I think it true to say that, in the latter part of the 20th century, public sentiment changed from an acceptance of the truth expressed in the aphorism “justice delayed is justice denied” to an expectation that decisions in litigation should be given reasonably promptly.  Courts responded by establishing protocols for the timely delivery of judgments and methods of monitoring delay.  In the High Court, for example, a list of outstanding judgments is circulated each Monday.  It identifies who has and has not produced a judgment in each outstanding matter.

It would have been useful to have had a proper survey of the time taken for the delivery of judgments in the Court in the past, but this was not practicable.  The current position may be stated with certainty.  French CJ said in the Court’s 2015-2016 Annual Report that “[a]ll civil and criminal appeals decided by the Full Court [that year] were decided within 6 months of the hearing of argument”.  I am prepared to hazard a guess that such a statement is unlikely to have been made at very many points in the Court’s history.

Preparation

The process leading to the production of a judgment now starts at the point of preparation for a hearing.  Gone are the days when a justice entered the courtroom unencumbered by any real knowledge of the parties’ arguments.  Comprehensive written submissions, filed before the hearing, have been required since 1997.  They have altered things, possibly irretrievably.

Preparation may involve not just an understanding of the shape and content of the arguments and where issue is joined, but also an understanding of relevant legislation and key cases.  The level of preparation will obviously vary according to the nature of the case, the time allowed for it and the individual justice.  Lord Neuberger, the President of the Supreme Court of the United Kingdom, divides judges into two categories:  judicial Pre-Raphaelites, who read everything; and judicial Impressionists, who read very little.  He frankly admitted to being more of an Impressionist.  This was later reported in a newspaper article entitled “Lord Neuberger, Britain’s most senior judge, admits he doesn’t read all the papers in a case” or words to that effect.

I think most High Court justices would prepare as much as time allows and as much as they consider necessary to the particular case.  Much depends on how up to date one is with judgments and where one draws the line between continuing to write them and preparing for the next sittings.  Preparation enables better engagement with the argument during the hearing and it shortens the time taken for the hearing.  A glance at the Commonwealth Law Reports (CLRs) for the number of hearing days in comparable matters in the past confirms this.  A justice is also better placed to start writing the judgment than before.  Writing can commence soon after the conclusion of oral argument and the conference which follows it.

Conferences pre and post hearing

In recent years, the High Court has adopted the practice of holding a short meeting of the justices at the beginning of each sitting week, preparatory to hearings.  Pre‑hearing meetings are not uncommon in other common law jurisdictions.  Their principal purpose is to identify any procedural issues or matters to which the parties’ attention needs to be directed before the hearing.  Points of possible importance might be flagged.  Sometimes preliminary views are offered, but any substantial discussion is left until the meeting which is held after the conclusion of oral argument.

Methods of conferring differ between jurisdictions.  In England it has been the practice that the judges speak in inverse order of seniority, with the most junior offering his or her view first.  This tradition was apparently designed to “forestall any tendencies of more junior Law Lords to be overly deferential to more senior and more trenchant colleagues”.

Needless to say, the position in Australia today is rather more informal.  It suggests little concern about the possibility of deference.  There is a free exchange of views, in no particular order, with the Chief Justice, or the justice who has presided, steering the meeting.  There is opportunity for persuasion, for criticism, and for debate.  The benefits of the conference should be obvious.  Each justice has the benefit of the views of six legal minds which should be amongst the best in Australia.  Why would one not listen to them?  Even if one does not agree with another point of view, discussion can only assist in refining one’s own.  The final product is bound to be better.

It is not at all clear that conferences, or conferences of this kind, have been a fixture in the past.  This may, in part, be explained by justices not being in a position to have formed views to enable discussion, because they did not have written submissions and had not prepared for the hearing.  It may also be explicable by reference to attitudes to such meetings.

Another purpose of the conference is to ascertain if there is a clear majority.  This does not involve voting, as it does in some courts, such as the US Supreme Court.  There judges speak in descending order of seniority and then vote.  Curiously, this is not dissimilar to the process undertaken in some civilian jurisdictions, the main difference between the two being that civilian courts aim for one collective decision; and the US Supreme Court for two — one majority and one dissenting judgment.

There is rarely more than one meeting held post-hearing, largely because once the process of writing a judgment commences, views tend to become entrenched.  There is much to be said for a further meeting when the first meeting ends inconclusively as to a majority view or where the justices need more time to reach their conclusions.  It can be useful for them to give the matter some further thought, to work towards a solution and then exchange memos before another meeting is held.

The first draft

If there is a clear majority, at the end of the meeting, one justice is usually assigned the task of producing a first draft for the others.  The allocation may be made on the basis of the issues in the matter being of particular interest to a justice or simply in order to achieve an equitable allocation of work.  A system like this works best if all are able to produce judgments to a similar standard and within a similar time.

If there is not a clear majority sometimes a justice nevertheless volunteers to produce a first draft, perhaps hoping to bring his or her colleagues to a point of view.  But sometimes judges need to work their way through the problem and writing a judgment is the only way to do it.  In this event no allocation is made, but there may be informed discussions later exchanging views and identifying who is writing.

In either case, those who are not assigned a first draft will usually make further detailed notes after the meeting, have further research undertaken, and prepare an outline, or even a draft of their own, in preparation for the receipt of the first draft.

The principal purpose of a first draft is to have those who are of the same view agree with it and thus avoid unnecessary judgments.  By “unnecessary” I mean judgments which add nothing of substance to what has already been written.  A judgment of this kind is unnecessary for the justice writing it.  It is unnecessary for the Court and for those who read the published judgments.

This is not to suggest that there may not be perfectly valid reasons why another justice may find it necessary to write.  I shall discuss them later.  Even if that be so, a first draft is a valuable resource.  It should not be necessary for that justice to set out the facts again, at least not completely.  The first draft will also identify the relevant legislative provisions and place them in context, identify the parties’ arguments, and discuss the authorities which bear upon the issues.  This is why the reader often sees a grateful acknowledgment of another’s labours in a later judgment.

There is a method to writing first drafts.  They need to be succinct.  A long judgment which says more than is necessary is less likely to attract agreement.  Neither will a judgment written in the idiosyncratic style of the author, or in florid language from the classics or 19th century literature.  It is better to resist the temptation to quote extensively from literature unless the aim is to not have others join in.

The layout and length of judgments

With respect to both the layout and the length of a judgment, the modern judgment is different from those of the past.

A survey has recently been undertaken of the length of judgments of the High Court in the period from 1903 to 2015.  The authors refer to judgments collectively, rather than individually.  They found, amongst other things, that the length of judgments was “relatively stable” during the first five or six decades of the Court.  That ended in the 1970s when a general, expansive trend followed which resulted in the Brennan and Gleeson Courts producing the lengthiest judgments in the Court’s history.

Two observations might be made about those periods.  In the first place, there appear to have been many more individual judgments, some of substantial length.  And, for a significant part of both periods, a lengthy dissent appears in almost every case.  It is said that at the event which marked the publication of Volume 200 of the CLRs, a former justice of the Court remarked to the author of these dissents that, had it not been for them, the celebration would not have taken place for many years.

Some things have clearly changed in relation to the way judgments are written, not the least because writing styles have changed.  We no longer write sentences which travel across many pages.  We have fullstops, paragraphs and even headings.

One can have too much of a good thing.  Lord Bingham, speaking extrajudicially, once said that his heart sank whenever he had to embark upon reading a judgment that set out a table of contents or chapters.  That may be so, but I think most would agree that this method is helpful when judgments are lengthy.  The real question is whether judgments need to be so long.

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.  That assumption may not be correct.  A concern has been expressed that the judgments of the High Court are too short; they do not deal with the subject at length and in as much detail as the intermediate appellate court from which the appeal is brought.  Rarely does the High Court need to review the facts; it has the benefit of the findings of the courts below.  This may sometimes account for the length of the judgments of those courts.  Lengthy dissertations of the law are another matter.  It is a question for any appellate court, the High Court included, whether that is necessary in each case.

Concurrence and dissent

A first draft judgment is circulated to the other justices in order to ascertain if those of like view will agree with it.  Agreement is expressed by the circulation of a judgment which states little, if anything, more than the fact of agreement with the reasons and the orders proposed.  That justice is then usually “joined in” to the first draft, with his or her consent.  The justice’s name appears on the judgment with that of the author.  If others agree they too are joined in.

Although a judgment is called the “judgment of the Court” when all justices agree, or a “joint judgment” (or, more controversially, a “judgment of the plurality”) when a number agree, it is more often the case that there is only one author.  Whilst it is not unusual for suggestions, sometimes substantial in content, to be made to the author of the first draft, it is not often the case that two or more justices will work together to produce a judgment.

