A Barrister's Blog (by Paul Cutler)

As summer holidays fade away I was contemplating my days at both the Sydney test match (cricket) and the Australian Open (tennis) and looking (and laughing) at the differences in the terms and conditions for both events.

The following are not allowed into Melbourne Park:

Alcohol; animals except service animals (e.g. seeing eye dogs, police dogs and horses); any item that could be used as a weapon; beach balls & other inflatable devices; bicycles, scooters, skateboards and roller- blades/skates; camera tripods, monopods, telephoto camera lenses with a focal length capacity greater than 200mm; video cameras & handy-cams; audio recorders; drink & food cans; chairs & stools; eskies & hampers; fireworks; frisbees; helium balloons; glass (including bottles); large containers in excess of 1.5 litres; flags, banners or signs larger than 1 metre by 1 metre in size or with handles longer than 50cm in length; musical instruments &/or amplification equipment; unauthorised advertising or marketing material or flyers; laser pointers, distress signals, whistles or loud hailers and dangerous goods

There is understandably a lot of overlap on the glass/alcohol/dangerous (and photographic) items with the cricket, but I’m not sure what Tennis Australia has against frisbees and helium balloons. On the musical instrument side, Cricket Australia specifies that “that no stadium horn (including without limitation, a vuvuzela) may be brought into the Venue“. It is apparently OK to take a beach ball to the cricket (but not to the tennis) but you can’t “inflate, or cause to inflate, any balloon, beach ball, receptacle, device or structure without the prior written consent of Cricket Australia“.

Both terms of entry prohibit disruptive activities but Cricket Australia say that it is disruptive to participate “in any manner, in a ‘Mexican wave‘”.

Also tennis patrons are required to wear shoes/footwear at all times and cricket patrons are required to “take appropriate care for their sun protection and hydration” (which explains why VB is a major sponsor).

Acknowledgement for the photograph goes to Sydney based documentary photographer, Bettina Cutler, who took the photo (from the second back row) with her (allowable) 200mm lens.

I did battle this week with a self represented person who was trying to get their special leave application re-instated in the High Court. They needed re-instatement because they failed to comply with High Court Rule 41.10. That rule which I set out below (complete with perspicuous remarks)  made me smile the first time I read it…..

41.10.1    An unrepresented applicant shall present his or her argument to the Court in the form of a draft notice of appeal and written case, which, unless the Court or a Justice otherwise directs, shall not be served on any person who was a party to the proceedings in the court below [so, don't serve it until the Court tells you to - I bet this happens a lot]

41.10.2 & 41.10.3 set out the forms and page limits. The rule then continues:

41.10.3(c)    shall be filed within 28 days of the filing of the application, together with two additional copies of the written case, the draft notice of appeal and all of the documents filed by the applicant in accordance with rule 41.01.2.

41.10.4.1 If an unrepresented applicant does not comply with paragraph 41.10.3 (c), the application is taken to be abandoned unless the Court or a Justice orders or directs otherwise.

…..now even if you do manage to comply with those requirements…

41.10.5    Where an unrepresented applicant has filed a written case, any two Justices may, without requiring any party to the proceedings in the court below to respond to the applicant’s written case, determine that the application should be dismissed and direct the Registrar to draw up, sign and seal an order dismissing the application.

Creative commons acknowledgment for the photograph.

In 1950, Mr Scott obtained the right to exhibit motion pictures on Wednesday and Saturday evenings at the (1939 art deco) Numurkah Town Hall. Unfortunately (for Mr Scott), the town hall also had facilities for private dances and wedding receptions. Mr Scott said these functions substantially interfered with his demise of the premises as they caused a “great deal of noise” and he applied for an injunction. The ensuing dispute found its way to the High Court (see Scott v Numurkah Corp (1954) 91 CLR 300).

Although the Court noted that offensive noise is not capable of quantification and will depend on the facts of each case,  Fullagar J addressed the possible consequences which noise from a variety of bands could have on the patrons of a cinema, in the following terms:

“The strains of a lilting waltz may make no impression on the hero or villain of a raucous and boisterous drama, whereas the pathos of a heroine with a voice like Cordelia’s may be murdered by an unholy conspiracy of saxophone and drum. And between these extremes lies a great variety of possibilities.”

Interesting postscript: a new trial was ordered on the basis that the trial judge, who in the course of the trial, attended the town hall had witnessed an experiment or demonstration which he should not have relied on.  There was no problem with a “view”, but it was a different matter for the judge to rely on what he heard.

Creative commons acknowledgment for the photograph.

In Australian Conservation Foundation v Forestry Commission and Others (1988) 19 FCR 127 at 135, Burchett J summarised one of the fundamental principles of judicial review of administrative decisions as follows:

“It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over to examine it, and then put it down, so long as he does not allow it to affect his decision.”

Succinct and to the point – I like it.

Creative commons acknowledgment for the photograph.

If you don’t already know the meaning of “perspicuous” you will get the gist of it from the Court of Appeal judgment in JPQS P/L v Cosmarnan Constructions P/L & 3 Ors [2003] NSWCA 66. It appears that the late Meagher JA has managed to press the President’s button:

[7] MEAGHER JA: The appellant in this case is a quantity surveyor against whom his Honour Judge Rolfe awarded a verdict of some $665,025.00 in favour of the four respondents, who together constituted a joint venture engaged in the development of certain land said to be situated at Bossley Park (wherever that is).

[1] MASON P: I have had the benefit of reading in draft the reasons of Meagher JA.

[2] I also have the benefit of having access to a street directory. Accordingly, I do not share his Honour’s customary doubts about the location of well-known Sydney suburbs lying to the west of Darling Point which sit cheek by jowl with his Honour’s customary lack of doubts about most other matters. A useful resource for those who need to locate Bossley Park is http://www.travelmate.com.au. By clicking on “map maker” one can find easy ways of getting from, say Darling Point to that suburb. (http://www.nowwhereroute.com/travelmate/mapmaker/mappage.asp?Type=darling%20point-_nsw_bossley%20park_nsw.)

[3] Otherwise I agree with Meagher JA in the dismissal of this appeal, substantially for the reasons he gives.

…..

[32] BEAZLEY JA: I agree with Meagher JA and the perspicuous remarks of Mason P.