Law Society Litigation Dinner 2013

Speech at the Law Society Litigation Convention Dinner in Launceston on 16 November 2013

Reply on behalf of Her Majesty’s Judges

On behalf of Justice Pearce and Her Majesty’s “other” judges of the Supreme Court of Tasmania, may I thank you Mr Junior for your courageous toast.

Irreverence has always been well tolerated at these alcohol assisted Convention dinners. However, while, as the advertisements say, “it won’t happen overnight”, it will happen. Justice has always been exacted upon the toast makers in the fullness of time.

I think I attended almost every Convention dinner from about 1974 until my appointment as a magistrate in 1990, and a few thereafter. The last may have been at Bridport in 2002.

Among those who rarely missed attending the boozy conventions of my time were former Magistrate Dixon and former Chief Justice Cox, who for many years dragged along their children Patrick and Madeleine, who later attended in their own right as lawyers and who each in turn proposed this toast to the judges.

I well remember Chief Justice Cox, in the days before sexually transmitted diseases, drinking beer from the old Bar Association’s glass boot and saying, “it seems like only yesterday that Patrick and Madeleine were mewling and puking at Bar Conventions. Come to think of it, it was yesterday! I hope they feel better today.”

My first encounter with Mr Cangelosi was not at a dinner but in my, now happily past, role as Editor of the Tasmanian Reports. Fabiano, through some strange quirk of personality took to the job of law reporter like a bureaucrat to red tape. So much so that he earned the praise of the law reporting monitor on the Court, Justice Porter.

Law reporting can be dangerously over exciting. And reading the reports can be extremely hazardous. As Editor I seriously considered adopting some carefully worded disclaimers from among a number suggested by Chief Justice Cox at the Bridport dinner in 2002.

They include suggested warnings something along these lines:

  • The Tasmanian Reports may cause paper cuts. Readers are advised to take care when turning each page.
  • If reading the Tasmanian Reports at the beach, avoid consuming excessive amounts of alcohol and swimming, whether between the flags or otherwise.
  • Do not read the Tasmanian Reports while driving. If leaving an infant unattended in a locked car, do not leave the Tasmanian Reports anywhere near the child.
  • In the unlikely event that you are caused to laugh while reading the Tasmanian Reports, laugh in moderation. Do not read the Tasmanian Reports if a relative has previously died from laughing.

On a less serious note, the reply to Mr Junior’s toast has often been used as a sort of State of the Judicature address, so I would be failing in my duty to bore you if I did not mention at least two things of moment in the legal calendar in the past year.

As a tribute to the late Michael Hodgman QC MP, whose death this year saddened all of us privileged to have known him and worked with him, I can but read a couple of verses from the poem written by his great friend and colleague, the very funny Peter Lyons, entitled so aptly, “Over the Top”


When he lost the last election, it gave time for some reflection

And he said to one and all, “I’m like McArthur, I’ll return”

And the journalistic feedback was that Mike would get his seat back

But his critics and supporters had an awful lot to learn.

With the evidence completed and the prosecution seated

Learned Counsel wondered briefly if he’d ever left the House.

He cajoled them. He was charming, but his anger was alarming

As he screamed “Though once a roaring lion, the Crown is now a mouse”

And he boomed with eyes of fire, “She’s no murderer or liar!”

“For she galloped to the witness box – each one of you saw that”

“She’s a sweetie. She is honest, and with Christmas soon upon us”

“On the Crown’s pathetic story you’d be loath to hang a cat”

When he finished his oration he collapsed with tired elation

Of his summing up, he thought, the judge was scrupulously fair.

After two hours were permitted, the majority acquitted.

When the foreman said “Not Guilty”, Mr Hodgman punched the air.

When the tumult had subsided: “I am thirsty”, he confided…

And so it was with Michael Hodgman QC MP – an old courtroom brawler in the style of Sir Edward Marshall Hall KC and a man who loved his Cascade Blue. He was the last of his kind, and is sorely missed.

To conclude I would like to report on a subject dear to my heart – written submissions.

On my welcome to the bench in April I noted that, particularly on the civil side, we are now very firmly in the age of written advocacy and that the challenge for counsel is to present their written submissions to the Court in a way that involves the minimum Court time in oral advocacy – heresy several years ago, but fact of life now.

I said that presenting written submissions orally in a way that involves the minimum Court time will keep the cost of access to justice to the lowest possible level, and that is something about which every person in this room is concerned.

And I noted that the corresponding challenge for me as a judge would be to use counsel’s written submissions in an efficient and practical way, so as to avoid overwritten judgments and to be able to provide decisions in the minimum possible time.

Well, whether the handful of judgments I have produced to date are overwritten is for others to judge, (but preferably not tonight), but I am delighted to say that in my observation, counsel, by and large, are producing splendid written submissions and are presenting their oral argument discretely in a way that allows for meaningful Socratic dialogue between counsel and the bench.

All of that allows, now in a much greater range of matters, for judges to go on to the bench with a fairly complete understanding of all of the issues and with tentative views about the merits of the case, which can be tested in exchanges with counsel.

That in turn permits shorter turnaround times in the writing and delivery of judgments.

In my own view the time limits in the Practice Directions for the filing of written submissions and written outlines of facts and contentions should be extended outwards so as to give judges more time to read and consider them prior to the hearing. Certainly I see considerable advantages for the parties if counsel take it upon themselves to file their submissions early, whatever the Practice Directions may require.

Mr Junior posed the question of whether the catering practice of the “alternate drop” infringes rules of procedural fairness. In my view it does not. It does however offend the equal and inalienable rights of all people, as set out in the Universal Declaration of Human Rights. Freedom from strawberry cheesecake should be protected under the Constitution in my view and no one should be compelled to eat sticky date pudding without adequate compensation.

On that note, may I once again thank you Mr Cangelosi for your toast and may I thank all of you present for the way you have honoured it.

Justice Stephen Estcourt
Supreme Court of Tasmania