Suggested changes to the first draft after its circulation are usually contained in a memorandum, in which an explanation is given for the changes.  It would not be usual to suggest a change in its essential reasoning or a substantial re-writing of it, although suggestions may nevertheless be of significance.  The author of the first draft is not obliged to accept any proposed changes.

The effect of the High Court’s practice of “joining in” is to render the author largely anonymous.  Some might argue that a reader should know who the author is, although it is difficult to see what the benefit of that knowledge could be.  On occasions a justice might wish the practice was otherwise, when it is felt that he or she has written a particularly good judgment, but it is always understood that if the practice were not followed justices would be encouraged to write separately more often, which is what the practice seeks to avoid.

Even when agreeing, some judges cannot help but say more.  A judgment in a criminal law case before the House of Lords reported in 1999 furnishes an example.  The Law Lord in question explained that he had been persuaded to concur with the reasons of a colleague because trial judges needed certainty in the particular area of the law.  He nevertheless took one and a half pages of the law reports to summarise the reasons he was abandoning.

A judge is at liberty to write separately, to the same result, if he or she chooses.  There may be perfectly valid reasons for a judge doing so.  There may be something which is considered necessary to be added to what has been written, which could not be accommodated within the first draft.  An important qualification may be thought necessary.  A judge may not consider that the judgment has been expressed clearly enough or it may be written in a style which they do not wish to be seen to adopt.  It may contain statements of principle, or even a footnote, which a judge does not wish to be taken to approve but which the author has declined to remove.

It goes without saying that if a judge cannot agree with the view of the majority, he or she is duty bound to dissent and write accordingly.  I would expect that any judge who is considering this course will first have endeavoured to understand the majority view and whether they can accept it as a possible view, not the least because if a number of one’s colleagues are persuaded to a point of view, it could just be that one is wrong.

Fewer individual judgments

Most justices are motivated to agree with a first draft written by another if they are of the same view, the reasoning is correct and there is no other obstacle to agreement.  They will agree although they may have wished to write themselves.  They may even think they might have expressed it somewhat better than their colleague’s draft.  But they appreciate that there is every good reason to reduce the number of individual judgments which are published in a matter.

In the first place, foregoing writing another judgment to the same effect allows each like‑minded justice to focus their attention on other judgments.  If all, or most, of the justices adopt this approach there will be a reduction in the time taken to publish judgments.  On the other hand, if all, or most, of them are writing in most matters there will almost certainly be delays.  There will be delays because justices will have a backlog of judgments.

A single majority judgment is more likely to provide a clear ratio.  The reader will not be required to analyse a number of judgments in order to ascertain if there is a ratio and whether the reasoning in each accords with the others.  Readers include judges of lower courts, who must apply the Court’s decisions, and practitioners.  These judges often work under considerable pressure of time.  A practitioner’s time in reading at length is a cost, sometimes considerable, to their client.

The Supreme Court of the United Kingdom appears recently to have attempted to reduce the number of individual judgments.  Lord Neuberger calls judgments which add nothing to what has already been written by a colleague, and effectively say no more than “I have understood this case” or “I think I can express it better”, “vanity judgments”.  He says that they are “at best a waste of time and space, and, at worst, confusion and uncertainty — although they are popular with academics”.  He adds that most appellate court judges have been guilty of writing them at some time.

A single judgment of the Court or of the majority carries greater authority, not only for its precedential value.  It instils confidence in the Court’s decision.  This is especially important where it is necessary to give guidance to courts below.  So understood, some of the benefits of a single judgment, or fewer individual judgments, are institutional.  The “vanity judgment” of which Lord Neuberger speaks is not the voice of the Court, it is the sound of self.

There are critics of this collegiate approach including a former justice of the High Court.  They argue that conferences and agreement with another’s judgment compromise the independence of judges.  According to this view a judge has a duty to reveal what he or she thinks to the parties and to the public and it is necessary that each judge show that the case has been given the closest personal attention.  These obligations are fulfilled by avoiding discourse with other judges and writing separately in each case.

These views may be answered shortly.  The opinion of a judge is revealed to the world by the publication of a judgment in his or her name.  A judgment written for the purpose of proving that a judge has understood the case is an unnecessary judgment of the kind earlier referred to.  It is no part of the duty of a judge to write a judgment in every case.  The true duty of a judge is to consider a matter properly before coming to a decision.  The fulfilment of that duty is a matter of conscience for a judge.  The method by which a judge’s opinion is expressed is irrelevant to it.

No appellate judge in Australia would conceive of a judge’s duty as being simply to vote on a matter.  But, as any judge who has ever concurred in another’s judgment knows, it is not necessary to write a judgment to be able to reason to a conclusion.  The collegiate method enables a judge not only to give proper consideration to a matter, but to do so promptly.  This is because, as earlier explained, it involves preparation, participation at hearing and in conference, and making notes and outlines.  The individualist, writing in each matter, will rarely be in this position.

The other concern which is expressed about the collegiate approach is the effect of “excessively dominant judicial personalities”.  I think most people would be surprised at the suggestion that High Court justices might be overborne by such a personality.  I have had no experience of such a person.  It is not clear whether those who are concerned about judges conferences have.  The examples given are drawn from the English judiciary of the past, such as Lord Diplock.  This might not be thought to provide a strong reason for declining to engage in a dialogue with one’s colleagues.

The ability to influence is another thing altogether.  It is a fact that some people, judges and lawyers included, are better at persuasion than others.  There are methods which may be employed by judges to persuade.  Participating in discussion is one.  Preparation for it is another.  Writing a judgment quickly, when a first draft has not been assigned, is sometimes effective, although it may be overcome simply by another advising colleagues that he or she will be producing another judgment for their consideration.

Lord Neuberger, in response to the criticism of the collegiate approach, identifies another obligation to which a judge is subject.  It is “to do her best to ensure that the court of which she is a member produces as clear and coherent a judgment or set of judgments as is consistent with each member’s opinion”.  I respectfully agree.

The individualistic approach has not been without its critics.  In 1984 

Professor A W B Simpson wrote:

“[T]he undisciplined individualism of English appellate judges, and their complete lack of any collegiate spirit, reduces much of their work to mere confusion.”

Lack of coherence and clarity in the Court’s reasoning is one undesirable result of too many separate judgments.  Delay is another.  The reality is that the timely production of judgments could not be achieved if each justice produced a complete separate judgment in each case.  The critics of the collegiate approach do not suggest otherwise.  Indeed they do not point to any benefit that might accrue to the Court or those affected by its judgments from the pursuit of individualism.

A delay in publication of judgments may have important consequences for litigants and for the Court.  Some years ago I wrote a joint judgment with two colleagues.  It was joint in the true sense; each of us wrote a separate part of it.  It was to be an important judgment involving commercial law. I would give the citation for the judgment, but it was never published.

Our joint judgment was circulated.  All but one concurred.  We waited for that justice’s judgment but the justice had a backlog of judgments.  The parties waited for the Court’s decision.  Months passed.  Finally the other judgment arrived.  We gave notice that we would hand down the Court’s decision in a week’s time.  A few days before that date the parties advised the Court that the matter had been settled.  It is not difficult to infer that, as time went on, the parties decided to resolve it for themselves.  The Court had let them down.

One solution to the pressure of time might be for individual justices to write draft judgments by the method adopted by judges of the US Supreme Court, which is to delegate that task to his or her clerk.  I had thought that great individualist, Antonin Scalia, to have been an exception to this practice.  However, in an interview conducted a few years before his death, the judge frankly admitted that he had never written a first draft of his own judgment.  I hasten to add that there is no suggestion that this practice might become part of the judicial method of the High Court.

Conclusion

The answer to Justice Martin’s question is that a somewhat different judicial method does appear to have evolved.  It started with the introduction of written submissions.  The work of a justice shifted from post to pre‑hearing.  There came to be closer engagement with oral argument and with colleagues in discussions.  Judgments are now produced in which a majority combine in agreement.  One cannot say that this method is here to stay.  Much will depend upon the continued acceptance of the benefits it produces.  Views can change and with them judicial methods.

Author: Jock Serong

Publisher: Text Publishing, Melbourne

Reviewer: Stephen Keim

It was not a surprising thing that, for my birthday, I might receive a book called “The Rules of Backyard Cricket” from a family of granddaughters who had, along with their parents, each signed an inscription on the title page. Big Bash had been a big topic of conversation at Thursday night dinners during 2016. I had spent a fair bit of time during day time gatherings trying to get one or other child to improve some aspect of the skill set that would eventually allow them to play cricket. Indeed, although it was after my birthday and after I had received my copy of The Rules, I did achieve one of those influential occurrences where everyone plays: young and old, male and female, cousins, aunts and uncles.

