Strictly Courtroom

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Backhanded compliment

"Mr Isaacs focused mainly upon that second argument. In my view he was right to do so because, like the judge, I consider that his first argument is clearly wrong." The Joint Administrators of LB Holdings Intermediate 2 Ltd v Lehman Brothers Holdings Inc [2015] EWCA Civ 485 (14 May 2015) at [209].

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Calm a Suture

8. The appellant’s evidence as to the circumstances leading up to the offending was, by and large, adopted by the Magistrate.

9. On 7 February 2014, the appellant was at home in Port Willunga. He needed to clear tree branches in order to facilitate access by workmen who were repairing his air conditioning unit. While using a chainsaw he cut the back of his hand near the base of his thumb resulting in a gaping wound.

10. The appellant telephoned his local doctor in Aldinga who advised him that the wound ought to be examined by a surgeon. The appellant then called the emergency department of the Noarlunga Hospital and was told that the department was extremely busy and that it could be more than 10 hours before he might be treated. The appellant telephoned the Flinders Medical Centre and was advised that its emergency department was in a similar position such that the delay before treatment would also be several hours. He had not consumed any alcohol to this point.

11. The appellant became concerned that, if left untreated, there was a serious risk that his wound would become infected. He found a large sewing needle and some fishing line and commenced suturing the wound himself. Not having any antiseptic in the house, the appellant used gin to wash the wound. The process of stitching the wound was, not surprisingly, quite painful. The appellant therefore also drank the gin which proved to be an effective form of pain relief. The appellant managed to suture the wound with four neat stitches. He took photographs of the process which were admitted into evidence before the Magistrate.

12. Upon completing the suturing, the appellant formed the view that the wound required professional treatment to avoid or limit the risk of infection. By this stage the workmen had left and the appellant was home alone. He tried to call his wife who was at work but was unable to reach her. He therefore resolved to drive himself to the nearest hospital.

13. After failing to stop at an intersection on Main South Road, he attracted the attention of a patrolling police vehicle and was pulled over. An alco-test was administered, followed by a further breath analysis test at the nearest police station. He recorded a blood alcohol concentration of 0.175 grams of alcohol in 210 litres of breath, that being the equivalent of 0.175 grams of alcohol in 100 millilitres of blood. The appellant was issued with a notice of immediate licence disqualification.

Whitrow v Police [2015] SASC 17 per Nicholson J

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Coping with senility

When the Attorney announced my appointment last December it was noted in the press that it meant the appointment of the oldest appointee ever to this Court. Vaingloriously in the euphoria of the moment I took that to be a compliment. Later, however, I was made to appreciate the reality of the situation. As one of my erstwhile and perhaps more acerbic Victorian colleagues piquantly remarked: “What your age really means is that you’ve taken far longer than any other Judge in the history of the Court just to get appointed and whatever else that might suggest it hardly implies anything very desirable about the rate of performance in the future”.

Logically, I am compelled to acknowledge the force of that observation and I confess that there is not a great deal which can be said against it. Try as I might to propound an adequate riposte, it continues to elude me. May I, however, offer you two thoughts by way of mitigation? First, since we are in Canberra where these things are better understood than they tend to be down south, I draw inspiration from Josh Mann-Rea’s example. Secondly, to invoke one of the Pythons’ more illustrious injunctions, “always look on the bright side”. The selectors may have backed a wild card, as the press put it, but, if one looks at the matter objectively, the selectors have also capped the risk. Given the constitutionally entrenched statutory age of senility of 70 years, and that I am now three score years and four, any damage I might do in the time which remains available is bound to be relatively limited.

Per Nettle J

Ceremonial - Swearing-in of Nettle J - Canberra [2015] HCATrans 5 (3 February 2015)

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Why, I have, your Honour

HAYNE J: But it is not uncommon for a witness to give evidence firmly believing the truth of what the witness says.

MR WALKER: Not in my experience, your Honour.

HAYNE J: Where the evidence the witness gives happens to be forensically convenient to the outcome sought by the witness.

MR WALKER: I confess that has also occurred in my experience, your Honour.

HAYNE J: It has occurred?

MR WALKER: Yes.

Texxcon Pty Ltd v Porz and Anor; Texxcon Pty Ltd v Wieland and Anor; Nominexx Pty Ltd and Anor v Wieland and Ors [2015] HCATrans 21 (13 February 2015)

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The voice

After Detective Lawler was sworn to give evidence, Mr Bodor sought to have a sound recording played to him. While the recording was being played, Mr N'Ge-Sala began singing in what sounded like an African language. I asked him please to be quiet so that I could hear the evidence. The singing continued. It should be acknowledged that the singing was quite beautiful but it was preventing me from hearing the evidence. Accordingly, I directed Mr N'Ge-Sala to stop singing so that I could conduct the hearing, again relying on s 62 of the Civil Procedure Act. After some minutes, I warned Mr N'Ge-Sala that if he did not stop singing I would dismiss the proceedings. He stopped singing and started shouting at me. Our exchange proceeded as follows:

HER HONOUR: Mr N'Ge Sala if you don't stop singing I'm going to dismiss the proceedings.

