December 15, 2014
I recently came across Sir Gerard Brennan’s conference paper titled “Lessons from a life in the law” in which he tells the following anecdote (which he also told at his swearing in as CJ in 1995):
“It is nearly 70 years since I first entered a courtroom presided over by my father in Rockhampton. That was in the war years when his associate was temporarily absent and I stepped into the role and demonstrated my lack of experience….. I had in one hand a pro forma sheet for charging a prisoner on trial and in the other the indictment signed and presented by the Crown Prosecutor. Mistaking the name of the Prosecutor for the name of the accused, I charged a kindly, meek and highly reputable man with the crime of rape. Counsel for the accused, in accordance with the camaraderie of the Bar, immediately announced his appearance for his learned friend and pleaded not guilty. And so I was given the first instalment of a lesson about life in the law. It was not about the need to follow the form — that was only too obvious — it was a lesson about the relationship that is built among members of the legal profession who share a deep respect for their vocation — a respect which fosters warm personal relationships even when they are engaged as adversaries.”
Brennan, Gerard. Lessons from a life in the law. Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The, Vol. 11, No. 3, Sept 2013: 245-264
November 24, 2014
Since Gough Whitlam’s passing, there has been a lot of public reflection on the achievements of his government. One of those achievements was the reform of family law and the introduction of no fault divorce under the Family Law Act. Previously under the Matrimonial Causes Act 1959 (Cth) it was necessary to show one of the grounds in section 28 before a marriage could be dissolved. Those grounds included adultery, refusal to consummate the marriage, habitual cruelty, rape, sodomy, bestiality, habitual drunkenness (or intoxication by sedatives or narcotics) etc etc. Attempted murder or GBH of your spouse were also grounds. No wonder private detectives mourned the introduction of the new no fault law.
Australia was not the only country which had fault based divorce. In the late 1950’s in the US state of Missouri, one of the grounds for divorce was the committing of “indignities” (basically mental or physical cruelty). In one case a husband obtained a divorce on the basis that he had a right in Stone County “to be master in his own house” and to “fish and hunt with his friends at reasonable times without interference from the wife” and the right to trade livestock without the wife’s intervention. The trial judge found infringement of these rights was an “indignity”.
The Springfield Court of Appeals overturned the decision in Moore_v_Moore and also noted that for divorce purposes the appellation “hillbilly” used by the wife in respect of the husband’s relatives was, in Southern Missouri, not generally an insult or indignity….but was an expression of envy!
Creative commons acknowledgement for the photograph.
October 23, 2014
If you have ever wondered why you can’t take your badminton racquet on a plane its because it (along with other blunt things that could be used to bludgeon) are prohibited items under regulation 1.07 of the Aviation Transport Security Regulations 2005. Other blunt things include any piece of wood or metal big enough to threaten someone with, although walking sticks and crutches are exempt. The real reason I am telling you this is because I want to re-tell an airport security story recently told by Professor Brian Schmidt (US born astro-physicist who works at ANU and who won the Nobel prize for physics in 2011). You may have seen him on Q&A recently.
The good professor took his Nobel medal to show his grandmother in Fargo, North Dakota (I thought it was in Minnesota). Gold absorbs all x-rays and appears “black” to airport security scanners. This raised the interest of the security officers and the following occurred:
“They’re like, ‘Sir, there’s something in your bag.’
I said, ‘Yes, I think it’s this box.’
They said, ‘What’s in the box?’
I said, ‘a large gold medal,’ as one does.
So they opened it up and they said, ‘What’s it made out of?’
I said, ‘gold.’ [what else is a large gold medal made out of, I wonder?]
And they’re like, ‘Uhhhh. Who gave this to you?’
‘The King of Sweden.’
‘Why did he give this to you?’
‘Because I helped discover the expansion rate of the universe was accelerating.’
At which point, they were beginning to lose their sense of humour. I explained to them it was a Nobel prize, and their main question was, ‘Why were you in Fargo?’”
September 26, 2014
Following on from last month’s expansion of vocabulary, Owen J appears to like the word “jeremiad“, using it at para :
There are parts of the reasons that, I acknowledge, might be characterised as a jeremiad. I had to keep reminding myself of the sage words of Joseph Addison, the 18th century English essayist: ‘A misery is not to be measured from the nature of the evil, but from the temper of the sufferer’.
and as a heading to section 36.1:
 The reader may detect a slight touch of irritation in what I am about to write. The plaintiffs’ prayers for relief and the particulars that support them are almost unintelligible. In their closing submissions the plaintiffs do little more than repeat what is in the prayers for relief, the particulars and the myriad charts from which a story as to relief is said to emerge. Some serious issues have been raised in regard to relief. The plaintiffs have not engaged in any meaningful way with many of those arguments. The banks adopted the Les Miserables approach. There were some substantial pieces of furniture in the barricade but a lot of it was a bit on the flimsy side.
 I have spent weeks trying to work this out with, I am afraid, limited success. All I can do is to set out the principles on which I think relief should flow and indicate, generally, what I am prepared (and not prepared) to do….
