Posted on by Stephen Tuck

A time to speak?

A recent story in Lawyers’ Weekly has left me wondering how much a judge’s public comments should be restrained after retirement.

According to the story, His Honour Michael Kirby, a retired Justice of the High Court of Australia, spoke at an LGBTIQ book launch.  His comments noted that –

Justice Kirby said Australia should be wary of the draft Religious Freedom Bill, brought to light by Attorney-General Christian Porter, as it was not “drafted by friends”.

“I think we have to watch the Religious Freedom Bill with the greatest of care because that has not been drafted by friends or allies,” Justice Kirby said. “It has been drafted by people that want to go back to the binary division, fixed by penis and vagina.”

It is hard not to be a little troubled by a man of His Honour’s stature stating that a Bill had ‘not been drafted by friends or allies’, because the implication is that it has been drafted by enemies.  It is not clear whom he may have had in mind.  Attorney-General Porter, perhaps?  Parliamentary counsel?  Regardless, it seems to me that a lay person might reasonably wonder how far His Honour’s view of the law might be shared by his successors on the High Court, and what that might mean for any challenge to the law.

A more problematic set of statements appeared at the end of the article, where it was reported that

Justice Kirby said [transsexual people] “… get a very hard time from the Roman Catholic Church”.

“They get that hard time because of the notion of civil law that you have to go back to natural law, and natural law is based on the binary division of human beings with penises and vaginas. And by that standard of nature you are fixed forever and you must fulfil that role,” Justice Kirby said of these attitudes.

“This is the natural law of teaching and that is what the church has said in its latest publication. It is totally opposed to transition surgery and to different bathrooms and other benefits for trans people. The battle at the level of the church is not over.”

The phrasing of a “battle at the level of the [Catholic] church” seems unfortunate when there are reports that Cardinal Pell will seek special leave to appeal to the High Court over his sexual assault convictions.

Retired members of the Bench are potentially a valuable source of wisdom in the public forum, but it seems to me that getting too near the coalface of debate is dangerous.  The risk of calling the Court’s impartiality into question is too great.

Posted on by Stephen Tuck

How to find case law

Something interesting has happened in legal education.  When I started my degree back in the mid-1990s, one of the first things covered was how to find a case in published law reports.  Somewhere along the line this seems to have dropped off the curriculum in favour of wholesale use of online databases like Austlii.  This is a shame, because while electronic resources are very convenient, not everything has been digitised.  British case law, in particular, is gathered at Bailii but includes old cases only in a very scrappy manner.  In addition, online cases very seldom include a headnote – the case summary that is a gift to time-poor lawyers who need to get a handle on something quickly.  If you’ve never seen a headnote, take a look at this website, for which I wrote dozens of them.

Because this has become a bit of a gap in the legal skill set, I ran a quick course for my colleagues Amila, Sarah and Tremayne today up at the Supreme Court Library.  This post is mainly the notes of that course: I thought they might be useful for other lawyers out there.

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Supreme Court Library, Melbourne, Australia

This note covers the two most commonly used Anglo-Australian systems of case citation. American, Canadian and South African cases use somewhat different systems, and there’s a special system for English cases from before 1873.

First System

The first system we’ll talk about tends to be preferred by Australian report series.  A case citation will look like this –

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387

The key thing is that if the year is written in round brackets, then you don’t need to know it: it’s there only to tell you the year the case was decided.  The details you really need to know are are –

50           The volume in of the series of law reports

CLR      The series of law reports.  In this case, the Commonwealth Law Reports, covering the reports of the High Court of Australia and (occasionally in the past) Privy Council appeals from Australia.

387         The page of the reports where the report begins.

The case referred to, incidentally, is sometimes called the Woolen Underwear Case.

Second System

The second system tends to be used for British cases.  It looks like this –

McLoughlin v O’Brian [1983] 1 AC 410

If the year is in square brackets, you need to know it.  The key details are –

[1983]  The year the case was reported.  This will be how the volume of cases is identified.

1              If there were several volumes of that report series that year, this is the number of the volume.

AC         The series of law reports.  AC stands for Appeals Cases and covers reports of the House of Lords (now the UK Supreme Court) and Privy Council.

410        The page on which the report starts

Amila chasing The Winkfield [1902] P 42

Common series of law reports

Some of the most common series of reports for Australian lawyers are –

AC         Appeals Cases.  House of Lords (now the UK Supreme Court) and Privy Council

ALR      Australian Law Reports.  High Court and other cases mainly concerning Federal law.

