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)

Kirby Douglas law High Court Australia 

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)

McHugh Kirby Douglas law HIgh Court Australia 

February272013

Inferno

  • GLEESON CJ: Is that not the answer to your argument, that it seems very strange indeed that what in the old-fashioned days used to be called “rape” would necessarily have to be dealt with and dealt with only in the Children’s Court?
  • MR LAMPRATI: Yes.
  • KIRBY J: Where then lies consequentialist rhetoric?
  • GLEESON CJ: Except in relation to all the people who have pleaded guilty in the District Court in the past.
  • MR LAMPRATI: Yes.
  • KIRBY J: That sounds like heaven is falling to me.
  • HAYNE J: I read the words, you follow a purposive construction, he employs consequentialist rhetoric. It is one of those irregular - - -
  • MR LAMPRATI: Yes. One wonders if Dante reserved a special place in hell for consequentialist rhetoricians, your Honour.
  • GLEESON CJ: No, we hear plenty of consequentialist rhetoric in the course of the performance of our duties, Mr Lamprati, and not always from the front.
  • SOURCE: PM v The Queen [2007] HCATrans 295 (14 June 2007)

Gleeson Kirby Hayne Lamprati law High Court Australia 

February262013

Whether The Weather

  • KIRBY J: I have never been able to understand these weather charts on the television when they have them. Maybe, out of this case, I will really understand them. Now, what does that line - you say that that is a front, now, what does that mean,, that before it everything is beautifully calm and, after it, everything is windy, or - what does it mean?
  • MR MACFARLAN: Well, I could not tell your Honour in technical terms, I am afraid, except that is the - - -
  • KIRBY J: You do not understand the weather forecasts either.
  • SOURCE: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad S44/1997 [1998] HCATrans 51 (10 March 1998)

Kirby MacFarlan law High Court Australia Weather 

February252013

King Canute

  • GUMMOW J: A totalisator seems to be a machine or an instrument?
  • MR MEADOWS: Yes, it is, it is a calculator in a way which - - -
  • KIRBY J: Old technology.
  • MR MEADOWS: A computer is just a glorified calculator, your Honour, in some of its operations.
  • KIRBY J: There has been some progress though.
  • MR MEADOWS: Anyway, you have a pool and the pool is divided up according to a formula, commission is taken out and the pool is distributed so that the people who have backed the winner and the placegetters in the race receive a dividend.
  • KIRBY J: Sometimes as I look down on you, solicitor, I think of King Canute. I think it may merely be your distinctive appearance.
  • MR MEADOWS: I am deeply hurt by your Honour’s remark, your Honour. I regard myself as extremely progressive.
  • SOURCE: Betfair Pty Limited & Anor v State of Western Australia [2007] HCATrans 659 (8 November 2007)

Kirby Meadows law High Court Australia 

February212013

Trolleys

  • GUMMOW J: There is a public cost in all of this.
  • MR GLEESON: There is, your Honour.
  • GUMMOW J: Longer cases, more issues of credit. People are going to hop in the box and say this, that and the other thing, as.....the time. That will be challenged. On it will go. Every system will get slower and slower.
  • MR GLEESON: Your Honour, one of the things we would urge is that - - -
  • GUMMOW J: Discovery - there will be more trolleys coming up to Court.
  • KIRBY J: Lots of work for lawyers.
  • GUMMOW J: Big firms will be charging $5 a sheet to photocopy it.
  • HAYNE J: And image it.
  • KIRBY J: This is why you do not want us to import the objective facts or the facts of the relationship of the parties. You simply want us to import a fiction of a principle of law.
  • MR GLEESON: A term implied by law which is simple in the sense that it runs through either all contracts or our type of contract, one the parties can depart from if they wish to agree to do it but, apart from that, it supplies the answers.
  • GAUDRON J: What if a contract simply has its ordinary meaning, the meaning according to its ordinary natural words, and there is no implied term of the kind for which you contend? I just do not understand it. What happens then? Why do you not say it has its ordinary and natural meaning and there is no implied term?
  • GUMMOW J: You have been bludgeoned by all these trolleys, you see. It warps thinking eventually.
  • SOURCE: Royal Botanic Gardens and Domain Trust v South Sydney City Council S263/2000 [2001] HCATrans 415 (6 September 2001)

