Curtain Call

April 22, 2012

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.

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