Archive for August, 2011

In the lift

August 18, 2011

I often see our former Prime Minister, Mr Howard, in the lift to my building. Apparently, he has an office there. Of course he is a public figure and has to be on his guard about being buttonholed, including by complete strangers who have not abandoned their Howard-hate. I’ve noticed that he has a habit of making a dash for the lift at the last moment – perhaps to avoid being cornered. Once in he adopts a familiar air (because all his body language is familiar from years of public exposure) of a kind of jaunty mock-modesty which also strikes me as mildly defensive. Sometimes he has companions who deferentially address him as “Sir.”

Scene: the lift in my building, yesterday.

Persons present:

A: colleague from my floor.
B: colleague from a higher floor.
C: stranger, not apparently connected to JWH
D: another stranger, though known to me from the lift and lobby.

JWH has rushed into the lift when all but C are already in. I give him what I hope is a withering gaze. I’m wearing my cycling outfit so he probably expects that from someone looking like me.

D: “I did so enjoy your talk at the writer’s festival.”
JWH: “You were there, were you?”
D: “Yes. I thought you dealt very well with some of the people who asked questions.
JWH: [assuming a modest tone] “Oh yes, well I do have a little bit of experience in that regard.” [chuckles]

Lift stops at level 53. JWH and C get out.

Me: “I have nothing to say to him.”
A: “He’s a deadshit.”
B: [Gives complicit glance.]

D doesn’t catch the glance as he faces the front of the lift. D gets out at a later floor. A, B and I remain.

Me: “Well, at least that’s three out of four who are of the same mind.”
B: “Except for the crawler.”

A and I get out. B travels on to a higher floor.

In spirit gay

August 15, 2011

On Saturday I went to a class re-union of the Opportunity C Class I attended in fifth and sixth classes. These classes are a NSW peculiarity, dating from about 1937. Students were selected from a feeder district of primary schools for two classes with an intake in fifth class and you then stayed in the same class with the same teacher for sixth class. In 1970, when I went, the classes were not particularly favoured by the Department of Education and no new such classes had been established for many years. More recently, with the push to provide special programs of all sorts and the revival of selective education in the state system, new classes have been established and of course these days children in fourth class can get coaching for the intake exam.

For me and I guess for quite a few of the other boys the classes were a refuge from the unremittingly sporty and non-intellectual atmosphere of their local school. I was no longer an outcast or subjected to bullying because I read books and could not play sport. It was a bit of a blow when I returned to comprehensive education at the beginning of high school and found that things had remained the same in the world at large. Still is, in some ways.

There were some speeches. We sang the school song. I confess that I led the singing (in a key considerably below the original B flat major). I knew the tune best because I played it almost every week at school assembly in my role as official school pianist and find I can still play it.

The job of playing piano at assemblies was apparently an auditioned post. A girl shared the appointment. She preferred to sit with her friends on the floor on the opposite side of the hall to the piano. I was never very good at sitting cross-legged and I was permitted to sit on a chair next to the piano – nobody expected me to sit on the floor there with the third-class kids. So mostly I got or took the gig.

I hadn’t remembered all the words. Somebody else found them. There were three verses! Here they are:

Truth, trust and loyalty are what we learn at school,
We’ll strive to do our best, obey the Golden Rule.
Upon the oval green we’ll always play the game.
In every sport we’ll try to bring Artarmon fame.

We’ll stand by pledge and rule. For truth we’ll strike a blow.
Democracy you’ll learn if to our school you go.
Our thoughts, our hearts, our hopes each week join in this song.
Let’s help each other still and make Artarmon strong.

Thus loyal to our school as year on year doth run,
We’ll bring to her great fame in all that we have done.
God bless this school of ours and help us through the day
To play and do our lessons well in spirit gay.

Examination of the school’s web-site suggests that the song is no longer used. The sentiments are probably too corny and the verse too clunky for present tastes and so perhaps is the slightly old-school faux-patriotic tune (dotted notes; a Rule Britannia-ish rise to the dominant in the final phrase followed by a text-book cadential 6/4). Even so, I have a hunch it was the last word which finally did for it.

A tip off

August 5, 2011

I received this email:

Dear [Marcellous],

It so happens that I need to be in the city around Phillip St next Tuesday morning and thought that, while there and in honor of my old days at the old building [the former Sydney University Law School], I would have a coffee at the [xxxx] Cafe. I intend to have this coffee by myself and certainly not with you that’s for sure but if you should happen to come by (not that I want you to) I will be there around [xx].30.


It made me laugh.

Anticlimactic postscript

Received on Monday:

It is a very good thing that I am totally not having coffee with you tomorrow morning because my meeting in the city has been cancelled and if I were having coffee with you which I am not I would have to let you know…

A Thousand Miles from Care – 3

August 4, 2011

The latest episode of McLaughlin v Manly Dungowan, referred to in my previous post on this topic, has resulted in a decision against the McLaughlins, handed down by Justice Pembroke last week.