Gummow Hayne Gaudron Kirby Gleeson law High Court Australia 

1PM

American Heaven

  • KIRBY J: I rather gather from Sir Anthony Mason's article that this is a very well-developed doctrine in the United States that you are now trying to wedge into our jurisprudence more effectively.
  • MR GLEESON: Not wedge, your Honour; we are trying to - - -
  • KIRBY J: Just a tiny tip of the wedge.
  • MR GLEESON: It is a well-developed doctrine in the United States. [...] What I seek to draw attention to is that in the commentary on the restatement there is first a description of what "good faith" means and then there is a discussion as to how good faith is developed in particular areas of the law.
  • GUMMOW J: Before you read a restatement, do we know who the reporter is of Contract Second? Is it Professor Farnsworth?
  • MR GLEESON: This part of the restatement was largely influenced by Corbin, and - - -
  • GUMMOW J: Corbin was not with us in 1985.
  • MR GLEESON: No. It may be Professor Farnsworth. We provided a copy of his - - -
  • HAYNE J: We can find out by looking at the front page of - - -
  • MR GLEESON: We have provided a separate copy of extracts from Farnsworth's 1990 edition, which has some discussion on this matter and on the power of evidence rule. In the Virginia Law Review article of Summers, the part we rely upon is at pages 239 to 240.
  • GUMMOW J: As Justice Hayne points out, the answer is on the front sheet.
  • MR GLEESON: If your Honours please.
  • GUMMOW J: Farnsworth and McCormack. We are in academic heaven, really.
  • SOURCE: Royal Botanic Gardens and Domain Trust v South Sydney City Council S263/2000 [2001] HCATrans 415 (6 September 2001)

Gummow Hayne Kirby Gleeson law High Court Australia 

1PM

Those Nasty Footballers

  • MR GLEESON: The Trust's revenue is used for the purposes of public recreation, being the three sets of gardens which are under its control: the Botanic Gardens in Sydney, Mount Tomah and Mount Annan.
  • GAUDRON J: But not for the Domain? Not even grass for the Domain, as I said.
  • MR GLEESON: Could I be precise, your Honour? The money is used as part of revenue to carry out the entirety of those operations. Those operations include the maintenance and upkeep of the Domain itself, including the surface area of the Domain.
  • KIRBY J: Is the Domain - I assume from the parties - part of the Royal Botanic Gardens?
  • MR GLEESON: Yes.
  • KIRBY J: So that to the extent that it is revenue for the Royal Botanic Gardens, it is available in the trustee's discretion for use in respect of the Domain?
  • MR GLEESON: Yes, the Trust - - -
  • KIRBY J: There is always a rather nasty area, mainly caused by footballers, I think, that needs repair.
  • SOURCE: Royal Botanic Gardens and Domain Trust v South Sydney City Council S263/2000 [2001] HCATrans 415 (6 September 2001)

Kirby Gleeson law High Court Australia 

February152013

Pharmaceuticals

  • MR GRACE: I hand up to your Honours, as requested yesterday, a supplementary appeal book which contains copies of the transcripts of the recorded conversations between the police and the appellant.
  • GLEESON CJ: Thank you.
  • MR GRACE: I also want to - - -
  • KIRBY J: Is there anything you want to say about those conversations? Is there anything - - -
  • MR GRACE: No, they speak for themselves. There is apparently no mention of the word “ecstasy” on the part of the appellant. He does concede in the conversations that he was not sure what he was going to be picking up, but he suspects they were drugs.
  • KIRBY J: Well, he would have to be pretty dumb to think he was going to get thousands of dollars, $2,000, for picking up aspirin.
  • MR GRACE: Yes, there is no quarrel with that proposition.
  • SOURCE: Johnson v The Queen [2003] HCATrans 417 (22 October 2003)

Gleeson Kirby Grace law High Court Australia 

February142013

Matrimonial Bliss

  • McHUGH J: I am not even sure that past experience, which is used as good guide to the future, tells you very much these days about what the prospects of any particular individual remarrying. One meets highly intelligent women with large incomes, attractive, with every social asset, they are not interested in marriage, they are not even interested in de facto relationships.
  • MR BUSS: They are not even interested in men.
  • McHUGH J: They love their independent life and their own means of getting around, so they will not marry. So you see somebody, you might say, "Well, this woman is marriage material", but they just do not marry. They do not want to marry. They cherish their independence.
  • MR BUSS: That would be something that would emerge at the trial and that is why the facts of the particular case are so important. For example, Justice Dowd did make observations about the plaintiff that some people might think are blunt and rather harsh and at paragraph 55 his Honour said
  • "The plaintiff is a difficult forthright determined and strong willed woman who would not make an easy marriage partner. I accept that she considers that she will not re-marry - - -"
  • GAUDRON J: Well, you could say that about a lot of people, I would have thought.
  • MR BUSS: "- - - and that she is unwilling to enter into another matrimonial venture."
  • KIRBY J: His Honour likes a calm life.
  • SOURCE: De Sales v Ingrilli P57/2001 [2002] HCATrans 169 (17 April 2002)