CLR      Commonwealth Law Reports.  High Court of Australia and (occasionally formerly) the Privy Council

FLR      Federal Law Reports.  Self explanatory.

QB         Queen’s Bench. Reports of the English Court of Appeal.  (KB – King’s Bench – before 1952)

SASR   South Australian State Reports

TLR      Times Law Reports.  A bit of a grab bag of old cases reported over the years by the Times of London.

VR         Victorian Reports.  Supreme Court and Court of Appeal.  Previously VLR (Victorian Law Reports)

WLR    Weekly Law Reports.  Decisions of English courts at all levels

All ER  All England Reports.  Decisions of English courts at all levels

Sarah finding Hill v CCWY [1989] AC 53

Challenge

If you’re training younger staff, you might like to set them the task of finding cases within a time limit and sharing a photograph of the first page of the judgment.  This list used in this exercise was

  • Duke of Wellington Gold Mining Company NL v Armstrong (1906) 3 CLR 1028

  • Hill v Chief Constable of West Yorkshire [1989] AC 53
  • Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

  • National & General Insurance Co Limited v Chick (1984) 2 NSWLR 86

  • R v Pittwood [1902] TLR 37
  • R v Russell [1933] VLR 59

  • R v Smith [1959] 2 QB 35
  • The Winkfield [1902] P 42

I was a little bit surprised by how competitive my colleagues were over this!

If you’re planning to run this exercise, it takes about an hour.  It should count for one CPD unit (Professional Skills).

Happy researching!

Posted on by Stephen Tuck

When Crayons beat Ball Points

This post is my somewhat belated contribution to #PracticeTuesday, and it’s probably most relevant to practitioners in criminal law, personal injury and family law.

One word: pencils.

A few weeks ago I tried with difficulty to conduct a conference with a client which his four year old son.  My office isn’t well stocked with things for children and so I tried to leave him entertain himself with a notepad and a ballpoint.  It wasn’t a success.  I didn’t blame the little tyke of course.  He was bored.  Sometimes being in a lawyer’s office bores me too. Some days, if I wasn’t being paid to be here, I’d arc up myself!

After that appointment, the first place I went was Officeworks to get a packet of good sturdy pencils and a sharpener.  When Mr Bloggs and his son came back to the office yesterday, I googled “lawyer colouring sheets”. This was not a success.  Most of the images were not really age appropriate.  Some were, well, kinda scary:

lawyer-drawing-1
Image from here

Instead, I drew on the other half of my life and googled “State Emergency Service colouring sheets”.  This was much better.  A few mazes and pictures of rescue vehicles kept the client’s munchkin happy for the hour or so of the conference.

Colouring 1
Image from here

If your practice regularly means your clients bring their kids to appointments, never underestimate the value of a $4.00 box of pencils.

Posted on by Stephen Tuck

Inside the Supreme Court Library

Because it’s Friday, it’s time for a heart-lifting post.

One of the many perks of being a lawyer is getting to work in some of the most beautiful buildings every constructed.  I wanted to stretch my legs this lunchtime and I took some pictures I’d like to share of the heart of the library of the Supreme Court of Victoria.

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Image from here

The Supreme Court building itself is beautifully ornate sandstone on the outside.  When you get inside it, though, it gets even better.  At the very heart of the library is a gorgeously sculpted lamp over a reading desk.  I suppose the lamp must have been gas-powered originally.

The part of the building around this area consists of two roughly levels which contain the leading Australian and British law reports and law journals (the Commonwealth Law Reports, the Victorian Reports, the Appeals Cases, the Law Institute Journal and so on).  Other series of reports (American, Canadian and so on are elsewhere in the library)

Each of the sections of the floor is lavishly decorated.

A highlight for me are the stained-glass windows at the top of the dome.  They contain the small detail of Britain’s lion and unicorn crest and Australia’s kangaroo and emu.  I like the notion of showing the place where English law began and where it has now taken root.

The flora in this image seems to be the English rose.
The flora here seems to be stylised wattle leaves

I’m as much of a fan of electronic access to information as the next lawyer.  Certainly my work would be a great deal harder if I needed to go to the Court every time I wanted to read a case, rather than simply flipping open Austlii.  But I think it’s a good thing for any lawyer to head into a library like this one and remind themselves of the proud tradition – and honourable profession – they are part of.