#shitjudgessay

MS MORGAN: It might well be the case that in 1901 the fondling of a woman’s ankles might have been regarded as inherently sexual or indecent. It is very doubtful that a jury as representatives of the community in 2021 would have a similar view.

GAGELER J: I am not sure that it is possible to put that submission, frankly.

MR MERKEL: Sorry, your Honour, can your Honours hear me? I think we were cut off at the time your Honour Justice Gageler was mentioning what the Court was proposing to do.

GAGELER J: Yes. Mr Merkel, we can hear you, we cannot see you. We cannot see Mr Batt and we cannot see Mr O’Farrell. We can now see you, Mr Merkel, but not other counsel.

MR MERKEL: Thank you, your Honour.

MR BATT: Your Honours, it is Mr Batt speaking. I do apologise – we can hear and see you and we were taken out of the link at the point when your Honour had just commenced to pronounce the orders the Court was minded to make.

GAGELER J: Yes. I will pronounce the order again.

GLEESON J: At the outset, can I indicate that I cannot see Mr Gibson.

KIEFEL CJ: You are quite right, neither can we. We do not have a picture.

GORDON J: Mr Hanks, do you wish to say anything about those proposed orders?

MR HANKS: We support them, your Honour.

GORDON J: A big change of attitude.

MR HANKS: Change of instructions, your Honour. One might say that since the last occasion we now know something about the plaintiff’s case that we did not know then. We have seen submissions.

GORDON J: I have been naughty.

GORDON J: Can I raise a question about the grant here, and I use “grant” in a neutral way. The grants made under section 28 of the Alpine Resorts Act, it is a grant to your client of an interest in land to conduct a business undertaking, a business undertaking which includes according to the grant of the deed [...] to conduct businesses which include ski lifts, ski shops. Are not the reservations that you rely upon to take it outside of the exclusive possession rubric the very things you need to conduct your business?

MR BATT: No, your Honour. Can I take your Honour to the reservations themselves to answer that question with more specificity? [...] What one observes is that the grant is that of:

"free liberty and authority for all members of the public, including visitors and skiers to enter upon use and enjoy the demised land" - - -

GORDON J: The last time I looked, you needed the skiers and the public to use your ski lifts.

MR HUTLEY: The United Kingdom has held that the words “adduced in the proceedings” mean admitted in the proceedings. In that regard, one can see that that is the ordinary meaning - - -

*FIRE ALARM WARNING*

KIEFEL CJ: We will proceed until we are interrupted again.

MR HUTLEY: [...] We submit there were powerful reasons for the conclusion that the true construction was “admitted”. The driving consideration against it was the reference to “fresh” and we say that is an error.

*FIRE ALARM WARNING*

KIEFEL CJ: Yes, Mr Hutley.

MR HUTLEY: [...] It should not be construed to render admissible evidence that which was inadmissible.

*FIRE ALARM WARNING*

MR HUTLEY: [...] Even if it is tendered then one moves to the second question of construction, namely - - -

*FIRE ALARM WARNING*

MR HUTLEY: [...] What we submit is the construction of the two is – and I will assume now “tender” is the word rather than “admitted” – that the policy is that the defendant, respondent here, people in the respondent’s position, should not be - - -

*FIRE ALARM WARNING*

KIEFEL CJ: Mr Hutley, would you prefer to continue or stand down until the fire alarm is over? I know it is not interrupting your focus

MR HUTLEY: If your Honours are happy for me to continue, I will continue, rather than - - -

KIEFEL CJ: Yes, thank you.

MR HUTLEY: [...] The first question, your Honour, is whether “tender” is - - -

*FIRE ALARM WARNING*

MR HUTLEY: If “adduced in the proceeding” means admitted, then on any version the Court of Appeal erred, and one does not have to get to (b). The evidence simply was not admitted, nor could be admitted. The Court of Appeal erred. If it means tendered, the question then becomes could evidence be tendered in those proceedings with the exercise of reasonable diligence if it is clearly inadmissible. That, in other words is, if it is just a physical possibility to, as it were, hand it across the Bar table is the test - - -

*FIRE ALARM WARNING*

MR HUTLEY: What we are putting, Chief Justice, is if that is the meaning then there is nothing – this elaborate structure in (2) was utterly otiose.

KIEFEL CJ: Could I have time estimates please?

MR VANDONGEN: I would have thought one day, your Honours.

KIEFEL CJ: For all matters or just for your matter?

MR VANDONGEN: No, for all matters, your Honours.

KIEFEL CJ: Do you agree with that, Mr Walker?

MR WALKER: Yes, encouragement from the Bench is sufficiently administered by your Honours.

KIEFEL CJ: I am not putting any pressure on anyone. Is it a realistic estimate?

MR WALKER: Yes.

