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    "What Simon Birmingham has been doing is absolutely fantastic. He has managed to un-mesh the terrible omelette that was created by the Gillard government, the Rudd government in terms of funding; he's undoing all that." 

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    Eldon's advice lands in court ... Was he a client or wasn’t he? ... Court of Appeal breathed life into a Brisbane solicitor's action against Lord Eldon over barristerial advice about failed NCA proceedings ... Sir Terence O'Rort reports ... From Justinian's archive, February 2004 ... Read more ... 


     

    « Fakery and deception | Main | Closing time at the bar n' grill »
    Thursday
    Dec042014

    Stinging Nettle among the thistles

    Geoffrey Nettle, hero of Yarraside, goes to the High Court ... Government turns tame ... Soapy's soft spot ... Big chance for Marty Pakula ... Rustling through the archives ... Judges' associate Ginger Snatch reports 

    THE first thing to say about Geoffrey Arthur Akeroyd Nettle is he's oldish. 

    To be appointed to the High Court at 64 means he's only got six years in the saddle. Normally, the job would go to someone in their fifties, so that they get around 10 to 15 years at writing perfect judgments. 

    So, that aspect of the appointment is unusual, particularly as it means that if this bunch of lousy, third-raters are kicked out of government in two elections' time, Labor will be able to appoint Nettle's replacement. 

    Anyway, "Nettle" is a great name to have on the highest court in the land. Let's hope he grasps it firmly. 

    He's from Victoria (although born in Perth) and has been on VicAppeals for 10 years. He's to replace the Victorian Susan Crennan, who's been wanting to step down for some time. 

    Ken Hayne goes next (by midnight June 4, 2015) and no doubt the Victorians will want to fill that vacancy as well, maybe with the Federal Court's Justice John Middleton, although by then he will be 63.  

    Nettle was an acolyte of Hayne's, but without the grumpy trappings. Contrary to conventional wisdom the new appointee goes have a stinging sense of humour and is regarded as a top drawer after-dinner speaker - an absolutely fundamental requirement for a senior judge. 

    Yarraside barristers have observed that Nettle affected an old-man routine, well before he was an old man, and now he's grown comfortably into his schtick. 

    Soapy Brandis would have been a bit in love with him because of the Oxbridge connections. Melbourne commercial types also love him, some of whom say he's VicAppeal's best lawyer. 

    His elevation means that the new state attorney general Marty Pakula can now make his first appointment. Word on the number 8 tram is that Jack Rush has had enough of being a judge and would love to return to the bar, asap. 

    The sad thing is that none of the names on Chris (Kiss of Death) Merritt's list of contenders made it. Guy Reynolds must be devastated. 

    *   *   *

    Nettle (Special) Leaves: Urtica Dioica

    Apart from his task of conducting the trial of Adrian Bayley, who was found guilty of the rape and murder of Jill Meagher, Justinian has mentioned Nettle in dispatches on previous occasions. 

    Among other things he is remembered for the suppression order that temporarily kept Governor General Peter Hollingworth's name out of the tissues after proceedings were commenced by Rosemarie Annie Jarmyn against the Bishop of Ballarat.  

    On February 20, 2003, in camera, Stinger suppressed the name of the plaintiff.

    On March 18, 2003 he suppressed the name of the third defendant, Dr Hollingworth.

    On May 8, 2003 Bernard Bongiorno J revoked the orders and so the file was no longer confidential.

    Later than month Bongiorno mentioned that the by now deceased plaintiff's affidavit did "include a discrete allegation of common law rape against the third defendant, the present Governor General of Australia and former Anglican Archbishop of Brisbane".

    Up to that point as a result of Nettle's orders the Governor General had been shielded by the initials "AB".

    As the allegation could never be proved Julian Burnside, for the plaintiff's family, "unequivocally abandoned" the claim. The proceedings against the defendants were dismissed.

    Who can forget those unhappy times?

    Fortuitously, Nettle was replaced on the Supreme Court by the Rhodes scholar, also an escapee from WA, Elizabeth Hollingworth, 42, (no relation). 

    In 2007, we had a story about Nettle, Warren & Mandie, striking fresh-faced barrister Ozan Girgin from the jam roll after he'd been sprung in a university essay collaboration scam.

    In 2012 Stinger sat on one of the numerous appeals brought by Voyager victims solicitor David Forster. At least one appeal concerned whether Forster should be allowed to keep practising after his ticket was revoked by VCAT. 

    The same year he sat on Legal Services Board v Gillespie Jones - the case that found barristers can tap the fidelity fund for their unpaid fees in instances where solicitors have tickled the till.  

    The court discovered a lurking Quistclose trust, thereby creating an interest by the barrister in the client's misappropriated money.  

    Brilliant stuff. 

    The year before, we reported he was part of a decision in which celebrity lawyer Michael Brereton was thrown a lifeline. VicAppeals said Brereton did not owe fiduciary duties to clients who lost money in his retirement village scheme. 

    In proceedings arising from charges of professional misconduct against the solicitor the court upheld the decision of a trial judge and overruled findings of misconduct made by the VCAT on the basis of an error of law.

    Tate, Nettle and Ashley held that the allegation of misappropriation of trust funds (the most serious of the charges brought) contained an element of dishonesty, which had not been considered by the tribunal.

    The tribunal had originally ordered, on the basis that this misconduct had been established, that Brereton be barred from applying for a ticket to trade before July 1, 2013, and handling trust funds before July 1, 2018.

    The Court of Appeal held that because that charge had not been properly established, the matter should be remitted to the tribunal for the redetermination of penalty.

    *   *   *

    Nettle: top drawer

    Nettle is a smart and safe appointment. It's not what we expect from the Abbott government in the wake of elevations like Tim Wilson, Sophie Mirabella, Nick Minchin, Lord Downer, Michael Thawley, Maurice Newman, et al. 

    They've gone tame on us. 

    Soapy's announcement is here  

    Further Nettle Notes will be gratefully received 

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