PLAINTIFF: You're going to dismiss, who's presenting this, this woman?

HER HONOUR: Please stop singing.

PLAINTIFF: What you going to do?

N'Ge-Sala v State of New South Wales [2014] NSWSC 1567 at [27] per McCallum J.

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A second job

Mr N'Ge-Sala then suggested that, if I wanted to make some quick money, I could go in the street, put on some nice clothes and some high heels and "stop some car in the street" (T217).

N'Ge-Sala v State of New South Wales [2014] NSWSC 1567 at [26] per McCallum J.

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God

Mr N'Ge-Sala arrived late that morning. When he came into the courtroom, it became apparent that he was upset with me, evidently believing that, during the settlement negotiations the previous day, I had conspired to allow someone to go through his bag so as to have access to his information. He believed that his phone had been stolen from his bag during that time. Upon his arrival, Mr N'Ge-Sala and I had the following exchange:

PLAINTIFF N'GE-SALA: Ma'am, excuse me. You see, probably you do not like it me call you, ma'am. That's why I did say last time I'm not going to not call you your Honour because I do not know there is any honour in you. Probably you like me to call you woman.

HER HONOUR: I don't really mind what you call me, Mr N'Ge-Sala, but are you ready to proceed with your case? Can I tell you what's happened?

PLAINTIFF N'GE-SALA: Yes. Tell me what has happened.

HER HONOUR: Ms Bandera's case has been resolved. She's not continuing with her case anymore, so it's just a question of your case continuing against--

PLAINTIFF N'GE-SALA: Because of my case got - that's why yesterday somebody did get through my bag and take my phone with them. I tell you what, you know, you guys, how stupid you take the day off. You think I'm going to leave all the information that I'm doing inside the phone. That phone did not have a battery so whatever you are making it's fuel for the fire, you are putting. You are making into wars for yourself. By the time we talking now, by the time we talking like, you know, your brief of evidence is now behind - between the hand of the Russian Embassy so you--

HER HONOUR: Could you slow down? Could you slow down because I'm--

PLAINTIFF N'GE-SALA: What? Slow down for what?

HER HONOUR: Because I'm having trouble--

PLAINTIFF N'GE-SALA: There will be no slander. There will be no conspiracy. Wrong has been done to me. I am here for justice, so simple. Do you understand? I am here for justice and I know this guy, this guy they plot against me when the police pin the charge on me. Is your name not ..(not transcribable).. that's what your name. That's what your name, piece of shit; that's what your name. Do you think that you going to slander against me ..(not transcribable).. in Australia, what is coming at you? You going to ID. You pay probably to America. You think that you are strong. You pay probably to America. America won't be able to help you, I'm telling you.

HER HONOUR: Mr N'Ge-Sala--

PLAINTIFF N'GE-SALA: You know, there will be no slander, there will be no discrimination. There will be not - again, there's nothing you can do so now we can proceed with my case. I will stand up now, won't sit down.

HER HONOUR: Could you please calm down?

PLAINTIFF N'GE-SALA: I was down, calm down.

HER HONOUR: At the moment--

PLAINTIFF N'GE-SALA: There is something--

HER HONOUR: Mr N'Ge-Sala, can I please finish telling you--

PLAINTIFF N'GE-SALA: This is what the chamber - the international chamber against injustice, they ask me to tell you - they say - they ask me to tell you that I will no longer be tossed to and fro and carried a bag with every will of doctrine by your trickery in the cunning craftiness of the set for plotting. I will no longer walk with the rest of you with the futility of your mind because of your understanding which has been darkened been.

I will no longer be tossed to and fro and carried about with every wind of doctrine, by your trickery of men, in the cunning craftiness of deceitful plotting. I will long walk the rest of you with the futility of your because of your understanding which has darkened, being alienated from the life of God, your ignorance that is in you and the blindness of their heart; who, being past feeling, have given themselves over to lewdness, to work all uncleanness with greediness. You keep on stealing even working every day with your hands. You have forgotten to edify yourself, that it may impart grace to the hearer. I wish that you were going to be imitate of God ..(not transcribable).. let anyone and ..(not transcribable).. but this I will tell you, I will never let anyone disable me with empty. Therefore I will never be ..(not transcribable).. with you and I will never have no fellowships with the ..(not transcribable).. of darkness but I would rather expose you for it is shameful even to speak of those things which are done by you in secret.

