The perils of extemporising a judgment. You would think by now, after 22 years, I would have learned how to do it, would you not, Mr Donaghue?

If we are thinking of past Chief Justices then I should remember the occasion when Chief Justice Barwick said to counsel who had got out of the lion’s den, “Don’t go back for your hat”.

Hayne ACJ, CPCF and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 153 (23 July 2014)

(Source: austlii.edu.au)


Testing Times

  • MR MERKEL: Can I just indicate that we would expect that the case stated at three o’clock, to the extent that there may be any differences between us, would be able to be resolved by your Honour because the - - -
  • HAYNE ACJ: Yes. Well, if it is going to be my case, it will be.
  • MR MERKEL: Well, we will not invite your Honour to swap sides on the Bar table again, your Honour; you have done that so far.
  • ...
  • HAYNE ACJ: I think it better - unless you positively assert to the contrary – I think it better that those are left over until we see how things develop during the day, but is this a valuable exercise or am I just going to be wasting time by standing it over?
  • MR DONAGHUE: I do not believe that you are, your Honour, but can I - - -
  • HAYNE ACJ: That I am what?
  • MR DONAGHUE: That you are wasting time, your Honour.
  • ...
  • MR DONAGHUE: We can probably do that by midday, maybe earlier if we need to, your Honour.
  • HIS HONOUR: If we said “Plaintiff by 0900, defendant by 1200” and assemble again at 3.15 tomorrow?
  • MR MERKEL: Yes, your Honour.
  • MR DONAGHUE: Yes, your Honour.
  • HIS HONOUR: Death by a thousand cuts, this has got to get to an end. Enough.
  • ...
  • MR DONAGHUE: So I do not want to detain the Court on it unduly, but I am instructed to object to that.
  • HIS HONOUR: Sort it out, counsel?
  • MR MERKEL: Yes.
  • HIS HONOUR: Sort it out, just fix it.
  • SOURCE: CPCF and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 152 (22 July 2014)
“Forgive me if I say I wondered whether that was a bit clever. Do we need to have in “for the purpose of preventing” contravention? The reason I say “a bit clever” – let me show you a little of the knife that is resting in that napkin, Mr Donaghue.” Hayne ACJ, CPCF and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 152 (22 July 2014)

(Source: austlii.edu.au)



  • HAYNE ACJ: My ever vigilant associate tells me that 9 August is a Saturday. I am all in favour of the legal profession running a seven day week, but others may have a different view. It would be 8 August for the time by which the defendant is to file and serve its written submissions, but we bring back, do we not, the filing and service of the amended special case book to 1 August, 4.00 pm. That then gives everybody a few days in which to pick up the pagination and incorporate it into their submissions. Now, do you want to be heard about that timetable, Mr Fleming?
  • MR FLEMING: No, your Honour.
  • HAYNE ACJ: Yes. Mr Solicitor?
  • MR DUNNING: Thank you, your Honour.
  • HAYNE ACJ: I have dudded you on the time, Mr Solicitor.
  • MR DUNNING: Your Honour, I would not put it in those terms but - - -
  • HAYNE ACJ: I would.
  • MR DUNNING: That probably reflects the luxury attended by your position but not mine.
  • SOURCE: Kuczborski v The State of Queensland [2014] HCATrans 151 (22 July 2014)
“Indeed, no previous decision was referred to in the opinions, and, although the opinions were expressed with a confidence familiar to those who read 19th century judgments, they contained no reasoning, merely assertion.” Lord Neuberger, FHR European Ventures LLP & Ors v Cedar Capital Partners LLC [2014] UKSC 45 (16 July 2014).