Not a great reflection on the lawyers involved?
Creative commons acknowledgment for the photograph.
August 26, 2014
The son in financial difficulty who uses his mother’s property as security for a loan is a well known recipe for a dispute with the bank about unfair or unconscionable conduct. That was the case in Permanent Mortgages v Vandenbergh  WASC 10.
The trial judge made the following observations about the evidence of the 94 year old (at the time of trial) mother (at ):
“…she did not appear to be physically or mentally frail, although she appeared to be slightly hard of hearing. She arrived in court in a wheelchair, which indicated that she had some difficulty with mobility, but she was able to ascend the steps to the witness box holding on to the rail, and otherwise she gave the appearance of being in reasonably sound health. Also, despite her age, she appeared to be a lively and intelligent woman. Her increasing irritation at the cross-examiner’s questions in a particular area of her evidence was evident, and led at one stage to a sotto voce ‘oh Christ!’, which is not recorded in the transcript“.
The Judge makes some interesting observations made about the drafting of, and reliance on written witness statements in these types of cases. but the Court found that “notwithstanding the difficulties with her evidence which I have mentioned, I thought there was a real ring of verisimilitude in her evidence…”. Excellent!
Creative commons acknowledgement for the photograph.
July 23, 2014
Lord Denning is well known for his storytelling style of judgment writing. The opening words of Lloyds Bank v Bundy  QB 326 always make me smile:
“Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was a Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt.”
I can’t help the feeling that Justice Harrison was inspired by Lord Denning when he wrote his judgment in Hill v Higgins  NSWSC 270 (which was an out of all proportion dispute between two neighbours about a retaining wall). The case occupied 2 full days of hearing in the NSW Supreme Court and ultimately resulted in a judgment for $220. It began:
 Mr and Mrs Hill and Mr and Mrs Higgins are neighbours. Their properties are respectively known as 42 and 40 Kurrawong Avenue, Hawks Nest, which is a small hamlet located on the picturesque northern shores of Port Stephens. A modest house is erected on each property. Kurrawong Avenue slopes gently from north to south in the vicinity of the properties. Number 40 is on the higher northern side and number 42 is on the lower southern side. Mr and Mrs Hill purchased number 42 in about November 2005. Mrs Higgins purchased number 40 sometime in the following year.
 A mostly brick dwarf retaining wall approximately one metre high and a mesh dividing fence originally ran from east to west along most of the northern side of the common boundary between the two properties. At some stage during 2006, Mr Hill became alerted to the fact that the double brick section of the retaining wall had deteriorated and had developed a slight lean, so that it was to some extent encroaching onto and over his property
 It was not long after this that relations between the two couples became very strained indeed. … Surveyors and engineers were soon marshalled on both sides to provide advice and reports on all manner of potential issues arising from these unfortunate circumstances.
 It goes without saying that it was not long before legal proceedings were commenced…….
 At the end of the second day, and with this very unfortunate state of affairs in mind, it became apparent to me that some different approach to the resolution of the proceedings was called for that was unconstrained by the traditional litigious model. As far as I could determine, both parties were in furious agreement that the retaining wall had to be removed but they could not agree, whether from an engineering, aesthetic or financial standpoint, about what if anything should replace it….
You can read the rest for yourselves and if you’re interested in some more Lord Denning judgments, have a look at: Thornton v Shoe Lane Parking, Lewis v Averay, Spartan Steel v Martin, Jarvis v Swan Tours, Jackson v Horizon Holidays, Miller v Jackson, Lamb v Camden LBC, George Mitchell v Finney Lock Seeds
The photograph was taken by Sydney based, documentary photographer, Bettina Cutler.
June 24, 2014
Henrik Jan van Es was added to the roll of legal practitioners in NSW on 17 February 2012.
Henrik Jan van Es was removed from the roll of legal practitioners in NSW on 5 June 2014.
So why did the Court of Appeal find that he was not a person of good fame and character and was not a fit and proper person to remain on the Roll? You can read the whole case for yourselves (Prothonotary of the Supreme Court of New South Wales v Hendrick Jan van Es  NSWCA 169), but you get the general idea from :
“The only findings available on the uncontested evidence are that there was (a) a deliberate attempt to cheat in the Bar Association’s Ethics examination, (b) a deliberate attempt to deceive a senior officer of the Bar Association following Mr van Es’ exclusion from that exam, (c) a lack of candour in explaining what had occurred to the Executive Director of the Bar Association and (d) a failure, which is ongoing, extending to Mr van Es’ evidence in this Court, to appreciate the obligations of candour owed by Mr van Es.”
I am particularly “fond” of the evidence about the CCTV footage which showed Mr van Es leaving the examination room, sorting through his materials, and placing some of them down the front of his trousers & pulling his jumper down over them (no-one will notice). Not only is there irony in cheating in an ethics exam (which is the easiest of the 3 compulsory bar exams), but he also showed sound judgment (not) in litigating this in the Court of Appeal. No doubt a promising career down the drain.
Shout out to fellow member of chambers, Luke Fermanis for alerting me to this case.
Creative commons acknowledgment for the photograph.