Stitched Up in the High Court

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.

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A great deal of noise

In 1950, Mr Scott obtained the right to exhibit motion pictures on Wednesday and Saturday evenings at the (1939 art deco) Numurkah Town Hall. Unfortunately (for Mr Scott), the town hall also had facilities for private dances and wedding receptions. Mr Scott said these functions substantially interfered with his demise of the premises as they caused a “great deal of noise” and he applied for an injunction. The ensuing dispute found its way to the High Court (see Scott v Numurkah Corp (1954) 91 CLR 300).

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.

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Red Herring

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.

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Perspicuous Remarks

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.

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Phrase Buster

On 29 June 2011, Allens Arthur Robinson became the first major Australian law firm to launch an iPhone and iPad app. The app (called “Phrase Buster”) is basically a cross between wheel of fortune and tetris and requires players to unscramble phrases (including legal ones) as the words drop from the top of the screen. The firm’s press release says it “… wanted to engage with the graduate market in a fun, unusual and challenging way…”

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.