At such events, the direction of young lives can be determined. At such events, role modelling is more than a theoretical concept.

I made a point of reading The Rules as my first book of the Christmas holidays. Indeed, I commenced it even before they had properly started. All those other books left over from my October birthday, and the avalanche of them that would arrive in a few days, would have to wait. Perhaps, the inscriptions suggesting that I knew a thing or two about the backyard form of the game were influential in that decision.

The Rules is not an esoteric discussion of the rules of backyard cricket. There is nothing therein about whether striking the tennis ball over the fence on the full should result in the batter receiving six runs credit while at the same time being forced to cease batting. It is not that sort of book at all.

The first chapter is about a man bound and gagged travelling in the boot of a motor vehicle between Geelong and the western suburbs of Melbourne. He has recently received a bullet wound to his knee. And he anticipates that the end of his journey will be closely followed by his death, also, by gunshot.

Cricket, indeed, backyard cricket, is introduced in the second chapter. The structure of the novel also becomes clear. The man in the boot, and narrator of The Rules, is Darren Keefe. His review of his life for the benefit of the reader commences in chapter 2. We meet him as a grade two-er, playing cricket against his older (by 19 months) brother, Wally, in their backyard in Fernley Road, Altona, in 1976.

As the novel unfolds, we return at the beginning of each chapter to Darren’s struggles, inside the boot, to obtain some freedom from his duct tape gag and the cable ties binding his hands and feet. The bulk of the narration, however, concerns the review of Darren’s life as, supported by their single mother, he and Wally graduate from the backyard to junior club, then through the various levels, to lives and careers in and around first class cricket.

A novel which commences with the main protagonist wounded and restrained in the boot of a car on a last journey to his certain death is always going to be a thriller and a whodunit.

The reader might be forgiven, however, for much of the novel’s progress to regard the book as a fictionalised but serious study of Australian sport and society in the decades either side of the turn of the twenty-first century. Darren and Wally are raised by their single mother who works long shifts as a bar worker for this purpose. That she is dedicated to enabling their lives as emerging cricketers means that the hours are longer to meet the expenses of club fees and equipment but punctuated by short visits to cricket grounds to watch the two boys play.

From the beginning, the games of backyard cricket are marked by fanatical rivalry that breaks out into childhood fights on a regular basis. The rivalry rising to antipathy continues through their lives into adulthood and beyond. The rivalry, forged in childhood battles, appears, most of the time, to be just the other side of family closeness and love.

Unlike most other backyard cricket alumni, Darren and Wally are brilliantly talented and their honed skills lead to stellar careers. Darren is the more brilliant of the two. His career is held back, somewhat, however, by his propensity for late nights and illicit substances; his lack of love for officialdom; and his lack of discretion in his choice of friends. The chief exhibit in respect of the last of these qualities is Darren’s housemate, friend and protector, Craigo, who had saved both Darren and Wally from a beating when the sledging in an early junior rep game had matured into an ambush by opposition players on the way out of the stadium. Craigo, however, while he is devoted and clings to Darren, has other parts to his life that Darren would rather ignore and deny than guess at.

Wally, on the other hand, scales the greatest heights of the game because his performances are backed by his knowledge of, and ability to comply with, the rules, written and unwritten, that accompany any human activity. The always restrained and composed appearance that Wally presents to the world shows none of the uncontrolled violence that had punctuated his part in the childhood backyard battles.

The close knit relationships of a single parent home are supplemented with the passage of time by the addition of Wally’s wife, Louise, their daughter, Hannah, and Darren’s partner, Honey, a publicity officer of a radio station in whose studio Darren had been making a guest appearance. The family dynamics are impacted upon by the demands of professional sporting lives. They help to ameliorate the worst of those impacts on individuals but the family, itself, suffers. This is a battle fit for titans.

Darren’s weakness for bad friends and the unsavoury aspects of life allows The Rules to pack in examples of all the worst things that have happened in modern Australian professional sport. The real life examples do not come just from cricket. Rugby League and Australian Rules Football are two other generous contributors. Contact with professional criminals; reckless drug taking; womanising; and involvement with gambling interests including the spot fixing of sporting events all find their way into Darren’s life and play a role in his course towards his unhappy situation in the boot of a travelling vehicle. The device of the bad boy sportsperson as narrator allows The Rules to provide an explanation as to how apparently admirable human beings can find themselves making repeated selfish and stupid decisions that harm themselves and those who surround them.

One of Jock Serong’s loveliest achievements in the pages of The Rules is his excoriation of the involvement of the communications industry in enabling famous people who have breached the norms of society to redeem themselves through a shallow public explanation and apology in profitable prime time, thereby, allowing them to resume their selfish and profitable lives. Darren is, himself, revolted by the process through which he is redeemed and the actors who facilitate it. Nonetheless, like many before him, he consents to go through it and is soon, again, resuming his life as an authoritative figure within media’s coverage of sporting events.

Gradually, as the progress of the biographical narrative inches closer to the dramatic crime scene opening of the novel, The Rules reinstates itself as a mystery thriller in the reader’s mind. The reader turns over the likely and less likely culprits for the likeable Darren’s present difficulties and attempts to resift the given information for clues.

Jock Serong, like many successful writers, has previously worked as a lawyer. He is the editor of a magazine publishing stories about the oceans called the Great Ocean Quarterly . He has contributed articles on sport to different journals including this excellent piece on world professional surfing champion, Tyler Wright.

The Rules of Backyard Cricket is an exciting read and works both as a mystery crime novel and as a welcome critique of those aspects of professional sport that gain headlines when they surface but which we all largely ignore. We gain so much satisfaction from watching and following sport. Like Darren and Wally, sport goes back to roots in our childhood. For these reasons, perhaps, it easier to assume that nothing is really wrong with its modern professional emanation and the industries that draw upon it.

Stephen Keim

Bondelmonte v Bondelmonte [2017] HCA 8 (1 March 2017)

Today the High Court published its reasons for dismissing an appeal with costs on 13 December 2016. The appeal concerned interim parenting orders made for the return of two children to Australia from New York and for their living arrangements upon their return. The High Court unanimously held that the primary judge, Watts J, did not err in exercising his discretion to make such orders.

The appellant and first respondent, respectively the father and mother of two boys and a girl, separated in 2010. Parenting orders were made on 25 June 2014 providing that the parents were to have equal shared parental responsibility for the children and, relevantly, that a parent could take the children on an overseas holiday subject to certain conditions being met. In 2015, further orders were made requiring the children to engage in a Child Responsive Program and the parents to be interviewed by a family consultant. On 14 January 2016, the two boys were flown to New York for a holiday with the father. On 29 January 2016, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him. As a result, the process established by the 2015 orders was not completed.

The mother filed an application under the Family Law Act 1975 (Cth) to secure the boys’ return. In deciding whether to make parenting orders, s 60CA requires the court to have regard to “the best interests of the child as the paramount consideration”. In determining what is in the child’s best interests, s 60CC(2)(a) provides that a primary consideration is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Section 60CC(3) provides for “[a]dditional considerations” including, in par (a), “any views expressed by the child and any factors … that the court thinks are relevant to the weight it should give to the child’s views”.

Watts J ordered the return of the boys to Australia. His Honour considered that determining the “best interests” of the children involved consideration of the children’s relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. Although accepting evidence that the boys wished to remain living with the father in New York, Watts J considered the weight of those views to be “weakened by the circumstances which have been contrived by the father”. Watts J also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in accommodation with supervision paid for by the father or separately with the mothers of respective friends of the boys’ (“the alternative living arrangements”). The father appealed to the Full Court of the Family Court. The appeal was dismissed (Ryan and Aldridge JJ, Le Poer Trench J dissenting).

By grant of special leave, the father appealed to the High Court. The High Court rejected the father’s contention that Watts J erred in discounting the boys’ expressed preferences to remain in New York because his Honour formed an adverse view of the father’s actions. The extent to which the boys’ views had been influenced by the father was relevant to the weight to be given to those views. The High Court also rejected the argument that Watts J was required to ascertain the boys’ views as to the alternative living arrangements. Section 60CC(3)(a) only requires that the views which have been “expressed” by a child be considered; ascertaining the boys’ views was not statutorily mandated. Further, as s 64C permits parenting orders to be made in favour of a parent of a child “or some other person”, the orders for the alternative living arrangements could be made in favour of the mothers of the boys’ respective friends.

