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5 June, 2010  
Science immune to culture wars

Theodora’s Goings On … French CJ on the science and politics of global warming (a.k.a. climate change) ... Effusion in the environmental jurisdiction … Coward’s Castle meets Grizzly Bear on the streets of Hobart

imageHe started gently, and then slipped in a zinger about climate change and the desperate politics that infects Australia:

“It is sometimes possible in moments of extravagant dreaming to think of the law as a lush jungle ecology…

A relatively new species is the environmental lawyer.

There is a taxonomic debate about whether such persons are entirely pestiferous, unattractively beneficial like the dung beetle, or a truly wonderful new example of God’s ongoing creative handiwork.

One thing is clear. The species is ineradicable.”

Everyone was having a serene time at the 25th anniversary dinner of the NSW Environmental Defenders Office on Friday night at the glamour-puss Doltone House.

Chief Justice French was at the podium telling war stories about his time as a young lawyer in Perth keeping the rotten bauxite miners at bay, or not.

Then he slipped in these five paragraphs. A chief justice expressing a view on a hot political topic and the quality of political discourse. Shock, mingled with delight, filled the damp air:

“The national and worldwide networking of environmental defenders and like organisations reminds us that the environment is a global concern.

That concern has never been more acute than today particularly in relation to climate change.

Detailed prognoses of climate change are beset by the inherent complexity of our climatic system, which makes modelling and precise prediction difficult.

However, the science, despite its difficulties, appears to have established the reality of a global warming trend.

That reality will not be displaced or secured by the discourse of culture wars which informs some of the climate change debate.”

* * *

Maybe David Wynn Miller is among a new species of environmental advocates that the CJ has in mind.

imageHe is an “agent” who appeared in the NSW Land & Environment Court on behalf of Dr Masood Falamaki, who was having a dispute with Wollongong City Council over conditions attached to a building approval.

Miller (pic) describes himself as “plenipotentiary judge David-Wynn: Miller” from Milwaukee, Wisconsin. (Note the intricate application of hyphen and colon to his name.)

Justice Malcolm Craig asked Miller to “focus the submissions” he was to make:

HH: Can I respectfully remind you that your focus would and should be upon the particular rule that authorises or rather provides to me a discretion to set aside perfected orders…

Miller: Conclusionary law not based on now time jurisdiction under rules of evidence are void for one thing. Two, I’ll give you a little secret. Every word that starts in the English language with a vowel, a, e, i, o and u and followed by two consonants is a word that means no contract… Closure has to be on the table here for everything under maritime law of commerce because a piece of paper is a vessel in a sea of space and vessels must give closure for their movement between point A and point B and I’m a past master and as a plenipotentiary judge of 75,000 hours of training and 30 years I know how to dissect all this. There hasn’t been anything put in front of me in 30 years that I haven’t been able to dissect to its syntax…

HH: This case is not about sentence structure and syntax. It’s about orders which I’m sure Dr Falamaki can read and understand.

Miller: Actually, he doesn’t.

HH: I see.

Miller: Because when he looks up the definition of the words, he can’t find them. They don’t exist and there was no closure put on the documents for the modification of language and if you don’t show your closure, what the volition is of the content of the moving party under maritime law, that document is moot.

HH: Were not dealing with maritime law here.

Miller: That’s a maritime vessel. It’s got a stamp on it. It’s a vessel. All paper is a vessel in a sea of space and therefore it has to fly a vessel. It has to pay its postage to go between point A and point B… I don’t know what your position is or what the politics are going on behind the scenes here but I can pretty well put the pieces together, I’ve been around the court system for 30 years.”

HH’s response was understated:

“Regrettably, I did not find the submissions helpful in addressing Dr Falamaki’s claim.”

It’s all HERE

* * *

Let’s go to Van Diemen’s Land for a last word on land use and local councils.

Again we see Crawfo CJ having to apply some stringent discipline to the lower orders.

Recently I was obliged to mention the CJ’s towelling of Magistrate Reg Marron.

imageThis time is was the poor Slice (pic) who copped it, although his Hon is now safely off the manor and has been plying the judging trade in Samoa.

