March152014
“Apocalypto may be a great if gory film directed by Mel Gibson. It is difficult to tell because all the characters speak Mayan. What is not difficult to tell, however, is that the exploits of its actors should not be emulated in real life. The appellant and his friend, Seth Pywell, watched Apocalypto and then decided it would be a good idea to construct a blowpipe and darts, then hunt people with them. The darts were made of cotton buds with a needle melted into one end. The blowpipe was made of plastic. They drove to Two Mile Camp, out of Port Hedland, where there were a group of homeless and harmless indigenous people camping out as a result of various cultural and social issues. The appellant and Pywell called over one person and blew a dart at her. She was not injured because the dart hit her clothing and bounced off. The second victim, Mr Peter Yabalah, was fast asleep. He was approached and a dart blown at him. Whether it caused him bodily harm is a matter of dispute of which more anon.” McKechnie J, Thomas v Mallard [2009] WASC 95 (17 April 2009).

(Source: austlii.edu.au)

February282014
“This is an appeal from the Chief Justice, which was argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties.”

Starke J, Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 49; (1928) 42 CLR 39 (1 November 1928).

This oft-used quote is a favourite of the former Solicitor-General, Mr Griffith QC, although we are indebted to McHugh J’s careful reading of the reports and photographic memory for confirming it:

MR GRIFFITH: I am obliged to your Honour. We did not intend still to be on our feet. I am not sure, your Honour, whether it was ever reported - it is perhaps apocryphal - but I am told that Justice Starke once delivered judgment saying, “This case was argued three days between members of the Court with the occasional intervention of counsel.” I do not know why - - -

McHUGH J: It is not apocryphal, it is in the Argus Law Reports.

MR GRIFFITH: It is? Thank you, your Honour. I do not know why I said that, but other than to say that I did not intend still to be on my feet.

[From Gould and ORS v Brown S204/1996 [1997] HCATrans 118 (8 April 1997)].

January302014
“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.” Kozinski CJ, Institute of Cetacean Research v Sea Shepherd Conservation Society, United States Court of Appeals for the Ninth Circuit, 25 February 2013.
December42013

Christmas with the Court

  • HAYNE J: The second point that seems to be wrapped up in it, but which may be not unimportant, is that the notion of marriage is not now, at least on one available point of view, never has been fixed.
  • MR GLEESON: Will your Honour bear with me if I - - -
  • HAYNE J: Of course.
  • MR GLEESON: - - - deal with that at point 4? Thank you.
  • HAYNE J: Leave the time bomb just ticking there, Mr Solicitor.
  • MR GLEESON: I was interpreting it as a happy present, your Honour, but as always I am mistaken.
  • HAYNE J: It is that time of year, Mr Solicitor.
  • SOURCE: The Commonwealth of Australia v The Australian Capital Territory [2013] HCATrans 299 (3 December 2013)
November302013
“Perhaps it may be that the learned counsel were afraid to refer us to this case lest the same results should happen, namely, that the counsel who signed the bill was made to pay the costs of the bill, and the solicitors were fined 50l., and the plaintiff and defendant were both hanged.”

Grantham J, Burrows v Rhodes [1899] 1 QB 816, 826.

11AM

The reasonable use of land may occasionally cause annoyance about which neighbours cannot reasonably complain. In considering whether an inconvenience is unreasonable, allowance must be made for reasonable give and take. As Jordan CJ said in Don Brass Foundry:

hanc veniam petimusque damusque vicissim

(this kind of indulgence we both ask and, in turn, give).

Sir Frederick did not acknowledge the source (Horace, Ars Poetica 11), doubtless because he assumed his readers would know it.

Emmett JA, Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 (18 November 2013) [138] (citations omitted).

