitious person. But in order to allocate rights and liabilities the law treats it in certain circumstances as though it has a mind and as though that mind has mental states. Thus a corporation may have purposes.

The Trade Practices Act contains a number of provisions in which corporations are prohibited from engaging in conduct which has various anti-competitive purposes. Sections 4D and 4F of the Act refer to exclusionary provisions of contracts, arrangements or understandings with particular purposes. Section 45 prohibits corporations, under certain conditions, from entering into such contracts, arrangements or understandings.

Section 46 prohibits corporations with a substantial degree of power in a market from taking advantage of that power for purposes including eliminating or substantially damaging a competitor of the corporation or preventing the entry of a person into that or any other market or deterring or preventing a person from engaging in competitive conduct in that or any other market. Purpose in this context has been defined as simply an intention to achieve a particular result.[21]

Section 47 of the Act prohibits exclusive dealing where engaged in by a corporation for the purpose of substantially lessening competition. There has been consideration in the cases about whether the purposes to be attributed to corporations allege to have contravened these provisions are to be ascertained subjectively or objectively. This may seem to some a strange distinction to be drawn in relation to a fictitious entity with a non-existent mind.

In its recent decision in News Limited v South Sydney District Rugby League Football Club Ltd [22] the High Court held the requisite purposes under ss 4D and 45 of the Trade Practices Act are subjective. Gleeson CJ said, at [18]:

‘In a case such as the present, it is the subjective purpose of News and ARL in including the 14 team term, that is to say, the end they had in view, that is to be determined.’

And further:

‘The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose.’

At [31], McHugh J posed the question:

‘... is the purpose of the parties to be determined objectively without reference to their mental states?’

His Honour accepted that for seventeen years the test of purpose in the relevant provision of the Trade Practices Act (s 4D) had been subjective albeit the application of a subjective test did not exclude consideration of the circumstances surrounding the reaching of a relevant understanding.[23] He addressed the difficulty that ‘... only persons can have a purpose’ and that purpose involves ‘an examination of the mental state of a person’. In so doing he referred to Lord Devlin’s observation in Chandler v Director of Public Prosecutions [1964] AC 763 at 804-805:

‘A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not.’

His Honour went on, however, to say at [40]:

’But in some cases – in the case of legislative purpose, for example – the tribunal of fact must attribute a purpose to an artificial or notional mind that is deemed responsible for some act or omission. In such contexts, the tribunal of fact deduces the purpose of the artificial or notional person from the background of the act or omission including relevant statements and what was done or not done. Similarly, when legislation refers to the purpose of a provision, it is not absurd to regard the legislature as referring to the purpose in the notional mind of those responsible for the provision. In such cases, the test must inevitably be an objective test.’

His Honour said that if the interpretation of s 4D of the Trade Practices Act were being considered for the first time he would prefer that the purpose of an alleged exclusionary provision be determined objectively without regard to the mental state of the parties who made it. On the basis of longstanding authority in favour of a subjective interpretation he adopted that approach. As he went on to observe however in practice in most cases it would probably make little difference whether the courts consider only the subjective purpose of the parties or the subjective purpose and the objective purpose. Indeed, in News Limited in the Full Court it had made no difference to the Court whether a subjective or objective test was used. And as Toohey J had pointed out in the Hughes’ case, the application of a subjective test did not exclude consideration of the circumstances surrounding the reaching of the relevant understanding. By considering those circumstances, the Court would be using objective considerations to decide whether the parties held the subjective purpose they claim.

Section 46 has also been held to require proof of a subjective purpose.[24] So too, s 47(10) of the Trade Practices Act concerned with exclusive dealing and requiring proof of a purpose of substantially lessening competition. The Full Court in its recent decision in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [25] held that the language of s 47 and the weight of authority established that what had to be proved was ‘the actual purpose of the relevant respondent’. This view was seen as consistent with what was said by members of the High Court in News Limited. The Court acknowledged, however, that it would make no sense to consider the purpose for which conduct is engaged in by a party without paying regard to the direct and indirect evidence as to the actual intentions and purposes of the party. The Court is not bound to accept direct evidence as to those purposes:

‘Indeed, it will normally be critically scrutinised; it is often ex post facto and self-serving.’

