As summer holidays fade away I was contemplating my days at both the Sydney test match (cricket) and the Australian Open (tennis) and looking (and laughing) at the differences in the terms and conditions for both events.

The following are not allowed into Melbourne Park:

Alcohol; animals except service animals (e.g. seeing eye dogs, police dogs and horses); any item that could be used as a weapon; beach balls & other inflatable devices; bicycles, scooters, skateboards and roller- blades/skates; camera tripods, monopods, telephoto camera lenses with a focal length capacity greater than 200mm; video cameras & handy-cams; audio recorders; drink & food cans; chairs & stools; eskies & hampers; fireworks; frisbees; helium balloons; glass (including bottles); large containers in excess of 1.5 litres; flags, banners or signs larger than 1 metre by 1 metre in size or with handles longer than 50cm in length; musical instruments &/or amplification equipment; unauthorised advertising or marketing material or flyers; laser pointers, distress signals, whistles or loud hailers and dangerous goods

There is understandably a lot of overlap on the glass/alcohol/dangerous (and photographic) items with the cricket, but I’m not sure what Tennis Australia has against frisbees and helium balloons. On the musical instrument side, Cricket Australia specifies that “that no stadium horn (including without limitation, a vuvuzela) may be brought into the Venue“. It is apparently OK to take a beach ball to the cricket (but not to the tennis) but you can’t “inflate, or cause to inflate, any balloon, beach ball, receptacle, device or structure without the prior written consent of Cricket Australia“.

Both terms of entry prohibit disruptive activities but Cricket Australia say that it is disruptive to participate “in any manner, in a ‘Mexican wave‘”.

Also tennis patrons are required to wear shoes/footwear at all times and cricket patrons are required to “take appropriate care for their sun protection and hydration” (which explains why VB is a major sponsor).

Acknowledgement for the photograph goes to Sydney based documentary photographer, Bettina Cutler, who took the photo (from the second back row) with her (allowable) 200mm lens.

I did battle this week with a self represented person who was trying to get their special leave application re-instated in the High Court. They needed re-instatement because they failed to comply with High Court Rule 41.10. That rule which I set out below (complete with perspicuous remarks)  made me smile the first time I read it…..

41.10.1    An unrepresented applicant shall present his or her argument to the Court in the form of a draft notice of appeal and written case, which, unless the Court or a Justice otherwise directs, shall not be served on any person who was a party to the proceedings in the court below [so, don't serve it until the Court tells you to - I bet this happens a lot]

41.10.2 & 41.10.3 set out the forms and page limits. The rule then continues:

41.10.3(c)    shall be filed within 28 days of the filing of the application, together with two additional copies of the written case, the draft notice of appeal and all of the documents filed by the applicant in accordance with rule 41.01.2.

41.10.4.1 If an unrepresented applicant does not comply with paragraph 41.10.3 (c), the application is taken to be abandoned unless the Court or a Justice orders or directs otherwise.

…..now even if you do manage to comply with those requirements…

41.10.5    Where an unrepresented applicant has filed a written case, any two Justices may, without requiring any party to the proceedings in the court below to respond to the applicant’s written case, determine that the application should be dismissed and direct the Registrar to draw up, sign and seal an order dismissing the application.

Creative commons acknowledgment for the photograph.

Although the Court noted that offensive noise is not capable of quantification and will depend on the facts of each case,  Fullagar J addressed the possible consequences which noise from a variety of bands could have on the patrons of a cinema, in the following terms:

“The strains of a lilting waltz may make no impression on the hero or villain of a raucous and boisterous drama, whereas the pathos of a heroine with a voice like Cordelia’s may be murdered by an unholy conspiracy of saxophone and drum. And between these extremes lies a great variety of possibilities.”

Interesting postscript: a new trial was ordered on the basis that the trial judge, who in the course of the trial, attended the town hall had witnessed an experiment or demonstration which he should not have relied on.  There was no problem with a “view”, but it was a different matter for the judge to rely on what he heard.

Creative commons acknowledgment for the photograph.

In Australian Conservation Foundation v Forestry Commission and Others (1988) 19 FCR 127 at 135, Burchett J summarised one of the fundamental principles of judicial review of administrative decisions as follows:

“It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over to examine it, and then put it down, so long as he does not allow it to affect his decision.”

Succinct and to the point – I like it.

Creative commons acknowledgment for the photograph.

If you don’t already know the meaning of “perspicuous” you will get the gist of it from the Court of Appeal judgment in JPQS P/L v Cosmarnan Constructions P/L & 3 Ors [2003] NSWCA 66. It appears that the late Meagher JA has managed to press the President’s button:

[7] MEAGHER JA: The appellant in this case is a quantity surveyor against whom his Honour Judge Rolfe awarded a verdict of some $665,025.00 in favour of the four respondents, who together constituted a joint venture engaged in the development of certain land said to be situated at Bossley Park (wherever that is).