(Source: austlii.edu.au)

10AM

These appeals are concerned with a colony of frogs. They are not the βάτραχοι of Aristophanes, who inhabit the marshes of the River Styx, encountered by Dionysus on his way to the Kingdom of Hades. Rather, the appeals are concerned with a colony of crinia tinnula, or Wallum froglets, which inhabit ephemeral ponds on land owned by the appellant, Gales Holding Pty Limited (Gales). It is likely that both parties to these proceedings would agree with the response of Dionysus to the croaking (‘βρεκεκεκέξ κοάξ κοάξ’) of the βάτραχοι:

'ἀλλ᾽ ἐξόλοισθ᾽ αὐτῷ κοάξ:
οὐδὲν γάρ ἐστ᾽ ἀλλ᾽ ἢ κοάξ.’

That is to say:

'May you all utterly perish with your croaking'.

Emmett JA, Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 (18 November 2013).

(Source: austlii.edu.au)

November282013

Passing the Buck

  • KIEFEL J: I am just having difficulty understanding why you would say that in the context of negotiations about plea that the prosecutor is talking about a range which would otherwise indicate appealable error. They are not talking to the court, they are talking to the person who is about to plead, for goodness sake.
  • MR ODGERS: Perhaps the question is better directed to Mr Bromwich, but my understanding - - -
  • KIEFEL J: No, it is directed to you.
  • SOURCE: Barbaro v The Queen; Zirilli v The Queen [2013] HCATrans 296 (27 November 2013)
November162013

My Fruit

  • KIEFEL J: But, Mr Crutchfield, is it essentially your point – the point of the Court of Appeal that the liquidator here engaged in adversarial litigation which was adverse to the interests of the secured creditor? Is that really it?
  • MR CRUTCHFIELD: The substance of this – yes, your Honour, the substance of this litigation - - -
  • KIEFEL J: Well, what is unusual about that in a liquidation?
  • MR CRUTCHFIELD: There is nothing unusual about it and we are not saying there is anything improper about it, but we say where you have litigation that is designed to oblate the secured creditor’s interest, the question then is whether or not equity says it is unconscientious if the liquidator loses for the secured creditor to say, “Well, I want that fund. You produced it trying to chop down the tree. The tree in the process generated some fruit. The tree is still there. My fruit”.
  • SOURCE: Stewart in his capacity as Liquidator of Newtronics Pty Ltd (in Liquidation) and Anor v Atco Controls Pty Ltd (in Liquidation) [2013] HCATrans 267 (8 November 2013)
November122013

Red Cadeaux

  • MR DHANJI: Your Honours, the applicant requires an extension of time.
  • FRENCH CJ: Is that opposed?
  • MR GAME: It is, but we would say that you should hear the argument on its merits and if the Court is inclined to dismiss it then there should be a refusal of an extension of time.
  • FRENCH CJ: That is a kind of Clayton’s response.
  • MR GAME: Well, your Honour, I am sorry. We say there has not been an adequate explanation.
  • HAYNE J: It was Tuesday that betting was occurring on every horse in the race, Mr Game.
  • MR GAME: I just said that to take up some of Mr Dhanji’s time, your Honours.
  • FRENCH CJ: You have the extension, Mr Dhanji.
  • SOURCE: Milne v The Queen [2013] HCATrans 279 (8 November 2013)
November102013

