1 CLR

A colleague, Rw, is selling his room in preparation for a long-announced but still postponed retirement.

He has to show his wife he is doing something in this direction, and as he increasingly spends time visiting his son and the grandchildren in New York, he might as well economise on the capital commitment and business outgoings. I should explain that when you sell a room as a barrister, in my chambers at least, what you really sell is a share in a company with an associated right to occupy a room in premises which the company rents, and obligation to contribute to the company’s running expenses and, in particular, a share of the rent. Unless the lease is on particularly favourable terms (and ours, you can be assured, is not) the company’s assets amount to nothing more than the office fitout, the library and the goodwill of the association of its members. That last thing is the tricky and (to some minds) the iniquitous bit. Nevertheless, when you consider the ongoing liability, you may well wonder why a share in such a company can be sold for anything at all. [In some chambers, shares have been offered for a dollar.]

Anyway, Rw has given me his set of the Commonwealth Law Reports, which runs (though the last volumes are unbound and there are a couple of volumes towards the end missing) up to volume 222. Whilst this is a generous gift, it is also a burden. They take up a lot of space and, as another colleague’s set is housed in a bookshelf in the corridor outside my room, they are at present of very marginal utility. However, it would be graceless of me to refuse them.

I contemplated whether they might make good toilet reading at home. D put paid to that. “Don’t bring them home!” he said, straightaway.

So I have rearranged my bookshelves. Some of the Reports are still in boxes, including the oldest, which have the most handsome leather binding.

As it is my fiftieth year, I have decided, as an occasional exercise, to work through the set, reading page 50 and (unless it is unbelievably lengthy or boring) the case which is reported at the pages including that page.

The lucky first case is Chanter v Blackwood (No 1) [1904] HCA 2; (1904) 1 CLR 39.

This is the first case brought before the High Court sitting as the court of disputed returns under the Commonwealth Electoral Act.

Mr Chanter, the sitting member for Riverina, lost the 1903 election by a mere 5 votes to Mr Blackwood.

Three questions were referred by the chief justice, Sir Samuel Griffith, to the Full Court. Two of these concerned votes cast in the elections and whether they had been propertly rejected or accepted. The first was to do with whether the statute by using the word “shall” directed or positively mandated the use of boxes and voting in them. This really hinged on the point which you see Griffiths CJ making in argument in the picture above, and for which the case is still occasionally cited (basically: “shall” does not necessarily mean “must”). Gratifying, Austlii does not reproduce those parts of the report. The second was concerned whether absentee votes could be cast by writing in the name of the candidate on a blank form. The court held that they could not.

The third question was whether the court had any jurisdiction to declare an election void if it found offences against the electoral act (amongst other things, Mr Chanter said that Mr Blackwood had dismissed one Healey, employed as a cook on Mr Blackwood’s property, because Healey was supporting Chanter’s candidature). The court held that it could not: the court only had specific jurisdiction conferred upon it and the consequence of electoral offences at that time only indirectly led (in the event of disqualification on conviction) to the setting aside of an election affected by them. That has been remedied (to a limited extent) by section 362 of the Electoral Act, though the general proposition (that there is no “common law” of electoral misconduct) seems to remain.

The election was declared void (that’s Chanter v Blackwood No 2.) Mr Chanter got his costs (that’s No 3, also in 1 CLR). Chanter wasn’t happy about how expensive and legalistic the whole thing was or that the court wasn’t interested in the electoral misconduct allegations. The Australian Dictionary of Biography entry about Blackwood quoted above says “He was later cleared of all allegations (known as the Healy charges).” If so, it wasn’t in the High Court. He never stood for parliament again. More intriguingly, the ADB says:

A slim, elegant man of great integrity and little humour, Blackwood devoted himself to music and business while [his wife] Constance dwelt mostly overseas.

and, unsurprisingly perhaps, that “there were no children.”

Regular readers will know what I’m wondering.

6 Responses to “1 CLR”

  1. wanderer Says:

    Congratulations, a half century (or to frame it another way – you’re in your sixth decade!) and off the ciggies as well, or because of, perhaps.

  2. marcellous Says:

    Thanks, W.

    At this stage I’m still in my fiftieth year, so not actually yet in my sixth decade. But I’m getting close.

    To paraphrase the ancients, call no man off the ciggies until he is dead. But I’m in respite from them [ciggies, not ancients] for the time being, most of the time.

  3. wanderer Says:

    M, I’m not convinced by your counting. If we start at zero, birth, then we have served one year when we turn one (just begun), and already ten when we turn ten, and fifty when we turn fifty. So you must have ticked off fifty complete years, a full five decades.

  4. marcellous Says:

    Oh W, we are at one with our method of counting, but I haven’t had my fiftieth birthday (meaning by that, anniversary of my birth) yet. I am still only 49! [Honestly!]

    By my reckoning, last year was my fiftieth calendar year and this is from that point of view my fifty-first, but I am still only in my own fiftieth year.

    However, I accept your congratulations in the kind spirit in which they were offered, in anticipation of the birthday which will have passed before this month is out.

  5. wanderer Says:

    If not a (kindred) Aries then a Taurus – that’s quite a cusp.

  6. 2 CLR « Stumbling on melons Says:

    […] Stumbling on melons « 1 CLR […]

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