Readers are no doubt aware of the “teabagging” incident that led to the collapse of Australia’s military justice system. My friend suggested law students might relish the chance to cite something saucy in an exam.

It’s not just students who are tempted to spice up their submissions; even senior lawyers are fond of an occasional ribald reference. But please: if you’re going to crack wise, make sure you’re hip to the lingo.

In arguing a High Court appeal involving a gutless carpark bashing, counsel learned the hard way:

MR REYNOLDS: [...] As I said a moment ago, it was a very simple precaution to take and Mr Smith had earlier threatened to go back and, if I may use the colloquialism, “‘tea bag’, Mr Karimi”. I gather your Honours know what that means from – - -

FRENCH CJ: No, it is not “tea-bagging”, actually, it is something else. There is a distinction, but you need not worry about it.

MR REYNOLDS: Perhaps we will not go there, your Honour, but at any rate he had threatened to go back and treat him in an aggressive way.

I would be amazed and perhaps a little bit impressed if Smith could knock someone unconscious with his testicles, but the reality is that he’s your garden-variety thug. There is a distinction, as the Chief Justice noted, between a teabag and a king-hit.

In a matter concerning whether a particular litigation funding arrangement constituted an abuse of process, the High Court saw the following exchange:

HAYNE J: The proposition that solicitors are disinterested participants unconcerned with profit is an interesting proposition.

MR JACKSON: Of course, your Honour, all professional people — and one hates to even think of the topic — are sometimes concerned with money. One cannot expect legal practitioners or anyone else to carry on a business which is not going to (a) cover their costs and (b) provide something for their families to live on and occasionally to allow a child a second pair of shoes.

If that’s the basis upon which Mr Jackson sets his fees, then he’s either the cheapest silk around — or his kids wear very nice shoes.

When the Court has already given big clues that it does not follow your argument, there are certain phrases you should avoid at all cost—as counsel learned the hard way in East v The Queen:

MR [APPLICANT]: That is where I am saying that the power under section 19 is also restricted. It is restricted to the extent of the principle that a man’s home is his castle, it is his fortress, and unless it is unambiguous and unmistakable - - -

KIEFEL J: I was hoping you would not say that, I thought we would hear about the vibes.

MR [APPLICANT]: Yes, your Honour, I refrain from that angle obviously, your Honour. That is my point in respect of that. If I can assist your Honour any further on that point.

KIEFEL J: Thank you. We need not trouble you, Ms [Respondent]. … [T]he argument has insufficient prospects of success to warrant special leave. Special leave is refused.

That line might have worked for Lawrence Hammill QC, but that was in the movies. In real life it conjures up the image of Dennis Denuto. Bad vibes.

When judges leave and join the superior courts, it is traditional for the various professional bodies to say a few words reflecting on their Honour’s career and expressing their best wishes. So, recently, Justice Bell has been farewelled from the NSW Supreme Court and welcomed to the High Court of Australia.

Mr Macken, in his farewell speech, and Mr Digby, in his welcome, both share this story:

It is also said that you have the unique distinction of being immortalised in song, in fact, in a song by a punk rock group called Mutant Death. I will not put this to music, but the words go as follows:

The police, they came and got me;
They threw me in a cell;
They said I had one phone call;
I rang Virginia Bell.

Fuller lyrics are provided by Simon Rice OAM in Peppercorn, February 2009:

If evidence is needed of Bell’s formidable reputation while at Redfern Legal Centre, it is in the lyrics of “Police Verbals” by Sydney punk band Mutant Death, who sang (if that’s not too generous a term):

I was being verballed, I was being bashed
And the law couldn’t help ’cause I didn’t have the cash
I woke up next morning, still bleeding in my cell
Got on to Redfern Legal Centre, spoke to Virginia Bell.

Perhaps those fuller lyrics were considered too confronting to be read in the Supreme Courts of New South Wales and Victoria.

Or perhaps the lawyers are simply not big fans of Mutant Death: in his speech, Mr Macken added that:

I also heard that when the band performed that song at the Redfern Legal Centre, the rendition was so awful that colleagues pulled the plug on the PA system.

Then again, the NSW Legal Aid newsletter is called Verbals, a title which is suspiciously familiar — so perhaps somebody in the NSW community legal sector was a fan of Mutant Death after all.

Way back in January, the High Court was presented with an unusual argument:

MR STREET: We say in relation to ground 3 that we have put forward that that raises the existence of what I will call the parallel universe. … We say that Ground 3 challenges the existence of the universe.

[FRENCH CJ]: Let us not get lost in the metaphor.

A fine suggestion, but perhaps easier said than done. When the matter came on for substantive hearing, it was not the parties but Justice Gummow who strayed through the interdimensional portal:

GUMMOW J: So notions of accumulation are rather confusing really. You are in parallel universes; you are not in cumulative universes, if I can stretch things that way.

MR GAGELER: Your Honour, I got into this debate with Mr Street.

HAYNE J: Professor Hawking is very ill at the moment.

MR GAGELER: Your Honour, metaphors are probably unhelpful.

FRENCH CJ: Mr Street has been there before and we tried to usher him out of the parallel universes.

