May122013

Assumptions

  • KIRBY J: Did either of those cases go through the Court of Appeal?
  • MR DOUGLAS: Yes, your Honour, I am sure they are in the judgments. I have not - - -
  • KIRBY J: Are we going to be taken to the principle stated by the Court of Appeal?
  • MR DOUGLAS: I had assumed that the Court had read the judgments but I am quite happy to take the Court to them.
  • KIRBY J: I think that is a - - -
  • MR DOUGLAS: That is a large assumption, your Honour?
  • KIRBY J: No, I have not read the Court of Appeal judgment.
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
6PM

Pleading Documents

  • GUMMOW J: Lots of trust and confidence flowing between the parties.
  • MR DOUGLAS: A huge amount, your Honour.
  • GUMMOW J: They were not hammering out a deal.
  • MR DOUGLAS: No, but, BTA did repose confidence in the Government and the Agencies in its reliance on the Government's representations - - -
  • GUMMOW J: What, to look after its interests?
  • MR DOUGLAS: Absolutely, your Honour. Apparently Mallesons were not going to do that.
  • McHUGH J: There was a time when counsel who pleaded documents like this would have been sent running around the inner temple with the pleading over his head and a hole cut out.
  • MR DOUGLAS: Your Honour, I have been wishing to do that for some time, but I am not allowed to do it unfortunately.
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
6PM

Plain English

  • McHUGH J: This is plain English pleading, is it?
  • MR DOUGLAS: Your Honour, there is nothing plain about this document.
  • GLEESON CJ: I thought a statement of claim was supposed to be a synopsis.
  • MR DOUGLAS: The relevant provisions of that pleading are well summarised, if I may say so, in the submissions by Mr Bathurst and Mr Gleeson in the first two paragraphs of those submissions.
  • GUMMOW J: Emperor Joseph II said to Mozart that there were too many notes. There are too many causes of action here.
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
6PM

Camel Driving

  • McHUGH J: There is no precise decision to that effect, is there? It may have been a practice and there was no objection taken in those cases but - - -
  • MR DOUGLAS: Well, there was some pretty good counsel in some of those, your Honour. I saw one of them, Vesta's Case, which had Sir William Deane, Mr Justice McLelland and Mr Justice Beaumont and also, I think, it was presided over by Justice Street. I mean, some of the others like the Inche - I cannot think of the name of it - Case came from the Strait Settlements and one can, perhaps, explain that.
  • KIRBY J: I hope we are going to decide this matter on points other than the counsel who appeared in cases. I mean, this is a very important issue of principle and in your principle, you have driven a team of camels into the private communication between a client and his lawyer, and that is something which you will need very strong authority or very strong principle to convince me this Court should uphold.
  • MR DOUGLAS: Your Honour, the team of camels is being driven, if we may say so, by the applicant.
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
6PM

Fishing Regulations

  • GUMMOW J: Well that is what I wonder about. Are you not really challenging the affidavit?
  • MR DOUGLAS: We are challenging the affidavit. Yes, your Honour. We are challenging the claims to privilege made in the affidavit.
  • GUMMOW J: Yes. Well how procedurally would one do that? It is quite a bit step, is it not?
  • McHUGH J: It looks very much like a fishing expedition.
  • MR DOUGLAS: There is plenty of fish in that sea, your Honour. There is more than 300 of them as we would see it.
  • McHUGH J: Yes, but are there any that you are entitled to catch?
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
6PM

A Shame

  • GLEESON CJ: Have there been interrogatories?
  • MR DOUGLAS: Interrogatories do not exist in New South Wales an any more, your Honour; I would hate to think of interrogatories in this case. It has now taken three years to get it going. I would imagine interrogatories, which were, I think, knocked out in cases like Southern Pacific Hotels and so on, as being too prolix.
  • GLEESON CJ: What a shame.
  • MR DOUGLAS: It is a shame.
  • SOURCE: BT Australasia Pty Ltd and ANOR v State of New South Wales S111/1998 [1998] HCATrans 450 (3 December 1998)
July202012

Fraternity

  • MR DOUGLAS: Your Honour Justice Gummow pointed out the lamentable absence of the learned article by your brother Heydon in the Law Quarterly Review and we have had copies of that made and can I just circulate those to the Court.
  • GLEESON CJ: Thank you.
  • KIRBY J: We did not used to call ourselves brothers when Justice Gaudron came.
  • MR DOUGLAS: As long as you do not call each other sisters, your Honour, I will be quite happy.
  • KIRBY J: We call ourselves colleagues, as all other final courts do now.
  • CALLINAN J: Do not call me a sibling, if you do not mind.
  • SOURCE: Tanwar Enterprises Pty Ltd v Cauchi & Ors S341/2002 [2003] HCATrans 624 (13 March 2003)
2PM

The Old Days

  • GUMMOW J: A lot of these matters are touched upon in Justice Heydon's lengthy note in the Law Quarterly Review, to which Justice McHugh and I referred on the special leave, which is not in the papers. No one has provided it to us. Perhaps they had better.
  • MR DOUGLAS: I must say, I have been reading it assiduously - - -
  • GUMMOW J: Well, maybe you have.
  • MR DOUGLAS: - - - for the last couple of weeks.
  • KIRBY J: You might have shared it with us.
  • GUMMOW J: Justice McHugh and I referred to it on the special leave application. We were not beating the air.
  • MR DOUGLAS: Yes, on reflection, your Honour, that essay should have been provided to the Court.
  • KIRBY J: In the old days, counsel would have opened the appeal with that - - -
  • MR DOUGLAS: It is perhaps an excess of timidity - - -
  • GLEESON CJ: No, they would not. In the old days, counsel would not have referred to anything by an author who was not dead.
  • MR DOUGLAS: That may have been what dictated my approach, your Honour.
  • SOURCE: Tanwar Enterprises Pty Ltd v Cauchi & Ors S341/2002 [2003] HCATrans 624 (13 March 2003)
June82012

Meaning of Bike

  • KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is.
  • MR R J DOUGLAS SC: I join with your Honour. I have had to find out. Your Honour, it is a smaller form of bike than the conventional rally bike or the sort of bike we were used to in our youth. It is a squat form of bike which in modern times in the last decade or two has been utilised for quick performance use by persons usually, as in this case, on tracks which have mounds which one speeds up towards and jumps from place to place. So it is a form of performance bike within a confined environment.
  • KIRBY J: I see.
  • MR DOUGLAS: Is that a sufficient explanation for your Honour?
  • KIRBY J: I think I might have seen one, so I think I know. …
  • SOURCE: Leyden v Caboolture Shire Council [2007] HCATrans 475
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