Search
This area does not yet contain any content.
Justinian News

Sofronoff stripped bare ... Deceit ... Betrayal ... Drumgold hung out to dry as a result of Sofronoff-Albrechtsen information "tryst" ... Latest derailment of conspiracies about the prosecution of manosphere darling, Bruce Lehrmann ... Derangement syndrome ... Sofronoff's "serious corruption" ... Devastation among devoted Banana Benders ... Read more >>

Politics Media Law Society


The politics of catastrophe ... Autocrats who were “elected” … Dictators rarely survive in one piece … The fate of Trump as Trumpism turns rancid … Hitler, Mussolini, the Ceauşescus, Saddam … Everything goes swimmingly, until it doesn’t … Sleeping with one eye open … Exile or death ... Read on ... 

Free Newsletter
Justinian Columnists

Capital crimes ... Dangerous words likely to be scrubbed from the Trump era lexicon ... Musk and his techie vandals ... The shredder going full blast at the FBI ... Stolen national security documents sent back to Mar-a-Lago ... Cabinet clown show ... White supremacy unleashed ... Consumer protection prosecutions dropped ... Lawyers and law firms threatened ... Roger Fitch from Washington ... Read more >> 

Blow the whistle

 

News snips ...


Roberts-Smith seeks to reopen his defamation appeal after Nine journalist claims to have had access to "helpful" details of the plaintiff's legal strategy ... Breach of ethical duties ... More >> 

Justinian's Bloggers

London Calling ... Law n Order in Blighty ... King invites the King for State visit ... Grovels aplenty ... Magistrate over does the "send him down" ... Musos strike an angry chord about AI encroachment ... Law shops protect the billable hour ... Floyd Alexander-Hunt files ... Read more >> 

"True to form, the ACT corruption watchdog has put itself at the centre of perceptions of bias with a finding against eminent former Queensland judge Walter Sofronoff KC that serves only to debase the definition of serious corrupt conduct."

The Australian with its unique perspective on "bias" ... March 22, 2025 ... Read more flatulence ... 


Justinian Featurettes

Judgment for sale ... Melbourne University Publishing's decision to produce Justice Lee's Lehrmann judgment as a commercial product is not without its problems ... The omnishambles continues ... Melbourne lawyer Nilay B. Patel explains ... Read more >> 


Justinian's archive

Defamation and other misadventures ... So sexy, said the actress of the Chief Justice ... Daphnis dunks women in hot water ... Another (male) judge frocks-up ... Inside Madge's mouth ... Stephen Archer defamed ... David Levine strangles more English ... Justice Dean Mildren "the idiot" ... From Justinian's archive, April 22, 2004 ... Read more >> 


 

 

« Protection racket | Main | Winners re-elected »
Sunday
Nov112012

Advice from the lower deck

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

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.