Fortunately, the Chief Justice is a science fiction buff — he used to have a Star Trek poster hanging in his Federal Court chambers — so he was able to safely pilot the Court away from hypothetical disaster.

GUMMOW J: Now, Mr Bennett, the sound system is quite sophisticated. We are not in the middle of a paddock.

MR BENNETT: No. Well, your Honour, I submit it is an important issue for development applications - - -

GUMMOW J: If you just moderate your voice, we will all receive the wisdom more readily.

The French Court might be quite old — Justice Kiefel, the youngest, is 55 — but their hearing aids are apparently in good working order.

I’m not quite as good at trawling through transcripts, looking for the funny stuff. So while Miles is on holiday I will cheat and just link to Overlawyered.

There, they refer to the American judgment of Hollister v. Soetoro, where the Judge stated:

“This case, if it were allowed to proceed, would deserve
mention in one of those books that seek to prove that the law is
foolish or that America has too many lawyers with not enough to
do.”

Lets hope no one follows this precedent, though, because those books are really great to read.

(Remember that while Miles is on holiday you can read through past Tuesday Transcripts here.)

GUMMOW J: Thank you. The Court has before it now three summonses… We will consider first Mr Smith’s motion of summons. We also received detailed written submissions which we have digested. Now, is there anything you want to say in furtherance of the written submissions?

MR SMITH: Simply this. As it would be obvious from the submissions in a sense the summons has been filed out of a sense of neurotic caution. It is pretty clear that any file - - -

GUMMOW J: Neutotic caution?

MR SMITH: Neurotic caution, yes.

HAYNE J: That will make an interesting catchword, I think, in the reasons.

I quite enjoy seeing an “interesting” catchword whilst buried in the law reports, but alas, “neurotic caution” didn’t make the cut.

There was a recent decision in which Justice McKechnie dismissed a conspiracy theorist’s claim and warned delicately of the “dangers of self-litigation”.

To my mind, though, the best “interesting” catchword belong to Justice Heerey, who was concerned that counsel regularly neglected relevant legislation:

INDUSTRIAL LAW — appeal from Federal Magistrates Court — whether error in finding employer applied duress to employee in connection with Australian Workplace Agreement

EVIDENCE — proper application of Briginshaw principle — isn’t there something in the Evidence Act about this?

PRACTICE AND PROCEDURE — adequate reasons for judgment

Turns out there is, in section 140 — and given how widely the catchword were circulated, I doubt Justice Heerey will need to point it out again.

Seen a more interesting catchword? Let us know in the comments thread.

The words most dreaded by an applicant are those uttered by the bench immediately following the initial submissions; if the respondents are not called upon it is game over.

The High Court had a couple of doozies recently. In Wallace an ambitious request that the Court overturn a well-established line of authority was swiftly rejected.

And then there was Ferguson:

HAYNE J: Now, can I just get to the bottom line, Mr Callaghan? Is your bottom line the Court of Appeal has power to hear it but no power to do anything following the hearing?

MR CALLAGHAN: Yes.

HAYNE J: That is a rather startling proposition, Mr Callaghan.

MR CALLAGHAN: it is. It is, your Honour. It is a startling omission from the statute.

[...]

HAYNE J:So it can hear the appeal and then adjourn and that is all? [...] Thankyou, Mr Callaghan. Mr Solicitor, we will not trouble you. The applicant’s argument … is an argument that would enjoy insufficient prospects of success in this Court to warrant a grant of special leave.

“We will not trouble you.” Five words that spell certain doom for an application.

Yesterday was the last day of the Kirby Era. Justice Michael Kirby retired from the High Court.

On Australia Day, his Honour gave a wonderful speech surveying his long career in the law, from his articled clerkship through to his service on the highest court in the land. Despite all of the wonderful (and terrible) things that have happened during that time, he noted that there was at least some symmetry to his career: “Having the same distinguished speaker at my judicial coming in and at my judicial going out closes a circle.”

In November 1974, I was asked whether I would consider appointment as a Deputy President of the Australian Conciliation and Arbitration Commission. I was 35 years of age. I agreed and was welcomed to that office in Sydney in December 1974. My commission dated from 1 January 1975. At an early age, I therefore enjoyed the rank, title and salary of a federal judge. Only Mary Gaudron, appointed a year earlier, was younger. At my induction ceremony, the President of the New South Wales Bar Association, Mr T.E.F. Hughes, QC, welcomed me on behalf of the Bar. He claims that he declared that I was noted for my “urbanity”. The official transcript of the ceremony recorded that the reputation was for “vanity”. [...]

At the time of my resignation, I will be the longest-serving judicial officer in the nation. At my farewell in Canberra on 2 February 2009, the final speech will be given by Mr T.E.F. Hughes, QC, still in active service at the Bar. Perhaps he will reveal exactly what he said at that welcome ceremony in 1974.

I commend the speech to you as an interesting and critical review of both Justice Kirby’s career and the development of the legal profession in the last fifty years. And when the transcript of Justice Kirby’s High Court farewell — the first for a non-Chief Justice — is published at AustLII, perhaps Mr Hughes will tell us what he thinks the Great Dissenter’s vanity all these years later.