Perara-Cathcart v The Queen [2017] HCA 9 (1 March 2017)

Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia. Following a trial in the District Court of South Australia, the appellant was convicted of one count of rape and one count of threaten to kill. He appealed against the convictions to the Full Court, sitting as the Court of Criminal Appeal, on grounds including that the trial judge erred in directing the jury under s 34R of the Evidence Act 1929 (SA) (“the Evidence Act”) as to the permissible and impermissible uses of discreditable conduct evidence admitted under s 34P. The discreditable conduct evidence was that the appellant was in possession of an amount of cannabis, less than an ounce, which the police had found at his home seven days after the alleged offending (“the cannabis evidence”).

The Full Court (Kourakis CJ, Gray and Stanley JJ) unanimously held that the cannabis evidence was admissible pursuant to s 34P of the Evidence Act. As to the sufficiency of the trial judge’s directions to the jury, Kourakis CJ concluded that the directions did not comply with s 34R as to the permissible and impermissible use of the cannabis evidence. Kourakis CJ would have allowed the appeal, holding that it was not open in the circumstances of the case to apply the proviso; Gray J considered that the directions complied with s 34R and, accordingly, would have dismissed the appeal; and Stanley J held that the directions given by the trial judge did not meet the requirements of s 34R but was satisfied that no substantial miscarriage of justice had actually occurred, and so would have dismissed the appeal. In the result, the appeal to the Full Court was dismissed.

Special leave to appeal to the High Court was granted on the question whether the order of the Full Court dismissing the appeal could not be sustained by s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLC Act”), given the conclusion of a majority of the Court that the verdict was attended by an error of law and the absence of a conclusion by a majority of the Court that no substantial miscarriage of justice had occurred. By way of notice of contention, the respondent argued that the trial judge’s directions to the jury met the requirements of s 34R(1) of the Evidence Act.

The High Court held, by majority, that the appeal should be dismissed on the basis of the respondent’s notice of contention. The trial judge’s directions to the jury were sufficient to identify the permissible and impermissible uses of the cannabis evidence for the purposes of s 34R(1) of the Evidence Act. The verdict at trial was therefore not attended by an error of law. A majority of the High Court also considered that, under s 353(1) of the CLC Act, two questions arose for determination before the Full Court: whether the Full Court thought that the verdict of the jury should be set aside on any one or more of the three grounds there stated; and whether the Full Court considered that no substantial miscarriage of justice had actually occurred. By virtue of s 349 of the CLC Act, each of these questions was to be determined according to the opinion of the majority of the members of the Court hearing the case. In the result, the appeal was dismissed.

Prior v Mole [2017] HCA 10 (8 March 2017)

Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The High Court held that the apprehension of the appellant, Mr Prior, pursuant to s 128(1) of the Police Administration Act (NT) (“the PAA”), was not unlawful, because it was open for a court to find that the apprehending officer had reasonable grounds to believe Mr Prior was likely to commit an offence.

Section 128(1) of the PAA, relevantly, allows a member of the Police Force of the Northern Territory to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated, is in a public place, and that, because of the person’s intoxication, the person may intimidate, alarm or cause substantial annoyance to others, or is likely to commit an offence. Before his apprehension, Mr Prior was drinking liquor with two other men on a footpath in front of a set of shops, including two shops selling liquor. He was intoxicated. When a police car, driven by Constables Fuss and Blansjaar, drove by he made an offensive gesture and shouted abuse. The officers parked the car in front of the men and asked Mr Prior to speak to them. Mr Prior was belligerent and aggressive. Mr Prior was apprehended by Constable Blansjaar pursuant to s 128(1) of the PAA because Constable Blansjaar believed that, because of Mr Prior’s intoxication, he might intimidate, alarm or cause substantial annoyance to people, and that it was likely he would commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT) (“the Liquor Act offence”).

After being taken into custody, Mr Prior engaged in conduct which led to him being charged with assaulting a police officer in the execution of duty and public indecency. He was convicted of those offences upon a trial in the Court of Summary Jurisdiction. That Court found Mr Prior had been lawfully apprehended pursuant to s 128(1) of the PAA. On appeal to the Supreme Court, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar’s belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence. Mr Prior’s convictions were, however, set aside by Southwood J, and subsequently restored by the Court of Appeal, on grounds not subject of appeal to the High Court. The Court of Appeal upheld Southwood J’s conclusion that Constable Blansjaar had reasonable grounds for believing that it was likely Mr Prior would commit the Liquor Act offence.

By grant of special leave, Mr Prior appealed to the High Court, arguing the Court of Appeal erred in holding Constable Blansjaar was entitled to rely on his policing experience in deciding that he had reasonable grounds for believing that Mr Prior would commit the Liquor Act offence. The High Court held, by majority, that the lack of precise particularisation of Constable Blansjaar’s experience did not deprive the Court of Appeal of its capacity to assess the reasonableness of his belief. It was fair for the Court of Appeal to infer that Constable Blansjaar’s belief about how Mr Prior was likely to behave was informed at least in part by Constable Blansjaar’s experience in dealing with other intoxicated people, and it was open to hold that, based on Constable Blansjaar’s experience, it was reasonable for him to believe that Mr Prior was likely to continue drinking liquor in a regulated place. The High Court also rejected a separate argument that the apprehension of Mr Prior exceeded the limits of the s 128(1) power.

Minister for Immigration and Border Protection v Kumar [2017] HCA 11 (8 March 2017)

Today the High Court, by majority, allowed an appeal from a decision of the Federal Court of Australia. The High Court held that the Federal Court erred in holding that s 36(2) of the Acts Interpretation Act 1901 (Cth) (“the AIA”) operated to allow the first respondent’s application for a Subclass 572 (Vocational Education and Training Sector) visa (“572 visa”) to be assessed as if it had been made before the expiry of his Subclass 485 (Temporary Graduate) visa (“485 visa”).

The first respondent applied for a 572 visa. The application was received at an office of the Department of Immigration and Border Protection on Monday 13 January 2014. Clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) specified criteria that had to be satisfied at the time of the making of an application for a 572 visa. The first respondent would have met those criteria if he held a valid 485 visa at the time of the making of his application for a 572 visa. The first respondent’s 485 visa had expired on Sunday 12 January 2014.

In May 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the 572 visa because, at the date the application was made, the first respondent did not meet the criteria in cl 572.211 in that, as of Monday 13 January 2014, he was not the holder of a 485 visa. The Migration Review Tribunal affirmed that decision, agreeing that the first respondent did not satisfy the criteria in cl 572.211.

The first respondent sought judicial review in the Federal Circuit Court of Australia, arguing that s 36(2) of the AIA operated so that the first respondent continued to meet the requirements of cl 572.211 on Monday 13 January 2014. Section 36(2) provides that if an Act “requires or allows a thing to be done” and “the last day” for the doing of the thing is a Saturday, Sunday or holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday. The Federal Circuit Court, in dismissing the application, held that, because cl 572.211(2) identified a state of affairs that must exist as a criterion for the making of an application, rather than prescribed or allowed a thing to be done, s 36(2) of the AIA had no operation. On appeal, the Federal Court of Australia quashed that decision. The Federal Court held that, because the last day for the first respondent to apply for the 572 visa was, as a matter of fact, Sunday 12 January 2014, s 36(2) operated to allow the application to be made on Monday 13 January 2014.

By grant of special leave, the Minister appealed to the High Court. The Court held, by majority, that s 36(2) of the AIA, properly construed, was not engaged. This was because no time limit is imposed expressly, or by implication, under the Migration Act 1958 (Cth) and the Migration Regulations on the making of an application for a 572 visa. Section 36(2) could not deem a thing to be done as if it were done on the earlier date, nor could it deem a state of affairs that existed on the earlier date to exist on the later date. As the first respondent did not meet the criteria for the grant of the 572 visa at the date of his application, the Court made orders effecting a reinstatement of the orders of the Federal Circuit Court.

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 (29 March 2017)

Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a clause in an unusual lease obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely those imposts levied on the lessee in its capacity as tenant.

The original lessor and lessee recorded their agreement in a standard form printed farm lease to which they made amendments. Due to planning restrictions affecting subdivision, the owner of the land the subject of the lease could not sell it to the lessee. Clause 13 provided that:

The parties acknowledge that it was the intention of the Lessor to sell and the Lessee to purchase the land and improvements hereby leased for the consideration of $70,000.00 and as a result thereof the parties have agreed to enter into this Lease for a term of ninety-nine years in respect of which the total rental thereof is the sum of $70,000.00 which sum is hereby acknowledged to have been paid in full.

As amended, cl 4 imposed an obligation on the lessee in these terms:

AND also will pay all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant in respect of the said premises (but a proportionate part to be adjusted between Landlord and Tenant if the case so requires).

In 2013, the lessor commenced proceedings in the Supreme Court of Victoria seeking a declaration that the lease requires the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The primary judge made the declaration sought. The Court of Appeal, by majority, allowed an appeal by the lessee and set aside the orders of the primary judge.

