Australian Law Journal December 2008

I am a regular reader of this journal.  Once the flagship Australian legal journal, it has suffered something of a decline in recent years.  One likely reason for that is that the accompanying High Court reports (Australian Law Journal Reports) which come with it in monthly parts have had the wind taken out their sails by the availability of these judgments instantaneously on the line.

But I suspect the decline has a deeper cause than this. As long ago as when I was first a solicitor, I attended a focus group where we were given as much to eat and drink as we could take whilst discussing the journal.

There are regular editorials by its general editor, Justice Young, where he responds to what I presume are further focus groups or similar research.  Apparently, the chief criticisms of the journal are that it is too judge-centric and NSW-centric.  Justice Young responds by saying that if practitioners, and especially solicitors, and people in other states wish to contribute, their contributions will be welcome, providing they are up to standard.  I rather think this might be part of the problem, because there is something about the way Young J adds that rider which I suspect will be a deterrent to many contributors. Who wants to wait the rather long lead time which the ALJ imposes only then to be told once his Honour finds time in his busy schedule to look at the item that it isn’t good enough? It’s kind of like the reverse of Groucho Marx joining a club.

To tell the truth, I rarely find the long articles of interest. They often seem to be on rather obscure matters – these obviously satisfy the editor’s criteria of quality but frequently fail my own criteria of relevance or even interest. For example, one article in the November issue is on the intersection or interaction between Admiralty Law and Insolvency law. I doubt many country or suburban practitioners, or even all but a very select few city practitioners, will ever have reason to read that.

I do read the “personalia” and similar material, and even (despite my own reservations about the views expressed) the editorial jottings. The other substantial article in the November issue is an address to this year’s Supreme Court of NSW Opening of law term judges’ dinner by the former chief justice of Australia, Sir Anthony Mason, in which he recounts his “recollections of the Supreme Court of New South Wales and its personalities in an era before the Judicature Act and the establishment of the Federal Court.” The reference to the Judicature Act is a reference to certain procedural and possibly substantive reforms to the law introduced in England by the Judicature Act 1873, and finally implemented in NSW by the Supreme Court Act 1970. The Federal Court first sat in 1977. So obviously the interest of the article is chiefly historical. This article is of interest to me, because I am a barrister in Sydney, but I doubt if it will do anything to silence the complaints about the journal being too NSW- and judge-centric.

Based as it is on an after-dinner speech, the article contains a number of amusing anecdotes and character sketches of judges who for me only exist as names in the reports. Even if only trivially, some matters clearly remain the same – only the names need to change. Two short passages which stood out in this regard were as follows:

First, concerning one of the equity judges:

Another equity judge was Fred (“Funnel Web”) Myers. His comp-lex personality became the stuff of legend. He had a hunted look and an almost entirely destructive mind, forever bent on exposing flaws in argument, with a seeming determination to savage errant trustees and solicitors. I doubt if many solicitor trustees emerged unscatehd from his hostile scrutiny. Although he had a good knowledge of the law, he was prone to error. His propensity to error was largely due to his puritanical view of the world.

Aside from the bit about the hunted look, this description fits quite well one present member of the bench.

Secondly, about applications under the then TFM, now Family Provision Act:

Charles McLelland [another judge in the equity division] was more disposed to grant relief than Fred, who was inclined to be parsimonious in making orders under the TFM Act. As applications were set down in turn for rearing before the two equity judges, knowledgeable counsel would advise solicitors filing applications on behalf of applicants not to file until an application was to be set down before McLelland. This practice led to clerks waiting in the equity office until an opportunity to file before McLelland arose. Eventually, the court put an end to this nototious practice by divorcing setting down from filing.

As it happens, FPA applications are still mostly dealt with by one of two Associate Justices in the Equity Division. Almost inevitably, one is perceived as being more sympathetic to applicants than the other, and there are other differences between them which lead to something of a dichotomy in the administration of the jurisdiction. Depending on the vagaries of judicial availability, matters are also sometimes dealt with by judges. A note to Mason’s article mentions that “As Asprey [another judge] remarked, newly appointed judges were meagre in making awards under that Act, while more senior judges exhibited greater generosity.” That too is generally the case, and particularly as between judges and the associate justices, though there are some exceptions in this regard.

3 Responses to “Australian Law Journal December 2008”

  1. O Says:

    I recall having reason to access the ALJ while at uni and feeling at the time that the journal was a sort of legal version of Quadrant. This resulted in an ongoing vague feeling or resentment towards, and avoidance of, the ALJ. I never read enough of it for that to be a well-informed impression but I’m sure it isn’t entirely inaccurate.

    Incidentally – I always find it interesting that lawyers will never name a judge of whom they are being critical, even when writing anonymously. (I appreciate this blog is probably not quite anonymous, but for example commenters on the Justinian website who could never be identified are similarly coy.)

  2. marcellous Says:

    O, to address your second para. I did think of naming the judge, even obliquely, but I may still have to appear before that judge, and I fear that would be prejudicial to my client in that event. I imagine that’s the same reason why other lawyers are coy about putting such criticisms on the record.

    As to the ALJ being a sort of legal version of Quadrant, there is something in that. I am thinking particularly of their Family Law correspondent, who on at least one occasion that I recall made some very parti-pris statements about “undermining the institution of marriage.” On the other hand, I wouldn’t put Peter Butt, the journal’s real property correspondent, in such a camp at all.

  3. Legal Eagle Says:

    Marcellous, one of the only reasons I read the ALJ is to get Peter Butt’s real property updates! I agree with you and O that the ALJ is a sort of Quadrant of law journals. It irritates me.

    After reading this post, I was considering why I have never submitted anything to the ALJ. I suspect that the kinds of views I would express would be found to be “not up to standard”, as I do like to mix my Equity and common law. I suspect articles of that sort would only be published if the author had an Oxbridge degree (thus giving them sufficient cachet).

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