A touch of the Blues

Uncategorized    Friday, September 20, 2019

Victorian judge agrees to handover the gate key ... Easement hijinks at the Vic Supremes ... Ingress and egress restored to judge's South Yarra neighbours ... Hilary ploughs ahead with her holiday judgment-writing in Canberra ... Latest instructions on wigs and robes ... Vasta Watch - a fresh bulletin ... Bookshelves Brandis bounces back to town ... Theodora reports 

Victorian judge agrees to handover the gate key … Easement hijinks at the Vic Supremes … Ingress and egress restored to judge’s South Yarra neighbours … Hilary ploughs ahead with her holiday judgment-writing in Canberra … Latest instructions on wigs and robes … Vasta Watch – a fresh bulletin … Bookshelves Brandis bounces back to town … Theodora reports 

The Yarraside Supreme Court has had to import at taxpayers expense Justice Malcolm Blue from the Torrens Supremes to hear a case in which trial division judge Kate McMillan is the defendant. 

It concerns a narrow roadway that runs adjacent to properties in South Yarra. Peter Cox has an interest in three properties in Bromby Street, while McMillan and her solicitor husband have an adjoining property in Arnold Street. 

There is an easement on the plan of subdivision that gives the Cox properties access rights, for stormwater runoff and for underground sewerage pipes. 

Access was not available because it was obstructed by a locked gate at the western end of the road. Cox claimed that the obstruction was caused by Justice McMillan, while she said that while there was an easement it had been abandoned. 

Cox had the road valued at $400,000 and claimed there were people who needed access for maintenance purposes. 

After a stand-off between the parties, the Supreme Court had to go out of town to find a judge to decide the issue. Justice Blue was called from Adelaide. 

Following a mediation Blue made an order, by consent, that the defendant McMillan and her successors in title, here called the “servient tenement holder”, are subject to the burden of the easement. 

Further, that Peter Cox, and the dominant tenement holders, “have the full and free right and liberty at all times … to pass and repass on and over the road or any part thereof”.

And similarly for the purposes of drainage, the discharge of stormwater and sewerage. 

Justice McMillan, and her successors in title, may retain the existing locked gate at the western end of the road on condition that she “forthwith” provide to Cox and his successors and assigns of the Bromby St properties a key to the gate “for the purpose of ingress and egress”. 

The trial listed for Monday (September 23) has been vacated and instead on that day there will be costs argument. 

 

 

According to Wikipedia, Kate McMillan was a boarding house prefect at Ruyton Girls School in Kew. In 2013 she as accused of doing her nails and reading a text book in court while witnesses gave evidence. 

She and her hubby run an Angus beef spread at Kerrie, near Romsey. 

Theodora is pleased to announce that as of August 31, former ACT Supreme Court judge Hilary Penfold only has three more outstanding reserved judgments to complete. 

These are judgments reserved on August 1, 2014; April 20, 2016; and December 19, 2018. Hilary herself retired as a judge 18 months ago. 

A year ago it was our solemn duty to report that she had 12 judgments outstanding, plus one appeal judgment under contemplation with Michael Wigney and John Burns. 

Ultimately, the appeal judgment arrived two years and eight months after its one day hearing. 

Anyway, she’s hardly had a moment to enjoy her retirement as she’s been flat out finishing off the work that the court’s customers might have expected to be completed before she bailed from the bench. 

As at July 31 this year she was down to five reserved judgments awaiting production. In the space of a month she knocked over another two, which means there are three to go. 

The case that finished in August 2014 must be mighty tricky as customers are still hanging on for a judgment five years down the track. 

Retired Canberra judges can get away with this arrangement because of s.60A of the Supreme Court Act which says that even while they have ceased to hold office they can still exercise the jurisdiction of the court in what are referred to as “transitional proceedings”. 

The Tasmanian and ACT bars have issued fresh announcements from their respective wardrobe mistresses. 

As widely anticipated not much has changed in either jurisdiction and nothing much is ever expected to change. 

However, there are a few wrinkles to note. For instance, tiptoeing through the latest Tasmanian Supreme Court practice direction it is seen that robes and wigs should be worn in appeals from statutory tribunals “if, but only if, the tribunal has conducted a public hearing in the matter”. 

Likewise, there must be wigs and robes at final hearings of applications under the Judicial Review Act “if, but only if, the decision-maker has conducted a public hearing in the matter”. 

In Tasmania, if the bib or jabot has a rear white panel, “that panel should be tucked inside the bar jacket, not worn outside the jacket”. 

Meantime in Canberra, Steve Whybrow president of the ACT bar, issued a message to his rank and file: 

“Thank you to all who responded to the wigs (and robing) survey. Notwithstanding a slow but continuing change in the demographics of the local bar over the past 10 years there has been no change in the continuing overwhelming support for the retention of wigs by the bar. 

The most recent survey indicated over 80% of members favoured retaining wigs in criminal matters – consistent with similar surveys conducted in 2004 and 2008. 

There was also strong (though less overwhelming) support for the proposition that the wearing of robes should be restricted to barristers or those appearing in jury criminal trials.” 

It was so refreshing to see the judges of the Supreme Court of the UK hearing the parliamentary prorogation appeal stripped of their finery. Same for the barristers. 

The latest critique of Salvatore, the infamous Circus Court judge, comes from Justice Richard White in the Federal Court – an appeal in DAS18 v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs. 

This bit dealing with Sal’s trademark interventions will suffice: 

The materiality of the judge’s intervention is evident in part by the shortness of the hearing. The transcript shows that it commenced at 2.26 pm and concluded at 3.07 pm. That is, the whole hearing occupied 41 minutes. That included the time for the delivery of the ex tempore judgment by the Judge which, now transcribed, comprises 52 paragraphs and some eight pages. 

The appellant’s recorded submissions (which were mostly mono‑syllabic) comprised only 11 of the 94 lines of transcript and suggest that the judge’s statements had a material effect on the appellant.” 

How lovely to see Bookshelves Brandis back on home soil. 

Here he is at Gov House in Brisbane with his old pal Daphnis de Jersey. Once again he must surely be thanking Daphnis CJ (as he then was) for writing him in on the 2006 Banana Benders silks list. 

 

 

There is one more – this one sees Bookshelves about to embark on an inspection of the outback – a peek at what life is like away from The Strand.