By grant of special leave, the lessor appealed to the High Court. The lessor argued that cl 4 obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The lessee argued that cl 4 obliged it to pay only those imposts that are levied on the lessee in its capacity as tenant, leaving the lessor to pay those imposts that may be levied on it as owner of the land. It was not in issue on the appeal that cl 4 is ambiguous and that, in the circumstances, the Court could have regard to words struck out in the standard form document, and which remained legible on the face of the document, as an aid to construction.

Allowing the appeal, the majority in the High Court held that the lessor’s construction of cl 4 is to be preferred. The Court approached the question of the proper construction of cl 4 on the basis that the parties were to be understood as having intended to produce a result consistent with the commercial object of the agreement. The majority said that the parties’ intended to recreate, as far as possible, in a lease, the conditions which would have existed following a sale. The majority held that it made no commercial sense, having regard to that objective, for the lessor to remain liable for the payment of rates, taxes and other outgoings over the term of the lease. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.

Kendirjian v Lepore [2017] HCA 13 (29 March 2017)

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales in relation to the second respondent to the appeal. The High Court held that advocates’ immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision.

In November 1999, the appellant was injured in a car accident. In 2004, he commenced legal proceedings in the District Court of New South Wales against the other driver involved in the accident, who admitted liability. On the first day of the trial on quantum, the other driver’s legal representatives made a settlement offer to the appellant’s solicitor (the first respondent) and barrister (the second respondent) of $600,000 plus costs. The settlement offer was not accepted so the trial proceeded. Ultimately, the appellant obtained judgment for $308,432.75 plus costs. An appeal to the Court of Appeal in relation to quantum was dismissed.

In 2012, the appellant brought a claim in the District Court against the respondents. The appellant alleged that the respondents were negligent in advising him in relation to the settlement offer. Central to his claim were allegations that the respondents did not advise him of the amount of the settlement offer, “but merely of the fact that an offer had been made”. The appellant also pleaded that the respondents rejected the settlement offer, “absent any express instructions” from him, because the offer was “too low”. The respondents successfully brought an application in the District Court for summary judgment. The District Court held that the respondents’ conduct was covered by advocates’ immunity. This conclusion was upheld by the Court of Appeal.

By grant of special leave, the appellant appealed to the High Court. In November 2016, the Court made orders by consent allowing the appeal in relation to the first respondent. Today, the Court unanimously allowed the appeal in relation to the second respondent. The Court held that advocates’ immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case. The Court declined to distinguish or reopen its most recent decision on advocates’ immunity, Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16.

Re Day [No 2] [2017] HCA 14 (5 April 2017)

Today the High Court, sitting as the Court of Disputed Returns, unanimously held that Mr Robert John Day AO was a person who had an “indirect pecuniary interest” in an agreement with the Public Service of the Commonwealth prior to and at the time of the 2016 federal election, and was therefore incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution.

On 9 May 2016, the 44th Parliament of the Commonwealth was dissolved and a general election was subsequently held. Mr Day’s nomination for the 2016 federal election was declared on 10 June 2016. On 4 August 2016, he was declared re-elected as a senator for South Australia.

On 1 December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd (“Fullarton Investments”), the registered proprietor of premises at 77 Fullarton Road, Kent Town in South Australia (“the Fullarton Road property”), for use by Mr Day as his electorate office. The commencement date of the lease was 1 July 2015. Under the lease, Fullarton Investments was entitled to direct the Commonwealth to pay rent to any person. On 26 February 2016, it directed that rental payments be made to a bank account owned by Mr Day.

The Fullarton Road property was previously owned by B & B Day Pty Ltd (“B & B Day”) as trustee for the Day Family Trust, a discretionary trust of which Mr Day and his wife were beneficiaries. On 24 April 2014, Fullarton Investments purchased the Fullarton Road property from B & B Day on a vendor finance basis. Fullarton Investments was the trustee of the Fullarton Road Trust, a discretionary trust of which the Day Family Trust was a beneficiary. There was also a loan facility provided by a bank to B & B Day, and loan facilities provided to companies associated with Mr Day. Each loan facility was secured by, among other things, a guarantee given by Mr Day and a mortgage over the Fullarton Road property. Payment of rent by the Commonwealth would facilitate repayment of the purchase price of the Fullarton Road property by Fullarton Investments to B & B Day, which would in turn facilitate repayment by B & B Day of the loan facility, thereby reducing the extent of Mr Day’s contingent liability to the bank as guarantor. If the Commonwealth did not pay rent, Fullarton Investments had no other significant source of revenue.

On 8 November 2016, the President of the Senate referred five questions to the Court of Disputed Returns. The principal question was whether Mr Day was incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. The Senate’s reference also asked how the resulting vacancy should be filled if Mr Day were found to have been incapable of being chosen or of sitting as a senator.

The Court held by majority that there was no requirement that a “pecuniary interest” be a legally enforceable interest, and it was unanimously held that the financial benefit which Mr Day stood to obtain from the Commonwealth performing its obligations to pay rent pursuant to the lease constituted an “indirect pecuniary interest” within the meaning of s 44(v) of the Constitution. By virtue of the direction that the rent be paid into a bank account owned by him, Mr Day was to receive rent directly from the Commonwealth. Therefore he had an expectation of a pecuniary benefit from the lease. A majority of the Court held he was incapable of being chosen or of sitting as a senator from no later than 26 February 2016, when the direction was made. The Court unanimously held that the resulting vacancy should be filled by a special count of the ballot papers.

CIVIL APPEALS

Mortimer v Lusink & Ors [2017] QCA 001 (16/6284) Gotterson and Morrison JJA and Jackson J 31 January 2017

General Civil Appeal — where the appellant, the testator’s daughter, was refused an application for an extension of time within which to apply for provision from the estate — where it is alleged on appeal that the primary judge reached his conclusions by the application of principles or considerations applicable to the grant of final relief, rather than those applicable to the exercise of the discretion under s 41(8) of the Succession Act 1981 (Qld) (SA) — where it is further alleged that the primary judge made factual errors arising from misapprehensions of the evidence — where the primary judge relied on a principle that it was necessary for an applicant to establish an entitlement to final relief, instead of whether or not an applicant has established an arguable case for final relief — where it was relevant for the learned primary judge to have enquired into whether the appellant’s claim was one that was clearly unlikely to succeed or was one that would probably fail — where it was noteworthy that in other jurisdictions, intermediate courts of appeal have held that under the comparable statutory provision, the relevant enquiry is as to whether or not an arguable case has been made out by the applicant for relief — where his Honour did not, however, undertake such an enquiry — where his Honour did not address the issue whether the appellant’s case was clearly unlikely to succeed, nor did he enquire into whether it would probably fail — where his Honour expressed no view as to whether there was an arguable case — where in undertaking the assessment that he did make, his Honour appears to have conflated the concept of a substantial case for relief under s 41(8) SA with the concept of a prima facie case for a substantial award by way of final relief — where the evidential factors leads irresistibly to a conclusion that the financial resources available to the appellant are insufficient to meet her needs now and into the future — where in all the circumstances, the discretion under s 41(8) SA ought to be exercised in the appellant’s favour — where at the hearing of the appeal, the parties were in agreement as to the form of the orders that ought be made by this Court in the event that the appeal is allowed. Appeal allowed. The orders of the Supreme Court be set aside an lieu thereof it is ordered that a. It is directed that the applicant’s application for provision out of the deceased’s estate shall be heard notwithstanding that such application was instituted within nine months after the death of the deceased; b. By consent, all amounts received by the second, third and fourth respondents from the first respondent, less any amounts paid by them for reasonable legal fees and expenses incurred in responding to this proceeding, shall be repaid to the first respondent forthwith and be held by him as executor of the executor of the estate of the deceased pending the determination of the applicant’s application for provision out of the estate of the deceased; c. By consent the proceedings are discontinued as against the second, third and fourth respondents upon such payment. Procedural orders. The first respondent pay the appellant’s costs of the appeal, including the application to adduce further evidence, and her costs of the application below. The first respondent be granted a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) including for his own costs of the appeal

Chandra v Queensland Building and Construction Commission [2017] QCA 004 (16/2885) Margaret McMurdo P and Fraser JA and Daubney J 3 February 2017