[1] MASON P: I have had the benefit of reading in draft the reasons of Meagher JA.

[2] I also have the benefit of having access to a street directory. Accordingly, I do not share his Honour’s customary doubts about the location of well-known Sydney suburbs lying to the west of Darling Point which sit cheek by jowl with his Honour’s customary lack of doubts about most other matters. A useful resource for those who need to locate Bossley Park is http://www.travelmate.com.au. By clicking on “map maker” one can find easy ways of getting from, say Darling Point to that suburb. (http://www.nowwhereroute.com/travelmate/mapmaker/mappage.asp?Type=darling%20point-_nsw_bossley%20park_nsw.)

[3] Otherwise I agree with Meagher JA in the dismissal of this appeal, substantially for the reasons he gives.

…..

[32] BEAZLEY JA: I agree with Meagher JA and the perspicuous remarks of Mason P.

Anyone who has ever downloaded an app is aware that there is facility for customer reviews. The last time I looked these included  ”Good Fun!” and “Lots of fun, so much better than Angry Birds!”. But as the UK based Roll on Friday says: “Hmmm. That would be the same Angry Birds that has been downloaded over 250 million times and is pretty much the most successful app ever. Only one reviewer bucked the positive trend: ‘just about the lamest most boring game I’ve played’.“

I must admit I didn’t like it much (I am obviously too old?), but you can make up your own mind and download it from: http://itunes.apple.com/au/app/phrase-buster/id441405046?mt=8&ls=1

Creative commons attribution for the photograph.

The Queensland Court of Appeal recently had to deal with Eric Kotev who described himself as “defender of Australia” and his statement of claim commenced with “This claim by the son of god, as are al [sic] his children”. The claim in full is set out in the judgment Kotev  v Federal Government of Australia & Ors [2010] QCA 296

In dismissing his appeal (against a decision to strike out his pleadings as frivolous or vexatious) the court found:

[2] This originating application, claim and statement of claim were accompanied by a bundle of supporting material comprising about 130 pages. It is impossible to make sense of these documents, but they suggest that Mr Kotev may have a number of grievances. One may relate to a personal injury he sustained in a motor vehicle accident outside Queensland. Another may relate to the breakdown of his marriage and his relationship with his children. Another may relate to criminal charges brought against him in Victoria. Another seems to concern his unsuccessful attempt to register a political party. Many of these grievances appear to be outside the jurisdiction of the Supreme Court of Queensland, but in any case he has not articulated any of his claims in a coherent way and certainly not in a way which complies with the requirements of the Uniform Civil Procedure Rules 1999 (Qld (UCPR). Further, some of the references in the material appear to be racist

……

[5] At the hearing of Mr Kotev’s application the judge invited him to make submissions in support of it. Mr Kotev’s oral submissions were incoherent, incomprehensible and nonsensical. …. Ultimately, the judge refused Mr Kotev ’s application for leave.

Some mothers do have them!

Creative commons attribution for the photograph.

The Commissioner of Taxation seems to have powers which are part time lord and part magician if the Anti-Avoidance provisions (see Division 165) of A New Tax System (Goods and Services Tax) Act 1999 are anything to go by…

165‑55  Commissioner may disregard scheme in making declarations

For the purposes of making a declaration under this Subdivision, the Commissioner may:
(a)  treat a particular event that actually happened as not having happened; and
(b)  treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:
(i)  having happened at a particular time; and
(ii)  having involved particular action by a particular entity; and
(c)  treat a particular event that actually happened as:
(i)  having happened at a time different from the time it actually happened; or
(ii)  having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).

Perfectly clear!

Creative commons attribution for the photograph.

Although, it is not apparent on the face of the judgment, I have no reason to believe that this story is not true:

“Perhaps the most noteworthy attempt to ‘tender’ evidence was by Tasmania in Harper v Minister for Sea Fisheries (1989) 168 CLR 314. That was a case that proceeded by way of case stated in original jurisdiction. The Tasmanian Solicitor General attempted to tender a transparent, sealed plastic box containing sea water and an abalone, apparently in an attempt to show that abalone were fixed and did not move. Faced with the prospect of closely watching the abalone for a lengthy period the Court suggested that the exhibit would not assist it and the attempted tender was not pursued.”

Sounds like a lot more fun then just tendering documents!

Extract taken from B Selway QC “The Use of History and Other Facts in the Reasoning of the High Court of Australia”  (2001) 20(2) University of Tasmania Law Review 129 (see footnote 49).

Creative commons attribution for the photograph.