September72014
“Mr Shaw went so far as to say that there was a ‘secret government’. Mr Shaw says that the agenda of that secret government is the ‘destruction of each State economy and each State government’. He went on to say:

'Something absolutely destructive is happening.'

If there was any truth in these assertions, it would be of great concern to citizens. He should be spending his time alerting other members of the community, rather than two judges who have no power to deal with these matters.

Maxwell P, Shaw v Attorney-General for the State of Victoria [2011] VSCA 63 (4 February 2011) (via withironhands)
September22014

Flyfishing

  • MR BANNON: The focus on the notion of the inherent nature of the mark is the primary inquiry - - -
  • HAYNE J: Well, the Act tells us that.
  • MR BANNON: Yes.
  • HAYNE J: Right.
  • MR BANNON: That, with respect, we say, your Honour, is not - we are not seeking to force - - -
  • HAYNE J: Well, do not rise to the bait, Mr Bannon. The bait was on the water, or the fly was on the water. Do not rise to it.
  • SOURCE: Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCATrans 157 (5 August 2014)
9AM

The applicants in these proceedings should not feel alone. Testamentary dispositions driven by vindictive emotion and irrational favouritism are well documented in chronicles of the human condition. William Shakespeare described the malady in lines he penned for King Lear, as the king prepared to divide his kingdom and riches between his three daughters:

"… Tell me, my daughters, —
Since now we will divest us both of rule,
Interest of territory, cares of state, —
Which of you shall we say doth love us most?
That we our largest bounty may extend
Where nature doth with merit challenge.”

Well pleased with their eloquent professions of love and devotion, Lear confers a third of his kingdom to each of Goneril and Regan. He then turns to his third daughter, Cordelia, demanding:

"Now, our joy,
Although the last, not least; to whose young love
The vines of France and milk of Burgundy
Strive to be interess’d; what can you say to draw
A third more opulent than your sisters? Speak.”

Cordelia finds herself unable to compete with the praise lavished by her sisters, and says only to her father:

"Nothing, my lord …
Unhappy that I am, I cannot heave
My heart into my mouth: I love your majesty
According to my bond; nor more nor less.”

Lear is dissatisfied with Cordelia’s measured response, and growing angry, strikes her from the inheritance with the following devastating tirade:

"Let it be so; thy truth, then, be thy dower:
For, by the sacred radiance of the sun,
The mysteries of Hecate, and the night;
By all the operation of the orbs
From whom we do exist, and cease to be;
Here I disclaim all my paternal care,
Propinquity and property of blood,
And as a stranger to my heart and me
As thou my sometime daughter.”

The present case is unfortunately redolent of the domestic disharmony and divisive favouritism portrayed in King Lear. The legacy of the testator Luigi Antonio Valentini is one of lasting familial unhappiness, conflict and discord, which remained unresolved at his death.

Vickery J, Valentini & Ors v Valentini [2014] VSC 91 (26 March 2014).

(Source: austlii.edu.au)

9AM

In Genesis 3:11, God said to Adam ‘Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?’

Some judges of the 17th and 18th centuries referred to this passage and the theological puzzle arising from it: why would the omniscient God ask this question to which He knew the answer? One answer, as Fortescue J observed in Dr Bentley’s famous mandamus action against the University of Cambridge, is procedural fairness or ‘natural’ justice. The point is that despite God’s omniscience ‘[He] did not pass sentence upon Adam, before he was called upon to make his defence’.

Australian law recognises that prerogative writs will not issue for a denial of procedural fairness if there is no possibility of a different outcome. But the opportunity to be heard is nevertheless an essential aspect of justice according to law.

Edelman J, NORTHBRIDGE ENTERPRISES PTY LTD v COMMISSIONER OF POLICE [2014] WASC 135 (14 April 2014).

(Source: austlii.edu.au)

August262014

The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728:

"The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself."

It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.

LORD REED (with whom Lord Mance, Lord Kerr, Lord Sumption and Lord Hughes agree), Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49 (30 July 2014).

(Source: bailii.org)

August142014
“Professor Henneberg’s evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics. Among other things, the use of technical terms to describe those characteristics – Offender One and the appellant are both ectomorphic – was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.” FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE J, Honeysett v The Queen [2014] HCA 29 (13 August 2014).

(Source: austlii.edu.au)

July252014

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)

12PM

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)
12PM
“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)

12PM

Dudded

  • 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)
July232014
“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)

July222014

Annotation

  • 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)
10AM
“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)

10AM

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)
10AM

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)
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