Now we can proceed with my case. I won't sit down anymore, woman. You want to bring something, bring it on now. The Russian Embassy, they are aware. You guys, you are taking action against them the plane it go down with the Australian inside. Now, you know, the war is coming from the north - from the northeast, you see.

HER HONOUR: Do you feel ready to continue, Mr N'Ge-Sala?

PLAINTIFF N'GE-SALA: I was well ready.

HER HONOUR: Mr Andrews [counsel for Ms Bandera], thank you for your assistance. You're excused. Are you going to give evidence, Mr N'Ge-Sala?

PLAINTIFF N'GE-SALA: I am here for justice the very beginning, since we been floating and taking my phone inside my bag--

HER HONOUR: Would you mind going into the witness box then?

PLAINTIFF N'GE-SALA: Sure.

HER HONOUR: Do you take an oath or an affirmation?

COURT OFFICER: Please stand? Do you take an oath or do you take an affirmation?

PLAINTIFF N'GE-SALA: What do you mean?

COURT OFFICER: Do you take an oath on the Bible?

PLAINTIFF N'GE-SALA: Oath on what?

HER HONOUR: An oath on the Bible?

COURT OFFICER: On the Bible or do you not recognise it?

PLAINTIFF N'GE-SALA: Recognise what? I recognise the Bible, that's the book of the Lord. What do you mean?

COURT OFFICER: Put it in your hand.

PLAINTIFF N'GE-SALA: Yeah, you slander, you piece of shit. Swearing is what you been--

HER HONOUR: Excuse me? Excuse me? Do not talk to him--

PLAINTIFF N'GE-SALA: Excuse me yourself. That's your--

HER HONOUR: Please remove him from the Court, please?

PLAINTIFF N'GE-SALA: Excuse me yourself.

HER HONOUR: Come back when you are ready to be civilised to my staff.

PLAINTIFF N'GE-SALA: I am civilised. You the one need to be civilised. You the one need to be civilised.

HER HONOUR: Thank you.

PLAINTIFF N'GE-SALA: Do you hear that, woman?

HER HONOUR: Could you please remove Mr N'Ge-Sala from the Court.

PLAINTIFF N'GE-SALA: I am civilised. You--

HER HONOUR: You can return when you are prepared to be civilised to the staff of the Court.

PLAINTIFF N'GE-SALA: You touch me, I knock you down.

SHERRIFF'S OFFICER: I'm not going to touch you, sir, please leave now.

PLAINTIFF N'GE-SALA: Yeah, that's right, yes.

SHERRIFF'S OFFICER: You need to leave the courtroom.

HER HONOUR: Sit down, Mr N'Ge-Sala, and if you want to the oath you can take the oath now.

PLAINTIFF N'GE-SALA: Get out of my face, piece of shit.

HER HONOUR: Mr N'Ge-Sala, if you speak to anyone like that again I will have you taken downstairs.

PLAINTIFF N'GE-SALA: No, ma'am--

HER HONOUR: Please--

PLAINTIFF N'GE-SALA: --you should do your job.

HER HONOUR: Please stop your language.

PLAINTIFF N'GE-SALA: You the one who push me. I was even nice to you. I came in the first day, you asked me to sit down I sit down. I did respect you since the very first day. Nobody will take advantage of me, do you hear that?

HER HONOUR: Do you want to take an oath or an affirmation?

PLAINTIFF N'GE-SALA: I can never swear on him, is the Lord's throne. I can never swear on the earth, it's the Lord's footstool. I can never swear on my head, because I cannot make any of my head duck away. You hear that?

HER HONOUR: Would you like an affirmation?

PLAINTIFF N'GE-SALA: I will my yes be yes and my no be no. I'm not a slander. I be concerned with your slandering. I did come here for the truth and for justice and you, you'll get picked up by the Interpol police. I got your name. They got your name over there.

HER HONOUR: Would you take an affirmation?

PLAINTIFF N'GE-SALA: Affirmation for what? I will yes be yes and my no be no.

HER HONOUR: To tell the truth.

PLAINTIFF N'GE-SALA: I told you I will let my yes be yes and my no be no. I won't take no order in this way, slandering a so-called rubbish to your court.

HER HONOUR: We will take it that Mr N'Ge-Sala has taken an affirmation.

 N'Ge-Sala v State of New South Wales [2014] NSWSC 1567 at [13] per McCallum J.

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Sportsmanship

MR SOLOMON: If your Honours please. Good morning, your Honours. I will be much briefer than the in terrorem 30-minute estimate I gave yesterday evening. That was just designed to put my learned friends off for the evening, your Honours.