The opening paragraphs of the judgment give a foretaste:

1 The plaintiffs do not readily embrace the principle of finality of litigation. On 25 March 2011 I gave judgment against them. Subsequently on 13 May 2011, on their application, I exercised my discretionary power to re-open the judgment and permit a further limited hearing. I explained that limited basis in paragraphs [27] – [29] of my judgment given on 10 May 2011: [2011] NSWSC 384.

2 I set out my reasons for doing so at [33] as follows:

This is a marginal case for the exercise of the exceptional power to re-open a judgment and grant a re-hearing. I am exercising my discretion to do so partly because the unfortunate litigious history between the plaintiffs and the Company, suggests that, ultimately, it will be in the interests of justice if I do so; because it may limit the opportunities for further disputation if I go further than what I have so far done. I do not therefore think that I should limit myself to rejecting the specific declarations and orders which the plaintiffs seek. I should go further and do what I can to facilitate the resolution of the real issues. If necessary, I should give such further judgment or order, or provide such further reasons, as the nature of this particular case requires.

3 I now regret giving any further opportunity to the plaintiffs to litigate this dispute. They have abused the privilege that I granted to them and they have ignored the limited basis on which I exercised my power. Their submissions on the further hearing have canvassed and re-agitated, with rising intemperateness and indignation, the central conclusions of fact and law that I have already reached. In my judgment given on 10 May 2011, I stated explicitly that I was allowing a re-hearing only “so that the parties can put submissions as to what possible further declarations should be made, given the conclusions of fact and law that I have already reached.”

There is more:

Moderation & Restraint

30 This leads me to another matter that I feel compelled to address. It needs to be emphasised that the efficient conduct of commercial litigation, indeed all litigation, can only be assisted by restraint, moderation, sensible co-operation and sound judgment by counsel. Indeed the due administration of justice demands it. Written submissions, such as those of the plaintiffs, that are unduly lengthy, excessively detailed or unnecessarily tendentious, will often fail to advance the case of the party on whose behalf they are put. If that occurs, the interests of justice will not be served. The duty of counsel in this regard is part of the wider duty to the Court to which I referred in Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at paragraphs [19] – [22]. It is also a manifestation of the statutory duty imposed on practitioners by Section 56 of the Civil Procedure Act, 2005 (NSW).

31 In his article entitled “Reciprocal Duties of Bench & Bar” (2007) 81 ALJ 23, the Hon Justice J D Heydon AC explained how every aspect of modern litigation has tended to become “sprawling, disorganised and bloated”. That tendency, he explained, can be seen not just in pleadings, discovery, affidavits and cross-examination but also in “oral, and in particular written argument”. The plaintiffs’ written submissions on this further hearing illustrate the point. There were in total almost 50 closely worded pages. I have marked the plaintiffs’ three sets of written submissions Exhibits A, B and D. They referred to 59 separate authorities of which I was taken to virtually none in argument. The fact that they also ignore the limitations that I stipulated in my judgment given on 28 April 2011 considerably exacerbates the matter.

32 An additional problem is the absence of moderation in the tone, expression and delivery of the plaintiffs’ oral argument. This feature also deserves comment. The promiscuous use of extravagant language tends to obscure the value that may exist in the underlying submission. It is timely to repeat the compelling wisdom of the words attributed to Lord Bingham of Cornhill by Lord Mackay of Clashfern in his address at the Thanksgiving Service for Lord Bingham; The Times , 26 May 2011:

The effective advocate is not usually he or she who stigmatises conduct as disgraceful, outrageous, or monstrous, but the advocate who describes it as surprising, regrettable or disappointing.

33 The defendants’ submissions exemplified this approach. Regrettably, the plaintiffs’ submissions represented the polar opposite. No doubt they were delivered with the best intentions but they did not assist the efficient conduct of this litigation. They have prolonged it unduly.

And even more:

34 This dispute has now occupied an inordinate amount of time…Enough is enough. I am against the plaintiffs. They may not like the result but questions of contractual construction and statutory interpretation can sometimes be notoriously difficult and I have done my best. The law is not an exact science and on issues such as these, reasonable minds may occasionally differ. That is why an unsuccessful party has a right of appeal. Adherence to the principle of finality of litigation is of paramount importance in the administration of justice. The judicial system would become discredited if decisions were unduly subjected to further consideration. Litigants consumed by the uncompromising certainty of their own rectitude must accept the result, subject to their rights of appeal, and the exceptional but limited power to re-open.[reference omitted]

Actually, I think both paragraphs 32 and 33 (apart from the last sentence) are both irrelevant and impertinent observations on His Honour’s part. Oh, of course, in the “whispering” equity side we would prefer if outrage could be euphemistically described as regret and honey (or at worst Campari) rather than vinegar set the forensic tone. Then we could all feel so much better and not worry about the failure of the court to twig to the McLaughlins’ grievance when interlocutory relief was first and secondly sought and (with hindsight) regrettably refused.