ABSTRACT
The theme of the conference at which the paper on which this chapter is based was originally presented was Principle and Policy in Private Law. It is not always easy to distinguish principle from policy, as Jane Stapleton has shown in her address to the High Court of Australia on the occasion of its centenary.1 Nevertheless, this chapter contends that the High Court must make use of policy, since principle alone will seldom be sufficient, to enable it to decide the cases that come before it. At the outset the chapter refers briefly to the controversy as to whether courts do or do not make law. In agreement with most judges and commentators today, it accepts that they do. It recognises, however, that there are differences between judicial and legislative powers in this regard and that there are limits on what judges can do in this respect. Nonetheless, the High Court, like all appellate courts, has leeways of choice open to it.
