The constipated ostrich and the Hong Kong Court of Final Appeal

Percy is waiting to try a dish of ostrich ... Sir Anthony Mason is the bright star of the Hong Kong Court of Final Appeal ... The most prolific of the non-permanent judges

Writing many years ago, Justice Roddy Meagher (warming up, perhaps, for Portraits on Yellow Paper) provided the following inspiring vignette of life as a young lawyer:

"They were vintage days [at the Law School] because at the same time Mr A.S. Mason was lecturing in Equity. I can remember Mr Victor Maxwell in those days taking me to a window on the seventh floor of our building to observe Mr Mason lecturing across the road in Phillip Street. He said to me: 'Look at him lecturing in Equity. He looks just like a constipated ostrich. Besides that, he knows nothing about the subject because I beat him at it in the Law School'."

Fast forward 40 years and Hong Kong echoes to the praises of the Constipated Ostrich.

As readers may know, the Hong Kong Court of Final Appeal (the equivalent of the High Court of Australia in the judicial structure) has both permanent and non-permanent judges.

The non-permanent judges are drawn predominantly from retirees in various other jurisdictions - the statutory age of senility (70 for our High Court) does not cause any problems in the East, where age and wisdom are more venerated than in our own more Americanised, and "popular", culture.

So it is that the Constipated Ostrich, along with McHugh NPJ (specializing mainly in book-making disputes in the Hong Kong forensic arena), Sir Gerard Brennan and Smiler Gleeson are all available to sit on Hong Kong cases.

A similarly distinguished crew comes over from Blighty (they still love a lord in Hong Kong), and even the odd Kiwi gets a guernsey. It is also possible for a local distinguished retired judge to sit as an NPJ.

This arrangement was built into the Basic Law by Article 82, which was adopted to ensure the calibre of the Hong Kong judiciary after handover when appeals to the Privy Council were, naturally, abolished.

This was a very wise move to avoid the embarrassments that constantly beset the NZ Supreme Court, or the ACT Court of Appeal (sic!) when, because there are only eight judges in the entire jurisdiction, an appeal lies from the puisne judge to a constantly revolving panel of just a few brethren.

It is part of the wider debate on whether a constantly changing court of review can ever be half as good as one which is permanently constituted - think, sadly, of the very indifferent Full Federal Courts, which it is possible to draw that range from A plus to C minus.

In Hong Kong, there is no legal requirement that an overseas judge must sit. However, under Li CJ (recently retired early to great lamentation), a convention of sorts developed that has meant that in 97 percent of all cases an overseas Non-Permanent Judge has sat.

Mason NPJ and Lords Millett and Hoffman have been the most active non-permanent judges.

Australia's former Solicitor General and Chief Justice has sat in 91 appeals, which is 41 more than his nearest rival.

Furthermore, he has written the majority judgment in 25 cases, including 19 solo judgments.

Poor old Sir Gerard Brennan, by way of contrast, has sat on 21 cases, and written only five judgments.

The burden of deciding what cases are to be heard by the Court of Final Appeal falls on a panel of three local permanent judges.

So, it is fair to say that after making a distinguished contribution to your autochthonous jurisprudence Mason NPJ has been more than pulling his weight further north.

What would the late, great Victor Maxwell think about that?

As a culinary aside, we southern Chinese eat anything (and in order to improve virility frequently resort to the various "horns" of other species of mammals).

Although I have been served owl, and pangolin, and other exotica, I have never been offered ostrich.