(Source: bailii.org)



  • MR MERKEL: Can I say this, your Honour? If your Honour could possibly give us the thoughts that your Honour had in writing so we can start working together on those forthwith - - -
  • HAYNE J: That is what junior solicitors are for, Mr Merkel, to scribble down what the judge said, but, yes, all right, you can have a rather scrappy draft on terms.
  • ...
  • HAYNE J: Is it likely to be of assistance to the parties for me to make available the aide-mémoire I prepared for myself in, I think, the seven minutes I had to read the document?
  • MR DONAGHUE: I think that is a matter for Mr Merkel, your Honour. Our notes are adequate.
  • MR MERKEL: Yes, we would appreciate it, your Honour.
  • HAYNE J: Both sides will have the aide-mémoire. I am beginning to wonder which side of the Bar table I am sitting, gentlemen.
  • SOURCE: JARK and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 150 (18 July 2014)
“It is never to be forgotten, Mr Donaghue, that the events that led to Patrick Stevedoring v MUA occurred, there was litigation in all three levels of the judicial system of this country, up to and including judgment in this Court, within one calendar month. The parties are just going to have to bend their back to get on with it.” Hayne J, JARK and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 150 (18 July 2014)

(Source: austlii.edu.au)


The Holy Grail

  • HAYNE J: Now, Mr Merkel - I think Mr Donaghue is having his gown notionally tugged – no, he is not. Mr Merkel, what am I to do?
  • MR MERKEL: Your Honour - - -
  • HAYNE J: You heard the debate, where do I go?
  • MR MERKEL: Yes. The suggestion we would make, your Honour, subject to one question concerning the decision record, which we can put that to one side for the moment, is that the - - -
  • HAYNE J: You speak of this as the Holy Grail. I wonder whether the Holy Grail even exists, Mr Merkel. Anyway, yes.
  • MR MERKEL: Your Honour, we would be just as comforted if it did not exist.
  • SOURCE: JARK and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 150 (18 July 2014)

One Is Not Content

  • MR DONAGHUE: At present I cannot see any way around that and we will have to put on the material in due course but we will, if your Honour is content, cross that bridge when we come to it if we can.
  • HAYNE J: No, I simply hear what you say. You should not ascribe any sense of contentment to me at all.
  • SOURCE: JARK and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 150 (18 July 2014)
“This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure.” Lord Justice Tomlinson, Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898 (02 July 2014).

(Source: bailii.org)


Writing in 1853, Charles Dickens described the fictional case of Jarndyce v Jarndyce in his serialised novel, Bleak House:

'Jarndyce v Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce v Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce v Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce v Jarndyce still drags its dreary length before the court, perennially hopeless.'

In argument before me, counsel for the defendant referred to Jarndyvce v Jarndyce as ‘a very good illustration of the damage done to the community, the law and the parties where this sort of litigation is allowed to continue’. Dickens himself insisted, in his preface to the novel, that ‘everything set forth in these pages concerning the Court of Chancery is substantially true’, and that he could name one suit some 20 years old, in which 30 to 40 counsel had been engaged at any one time. Indeed, the case of Thelluson v Woodford, on which Dickens is said to have based his book, was still before the Courts some 31 years after the death of the testator, and 27 years after it was first heard. One hopes that the law has come a long way since that time. Litigants, and their lawyers, are not simply entitled to press the ‘numerous difficulties, contingencies, masterly fictions, and forms of procedure’ that arise in litigation until ‘the whole estate is found to have been absorbed in costs’ and ‘the suit lapses and melts away’.

McMillan J, Morris v Smoel [2014] VSC 31 (14 February 2014) [75]-[76].

(Source: austlii.edu.au)

“The judges of the Supreme Courts, when sitting in court, traditionally wear robes. Some persons consider that robes are outmoded and should be dispensed with; others regard them as a valuable symbol of the antiquity of the honourable traditions of the law and as a means of adding to the dignity of proceedings that are of their nature serious and important. We are not required to join in this controversy. It would not matter if we thought that judges could perform the duties of their office equally well if they were unrobed or that matrimonial proceedings would more appropriately be conducted in an informal atmosphere by judges wearing informal dress. The question to be decided is to be determined by a consideration of the Constitution, and not by our opinions on matters of policy of that kind. If the Parliament considers that matrimonial jurisdiction should be exercised by judges who do not robe, it can create a federal court in which the wearing of robes is proscribed - as it in fact has done. If it chooses to invest a State court with jurisdiction, it has no power to direct the judges of that court to depart from their existing standards of judicial dress. The question may be thought to be of no great importance, but its implications are by no means insignificant. The robes worn by the judges of the Supreme Court are a mark of their status. If the Parliament could legislate as to what the judges shall or shall not wear, it could force upon a court a mode of dress incompatible with its former dignity and status. Such a law might be regarded as changing the nature or character of the court, but whether or not that view would be correct, the law would in my opinion be one with respect to the court itself.” Gibbs J, Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 (11 May 1976) [7].