Commissioner of State Revenue v Lend Lease Development Pty Ltd; Commissionr of state Revenue v Lend Lease IMT 2 (HP) Pty Ltd ; Commissioner of State Revenue v Lend Lease Real Estate Investments Limited [2014] HCATrans 243 (5 November 2014)

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Persistence

On 4 July 2011, the applicant made further persistent sexual advances to the complainant, including 78 requests to have sexual intercourse and made references to fantasizing about her. On that occasion he also made secret video and sound recordings of their conduct and conversations.

PLP v McGarvie and VCAT [2014] VSCA 253 at [15].

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The high point

GAGELER J: Is that the high point?

MR PIKE: That is the high point, your Honour. That is the high point. That is the high point, may it please the Court.

CRENNAN J: Thank you. We will not trouble the respondents.

O’Flaherty v City of Sydney Council & Anor [2014] HCATrans 232 (17 October 2014)

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Total recall

MR PIKE: Well, yes, but Justice McHugh, and I think all the cases since then, do say one does need to consider the alternative means, and as it were, I think your Honour Justice Gageler in Tajjour last week, in effect said that it is a balancing of the magnitude of the burden against the legislative end - - -

GAGELER J: I do not think I used the word “balancing”, but - - -

MR PIKE: No, I am - - -

GAGELER J: I recall what I said.

O'Flaherty v City of Sydney Council & Anor [2014] HCATrans 232 (17 October 2014)

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Not not guilty

Your Honours, a recurring difficulty for criminal defence lawyers in particular is a client who is undoubtedly guilty of something but stubbornly refuses – even in the face of compelling evidence – to admit doing anything wrong.

Col v The Queen [2014] HCATrans 236 (17 October 2014)

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Taken

GAGELER J: There will be a grant of special leave to appeal in this matter limited to the points of construction. Mr Owens, if you look at the notice of appeal at pages 72 and 73, I think it is grounds 2, 4 and 7.

MR OWENS: Yes. I was going to say only 2 and 4, but I will take 7.

GAGELER J: Well, let us go for 2 and 4. There will be a grant of special leave to appeal limited to grounds 2 and 4. 

Uelese v Minister for Immigration and Citizenship and Anor [2014] HCATrans 239 (17 October 2014)

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Imagination

FRENCH CJ: Except it was the terminology of the sign that was the actuating reason for his decision.

MR BORENSTEIN: Yes. It is what gave offence, in Mr Brick’s eyes, yes.

FRENCH CJ: Would it matter to your argument if some additional offensive epithet had been added?

MR BORENSTEIN: Some additional offence?

FRENCH CJ: Offensive epithet had been added to the sign; some intensifier of the word “scab”, for example.

MR BORENSTEIN: No, your Honour. I had not thought of any intensifier, I must say, but - - -

FRENCH CJ: Well, I will not - - -

HAYNE J: That is a very limited imagination, Mr Borenstein.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCATrans 189 (3 September 2014)

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Loud and clear

With a possible qualification, it was also common ground that the plaintiff's case was one brought in good faith and that it was a reasonably arguable case. The qualification is that Mr Bouris of counsel, for Sydney Water, submitted that the plaintiff's case must fail. I did not understand the argument. Whether that is a reflection on the argument or a reflection on my powers of comprehension, is a matter that others can decide. It is sufficient to say that I am not persuaded by the argument (to the extent that I did find it comprehensible).

ILC Group v Sydney Water Corporation [2014] NSWSC 1407 at [11] per McDougall J

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Girl germs

The [apprehended bias] application was pressed on the basis that Mr Mahmoud suspected that as a female judge, I was a feminist with leftist leanings, who would not give him a fair hearing, given that he was a well-known community leader and founder of the ideology of "genderism", who had plenty of women enemies. He accordingly sought that I disqualify myself and that his application be allocated to be heard by a male judge, who was not a duty judge, after 28 November.

Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 1378 at [13] per Schmidt J

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In confidence

MR LENEHAN: …That then brings me to executive power. Mr Gleeson is quite correct that I was somewhat coy about Ruddock v Vadarlis yesterday. Your Honours will excuse me for that. It was my first appearance before a Full Bench of this Court and I say very, very respectfully that the decision is wrong. In terms of Mr - - -

HAYNE J: Those are submissions that are best made very firmly and very loudly, I think, Mr Lenehan.

FRENCH CJ: Very confidently.

HAYNE J: With absolute confidence.

MR LENEHAN: Perhaps at a later stage, your Honours…

CPCF v Minister for Immigration and Border Protection & Anor [2014] HCATrans 228 (15 October 2014)