It might be added that in the context of a corporation, such evidence is essentially argumentative because it is a matter of attribution of a subjective purpose. The Court in Universal Music recognised as much when it said:

‘The debate about subjective and objective purposes has an air of unreality in connection with corporate conduct. The purpose of a corporation is a legal fiction. A corporation has no mind and can have no purpose, in the usual sense of that word. Its activities will necessarily reflect the purposes of the individuals who make the decisions which control those activities. In the case of most corporations, this will be a group rather than a single individual. Their minds are the mind of the corporation: see Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355 at 370 (Gibbs CJ) and 384 (Mason J). The members of the group will often have differing reasons for arriving at a decision, some spoken and some unspoken. Necessarily, therefore a finding about the purpose of a corporation is a legal conclusion expressed as an attributed state of mind. The distinction between subjective and objective purpose will ordinarily be blurred; although, where there is a single directing mind, the subjective purpose of that mind may conceivably differ from the objective purpose inferable from conduct and its predictable outcomes.’

Rhetorical Attribution of Mental States – Legislative Intention
Legislative intention, referred to in passing by McHugh J in News Limited, is invoked in connection with the construction of statutes. It is a metaphor based upon the concept of ‘intention’ in individuals. In a legislature, which is a collection of natural persons, it may be the case that neither the individual members of parliament nor even the executive government mean the same thing by voting on a bill ‘or, in some cases anything at all’. [26] McHugh J has observed that if ‘legislative intention’ is used as a description of a collective mental state of the body of individuals who make up the parliament, then it is a fiction with no useful purpose.[27] The term is not used in statutory construction to describe some antecedent mental state of the parliament but an attributed intention based on inferences drawn from the statute itself.[28]

In reality the designation ‘legislative intention’, applied to a particular statutory construction, is used as a persuasive declaration or an acceptance that the construction adopted is legitimate in the context of a representative democracy. The term ‘legislative intention’ directs courts to criteria of construction which are generally accepted. So it requires consideration of matters before the parliament when a law was enacted. It requires consideration of the ordinary grammatical meaning of the words of the statute and other aids to construction sanctioned by the written and unwritten law. The concept of legislative intention so regarded is functional or instrumental rather than descriptive.

Contentious Attribution of a Mental State – Legitimate Expectation
A useful example of a state of mind attributed to natural persons and attracting rights was found in the development of the doctrine of legitimate expectation in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

It will be remembered that the term ‘legitimate expectation’ was adopted by Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 when he said that:

‘... an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.’[29]

The concept was discussed in the High Court in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 where Aicken J referred to a ‘reasonable expectation’ of some entitlement as ‘an expectation that some form of right or liberty will be available, or will not be taken away without an opportunity for the subject to put his case to the relevant governmental authority armed with the compulsory power in question’.[30] The concept was from the outset ‘a foundation for attracting a duty of procedural fairness’.[31]

In Teoh, a foreign national who had been convicted in Australia of drug offences and sentenced to imprisonment nevertheless applied for a permanent entry permit into Australia. His application was refused not withstanding that his wife and young children who were in Australia faced a bleak future and would be deprived of a possible breadwinner if resident status were denied. The primary decision-maker did not apply the United Nations Convention on the Rights of the Child which had been ratified by the Commonwealth Executive in 1990 and had entered into force for Australia on 16 January 1991. Article 3(1) of that Convention provided:

‘In all actions concerning children, whether undertaken by public or private social or welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

In the High Court it was held ultimately that ratification of the Convention gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant’s children as a primary consideration. Mason CJ and Deane J observed, at 291:

‘... ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration”. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.’[32]

McHugh J, dissenting, observed at 314:

‘If the doctrine of legitimate expectations were now extended to matters about which the person affected has no knowledge, the term “expectation” would be a fiction so far as such persons were concerned.’

Having regard to the recent decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, the principles enunciated in Teoh may be either elaborated or distinguished. Referring to Teoh, Hayne J said at 531:

‘Used in this way, legitimate expectation is a phrase which poses more questions than it answers. What is meant by “legitimate”? Is “expectation” a reference to some subjective state of mind or to a legally required standard of behaviour? If it is a reference to a state of mind, whose state of mind is relevant? How is it established? These are questions that invite close attention to what is meant by legitimate expectation and what exactly is its doctrinal purpose or basis. Not all are dealt with explicitly in Teoh. At the least they are questions which invite attention to the more fundamental question, posed by McHugh J in Teoh, of whether legitimate expectation still has a useful role to play in this field of discourse now that it has served its purpose in identifying those to whom procedural fairness must be given as including more than persons whose rights are affected.’

In this area the debate about subjective and objective expectations is likely to be as unproductive as similar debates relating to other mental states. It may be that Lam foreshadows an opportunity for a more logically rigorous approach to the doctrine or perhaps its jettisoning altogether. It may be that it belongs somewhere in the universe of legal discourse with proximity. It is at best an argumentative aid to determining the content of procedural fairness in a particular set of circumstances.