(Source: austlii.edu.au)

“Residence in the cash economy, beyond necessities of daily living, comes at a price for altruism, no less than avarice: exposure to theft, active or passive, is one element of that price. Moderation in all things remains a virtue worthy of notice, even in the accumulation of cash, lest our property, or that of somebody else, comes to possess us. That is the “moral” demonstrated, on both sides of the record, by these proceedings.” Lindsay J, Helou v Nguyen (with Addendum) [2014] NSWSC 22 (5 February 2014) [1].

(Source: caselaw.nsw.gov.au)


Exuberant, Perhaps?

  • MR SILBERT: If the Court pleases. Your Honours, I propose to address grounds 3 and 2, and to adopt enthusiastically the submissions of the second respondent in relation to ground 1.
  • GUMMOW J: Why would your enthusiasm help?
  • SOURCE: Momcilovic v The Queen & Ors [2011] HCATrans 16 (9 February 2011).

Superior IP International Pty Ltd (Superior IP) has applied under s 459E(2)(e) of the Corporations Act 2001 (Cth) (the Act) to set aside a statutory demand served on it by Daniel Patrick Fox as trustee of the Ahearn Fox Unit Trust trading as Ahearn Fox Patent and Trade Mark Attorneys (Ahearn Fox). The fact that s 459E was mistakenly identified as the apposite section (instead of s 459G) provided a harbinger for what was to unfold in this application.

With more than 400 pages of affidavit material, one might have thought that there was a very considerable sum of money at stake in this dispute. Not so – it emerged from that affidavit material that the amount of the statutory demand was $10,706.33, involving nine invoices, most of which were for less than $1,000 and only one of which was more than the statutory minimum amount of $2,000.

At the commencement of the hearing, having noted that no genuine steps statement had been filed pursuant to the Civil Dispute Resolution Act 2011 (Cth) (the Civil Dispute Act), I inquired of the two lawyers whether they had made any attempt to try to resolve the dispute, in accordance with the objects of that Act and, one might add, their ethical obligations as lawyers. On being told that there had been no such attempt, I adjourned briefly to allow that to occur. This was to no avail.

By about this stage, I had the distinct impression that this dispute had descended into a squabble over who was to pay the costs that had been incurred thus far. Accordingly, I drew the attention of the lawyers to the provisions of Pt VB of the FCA Act and their duties to conduct this litigation having regard to the overarching purpose set out therein. This, too, was to no avail. Finally, bereft of any other means to force the lawyers and their clients to see some sense, I considered I had no option but to proceed to hear the matter.

The hearing lasted a full day, a large part of which was taken up with objections to the voluminous affidavit material described above. In keeping with their bellicose approach thus far, when I began to hear those objections, I discovered that there had been no discussion between the two lawyers to attempt to resolve any of them and thereby avoid both their clients’ and the Court’s resources being wasted on that exercise. To compound this situation even further, during the hearing of those objections it emerged, incredible as it may sound, that neither lawyer appeared to have a copy of the Federal Court Rules 2011 or the Evidence Act 1995 (Cth) with him in court. Thus, neither of them could tell me which section or rule he was relying upon to make particular objections.

The final travesty came at the end of the day’s hearing when, during submissions in reply, the lawyer for Superior IP sought leave to rely upon a large amount of additional material that he had not put forward earlier. When I say “final travesty”, I should add that there was a number of other less significant defaults on both sides that I have failed to mention (above) in the interests of brevity.

It hardly needs to be said that what I have just described is the absolute antithesis of the overarching purpose of civil practice and procedure set out in s 37M of the FCA Act.

Reeves J, Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 (23 March 2012) [1]-[10].

(Source: austlii.edu.au)

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