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If you have a law that at that point is one which is invalid, it is invalid, and it does not have a Lazarus-like resurrection at some stage.
[…]
If the position had been that the royalties were the same at the time when the Act came into force it may well be that it would be impossible to say that there was discrimination because there would not be any difference for a start, but that was not the case and was known not to be the case so that you have an Act which, in our submission, was initially invalid and cannot really be effected one way or the other after that. It is not revivified or quickened, in our submission, having been put through the crematorium of this Court, if I could put it that way.
But, your Honour, perhaps I was discouraged by or encouraged by the black robes.
”
Mr D.F. Jackson, QC, Fortescue Metals Group Limited and Ors v The Commonwealth of Australia [2013] HCATrans 41 (6 March 2013).
Dead, buried and cremated, anyone?
While we are here, it is worth pointing out that we have Keane J’s first question on the bench in the MRRT transcript:
Mr Jackson, when you say “a restriction” you mention Melbourne Corporation and Austin’s Case as cases where the relevant demand or prohibition is not directed to a State itself, but the State is affected in its ability to engage in transactions. Are there any cases where the Melbourne Corporation principle has been held to be infringed where the State is not impeded in its ability to actually engage in transactions?
The question was a curly one - Mr Jackson took it on notice.
(Source: austlii.edu.au)
January162013
The attached link is to a transcript of a speech given by the Honourable Chief Justice Patrick Keane at a dinner held in his honour by the Queensland Bar Association. There was a lot to like, but this story is one worth repeating:
Nearly 30 years ago, I was junior to D.F. Jackson QC in a difficult trial against Bill Pincus QC and Ross Mack. Some younger members here tonight might not know that Ross had suffered the loss of an arm in a farming accident before he came to the Bar.
Pincus bowled breezily into court one morning while David and I were sitting at the Bar Table and said: “I notice that our side has more hair than your side.” To which Jackson replied: Yes, but our side has more arms!”
They bred them very tough at the Queensland Bar in those days.
September232012
“That is why so many of the cases are cases where two motorists have left their home State, the driver has injured the passenger somewhere else and they have come back and the car is insured in the home State, the motorists live there, their social services are there and one has merely the accident, if one can use the pun, of where the collision occurred.”
Solicitor-General Mr David Bennett AC, QC in Pfeiffer Pty Ltd v Rogerson C14/1999 [1999] HCATrans 608 (2 December 1999).
The former Solicitor-General enjoyed that one so much, he used it again in BHP Billiton Ltd v Schultz [2003] HCATrans 512 (4 December 2003):
The husband and wife who travelled together on a holiday interstate and one drives negligently and injures the other, where all the elements concerned with damages are, of course, elements which have a close relationship with the State of their residence, rather than the State of the accident, which may well, if your Honours will forgive the pun, be accidental.
In fact, #shitjudgessay counts no less than 15 occasions when Mr Bennett made use of a pun in appearing before the Court over fifteen years. To put that in context, the next best is Mr Jackson, QC with three. We think it is, respectfully, no accident.
(Source: austlii.edu.au)
September202012
“Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, “The matter does not appear to me now as it appears to have appeared to me then.” Mr Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: “My own error, however, can furnish no ground for its being adopted by this Court.” Perhaps Dr Johnson really went to the heart of the matter when he explained a blunder in his dictionary — ” Ignorance, sir, ignorance.” But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.”
If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.”
Justice Jackson of the American Supreme Court in McGrath v Kristensen 340 US 162, seeking as best he could to resile from something which he had said from something which he said when he was Attorney-General.(Source: supreme.justia.com)
