Advice from the lower deck
Sunday, November 11, 2012
Justinian in Dyson Heydon, High Court, Judges, Plain Packaging case

Combative words ... Canberra beak objects to florid phrases from Dyson Heydon ... Debasing respect for the judicial process ... Lessons in language 

David Mossop: writing style is crucial

THERE's nothing quite so enjoyable as a good judicial ticking-off - particularly when the lower end of the food chain is snipping at the upper end. 

Here we have the star of stare decisis, ACT magistrate David (Moose) Mossop, a household name in legal circles, giving that non-entity Dyson Heydon a good birching in the latest issue of the judges' bible, the ACT Bar Bulletin. 

Davo went to town on some of Dyce's arch remarks in the tobacco plain packaging decision, where the antipodean representative of the Duke of Marlborough was in a lonely minority. 

Readers will be familiar with parts of his judgment, because they are recited at breakfast tables throughout Lawyer Land: 

"These are just minor examples of a common characteristic of s 51(xxxi) litigation - that the Commonwealth repeats arguments it has advanced in earlier cases over many years, despite their failure, and often their repeated failure.

After a 'great' constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors General go. New Solicitors General come. This world is transitory. But some things never change. The flame of the Commonwealth's hatred for that beneficial constitutional guarantee, s.51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze." 

Dyse should have been more careful and avoided upsetting Magistrate Mossop, who felt that this sort of language tends "to debase and lessen the respect for the judicial process". 

I'm told that throughout the wide, brown land, citizens' respect for judges and the law plunged following the front-page treatment given to Heydon J's remarks in JT International SA v Commonwealth of Australia

Moose continued: 

"In my view it is undesirable for a judge, particularly a judge of the High Court, to embark on any such extravagant criticism  of the party. 

It may be that the party continues to advance arguments which have been previously rejected … However, that of itself does not warrant the kind of criticism in the tobacco case."

[snip] 

"The position of dissenters is not improved by the extravagance of language. Just as overstatement is poor advocacy so too is it a poor judgment writing style." 

Not all of the High Court judge's writings were beyond the Pale. 

His famous line in Aon Risk Services v ANU apparently is emblazoned on t-shirts, and is reflective of HH's "biting, dry humour": 

"The torpid languor of one hand washes the drowsy procrastination of the other."  

However, Davo thought most people would most likely be spared the distress of Heydon's style because in cases where there is a clear majority it is likely that "harassed practitioners" would be too busy locating the ratio decidendi of the majority judgments. 

Madge Mossop is no stranger to the High Court, having been Michael McHugh's associate in the 1990s. So he knows what he's talking about.

Dyse better drop the gilded flourishes ... or else. 

See: November 2012 ACT Bar Bulletin

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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