Application for Leave Queensland Civil and Administrative Tribunal Act — where the respondent had previously made findings of unsatisfactory conduct against the applicant — where the respondent determined that the applicant had also engaged in professional misconduct because of his repeated unsatisfactory conduct — where the Queensland Civil and Administrative Tribunal ordered that the applicant’s licence as a building certifier under the Building Act 1975 (Qld) be cancelled — where the Tribunal ordered that the applicant never be re-licensed and imposed a pecuniary penalty — where the applicant appealed against the decision that he never be re-licensed and challenged the pecuniary penalty — where the Appeal Tribunal affirmed the decision but vacated the pecuniary penalty order — where the Tribunal did not find that a less severe, available order would not provide sufficient and appropriate protection for the public — where the Tribunal’s concluding statement in paragraph 64 was instead that “the best protection for the public in this case is that Mr Chandra never be allowed to hold a licence again” — where the Tribunal did not apply the correct test — where in every case of professional misconduct it might be said that a permanent ban supplies the best protection for the public, but that is not a justification for a permanent ban where a less severe order is appropriate to meet the legislative purposes — where authorities suggest that a permanent ban should not have been imposed in this case unless the Tribunal was satisfied that the licensee was probably permanently unfit to hold the licence — where the Tribunal made no such finding — where a less severe order of the kind proposed by the applicant – an order that precluded the applicant from applying to be re-licensed for a specified period of time determined by the Tribunal, thereafter leaving it to the respondent to decide if the applicant then satisfied the statutory criteria for holding a licence – would appear to sufficiently and appropriately protect the public against the risk of further misconduct by the applicant — where the judicial member concluded instead that the applicant’s “own failure to propose an equally effective but less onerous available option” indicated that “there realistically isn’t one” and that his failure was “also indicative of an inability to come to grips with the magnitude of the risk he poses now and in the foreseeable future” — where those conclusions did not explain why an order along the lines proposed in the applicant’s extensive submissions was not appropriate and sufficient to protect the public — where the judicial member also observed that, in the absence of “some evidence of positive and lasting change or sign of reasonable prospects of, or even a genuine willingness to accept and reduce the risks proposed by, his professional shortcomings, the Tribunal was entitled to take a “better safe than sorry” approach” — where that observation affirmed the Tribunal’s erroneous approach of adopting the most severe penalty without explaining why a less severe penalty would not provide the required protection of the public — where the Tribunal’s findings engender a reasonable concern about the applicant’s suitability to hold the licence but they do not establish that he was unlikely ever to rehabilitate himself — where in these circumstances, whilst the seriousness and repetition of the applicant’s conduct merited a severe sanction, including deprivation of the licence for a substantial period, to further the dominant legislative purpose of protecting the public, it was not open to impose a permanent ban for the subject conduct — where absent a finding that it was likely that the applicant would remain unfit to be licensed for the rest of his working life, the protection of the public could be secured by a severe sanction, falling short of a permanent ban, that precluded the applicant from applying to be re-licensed for a substantial period, when he would be required to satisfy the respondent that he was then a suitable person to be licensed — where the respondent applied for leave to cross-appeal against the Appeal Tribunal’s decision to vacate the pecuniary penalty order — whether it was open to the Appeal Tribunal to set aside the Tribunal decision imposing the pecuniary penalty — where those reasons depend in part upon the effect of the permanent ban which has been overturned — where the judicial member clearly found that as a result of the order that the applicant must never be re-licensed by the respondent, the applicant had lost his livelihood, and that this occurred at a time “when his employability in another field must be problematic” — where there was no finding to that effect made by the Tribunal — where there was no evidence that the applicant had lost his livelihood or that his employability in another field was problematic — where the parties’ submissions in the Appeal Tribunal were to the contrary effect — where there were no facts found by the Tribunal or agreed between the parties that could justify the inference drawn by the judicial member — where leave to appeal should be given because the Appeal Tribunal’s order vacating the penalty involved an error of law and the public interest is served by the restoration of the order imposing the penalty. In relation to the application for leave to appeal by Chandra: Leave granted. Appeal allowed. Set aside Order 1 of the Appeal Tribunal and instead it is ordered that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission (QBCC) before 21 November 2018. Costs. In relation to the application for leave by the QBCC: Leave granted. Appeal allowed. Set aside Order 2 of the Appeal Tribunal. Costs

Ure v Robertson [2017] QCA 020 ; [2017] 10 QLR (16/10555) Gotterson and Morrison JJA and Bond J 28 February 2017

General Civil Appeal — where the appellant filed a claim in March 2007 and the respondent filed a counterclaim in September 2010 — where the appellant provided a list of documents in March 2015 without obtaining an order of the Court — where r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provided that if no step was taken in a proceeding for two years, a new step could not be taken without an order of the Court — where r 371(2)(d) of the UCPR empowered the Court to declare a step taken in breach of the UCPR to be effectual — where it is common ground that by 20 March 2015 no step had been taken in relation to either the claim or the counterclaim for more than two years — where by that date r 389(2) of the UCPR therefore operated in relation to all parties to the proceeding and prevented them from taking a new step without obtaining an order of the Court — where on 20 March 2015, the solicitors for Mrs Ure and the other defendants by counterclaim provided a list of documents on behalf of the second and third defendants by counterclaim — where they took that step without obtaining an order of the Court as they were required to do by r 389(2) — where the respondent applied for an order dismissing the claim for want of prosecution and declaring ineffectual the delivery of the list of documents — where the primary judge dismissed the claim and counterclaim for want of prosecution — whether the delivery of the list of documents constituted a step having been taken within the meaning of r 389(2) UCPR — where the evident intention of r 389 UCPR is that a stay should be imposed on proceedings in certain circumstances and to require any person who seeks to lift the stay to approach the Court to seek an order — where the policy is to ensure that proceedings which are significantly delayed come to the attention of the Court so that they can be dealt with appropriately: see Thompson v Kirk [1995] 1 Qd R 463 — where the construction of r 389 for which the appellant contends would defeat that intention — where the proper construction of r 389(2) is that the “last step” contemplated must be the last effectual step, namely a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since been declared to be effectual under the rules — where if the Court is approached by a party seeking to re-enliven proceedings after two years have passed before the step is taken the appropriate order, assuming the Court is persuaded to exercise its discretion, would be an order pursuant to r 389(2) authorising the step to be taken — where if the step has already been taken in breach of r 389(2) then the appropriate order would be an order under r 371(2)(d) declaring the step to be effectual, perhaps together with an order nunc pro tunc under r 389(2) permitting the step to be taken — where this approach treats the step as irregular but not effectual — where r 371(1) does not make regular that which is irregular — where that depends upon the exercise of the discretions authorised by r 371(2) — where it follows that the learned primary judge made no error when he concluded that the proceeding was to be regarded as having been stayed by operation of r 389(2), notwithstanding the fact that the list of documents was served on 20 March 2015 — where the appellant suggests the learned primary judge erred in not finding, and attributing significance to, the fact that the delay in the prosecution of the claim was stalled and frustrated by the respondent — where there is no merit in this complaint — where the primary judge did not mistake the facts — whether the discretion of the primary judge miscarried. Appeal dismissed with costs.

CRIMINAL APPEALS

R v MCJ [2017] QCA 011 (16/63) Margaret McMurdo P and Gotterson JA and Henry J 10 February 2017

Appeal against Conviction — where the appellant was charged on a 13 count indictment with one count of maintaining a sexual relationship with a child with a circumstance of aggravation, three counts of indecent treatment of a child under 12 in his care, five counts of indecent treatment of a child under 12 and four counts of rape — where the appellant contended that the judge failed to adequately give a direction in terms of Robinson v The Queen (1999) 197 CLR 162 — whether there was a misdirection or non-direction — where the circumstances relied on by the appellant in some instances are entirely lacking in substance and the balance, at worst, give rise to potential arguments about credibility and reliability — where even considered collectively they do not give rise to a perceptible risk of a miscarriage of justice so as to have required reference to them in the warning which was in fact given in this case — where a note the complainant had written was an exhibit at trial — where the appellant submits the jury was not properly directed as to how it could use the evidence of the note — whether the jury was properly directed — where it would have been difficult for the jury to comprehend the distinction between them having regard to “the tenor of the note” but not using the note’s content “as evidence that any particular thing had happened between” the appellant and complainant — where it is unnecessary to resolve whether it was permissible for the jury to use the evidence about the note and its content as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — where there was another legitimate pathway for the admission into evidence and the use of the note in such a way — where that pathway was s 93A of the Evidence Act 1977 (Qld) — where regrettably that provision was not referred to the learned trial judge — where had it been, his Honour would likely have given a less obscure direction, unconcerned by the vague parameters of the above discussed common law principles — where the note was admissible as evidence of that fact pursuant to s 93A and the jury was entitled to use its content as tending to establish that fact — where the direction in dispute has had to be considered on the basis the jury may have regarded it as allowing the evidence about the note to be used as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — while that use was permissible the dilemma remains that the direction said so little about the parameters of such a use — where a significant omission was the absence of explanation of circumstantial reasoning apposite to the use of the note — where accepting it was permissible for the jury to use the evidence about the note as tending to establish there had been a relationship involving sexual behaviour, the evidence only tended to establish that fact as a matter of inference, that is, as circumstantial evidence — where the only direction given of relevance to circumstantial evidence was a standard direction in the introductory phase of the summing up dealing with the drawing of inferences — where this was not a case requiring a special direction of the kind apt to a case based substantially on circumstantial evidence, however, it at least required an explanation of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant and to exclude the possibility it was a reference to some lesser form of interaction, such as the showing of pornography or discussions about sexual topics such as dildos — where such a direction would have explained those examples of lesser interaction arose from the evidence, in that the complainant told her mother the note was a reference to the showing of pornography and the appellant told his wife he and the complainant had discussions including about a dildo — where it is reasonably possible the jury regarded the note as tending to confirm the complainant’s account that the appellant had maintained a sexual relationship with her — where unfortunately the real risk which cannot be discounted here is that the jury may have used the note as evidence tending to prove the sexual relationship between the appellant and complainant as alleged by the prosecution without reaching a specific view as to whether the note’s reference to “the things we do” was to physical sexual behaviour or something less than that — where the jury may not have appreciated if it was possibly the latter then the note could not be used as evidence in proof of the charge of maintaining a sexual relationship with a child — where it is reasonably possible that the failure to direct of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant, and not some lesser conduct, may have resulted in the impermissible use of the note in a way which affected the verdicts — whether a miscarriage of justice occurred. Appeal allowed. Convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed. The appellant be retried upon those counts on the indictment.

