There’s more than a touch of Lord Denning running through recent curious judgments from the Wide Brown Land.
Denning (“It was bluebell time in Kent …”) was at least brief with his colourful descriptors and settings of time and place.
Not so much Michael Meek of the NSW Supremes who drew at length from diverse literary references for a better understanding of “friendship”.
In this contest about succession and competing Wills, the deceased, Andrew Gordon Young, died at 68 without a wife or children. He had been living in a house at Morisset with his close friend Michael William Gay, an Indigenous man.
Mr Gay said they had a very close (platonic) friendship yet “with familial or friendship characteristics” and that the deceased regarded or treated him as his “family … like a son with whom he was on especially good terms, or as a favoured nephew”.
Both were disability pensioners, who met in a rehab facility. They were afflicted by addictions, there were “run-ins” with the law, grief, and illness.
There was a 2010 Will where various cousins of Mr Young were the beneficiaries. Then there was a “purported will” dated two days before Mr Young’s death on Christmas Day 2021 which benefited Mr Gay.
There was no dispute that the 2010 Will was valid, but Mr Gay claimed it should be admitted to probate subject to his claims regarding the Purported Will, along with a family provision claim.
It was the element of “friendship” that exercised Justice Meek, who took us on an expedition through C.S Lewis, Jane Austen, the Bible and MASH in search of an understanding of the term in its great variety of forms and shapes.
Thumbing though a copy of Lewis’ The Four Loves he found a suitable passage which addressed ancient thoughts about friendship (“the happiest and most human of all loves; the crown of life and the school of virtue”) with the more modern and its less intense appreciation [para 9].
HH observed there is an “ebb and flow of societal norms” about the virtue of friendship which differ significantly “from the ways of the Ancients and the customs of the late 1950s”.
Jane Austen’s Northanger Abbey was on hand, which “wittily depicts many elements of friendship”, including those that progress quickly, viz. Catherine Moreland and Isabella Thorpe.
“[It] was quick as its beginning had been warm; and they passed so rapidly through every gradation of increasing tenderness that there was shortly no fresh proof of it to be given to their friends or themselves.”
Friendship may also exhibit facets of affectionate love “giving rise to a very close enduring bond between people, knitting their souls”.
HH draws on an example from the Bible, where David and Jonathan became one in spirit (English Standard Version), 1 Samuel 18: 1-4.
Meek J also called up Captn. Benjamin Franklin ‘Hawkeye’ Pierce in discussion with Corporal Walter ‘Radar’ O’Reilly in MASH, where it was poignantly said: “Loneliness is everything it is cracked up to me.”
Make of this what you will.
The property at the heart of the contest was at Morisset in NSW with various valuations, but most recently at $1.15 million. Unfortunately the litigation was so intense that chew up almost $600,000 in costs, or more than 50% of the value of the property.
The plaintiff/cross-defendant, Adrian Corbould, is a partner at Turnbull Hill in Newcastle, appointed as the deceased’s executor and trustee.
Apart from the literary infusions, Justice Meek took us into details about variations on mortality rates and that Mr Young had the “remarkable distinction of being born and dying on Christmas Day” (68 years apart).
Apparently, along with February 29, Christmas Day is the least common birthdate in Australia.
There were observations about Mr Gay’s alleged criminal activities (132 incidents recorded on the police computerised operating system, COPS), his periods of imprisonment, and whether the Purported Will was a forgery, along with surrounding “suspicious circumstances”.
HH was not satisfied that forgery of the Purported Will was established but thought that the deceased had not signed the Will.
Other suspicious circumstances were not dispelled. Indeed, Mr Gay acknowledged that the witnesses to the Purported Will were not present at the time of its alleged execution.
The detailed history, the cast of characters, their relationships, HH’s reasoning, and his consideration of the law took a door-stopping 286 pages.
What did Jane Austen have to say about wordy workmanship?
On September 20, 1814, she wrote to her niece Anna Austen Lefroy with some thoughts about the need to keep writing contained and tight.
“You describe a sweet place, but your descriptions are often more minute than will be liked. You give too many particulars of right hand & left.”
Even if you burrow into MASH you will find characters complaining about too many words.
The Ivy League character Dr Charles Emerson Winchester 111 is impatient with Captain Hawkeye Pierce.
“None of your long-winded excuses, Pierce. You can’t toy with me.”
Actually, this story about Meek J’s lengthy judgment is now overly long.
Another Fatwa
Not to be outdone with colourful allusions, The Hon Justice Jonathan Barry Rashleigh Beach in the Federal Court recently gave Confucius a run in a recent migration appeal.
Before him was a Malaysian woman seeking to overturn decisions below and stay in Australia.
One ground of her appeal was that if she was returned to Malaysia her daughters would be circumcised by order of the Fatwa Committee of Malaysia’s National Council of Islamic Religious Affairs.
Further, because the appellant didn’t get approval to be married overseas her daughters can’t be registered in Malaysia as legitimate children.
So the prospect of female genital mutilation and illegitimacy was the prospect for these poor tots.
Beach J made it clear he did not want to criticise religious rituals in their “primary and secondary dimensions”.
His explanation is tantalising:
“The primary dimension is to reinforce through representative or symbolic acts and habitual practices the spiritual elements of a particular faith or belief system. The cognitive connection between the performative act and its associated incorporeal object or objective is consciously brought to the fore and strengthened by repetition of the relevant ritual.”
In the process, HH reminded us that Confucius was a fan of hammering home the importance of rituals.
“And so the various sayings and occasional dialogues attributed to Confucius in the Analects which repeatedly extol the virtues of rituals.”
Happily the judge reminded himself of the main mission:
“Anyway, let me return to discussing what is before me rather than what is not.”
Appeal dismissed.
FTT17 v Minister for Immigration and Citizenship
Unfit
While connected to the realm of judicial digressions, it would be a shame to not to re-mention Justice John Logan RFD of the Federales (as he then was) who took us on a trip into the 17th century in his judgment about an airman dismissed from the RAAF due to his failure to pass a fitness test.
HH was anxious that we get a grip on the New Model Army, the Declaration of Breda, King Charles II and the Glorious Revolution, along with C.M. Clode’s The Military Forces of the Crown.
He traced developments following the regicide of Charles I, the military dictatorship of the Lord Protector Oliver Cromwell, the danger of anarchy following Cromwell’s death, the restoration of Charles II with his unlimited power to raise a standing army, the arrival on the throne of William & Mary – with the condition that parliament must consent to raising and keeping an army in peacetime.
Then there was the Mutiny Act of 1688, the Act of Settlement 1700 and the Roman Catholic Relief Act 1829.
It’s so easy to get distracted.