McHugh Gaudron Kirby Buss law High Court Australia 

12PM
“The English were always so embarrassed about grief and emotion that they just put that to one side and said, ‘Well, no money is big enough to compensate for that; therefore we will forget it and give nothing’.”

Kirby J, De Sales v Ingrilli P57/2001 [2002] HCATrans 169 (17 April 2002).

(Source: austlii.edu.au)

Kirby law High Court Australia 

12PM

The Empire

  • GAUDRON J: That is the question, is it not, is it the law or is it the practice?
  • MR NUGAWELA: The law being - - -
  • GLEESON CJ: The law is the statute, the law is the Fatal Accidents Act 1959 .
  • MR NUGAWELA: The law is the English interpretation of what the statute means when the statute is silent.
  • KIRBY J: I do not think we can blame the English for this. We have been doing it ourselves for an awful long time.
  • SOURCE: De Sales v Ingrilli P57/2001 [2002] HCATrans 169 (17 April 2002)

Kirby Gaudron Gleeson Nugawela law High Court Australia 

February112013

Der Process

  • KIRBY J: What is the logic, Mr Basten, in giving this document after the event? It just does not make sense. Decision-making is improved by giving the document before. The decision-maker can still reach the same conclusion but at least then the decision-maker has the advantage of having the applicant put the best foot forward.
  • MR BASTEN: What I am saying is two things, I suppose - - -
  • KIRBY J: But you say he is struggling in the dark, out there at Long Bay Gaol, locked in his cell, he has to anticipate what the Minister is getting.
  • MR BASTEN: No, he does not.
  • KIRBY J: He does, because he does not get the document that is ultimately prepared by his Department, putting what might be thought to be a spin or a pitch on the issue, or leave this case aside, that could in another case involve that, and then getting the document after the event. Kafka would write a chapter on that.
  • MR BASTEN: Kafkaesque is a commonly used phrase in relation to bureaucratic decision-making.
  • SOURCE: Palme, Ex parte - Re MIMIA S258/2002 [2003] HCATrans 611 (6 March 2003)

Kirby Basten law High Court Australia 

February32013

Declensions

  • MR DREYFUS: If it please the Court, the question raised by this case is whether the interests of Mr Allan, a resident of West Brunswick in Melbourne, are affected by decisions to grant tax concession certificates to a large corporation - - -
  • KIRBY J: Are affected or were affected at the time of the application?
  • MR DREYFUS: Were affected at the time that the decision was made, is the way in which we would put it.
  • KIRBY J: That the decision was made or at the time the application was made?
  • MR DREYFUS: At the time that he has applied - - -
  • KIRBY J: That is right; you are going backwards in time.
  • MR DREYFUS: Yes.
  • KIRBY J: You started with the present tense, you then went to the past tense and now you have gone to the pluperfect past tense.
  • MR DREYFUS: Thank you, your Honour, and we would accept that tenses are important.
  • SOURCE: Allan v Transurban City Link Limited M90/2000 [2001] HCATrans 212 (23 May 2001)

Kirby Dreyfus law High Court Australia 

January242013

Extended Agony

  • MR GAME: Having taken the Court through that transcript, those are really the substance of the matters that we wish to put to the Court in our submissions.
  • GAUDRON J: Thank you, Mr Game. Yes, Mr Buddin.
  • KIRBY J: Can I just ask: what about the point of splitting the cases?
  • : [1,750 words and 14 interjections later...]
  • KIRBY J: I extended your agony by asking you one extra question.
  • MR GAME: I am not in complete agony, your Honour.
  • KIRBY J: It has gone on for much longer than I contemplated.
  • SOURCE: Stanoevski v The Queen S251/1999 [2000] HCATrans 516 (5 September 2000)

Gaudron Kirby law High Court Australia 

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