R v HBO [2017] QCA 018 (16/79) Fraser and Philip McMurdo JJA and Mullins J 24 February 2017

Appeal against Conviction — where the appellant was convicted of seven counts of sexual offending against his stepdaughter — where the most serious offence was an attempted rape for which he was sentenced to four and a half years’ imprisonment — where the offences were allegedly committed in certain broadly defined periods, the earliest commencing in 1989 and the latest ending in 1994 — where there is no issue that a Longman direction (Longman v The Queen (1989) 168 CLR 79) was required in the present case — where the trial judge was obliged to inform the jury that the delay in the making of the complaint had disadvantaged the defendant because the evidence of the complainant could not be adequately challenged, either by cross examination or by contradictory evidence, after the passage of about 25 years — where having identified those effects of the delay on the fairness of the trial, the trial judge was required to warn of the danger in convicting in this case without the jury scrutinising the complainant’s testimony with great care and considering the circumstances which were relevant to that evaluation of her testimony — where what was said in that respect could not be criticised — where the question is whether a warning in those general terms was sufficient in the present case because of a risk that, unassisted by the trial judge’s instruction as to what were those circumstances, the jury might convict without that required scrutiny of the evidence — where the jury was bound to follow the trial judge’s instructions and, in particular, to heed the warning within this instruction about the complainant’s testimony — where unless “the circumstances relevant to its evaluation” must have been plain to the jury, the warning could have been sufficient only if those circumstances were identified by the trial judge — where this was not a case where the circumstances relevant to the evaluation of that testimony were so obvious that they could not be overlooked — where the relevant circumstances were the passage of 20 to 25 years from the alleged events, the young age of the complainant at the time, the absence of any complaint notwithstanding the complainant’s close relationship with her mother and twin brother, the circumstance that many of the events were said to have occurred as she slept or after she had awoken, the antipathy of the complainant towards the appellant from his having been unfaithful to her mother, the coincidence of the timing of her learning of that fact and her complaint to police and the complainant’s explanation for going to the police when she did — where without those circumstances being identified by the trial judge as necessary considerations, what was said was insufficient to instruct the jury of the required scrutiny of the complainant’s testimony. Appeal allowed. Appellant’s convictions of 11 March 2016 quashed. Retrial ordered.

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Gold Coast Conference 2017

22 April 2017

Venue: Southport Court House, corner of Davenport and Hinze Streets, Southport

Presenters include : The Honourable Justice Philip Morrison, Her Honour Judge Katherine McGinness, His Honour Judge David Kent QC, Peter Dunning QC SG and Ian Hanger AM QC

Participating in Commercial Mediations as a Legal Advisor: A Panel Discussion about Fundamentals and Nuances

26 April 2017

Co-hosted with the Queensland Chapter of Resolution Institute

Venue: Gibbs Room, Bar Association of Queensland

Panel: The Honourable Ian Callinan AC, James Bell QC and Rebecca Treston QC

Registration: Please email cpd@qldbar.asn.au

2017 AILA Queensland State Intensive

26 May 2017

Program includes:  

• The Attitudes and approaches of the High Court during the time of Chief Justice French and potential developments following the appointment of Chief Justice Keifel – Geoffrey Watson QC
• Brexit and the impact on Lloyds and the insurance market – Chris Mackinnon, Lloyds General Representative in Australia Country Manager 
 Lloyds Australia
• The rise and regulation of peer to peer insurance in Australia and the effect of the sharing economy on insurance – Perry Abbott, CEO & MD Friendsurance Australia and Ron Arnold Group General Manager Venturing IAG
• Insurance 2020 and beyond – Scott Fergusson, Partner PWC
• Connecting insurance and ethics: the ethics of investigating, managing, negotiating and surveying a claim – Professor Kay Lauchland , Bond University and Kelli Stallard, Partner DibbsBarker
• Class actions: preparing for Queensland’s entry to the market – David North, Vice President, Property & Casualty Business Management Swiss Re and Justin McDonnell, Partner 
 KWM Lawyers
• The Ultimate Battle: a mock trial involving cross examination of an apparently injured plaintiff and a wily medico-legal expert – who will succeed?! His Honour Judge D. McGill SC, Damien Atkinson, Barrister, Brett Charrington, Barrister, Brett Heath, Special Counsel, Carter Newell, Dr Kelly Macgroarty, Orthopaedic Surgeon

Access the full program and register here.

Date Claimer – Sports Law Conference – Sydney

19 September 2017

Conference Venue: Sydney University “Grandstand”

Football Venue: Sydney University Campus Football Ground

The conference and football game will be followed by drinks and canapes at the Grandstand then a sit-down dinner and presentations.

For more information please email Anthony Lo Surdo S.C.- losurdo@12thfloor.com.au

THE NEW JURIST

America First and the Harmon Doctrine’s Demise – A History Lesson

Making Human Dignity Central to International Law

Equity

Upholding the Rule of Law: How We Preserve Judicial Independence in the United Kingdom

 

ABA JOURNAL 10th ANNUAL BLAWG 100

Every year since 2007, ABA Journal staffers have assembled a list of their 100 favorite legal blogs for the December issue, the latest being the 10th Annual Blawg 100.

Below is a selection of blogs from the list that may be of interest to readers:

Arbitration Nation

Trial Insider

Verdict

LAW REPORT

Advocates Immunity defence is refined

3D guns and regulation

Hijabs and high heels

25 years of Class Actions in Australia

Deportation of non citizens with criminal record

Grandparents seeking custody of grandchildren

The views of children in Family Court disputes

Issue of New National Practice Notes on 25 October 2016

The Federal Court of Australia is in the process of implementing its National Court Framework (NCF) reforms. Under the NCF, the Court’s practice documents have been consolidated and refined from 60 practice documents to 25 new national practice notes. The new national practice notes will be issued on Tuesday, 25 October 2016 . 

An update has been prepared that provides an outline of these reforms and a reference table of the new national practice notes: NCF Update.

Author: Peter Millett

Publisher: Wildy, Simmonds & Hill Publishing

Reviewer: David W Marks QC

Peter Millett’s wry memoir takes us from his days at Harrow, through his early steps at the Bar, on through his rise through the legal profession, and then the judiciary.

He has had a long and distinguished career. He is still sitting. As I wrote this note, 3 decisions came through from the Hong Kong Court of Final Appeal, in which Millett sat in January 2017. He is 84. He has a world of experience to share, in knowingly written vignettes.

I have said “wry”. But this is also an intimate account of life, both professional and personal. He is unafraid of his small failings, and gives them a humorous turn, even if at his expense. The story, of how he finally settled down with his future wife, has unexpected turns, some of which he readily concedes were not his finest hour. But it is hilariously told.

There is neither money nor title in his background. His paternal grandfather, a Polish Jew, emigrated to England in 1869. The family was poor. Millett brings a particular perspective, of how a middle class, Jewish lad fitted in to English life.