Conclusions
The distinction which the law seeks to draw between subjectively and objectively determined mental states has caused much judicial ink to be spilt. There may be a question whether the distinction is of any utility at all. For it may be accepted that, although human beings share many common experiences of life, our mental states or experiences are inescapably personal and not directly accessible albeit they may be named. There is a category of mutually inaccessible sensations and perceptions called ‘qualia’ which refer to such things as perceptions of colour. Absent the ability to download the contents of one brain into another, one person can never be certain that his or her perception of redness is shared by anyone else. The inaccessibility of this kind of perception is arguably applicable, at least to some degree, to the mental states which have been discussed so far in this paper. If that be right it may not be particularly sensible or useful to talk of subjective mental states, even assuming that they reflect some reality cognisable by contemporary neuroscience. However, this difficulty does not foreshadow the collapse of civilisation as we know it. One person’s sensation of redness may be different from another yet both will commit an offence if they cross an intersection against a red traffic light. What is red for A and red for B does not matter. It is still the same traffic light, with the same frequency and the rule of law applies to those objective facts unaffected by inaccessible differences in subjective perception. In the end, this suggests that the real debate is not so much about subjective and objective realities or constructs as it is about rules of naming under guise of ‘inference’.

It is useful to reflect upon our approach as lawyers to the various mental states relevant to legal rights and liabilities. For whatever the internal subjective ‘reality’ such mental states are to be inferred from conduct in context. There is a question whether the inferential process is qualitatively different when the trier of fact permits himself or herself to take into account statements by a person that he or she possessed a particular mental state. There is a question whether such statements can ever be anything more than argumentative and, if not that, whether they are simply another objective fact which the law allows to be taken into account for the purpose of a pronouncement about a person’s state of mind. It may be that the time is coming in which subjective and objective states of mind can be recognised for what they are, a description of functional approaches to decision-making by judges and juries. Their utility is in the capacity of ordinary men and women (including judges) to apply them to outcomes which are generally recognised as just according to contemporary norms and values.

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[1] Edgington v Fitzmaurice [1885] UKLawRpCh 83; [1885] 29 Ch D 459 at 483
[2] D Byrne and JD Heydon, Cross on Evidence, Australian Edition, Butterworths at par 3255.
[3] R v Wood [1982] NZCA 117; (1982) NZLR 233 at 236 (CA).
[4] Transport Publishing Co Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111 at 199 per Dixon CJ, Kitto and Taylor JJ.
[5] R v Turner [1975] QB 834 at 841-843.
[6] Yorke v Lucas (1985) 158 CLR 661 at 670; Edwards v R (1982) 173 CLR 653 at 657.

[7] Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284 at 289.
[8] Richardson and Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd [1994] FCA 1222; (1994) 123 ALR 681 at 692-694.
[9] Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 507-8.
[10] Zamora No 2 [1921] 1 AC 801 at 812-813.
[11] Richardson and Wrench v Ligon at 694.
[12] (1889) 14 AC 337 at 374.
[13] Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9; (1912) 13 CLR 676 at 680.
[14] Bromage v Prosser 4 B & C 255 per Bayley J cited and adopted in Allen v Flood [1897] UKLawRpAC 56; [1898] AC 1.
[15] Northern Territory v Mengel (1995) 185 CLR 307 at 345.
[16] Mengel at 370.
[17] [2000] UKHL 33; (2000) 2 WLR 1220.
[18] Lacey, A Clear Concept of Intention; Elusive or Illusory? (1993) MLR 7 at 622.
[19] [2002] HCA 8; (2002) 187 ALR 92 at [25].
[20] Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 330-332 (Mahoney JA)
[21] Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd [1989] HCA 6; (1989) 167 CLR 177.
[22] [2003] HCA 45.
[23] Hughes v Western Australia Cricket Association (Inc) [1986] FCA 357; (1986) 19 FCR 10 per Toohey J, approved by the Full Court of the Federal Court in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) [1990] FCA 710; (1990) 27 FCR 460 at 475.
[24] Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 66.
[25] [2003] FCAFC 193.
[26] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 234 per Dawson J; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 339 per Gaudron J.
[27] Yuill at 345-346.
[28] Mills v Meeking at 226 per Mason CJ, Toohey and Brennan JJ agreeing and at 346 per McHugh J.
[29] Schmidt at 170.
[30] Heatley at 408.
[31] Attorney General (NSW) v Quinn (1990) 170 CLR 1 at 20 (Mason CJ).
[32] See also at 301 per Toohey J.