Crawford went to town in Clarence City Council v Howlin saying that Pierre Slicer down below got just about everything wrong.

It was a complicated dispute between neighbours over access to property and rights of way and whether one of the streets was a public highway.

The Slice found for the Howlins but didn’t order costs against the other neighbour.

Instead, the Howlins wanted costs against the local council, which was not a party to the dispute. The Slice was only too obliging and ordered Clarence City to cough-up.

He did this after he had complained during an earlier round that the council’s adoption of a “neutral” position in the neighbours’ dispute was “regrettable”, that it had had made an error with the title that gave rise to the dispute, and it should have fixed it.

Crawfo said:

“Those findings must be understood as having been made without any opportunity being given to the appellant to rebut them.”

The council said the Slice should have disqualified himself for apprehended bias.

The full court agreed. The Slice was apprehendedly biased, he should have disqualified himself and he should not have made the order for costs against the council.

Furthermore, he was in error to find that the street was a public highway and among a whole pile of other errors he managed to overlook what the Real Property Act said about unrecorded rights of way.

When it came to the application to disqualify himself, he misunderstood the authorities from on High.

“The learned judge would have had to admit to many errors … Much of the hearing that was facing the learned judge was in the nature of an appeal from himself.”

It was a trifecta. Slice’s judgment in the original dispute was wrong. His failure to disquality was wrong. And his decision on costs was wrong. Ouch.

Crawford CJ’s full flourish is HERE

You can visit the Slice’s reasons HERE

* * *

imageI cannot leave Taswegian affairs without mentioning the hugely distracting verbal biffo that has broken out between DPP Tim Ellis (here) and long-serving and long-winded Labor MP for Denison Duncan Kerr.

Kerr had complained in federal parliament about several unsuccessful high-profile Tasmanian prosecutions.

“In each instance, the DPP pursued prosecutions against high-profile office holders for crimes not involving any element of corruption, dishonesty or intrinsic criminality.”

The MP was supported by Liberal Senator (Uncle Otto) Abetz, who said he could see “see the appropriateness of Mr Kerr’s concerns”.

The following week Kerr claimed he was abused publicly by Ellis.

A report in The Tasmanian Times attributed to the DPP said:

“Encountering Kerr on the street I said, ‘I see you’re out of coward’s castle’.

He stopped briefly and when we were face-to-face I said: ‘You are a disgrace’.

He began to scuttle away at speed, no doubt planning what brave things he would say when once again in the bosom of parliamentary privilege.

I offered my observation again to the departing Man of the People, who was looking decidedly unhappy.

Miserable even.

A miserable Kerr.”

Tim Ellis also defended himself with a good spray in The Mercury:

“Duncan Kerr has chosen to misuse his last days of access to parliamentary privilege for an attack on me. Mr Kerr selected for his criticism five prosecutions out of approximately 5,500 for which I have been responsible over the past 10 and a half years.”

Politics could be at the heart of the attack on the DPP.

Ellis pointed out that one of the prosecutions was against ALP left colleague and friend of Kerr’s, John White. Others involved former deputy Labor premier Bryan Green, former chief copper Jack Johnston and independent MLC Ivan Dean.

Ellis also observed:

“I have no idea what ‘intrinsic criminality’ is.”

If the DPP has both Dunky and Otto lined-up against him, he must be doing something right.

Previous editions of Theodora

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Reader Comments

Posted by: Anonymous
Date: June 7, 2010, 1:42 am

Pierre Slicer's towelling up from beyond the judicial grave completes a quadrella unlikey to be rivalled in the common law world. He had already been overturned on appeal for failing to correctly direct a jury on the civil standard of proof, for failing to correctly direct a jury on the criminal standard of proof and for apprehended bias in a criminal case. Now apprehended bias in a civil case completes the set .
Posted by: Anonymous
Date: June 7, 2010, 9:36 pm

Loved the David Wynn story - his profile is an interesting read:- As to this account of his 9/11 theory:-