Opening lines of judgments

And the award for Best Opening Line of a Case goes to...

[Drumroll]

Lord Justice Rose, in Walkers Snack Foods Ltd v Coventry City Council (1998), for this line:

"It seems unlikely that A.P Herbert, even at his most felicitously inventive could have imagined the scenario which this appeal presents to this court.

In June 1995 a student bought, at a supermarket in Coventry, a packet of crisps manufactured by the appellant defendants.

In it was a piece of white plastic, measuring in millimetres: 53 by 15 by 20. It was of an unusual and striking shape."

Fun and games in the High Court of Australia

Taken from Austlii, are excerpts from the transcripts of the case Combet & Ors v Commonwealth of Australia & Ors, on the matter of using public funds for advertising political (not governmental) schemes.

The ACTU's counsel goes first, and digs himself into a lexicographical hole

MR GAGELER: Yes. Your Honour, if I need to address that I will. It is certainly not a question that has been raised by our learned friends in their otherwise fulsome defence.

HAYNE J: You ought to look up what “fulsome” used to mean, Mr Gageler, or perhaps your opponent should, and take that on board.

MR GAGELER: I hope I was using it in its modern sense, your Honour, not knowing what it used to mean.

HAYNE J: Sickeningly cloy was I think the sort of notion it had.

MR GAGELER: I will not go back to that.

Justice Kirby plays with punchy phrases - the man could've been in advertising!

MR GAGELER: I think so, your Honour. What is said after the table is:

In other words, government delivers benefits to the Australian community (outcomes) primarily through administered items and agencies’ goods and services (outputs) which are delivered against specific performance benchmarks or targets (indicators).

McHUGH J: Well, that is pretty clear.

MR GAGELER: So far so good.

KIRBY J: This case is about 21st century spin meets 19th century Constitution.

MR GAGELER: Yes.

GLEESON CJ: Well, I notice that we are in there under the heading “Equitable and Accessible System of Federal Justice”.

MR GAGELER: It would be interesting to know what your Honours’ performance indicators are.

GLEESON CJ: Maybe we have been invited to provide them and have declined.

Justice Gummow is a difficult customer

MR GAGELER: I am sorry, your Honour is raising this as a matter of discretion or of standing?

GUMMOW J: As Justice McHugh pointed out earlier, I do not accept that they are discrete subject matters.

MR GAGELER: No, I appreciate that, your Honour. I can see - - -

GUMMOW J: It is not good trying to foist that on me because I just will not buy.

Justice Kirby on the advertising about the government's IR reforms

KIRBY J: Like Bulgaria used to be. That is what the press in Bulgaria and Romania used to do, full of the merits of the great party leaders.

More on IR:

McHUGH J: Yes, they want the workers to fight to influence parliamentarians to marshal public opinion to raise consciousness so that there will be a community backlash and the government will back off its legislation. That is what this is all about. That is the reality of it.

MR BENNETT: No, your Honour. One cannot draw that inference as - - -

GUMMOW J: Sounds like a healthy bout of political free speech, does it not?

MR BENNETT: Your Honour, part of it is but that does not - - -

KIRBY J: That generally is not funded from the public purse.

Truly a mystery for Sherlock Holmes

KIRBY J: What has happened to your mysterious official? He has dropped out of things, has he, or she?

MR BENNETT: One assumes he is on the Clapham omnibus, your Honour, and he is a reasonable official - - -

McHUGH J: Heading in the opposite direction by the sound of things.

Kirby has a conspiracy theory

KIRBY J: I just do not understand this argument. If the Parliament enacts a law then that is it, it is the law. So long as it is valid it must be obeyed. The poison in the well is not going to stop it being the law. So what is this encouragement directed at? It is just – unless it is, as Justice McHugh said yesterday, to direct it at Wobblies who might be getting a little worried about enacting it.

Kirby has feelings too

KIRBY J: Not a word here of a massive publicity campaign, paid advertisements, and yet in other parts of the PBS there are references to that. Why was it deleted? Why did you have it in elsewhere and deleted despite the size of this campaign?

MR BENNETT: Yes, can I come to the - - -

KIRBY J: Why did you keep that from Parliament, and especially from the Senate?

MR BENNETT: It is not kept from anyone, your Honour.

KIRBY J: Well, it was kept. It was not mentioned.

MR BENNETT: Well, your Honour, it is - - -

KIRBY J: Silence in an Appropriation Act (No 1) which the Senate could not amend. That is why section 83 is critical to this.

MR BENNETT: Well, your Honour, we submit it is included in all these passages I am reading to your Honour about encouraging employers and employees to adopt the practices, to have a legislation development service in relation to the particular legislation and what - - -

KIRBY J: Just silence on this campaign with millions of dollars being spent of the people’s money.

MR BENNETT: Your Honour, that is something which occurred - - -

KIRBY J: Maybe I am too sensitive, but this is an old constitutional principle. I mean, this is what battles and revolutions have been fought over, control of the people’s money, not levying money from the people except with their consent in Parliament.

Mysterious Mr Lloyd

MR BENNETT: Your Honour, it is an aspect Mr Lloyd is going to deal with.

GUMMOW J: Mr Lloyd’s barrow keeps getting fuller and fuller.

HAYNE J: He is enjoying it too.

KIRBY J: Poor old Mr Lloyd, he gets all the hard ones.

Gummow gets blunt

GUMMOW J: If you are wrong about that, what follows? This is critical for you, is it not, this construction?

MR GAGELER: Yes. I am sorry, your Honour?

GUMMOW J: This is critical for you, adoption of this construction?

MR GAGELER: Well, it is important, yes. What follows about being right or what follows about being wrong?

GUMMOW J: What follows if you are wrong?

MR GAGELER: I have two other somewhat less technical arguments, your Honour.

GUMMOW J: Well, it is no good to denounce it for being technical. That is what politicians say when they find the Constitution prevents something.

KIRBY J: We all have to get used to this new jargon.

MR GAGELER: Yes. Your Honour, I try not to contemplate being wrong. It seems to be the - - -

GUMMOW J: Just contemplate being subtle, that is all.