My blog has moved….

February 27, 2015



From 27 February 2015 my blog has moved to a new home under my own domain name. The new address is:

I have imported all the old posts and comments to the new site.

If you are reading this post because you are one of the 60 people who have subscribed to be notified of new posts via the WordPress site, I’m afraid you are going to have to re-register. The subscriber management plugin which came with this template doesn’t allow me to see your email addresses (or I simply can’t figure out how to see them and migrate them). Sorry for any inconvenience caused and I hope to see you at the new site.

Creative commons acknowledgment for the photograph.

Fishing Expedition

January 29, 2015


Some of us (not me) may have been on a fishing expedition during our summer holidays. Those memories will begin to fade as the wheels of business start turning for 2015. However, one thing you should remember that it’s not a good idea to go fishing in the Supreme Court of NSW. McDougall J, in his own inimitable style, made his views on the topic very clear in New Price Retail Services v David Hanna [2012] NSWSC 422:

“[9] In each case, leaving aside differences to account for the differing parties to whom the subpoeana was addressed, what is required is production of:

“All original and copies of any documentation in relation to your duties as the receiver and manager of the property of Kim Ngo and all other documents, including correspondence, draft documents, file notes, and memoranda relating to, concerning or touching upon, any such duties as a receiver and manager”.

[10] It may be possible to conceive of a subpoena drafted in wider terms, but I do not propose to take up time by attempting to meet that challenge.

His Honour continued:

“[16] Mr Hanna’s solicitor set out a number of suggested bases of relevance for the documents, in an affidavit sworn on 15 February 2012. I do not propose to go through those suggested grounds in detail. In my mind, they do no more than confirm that Mr Hanna is using the subpoena process to go fishing in an enormous pool of documents to see if some minnow, or, for that matter, pike, may be attracted. That is not, in my view, a legitimate use of a subpoena.”

Thanks go to Luke Fermanis of my chambers for providing me with this blogworthy case.

Creative commons acknowledgement for the photograph.

A Lesson Learned

December 15, 2014

Rockhampton Court

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

Creative commons acknowledgement for the photograph of the Rockhampton Court House.

Matrimonial causes

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.

Prohibited Items

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?’”

You can read more of the original story by clicking here. Creative commons acknowledgment for the photograph.


September 26, 2014


The very first post to this blog was about Justice Owen’s closing remarks in the mega-case Bell Group Ltd (in liq) v Westpac (No 9) (2008) 39 WAR 1

Following on from last month’s expansion of vocabulary, Owen J appears to like the word “jeremiad“, using it at para [6]:

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:

[9630] 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.

[9631] 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 [2010] WASC 10.

The trial judge made the following observations about the evidence of the 94 year old (at the time of trial) mother (at [114]):

“…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.