It is not uncommon to encounter claims for rectification based on the “proper construction” of a document.  Saxby Soft Drinks v George Saxby Beverages [2009] NSWSC 1486, was one of those cases and Brereton J was asked to make a declaration as to the vesting day in a trust deed. The vesting day was defined by reference to a “royal lives” clause:

“The day upon which shall expire the period of twenty-one years after the execution of this settlement or the death of the last survivor of the descendants now living of his late Majesty King George VI, which shall be the shorter [sic], or such earlier date as the trustees may at any time … in writing or by oral declaration appoint“

The deed had been executed in 1982 and by the mid-2000′s an issue had been raised by a financier whether the trust had already vested. His Honour said the whole purpose of a royal lives clause is to allow a trust to operate for the longest possible time. Accordingly, he had no problems in declaring that upon the proper construction of the definition of vesting date in the trust deed “shorter” means “longer”.

Doh!

Creative commons acknowledgement for the photograph.

This morning, I attended the retirement ceremony for Justice Peter Young in the NSW Supreme Court. Many amusing and interesting anecdotes were told this morning and the speeches will eventually be posted on the Supreme Court website. Apart from his views on equity, I have extracted a few stories which demonstrate his Honour’s views:

On insolvency

In Wily v Terra Cresta Business Solutions Pty Ltd after considering the authorities (which state that insolvency is a question of fact viewed in the light of commercial realty), his Honour summarised the approach the court should take by saying at [43]: “However, I emphasise that the cases are talking about commercial realities, not of the belief in a fairy godmother.”

On fact finding

In Blanch v British American Tobacco Australia Services Ltd his Honour said at [8]:  ”Trying to work out the facts in this case was rather like trying to conduct a boxing match in an arena surrounded by fog. No-one knows on the evidence before me just how the documents, which were put to the group of paralegals to be coded were selected….”

On stress

In McGuirk v UNSW the self represented Plaintiff who found it “difficult to restrain himself particularly late at night“ sent correspondence which was “voluminous and increasingly concerning” to various lawyers (incl counsel) for UNSW. Young J said at [42]: “The conduct was directed towards lawyers and the officers of the respondent. It was said, and this was accepted that it caused the recipients “stress”. To my mind, the fact that an opposing lawyer is caused “stress” by a litigant in person will not normally justify an order restraining the opposing litigant’s behaviour. Lawyers who cannot cope with the stresses of litigation must find some other area of law in which to practise.”

On dress

Finally, his Honour’s comments in (2006) 80 ALJ 147 at 151, in relation to court dress provoked (justifiably) some criticism: “However, it is clear that some female solicitors have no idea of appropriate court dress. The worst offenders are usually well-built women who expose at least the upper halves of their breasts, and as they lean forward to make a point to a judge sitting at a high level they present a most unwelcome display of bare flesh.”

Apparently his Honour intends (after taking a holiday) to sit as an acting first instance judge…

Creative commons acknowledgment for the photograph.

Many readers would be aware that there are a number of cases winding their way through the court system involving former clients of the firm Keddies making allegations of overcharging. In one of those cases, contempt proceedings were commenced in relation to an alleged breach of an injunction not to approach former clients. Things got a little heated at the hearing and an application was made for the judge to disqualify himself. He refused and the recusal application went to the Court of Appeal (Barakat v Goritsas (No 2) [2012] NSWCA 36). Although the appeal was dismissed there are some transcript extracts in the judgment which show how bad it was – like the following at [51]:

HIS HONOUR: Whatever I ruled on Friday does not affect the present matter. The present matter as I see it is simply – please do not interrupt me.

BRANSON: Your Honour need not raise your voice, I am concerned at the lack of procedural fairness -

HIS HONOUR: Sit down.

BRANSON: No I won’t. Is your Honour going to look at my procedural fairness now?

HIS HONOUR: You are being impudent.

BRANSON: Are you going to give me an opportunity to -

HIS HONOUR: Mr Branson, leave my court.

BRANSON: I won’t.

HIS HONOUR: Get the officer please.

BRANSON: Your Honour has gone far too far.

HIS HONOUR: I have never had a situation where counsel has … interrupted me and when I asked him not to gives me a slogan. Of course I afford you procedural fairness Mr Branson, I am simply stating the issue as I see it and I will not be over talked. Now you apologise or leave.

BRANSON: I want to know if I am able to read the affidavits before Mr Stitt advances the matter any further please.

HIS HONOUR: When you apologise Mr Branson.

BRANSON: Your Honour how can I apologise when I make a submission as senior counsel that I wish to seek instructions about these affidavits? Your Honour just says oh well, I will deal with it anyway?

HIS HONOUR: I have not said that.

BRANSON: You did, with respect.

HIS HONOUR: I said I wanted an answer to a simple question, I am not going to engage in an argument with you. There is a relationship between Bench and Bar, hopefully of mutual respect, but it requires counsel not to interrupt and not to berate a judge and I will not be berated and you apologise or -

BRANSON: I will not apologise….[and on it went]

I think Basten JA is the master of understatement in saying at [53]: “The exchange was, at best, unseemly”!

Creative commons acknowledgment for the photograph.

It is now a month since the start of the 2012 law term and hostilities (in civil litigation) have well and truly resumed. Having already had matters in both state and federal jurisdictions I was reflecting on the “subtle” differences in the case management principles in each. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) provides that:

“The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)  according to law; and

(b)  as quickly, inexpensively and efficiently as possible.”

Section 37M(2) then goes on to state the objectives are the just determination of matters, efficient use of resources and disposal of proceedings in a timely manner.

By contrast, s 37M’s state counterpart, which is found in section 56(1) of the Civil Procedure Act 2005 (NSW) states that:

“The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.”

The requirement is not, contrary to what some practitioners think: just cheap …..and quick!

Creative commons attribution for the photograph.

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.