Metaphorically Speaking

  • MR GARNSEY: If your Honour pleases. Your Honours, when the poet enunciated the self-evident truth that a thing of beauty is a joy forever, no one doubted that statement and it gave one a comfortable feeling and one says “How true” automatically. When one enunciates the proposition that the hull and deck mouldings made from the moulds made from a plug for a racing yacht designed to be manufactured, industrialised, marketed and, if possible, raced in a class, when one says that such a yacht or the hull and deck mouldings of it are works of artistic craftsmanship, one does not have the same immediate confidence that, if those words are ordinary English words, they bear a meaning which is appropriate for a racing yacht or its component parts.
  • The proposition which we advance in this case is to advance a proposition which contains a positive test for work of artistic craftsmanship based on the legislative history and the authorities and we invite your Honours to set the boundaries to that term, because at present, your Honours, it is our respectful submission that the horse is out of the stall, is running around the stable yards and it is high time that someone put a halter on it and got it back.
  • KIRBY J: Could you not have thought of a nautical analogy instead of an equine one? Seeing as you began with the poet and I was lifted into a higher plane, suddenly I am getting mixed metaphors here.
  • MR GARNSEY: Well, your Honour, I do not know if the amount of paper we are going to inflict on your Honours will lift your Honours to a higher plane.
  • GLEESON CJ: No, it will not. Somebody on your side of the record seems to think that the word “lengthy” when applied to submissions is a badge of honour. We have read the written submissions.
  • SOURCE: Burge & Ors v Swarbrick [2006] HCATrans 573 (24 October 2006)
6PM

State of Origin Round 2

  • MR BROWN: But with the greatest of respect, what is happening in that process is that the court is having to fill in the gaps about the subjective knowledge of the accused. It has to fill in the gaps with - - -
  • GAUDRON J: A 21-year-old person and he has been to school for some time.
  • MR BROWN: Well, all we know is that he was educated in New South Wales.
  • GAUDRON J: You can assume that that does not make him a mental defect.
  • HAYNE J: We will not enter upon debate on that.
  • SOURCE: Simpson v The Queen H5/1997 [1998] HCATrans 85 (31 March 1998)
November92013

State Of Origin

  • MR KASSIMATIS: Sure, and on the Victorian state of the law as it was, and as it is, as a trial judge in the Supreme Court that was the proper approach to take by her Honour. What we say about that is that – and I do not enjoy saying this as a proud Victorian, but the Victorian approach and the Queensland approach, at the risk of attracting the ire of at least two members of the Court - - -
  • HAYNE J: Some of us were born there. Beware, Mr Kassimatis.
  • SOURCE: James v The Queen [2013] HCATrans 266 (7 November 2013)
2PM

The Meaning Of Clothes

  • MR SCHNAPPER: In ordinary parlance, not everything an individual wears would be referred to as clothes. There are examples of that in this courtroom: Glasses, necklaces, earrings, wristwatches. There may be a toupee for all we know. Those things are not commonly referred to as clothes.
  • SCALIA J: I resent that.
  • SOURCE: CLIFTON SANDIFER, ET AL. v UNITED STATES STEEL CORPORATION (Petitioners: No. 12-417) Washington, D.C. (Monday, November 4, 2013).
  • The full transcript is here - www.supremecourt.gov/oral_arguments/argument_transcripts/12-417_gdil.pdf
  • Selected excerpts can be found here - www.theatlantic.com/technology/archive/2013/11/what-are-clothes-asks-most-delightful-supreme-court-argument-in-history/281155/?utm_source=
1PM

A Slogan With No Content

  • FRENCH CJ: Now, you were going to take us to the question of purpose in 96D, were you not?
  • MR KIRK: I am. Can I just postpone that? I am not avoiding it, but - - -
  • FRENCH CJ: I hope not too long. I think it is a fairly critical issue.
  • [Some time later...]
  • FRENCH CJ: I suppose it obviously leads into the question, if it is not significant what is it there for?
  • MR KIRK: That leads me now to the purpose of section 96D.
  • FRENCH CJ: Thank you.
  • MR KIRK: A long delay. Can I deal with that first at the general level of the statute, recognising that that is a start, not an end, and then come to linking that in to 96D in particular? I do not think there is any dispute about the general purpose about minimising the actual and perceived potential for persons and entities to exercise undue, corrupt or hidden influence, I think I made the point yesterday we are not talking just - - -
  • HAYNE J: Well, it is a slogan with no content, Mr Kirk; you have got to unpack it.
  • SOURCE: Unions NSW and Ors v State of New South Wales [2013] HCATrans 264 (6 November 2013)
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