MR MOSES: I do not agree, your Honour. I think this would be a day plus because if our friends are going to have to invite you to go through the evidence, which you will have to go through, it may take a bit longer than that. So I would think just to be safe a day plus.

KIEFEL CJ: It might go over into a second day.

MR MOSES: I think so, your Honour, just to be safe.

KIEFEL CJ: But certainly we are not talking about anything more than a day and a half.

MR MOSES: No, your Honour. I would not try your Honour’s patience with that.

MR MERKEL: I am not sure how familiar your Honours are with the tweeting process, and I may be a little inaccurate - - -

KIEFEL CJ: I think some more than others is the answer to that.

MR MERKEL: I think I am at the bottom of the barrel, your Honour, but I have tried to understand it a little.

GAGELER J: The real problem, which is highlighted by Justice Meagher at the beginning of his judgment, is that, one, the facts may have come out differently for you, but given the way the facts have come out, you did not run a business opportunity case.

MR WALKER: Now, it is true that Justice Meagher perceives a problem that your Honour, with respect, has fairly captured. It is not true, however, in our respect, that it had the fatal effect that the majority thought. [...]

GAGELER J: So, in a sense, you are turning a weakness into a strength, you are saying.

MR WALKER: I am trying to, yes. That is what I am for, your Honour.

GAGELER J: You are saying the absence of one obvious limb of an argument makes focus on the other more intense.

MR WALKER: Without any facetiousness, of course I do have to. I do not seek to move one iota from the way the case was pleaded and run before, because it is not of matter of defending it, it is a fact. I do not have a vehicle, unless the way in which it was run as well as the facts that go to the substantive merit make it appropriate for this Court.

MR LENEHAN: Now, the question which your Honour, through the Registry, asked the parties is one that I am still, regrettably, unable to provide illumination on, that is when is this process likely to be completed.

GORDON J: When are you likely to get instructions about that matter?

MR LENEHAN: I can seek those instructions again.

GORDON J: I think you should.

MR LENEHAN: Yes.

GORDON J: In the circumstances. Do you understand?

MR LENEHAN: Yes, I do, your Honour, yes.

GORDON J: This matter has a long and sorry history. What is the position with the visa?

MR LENEHAN: Your Honour is aware that there was a decision of the AAT on 15 October 2018

GORDON J: That is why I am asking.

MR LENEHAN: [...] I am instructed that that is before the Minister in the sense that a preliminary brief has been sent for his attention and that took place on 4 January this year.

GORDON J: So educate the ill-informed - what does that mean in practical terms?

MR LENEHAN: That is a matter that I have been attempting to clarify this morning, your Honour.

GAGELER J: Mr O’Bryan, can I just take you up on this. I interpret it as a concession, that there is some conflict or tension between section 43 and section 85ZZH. For my own part, I cannot see it.

MR O’BRYAN: Yes. I now feel like I should withdraw this concession very rapidly.

MR WILLIAMS: I think it was Justice Gordon who said you perhaps will not often have a company acting as trustee of many trusts but we do in the commercial world. Many corporate superannuation trustees find themselves, for example, in exactly that situation. The largest professional trust companies find themselves in exactly that situation. Many of them are trustees of hundreds if not thousands of separate trusts. Perhaps Justice Gordon might be more attuned with some of the misconduct that has gone on in relation to those trusts than some others of us but - -

KIEFEL CJ: I do not think that comment is necessary.

MR WILLIAMS: I am sorry, your Honour, it was meant to be amusing and it was not and I apologise.

KIEFEL CJ: Perhaps out of place.

MR WILLIAMS: The right might be described as a tool, a rake with which leaves are gathered. The fact that the rake is an asset of the company and might be sold and give rise to a fund or proceeds, however you like to call it, that might be used to meet creditors, does not mean that the leaves are also capable of meeting that description. The leaves which are gathered by the use of the rake do not become the property of the company any more or separately from the rake. The proceeds of the rake are what you would get from selling the rake. That which is gathered in by the rake is not the same. So, while all of these analogies have the risk of being highly imperfect and I can already start to think of some of the problems with the one that I have just advanced, it is not ideal - - -

EDELMAN J: Not the least because the rake cannot have an interest in a leaf.

EDELMAN J: But really it may be that what Justice Beech-Jones and Justice Payne are saying is not actually that different, that it concerns the use of verbal expressions like “You might think”, which can sometimes be used in a typical fashion to say “You might think X or you might think Y”, just raising different possibilities. But in this context, it has almost a sort of a game of – “House of Cards”-type flavour that “You might think this, but it is just not for me to comment”.

MS ABRAHAM: In my submission, yes. In this instance, what his Honour has done, albeit obviously one could infer an opinion, is, in fact, leaving it to the jury ultimately. Yes, I understand I might – you might say that – I cannot remember how the phrase - - -

BELL J: You cannot possibly say.