May172013

Timing

  • HAYNE J: Yes. Have counsel for the applicants come to any arrangement about how time or argument should be divided?
  • MR WALKER: Not explicitly. No, your Honour. My understanding is that I would start.
  • HAYNE J: My question is obviously directed rather - - -
  • MR WALKER: When do I finish? Yes. I fear we have not got past this position.
  • HAYNE J: I would have thought there was a great deal in common. Is there any reason why argument for the applicants should extend in total beyond, shall we say, 30 minutes?
  • MR WALKER: Not from my point of view, but I - - -
  • MR WIGNEY: Will be very short and largely adopt Mr Walker’s submissions.
  • SOURCE: Joffe v The Queen; Stromer v The Queen [2013] HCATrans 109 (10 May 2013)
February252013
“Your Honour’s personal work habits are extraordinary. It has been said about your Honour that you have always taken on a workload that should have been outlawed by some post-Dickensian Factory Act, and I trust that such an allusion will gratify you. Your Honour has been described as an “old-fashioned intellectual - in the very best sense”. As a classical scholar you are blessed with a passion for and knowledge of history, and allusions to historical events and seminal statements by history’s characters regularly enliven your own conversation and observations.”

The Honourable D. Williams, AM, QC, Attorney-General for the Commonwealth, Ceremonial - Heydon J - Swearing in C0/2003 [2003] HCATrans 563 (11 February 2003).

The seemingly insatiable work-ethic of Justice Heydon was a continuing theme at his swearing ceremony. Thus, we had Mr R.K. Heinrich, President of the Law Council of Australia:

It was my privilege and pleasure to brief your Honour over many years from the time you first commenced active practice at the New South Wales Bar in the 1980s up until the time you were appointed to the New South Wales Court of Appeal. I must say that it was somewhat of a relief when you were appointed. As not being a particularly early riser I am no longer troubled by your kind offers of 6 am early morning conferences.

And  Mr B.W. Walker, SC, President of the New South Wales Bar Association:

For reasons not susceptible of rational explanation, the Law School at Sydney University hides its students well underground. Nearly all teaching, particularly at undergraduate subjects at the core, like equity, was conducted in rooms which but for artificial lighting would be nothing but caves. At any season they are unattractive. In the middle of an academic year, coinciding with winter, they are even less attractive. An undergraduate population does not rise early or does not rise early in a good or eager mood. These are all matters of personal recollection on my part.

I share with many others, therefore, still some wonderment at the way at which at 8 am - an hour which is far more extreme than the 6 am Mr Heinrich recalls from a remunerated legal practice - a crowded lecture hall well underground would attend your Honour’s equity lectures.

Speaking in reply, the newly-appointed justice of the court alluded to the same issue:

It is a truism that the families of lawyers do not have easy lives. My family, like others, probably suffered less while I was on the Bench than in the years during which I was involved in the din and dust of life at the Bar. Judicial life is calmer but it still imposes some strains. The Egyptians made the lives of the Israelites bitter with hard bondage and caused them to sigh and groan. Barristers can do the same to judges and the effect flows on to their families.

But we thought we would leave you with Dyson’s penultimate remarks, which seemed for us to sum up much about his rhetorical approach in the 10 years that have followed his appointment:

Sharp memories of my childhood in this city have been revived by the sights and sounds and contrasting smells of Canberra as I walked across to the Court yesterday and today.

It was on another late summer day that my father first walked to work in this city 67 years ago. He was the grandson of a wheelwright and the son of a State primary school teacher. His starting salary as a clerk at the Department of External Affairs was described as being in the range of £288 to £354, £258 actual. The formula shows the eternal wisdom of the Australian people. Not only do they, then as now, take care not to spoil their servants with generosity. They also created the mathematical miracle of an actual number which is lower than the lowest point of the range of which it is said to form part.

(Source: austlii.edu.au)

February132013

Sure, Your Honour

  • HAYNE J: One has a right over Blackacre as an easement of way for the purpose of passing, repassing, et cetera. Other rights in respect of items of property are to be identified without restriction of purpose, for example, fee simple ownership.
  • MR WALKER: That does not mean that the use one makes of the product of that right may not itself be regulated, such as the criminalising of the growing of certain crops, marijuana, for example, but it does not mean you do not have the rights of a landowner.
  • HAYNE J: I do not know why you thought of that. I was thinking of erecting a house, Mr Walker, but there we are.
  • MR WALKER: I was thinking farming, your Honour.
  • SOURCE: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors [2013] HCATrans 15 (12 February 2013)
10AM

Wishes

  • MR WALKER: If one slightly tweaks that first sentence in paragraph 74 one would not be asking about whether something which prohibits is a prohibition, in a sense that is an unhelpful truism, but rather whether something which prohibits in order to provide a regime of licensing, which is what these statutes do, requires extinguishment as a matter of the legal synthesis of the statutes and the pre-existing native title right, just as the same synthesis is required by statute at a pre-existing common law proprietary right.
  • HAYNE J: But does not the proposition you have just advanced slide between radical areas of discourse?
  • MR WALKER: I hope not, your Honour.
  • SOURCE: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors [2013] HCATrans 15 (12 February 2013)
December92012

A Simple Premise

  • HAYNE J: These are issues to which we have still, of course, to come.
  • MR WALKER: I do understand that that is what your Honour wishes me to address.
  • HAYNE J: Yes, in time, due time.
  • MR WALKER: Perhaps when I have thought of an answer for a start, your Honour.
  • HAYNE J: Always a good start.
  • MR WALKER: Not always followed, alas, your Honour.
  • SOURCE: Assistant Commissioner Michael James Condon v Pompano Pty Ltd & Anor [2012] HCATrans 332 (4 December 2012)
September232012
“It is for those reasons that, in our submission, there is no warrant whatever – sorry, pun unintended – there is no reason consistent with common law reason for an extension in this case of a power to enter.” Mr Bret W Walker, SC in Kuru v State of New South Wales [2008] HCATrans 152 (17 April 2008)