His account of Harrow, and of his travels before commencing at Cambridge, are delightful. Stories from his early practice at the Chancery Bar remind us of a different era. They are valuable war stories. On taking silk, he found a new practice in Asian courts, such as Hong Kong. This required some cultural accommodations. The controversies ranged from a fortuitously cocked‑up attempt at rigging the Hong Kong stock exchange, through to successful feng shui advice involving an umbrella pointing at the prosecutor. That chapter is called “The Bamboo Circuit”.

Lord Hailsham offered him appointment to the High Court. The Lord Chancellor asked if there was anything in Millett’s private life that the Lord Chancellor ought to know:

I racked my brains, but I could think of nothing. I felt humiliated: How could I be 53 years old and have no skeletons in my cupboard? Eventually I blurted out, “Well, I am a freemason.”

Apparently that did not matter.

After retiring from the House of Lords, Lord Millett returned to Hong Kong to sit occasionally on the Court of Final Appeal. He clearly enjoyed being able to return to old stamping grounds. This is a very strong court, and Queensland barristers should take notice of its decisions. Sir Anthony Mason also held appointment to that Court, of whom Millett says that he “… was still sitting in the Court of Final Appeal in 2014, when he was 89 and still possessed the finest legal brain on the Court”.

This fine, brief memoir is a delight. It is quietly instructive, though that is not the point. It is a truly pleasurable read.

(214 pages with index; Wildy, Simmonds & Hill Publishing (London), available direct from Wildy’s in London.)

David W Marks QC

Author: Richard Fidler

Publisher: ABC Books

Reviewed by Stephen Keim

I have read other books about Istanbul. Orhan Pamuk’s Istanbul — Memories and the City is a wonderful piece of autobiography cast against the streets and history of his native city which he has hardly ever left. Irfan Orga’s Portrait of a Turkish Family is, as it name suggests, a family history as well as a personal memoir. And, since the early part of Orga’s life is was lived behind the Blue Mosque, Portrait is also a narrative in which Istanbul plays an important role.

Orga, born in 1908, and Pamuk, born in 1952, are natives of Istanbul. As twentieth century Turks, they see the city through the prism of the Ottoman Empire, fading and faded, failing and failed.

The Ottomans captured Constantinople on 29 May 1453. Defeat in World War I led to partition of the Empire and occupation of Constantinople which, in turn, led to the Turkish War of Independence; the end of the Sultanate; and the establishment in 1922 of a secular Turkish State under dual war hero, Kemal Ataturk.

Particularly for Orhan Pamuk, his city is defined by what remains of an empire that spanned 469 years. The presence of decay and the sadness of past glories are ever present. They define not only Istanbul but Istanbullus, as well.

Ghost Empire , in one respect, is a story that ends when that of Pamuk and Orga begins. The fall of Constantinople to 21 year old Mehmed the Conqueror in 1453 marked the end of an empire that had lasted much longer than 469 years, the Byzantine or Eastern Roman Empire. For those of us born in the latter half of the twentieth century, Byzantium has tended to conjure up feelings of legendary grandeur that, more likely than not, never existed. While, without knowing the detail, we readily concede that Greece and Rome underpin our modern understandings and values, Constantinople feels irrelevant even if a city that bore that name did once exist.

Almost all his life, Richard Fidler has been fascinated by the heritage of Constantinople. The thesis of Ghost Empire is that the Byzantines play a much more influential role in what we do and think than we acknowledge or know. Not as something in addition to our Greek and Roman heritage, but as an essential part of it, the Ghost Empire trundles on exerting its influence in modern, especially, western consciousness.

Fidler, as part of the Doug Anthony Allstars , was an explosive comic and musical star performer. In more recent times, he is a much admired interviewer on ABC radio. Despite the learning on display in Ghost Empire, he is not known as a professional historian. It may seem a bit cheeky for a person of his background, to seek to tell, for a popular audience, a long, complicated and much neglected history.

Perhaps, for that reason, Fidler wraps a serious history of Constantinople in the package of a personal, a family and a travel memoir. As the blurb says, this is the story that Fidler wanted his then 14 year old son, Joe, to know.

The author and Joe journey to Istanbul as a father and son team in 2014. They leave mother and daughter at home to be compensated by their own journey at some suitable later time.

Fidler’s fascination with and knowledge of Byzantine history goes back two decades to his mid-twenties when he bought the first volume of a three volume history of Byzantium by John Julius Norwich. He was struck then by the fact that the story of the eastern empire does not make it into the history we are taught or the stories we are told or even the lines of inquiry we are encouraged to pursue in school and university.

And so Ghost Empire is a culmination of those decades since. Fidler has rectified the gap in our education for all of us.

A history of the capital city of an empire that spanned over 1,100 years is going to be a traditional history in the sense of being about the emperors and the other important people. Ghost Empire is no exception in that regard. Fidler does manage, however, to give the reader some idea as to how the highs and lows, success and riches on the one hand and losses, sackings and the plague, on the other, impacted on the ordinary people of the city.

There are many emperors in 1,100 years and not all of them receive the same amount of focus or words in the text. Constantine, for whom the city is named, receives plenty of both. Ghost Empire charts his bloody battle to the top of the pile of contenders to become emperor of what was an undivided empire by 324. It was he who planned, in the very same year, and established a New Rome in the location of an existing city, Byzantium. Though he did call it New Rome, it was not long before the name honoured the founder. One of the few things we learned in school about the east was that Constantine adopted Christianity and made it the official religion of the empire thus stealing from Christians of the day and since the joys and privileges of being outsiders speaking truth to power for the more dubious pleasures of being part of the establishment.

Under Constantine, Christianity became a state religion. He managed the abstruse conflicts over religious doctrine including the precise status, nature and relationships of God the Son, as part of the Holy Trinity. It was Constantine who called the Council at Nicaea in northern Asia Minor just over the narrow straits from Constantinople. Thus, it was he who gave Catholics their statement of belief, the Nicaean Creed which Roman Catholics still get to recite as part of their mass.

Justinian, who succeeded his Dad, Justin, as emperor in 527, is another emperor of the east who, perhaps, without knowing it, the reader may have heard of. He was the one of the Code. He was also the one who married Theodora, the working woman, who became a great and influential empress. And for anyone who has visited, or has thought of visiting Istanbul, Justinian was also responsible for the construction of the Church of Hagia Sophia.

Ghost Empire relates the stories of all these events in Justinian’s reign and more. The story of the codification is also the story of the first Law Reform Commission. The Commission of ten was chaired by John of Cappadocia. The workhorse, however, was a palace advisor, Tribonian. There had been compilations of Roman laws, before, but the laws were a mess and full of ambiguities and inconsistencies. Justinian gave the Commission the task of fixing it all up. They did the job in just over a year and the new Code was promulgated into law.

Tribonian went on to produce further editions of the Code and other related projects. The Code went on to be the basis of the various civil Codes that state much of the law in most countries in western and eastern Europe.

Ghost Empire also tells the story of the Fourth Crusade , the story of brave adventurers, mainly nobles from France, who fell under the guidance of, and into indebtedness to, the Republic of Venice and its blind and aged but remorseless Doge, Enrico Dandolo .

The Crusaders never got to Palestine. Instead, in 1204, they managed to conquer and sack Constantinople and to acquire a legendary pile of booty some of which still adorn the churches and palaces and museums of western Europe. An eye witness and chronicler of that Crusade describes the pile as enough to fill three churches: none could tell you the of it: gold and silver …

This beginning of the end for Constantinople, though it took another 250 years, was also the confirmation of the legend of the east in the west. It is that legend, and the truth that lies below it, that is Fidler’s inspiration and the heart of Ghost Empire.

Ghost Empire also conveys, through other testimony of other eye witnesses, the beauty and the richness of Constantinople, especially, in those days when its glory was at its apex. But it is the richness of the narrative that is most compelling. There are stories of entertainments and of factions among the influential on whom the emperors depended. There are stories of place intrigue and betrayal and bitter battles over the right to succession. The legends and the superstitions that came to drive events, at least in retrospect, also find their place in the ballad.

Though Pamuk was telling a story of a different city in a different era that, almost coincidentally, shares the same geographical coordinates, both authors pursue the same objective that is reflected in Pamuk’s title, “memories and the city”. At the end of the day, despite its necessary focus on the people who wielded power, Ghost Empire is the story of a city.

Fidler writes beautifully. Ghost Empire is history as story telling. The history of Byzantium struck him on first reading as a wondrous collection of stories that were so fabulous that he could not understand why they had not previously been brought to his attention. Some of the stories of Byzantium are mere legends. But much of what is documented and undoubtedly true is as strange and difficult to credit as those tales which are indeed legends.

Fidler says that he wanted to share that story of Constantinople with his son. That is also true. But the desire to share great stories is not sated by a single re-telling. Fidler, equally, wanted to share his story with thousands of readers. And each of us is richer for that.

Stephen Keim