Category: Legal writing

The Federal Court heard a case about this scratchie: Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876.  Whether the plaintiff had a $100,000 winner or not depended on whether in Australia ‘bathe’ means ‘swim’.  Did the picture of the man doing freestyle at C1 show a man who was bathing, as the plaintiff was sure of at the moment he experienced an ‘explosion of elation’? The plaintiff hired senior counsel to argue the case for him.  Justice Rares agreed with the plaintiff, and ordered contractual damages of $100,000 plus $28,000 in interest since 2007.  Had the plaintiff been limited to damages for disappointment, he would have ordered $20,000.  One senses that Justice Rares enjoyed writing the judgment.  To add insult to injury, the Kuzmanovskis got their costs on an indemnity basis, based on their pre-proceedings offer to accept $80,000 in settlement of their claims: [2010] FCA 1016.

NSW judges have suggested in the past that the Macquarie Dictionary is the most authoritative. It suggested that the use of ‘bathe’ to mean ‘swim’ was ‘chiefly British’, and the lottery company urged that bathe should not be interpreted in Australia to mean swim. But Justice Rares held that what the word meant was up to him, as the arbiter of fact, and though dictionaries are useful tools, they are only that, and considered all the definitions of reputable dictionaries together.  The relevant part of the judgment is as follows: Continue reading “Which dictionary is the authoritative arbiter of the meaning of words in Australia?”

Even judges of appellate courts and legal regulators get it wrong.  Either I am getting grumpier or the error is becoming more common: [2009] NSWCA 278; [2009] NSWCA 379; [2010] NSWCCA 6. Even Chief Justices get it wrong: [2008] NZSC 55 at [54].

‘Practice’ is a noun.  ‘Practise’ is a verb.  So:

‘The practitioner’s firm enjoys a diverse practice across the areas traditionally within the competence of the High Street solicitor.  Formerly, she practised in the Crown Law Department before moving to Abu Dhabi and practising as a sole practitioner.’

If you know the difference between a noun and a verb, it is helpful to remember that ‘ice’ is a thing, and so a noun.  Continue reading “Practice or practise? Licence or license?”

Given how often companies execute documents, and the consequences of getting it wrong, I have always found the law on the subject weirdly complicated.  Perhaps that’s just because I’m a litigator and never quite cottoned on to a commercial lawyer’s basic skill.  But a beautifully written Clayton Utz file note by John Elliott, about Vero Insurance Ltd v Kassem [2010] NSWSC 838 winningly entitled ‘Sometimes You Do Have to Sweat the Small Stuff” suggests that there may be others with difficulties in this area of the law.  Vero tried to vote at a creditors meeting (an insolvency law procedure) by a proxy signed by its ‘Executive Director’.  That did not comply with s. 127 of the Corporations Act, 1991 which said: Continue reading “Execution of documents by companies”

‘I Yield To My Learned Brother’
or
‘Is There a Candlestick Maker
in the House?’

By Ogden Nash

The doctor gets you when you’re born,
The preacher, when you marry,
And the lawyer lurks with costly clerks
If too much on you carry.
Professional men, they have no cares;
Whatever happens, they get theirs.

Continue reading “Professional men, they have no cares”

In the many panics during the Bar Readers’ Course when I was expected to adventure incompetently into the criminal law, the criminal lawyers whom I made sure to be nice to referred me to ‘the Bible’, Ross on Crime. Leafing through it disconsolately one day, I noticed the chapter entitled ‘Jazz’.  What a revelation.  After that, I knew he was a character, but not until I read his obituary in The Age did I realise how much of a character the Bar has lost.  I wonder whether the very English form of academic eccentricity which has always been a halmark of the Bar, and the qualities of true professionalism which it sounds like Ross personified, are on the wane, whether any of my contemparies will be David Rosses of the future.

I never met the man who passed away recently having succumbed to motor neurone disease.  I did read his book on advocacy, Advocacy.  It is beautifully written, short.

I commend Quis Custodiet Ipsos Custodes‘s post on what the law demands when giving evidence of conversations.  Contrary to a common heterodoxy, the witness who cannot recall the precise words can give evidence of the effect of the conversation.  The New South Welsh are the most excited about direct speech, especially in affidavits.  Personally, I detest the constant repetition of ‘words to the effect of …’.  Better, I think, to say ‘He told me that he knew nothing about the knife’ than ‘He said words to the effect of “I know nothing about the knife”‘.

After a couple of glasses of red wine late one night when everyone else in my household was asleep, I decided I needed this deed written in Latin on vellum in 1518. I pressed the buy button on the screen, and a bit more than a week later, a bit of 16th century Derbyshire was posted to me from St Petersberg, Florida.  It is apparently a grant from William Haae to Thomas Mellour, tanner, and his wife Alice, of lands, tenements, rents and services within the town of Idridgehay.  It is witnessed by Thomas Crane (chaplain), Richard Gaskyn, and Thomas Bywater.  In my internet enquiries into 1518, I discovered that Tom and Alice got some other land the same day (see item 381).

I picked this one because it was from the reign of Henry VIII, and because 1518 is a long time ago and is kind of the cusp of what I regard as the recent past — of my culture at least — beyond which it all starts to blur.  Our calendar had not even been adopted yet, which might I suppose explain why my deed is dated 10 Hen 8th. (Henry was still going gangbusters with his first wife, Catherine of Aragon, part-English but mostly Pyrenean.)  The beginning of the Tudors (e.g. Henry’s dad, Henry and Henry’s three kids who succeeded him as sovereign including the first and penultimate Elizabeth who got Cate Blanchett an Oscar nomination) roughly equates with the end of the Middle Ages, the reformation, and the introduction into Europe of the printing press in 1454. Just before that, the crusades had come to an end when no one could be bothered getting it together to get Constantinople back from the Moslems after it fell in 1453, but the peace of Europe arranged by Cardinal Wolsely in the year of my deed was all about uniting against Islam. Continue reading “1518”

My memory of Enid Campbell’s lectures on William Blackstone was a bit hazy, so David Pannick’s article about him in The Times (‘A sour, morose and imperious judge of the common law’) was welcome.  Until I pulled this picture off Wikipedia, I had no idea the famous author was in fact a hare.  He was the first Vinerian Professor of Law at Oxford. He wrote down the whole of the English common law in his Commentaries on the Laws of England (you can have the pictured copy for US$15,000), back in the days when serious moollah was to be had for doing such things (he netted £14,000, which equates to about £1.5 million according to this calculator based on the retail price index). Volume 1 was published in 1765, when Bach was not long dead, Mozart was 9, Captain Cook had not set sail for Australia, and the first restaurant had just opened in Paris. The average Australian lawyer’s most frequent intercourse with Blackstone is probably the Mabo decision, in which the common law’s view about ‘desert and uncultivated’ colonies featured.  This is the passage:

Continue reading “Blackstone”