(Source: austlii.edu.au)

August242012

Keeping the High Court Clean

  • GUMMOW J: This sounds like a product of case management.
  • MR WALKER: It may be a polluted product of case management, your Honour.
  • GUMMOW J: Yes, but you do not see many - - -
  • MR WALKER: Like oyster farming, case management, no doubt, can be carried on more hygienically.
  • SOURCE: Graham Barclay Oysters Pty Limited & Anor v Ryan & Ors S258/2001 [2002] HCATrans 105 (12 March 2002)
August162012

Skiing

  • HAYNE J: But is there not then a slide between whether [the first expression] and whether [the second expression], which is the relevant expression, has some other meaning?
  • MR WALKER: Yes.
  • HAYNE J: Are you not sliding over that chasm with a skier’s skill and speed, Mr Walker?
  • MR WALKER: Moving, I hope, openly by steps that your Honours can detect and check, rather than any illegitimate slide, but yes, of course, that is the movement that is in hand.
  • SOURCE: State of New South Wales v Williamson; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross & Ors [2012] HCATrans 182 (15 August 2012)
July252012

My Fainting Friend

  • MR WALKER: You do not finally win until the last opportunity for a result to be reversed has been enjoyed. That will not happen at first instance. So this is not about to be rendered moot.
  • GUMMOW J: No.
  • MR WALKER: Unless my friend causes me to faint with shock and say that if we win before Justice Murphy they will not be doing anything to complaint about that, then it will not be moot in the ultimate sense.
  • SOURCE: TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia & Anor [2012] HCATrans 172 (23 July 2012)
July192012

Making It Up

  • MR WALKER: The remarkable thing about Lord Millett's conclusion is, having been the only judge that we found that follows logically through that there be no damages for anything with respect to the pregnancy and the delivery, his Lordship nonetheless says - - -
  • HAYNE J: His Lordship assigns a conventional sum to it, does he not? I see that is - - -
  • MR WALKER: There are two heads of damage. The first is loss of your choice as to reproductivity and that is a conventional sum. I have no more to say about that. We have not sought it.
  • KIRBY J: That is just made up by the judges, is it?
  • MR WALKER: Yes.
  • KIRBY J: Maybe you can do that in the House of Lords.
  • SOURCE: Cattanach & Anor v Melchior & Anor B22/2002 [2003] HCATrans 564 (12 February 2003)
5PM

Kid For Sale

  • MR WALKER: Now, in our submission, that is a form of reasoning which demonstrates the complete jumbling of two entirely different areas of discourse. No one is buying a child. No one has sold a child. Children do not have monetary value.
  • GUMMOW J: They used to sell them in the United States as slaves, do not forget.
  • MR WALKER: Your Honours, as one read some of these cases one wondered whether it was because of, or despite of that history.
  • SOURCE: Cattanach & Anor v Melchior & Anor B22/2002 [2003] HCATrans 564 (12 February 2003)
5PM

Sue Me

  • McHUGH J: Subject to one thing and that is that in certain situations where there may be a failure to take care, nevertheless, the law will not impose liability because the conduct takes place in a particular social context. Barristers cannot be sued, for example, no matter how careless they are, for their conduct in court - - -
  • KIRBY J: So far.
  • MR WALKER: Can I quote you?
  • SOURCE: Cattanach & Anor v Melchior & Anor B22/2002 [2003] HCATrans 564 (12 February 2003)
July182012

Best Efforts

  • GLEESON CJ: That is what prompted my original question to you and I must have misunderstood your answer. [...]
  • MR WALKER: Your Honour, no, you did not misunderstand my answer to your question. You understood it properly.
  • GLEESON CJ: I do my best, Mr Walker.
  • MR WALKER: It is my best that is failing, your Honour.
  • SOURCE: Lam, Ex parte - Re MIMA B33/2001 [2002] HCATrans 315 (24 June 2002)
July172012

But, The Knife

  • GAUDRON J: Mr Walker, that sounds good, as to your arguments always. The reality is - - -
  • HAYNE J: Here comes the knife.
  • MR WALKER: I can feel a "but", your Honour, yes.
  • SOURCE: Dow Jones & Company, Inc v Gutnick M3/2002 [2002] HCATrans 253 (28 May 2002)
2PM

God-Fearing Limited Liability Companies

  • MR WALKER: Your Honours, I appear for a number of persons.
  • GUMMOW J: I thought you were going to say "God-fearing limited liability companies".
  • MR WALKER: It is the first epithet that I would not venture, your Honour.
  • CALLINAN J: Strongly driven by the profit imperative.
  • MR WALKER: Some of them exist solely as the apotheosis of that, your Honour.
  • HAYNE J: Not always to great effect with some - - -
  • MR WALKER: Some make great losses in their attempts as well but others, and importantly, are most certainly not for profit and include, for example, this country's CSIRO, whose use of the Internet is precisely for the kind of scholarly enterprise that, in our submission, properly engages the most favourable sentiment about it in terms of the marketplace of ideas.
  • CALLINAN J: And therefore it is very unlikely to publish damaging statements about - - -
  • MR WALKER: Your Honour has what can only be described, with great respect, as a very benign view of the way in which scientists conduct controversies among themselves.
  • SOURCE: Dow Jones & Company, Inc v Gutnick M3/2002 [2002] HCATrans 253 (28 May 2002)
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