“QUOTEWORTHY” 1989

1. “For some reason the practice has grown up, for reasons of which I know nothing, and which I find difficult to comprehend, of allowing cross-examination of a roaming, investigative and inquisitive nature which has no necessary relation to any defence or to whether there is a prima facie case. The cross-examination quite often occurs because the defence are roaming through all fields in order to find whether there is some avenue that they might explore to raise a defence. That, as I understand it, has never been and ought not to be the function of a committal proceeding. Magistrates seem to be permitting that today, for reasons which are unknown to me. Until, of course, the matter is fairly and squarely taken up in this court, no final pronouncement can be made about it. However, that problem is quite clearly interwoven with the present problem. It may be open to some doubt whether the questioning by Mr Kent directly would lead to the disclosure of the identity of an informer, but the questions, in any event, ought not be allowed because they were quite irrelevant and obstructive of the process. Here the transcript reveals pages and pages of cross-examination which has got no relation whatever to the existence or otherwise of a prima facie case … I have made certain observations which are on the transcript, and they can be used in whatever manner you feel might properly be used. But I make it clear that they are not considered reasons for a judgment of this court; they are merely observations of a member of the court which have got no binding effect. I think until the question of the conduct of the administrative function of the Magistrate on committal proceedings is properly before this court, no authoritative guidance can unfortunately be given. But looking at the transcript of this case, it is a matter of some concern that the process which has traditionally been fairly economical as to time is now being used and allowed to be used in a way which is not conducive to the legal process or the administration of justice”.
per Marks J, in Potter v Nieves and Anor [1989] VicSC 9, Vic Sup Ct, 26 January 1989.

2. “It is possible to comprehend why an employer would want industrial peace. But it is not peace at any price, and it cannot be peace at the cost of discriminating against one of its employees upon the basis of private life. The scheme of the Equal Opportunity Act 1984 is manifest by its terms. It prohibits discrimination in the work place, whether by colleagues or an employer and at whatever stage in the industrial process. It would be ineffective if otherwise. It gives potency to the Covenant from which it draws breath.” per Nathan J, in Petroleum Refineries Aust v Marett [1989] VicRp 69; [1989] VR 789; [1988] EOC 92-237, Vic Sup Ct, 16 September 1988.

3. “The reason why the Act of Parliament provides a punishment for escaping is, as you all know, that if the courts do not punish escapes, everyone would have a shot at it and the system would break down. You men, with your records, ought to know the going rate for escapes – I think I am right – for escapes with no special circumstances, runs from about three and a half to six months. Bad ones, of course, go much higher, and the maximum penalty is five years. But round about six months is regarded as the going rate, so I do not think you can say that it is manifestly excessive”. per Fullagar J, in R v Dyer & Ors [1988] VicSC 603, Vic Sup Ct, (CCA), 16 November 1988.

4. “With the benefit of hindsight based on the verdict, it can be said that the plaintiff should have proceeded differently, that she should not have joined the second and third defendants, that she should have proceeded in the County Court, that she should have accepted the payment into court made on behalf of the first defendant, and that she should have been more ready to talk settlement at figures closer to those contemplated by the defendants. My role in the trial I found quite demanding, but I was pleased that the jury had to choose between the many options and make all the hard decisions.” per Teague J, in Balla v Moxon and Ors [1988] VicSC 309, Vic Sup Ct, 23 June 1988.

5. “I find it extremely difficult to understand how the bureaucratic authorities came to grant an early release to Carrodus in this case, when he had the record of which I have spoken and when there were available to them the reports of the medical and psychiatric people, of which the representative of the director has spoken today. He was released from a sentence which was still running and would have run until, I think, late in February, and within fifteen days of the release Carrodus was the initiator of this attack, which left a man’s face detached from his skull and leaving him probably blinded for life. He was released without supervision and, so far as appears, without counselling. I just want to add a personal comment. If the community should feel some outrage at this kind of decision on the part of the bureaucracy, I wish to assure the community that their sense of outrage is shared by me.” per Fullagar, J in R v Carrodus [1988] VicSC 602, Vic Sup Ct, (CCA), 16 November 1988.

6. “I would only add this: that the gravity of that offence, and the other offences charged in counts 3 and 4, ought not to be obscured by the fact that s16 of the Crimes Act now somewhat euphemistically refers to intentionally causing “serious injury” rather than it used to do in describing the offence as intentionally causing “grievous bodily harm”. The injuries which were inflicted upon the victim by the applicant on counts 2, 3 and 4, particularly count 2, were indeed grievous, and they were especially cruel.” per Tadgell J, in R v Fotinos [1988] VicSC 585, Vic Sup Ct, (CCA), 7 November 1988.

7. “I gained the impression at the trial that the applicant had then limited intellectual and other interests, drank too much alcohol too often, and had developed a defensive antagonism to other people. It has been said by his counsel here that he was and tends to be what is called ‘a loner’. To me that expression is something of a euphemism to describe a person who has insufficient feeling for fellow people and regards them as potentially hostile and not worthy of cultivation. Of course a person is entitled to do what he likes with his own life, but leading it in isolation tends to generate feelings of aggression and unrealistic appreciation of other people’s feelings. It is often associated with undue aggression, and non-rational suspicion of being disliked or unwanted. It can lead, as I think it did on this occasion, to excessive reaction to the verbal exchange which led to the shooting on 25 December 1979.” per Marks J, in R v Windsor [1988] VicSC 658, Vic Sup Ct, 9 December 1988.

8. “The plaintiff was participating in a warm-up lesson and was doing a split jump when as she said ‘I landed on my left foot the outer side of which fell into a groove between the timber floorboards and caused my left foot to jam. As my weight came onto my left leg I fell to my left …’ The chronology of steps taken in the action tells an extraordinary story of inordinate and inexcusable delay.” per Southwell J in Patterson v Pounder and Ors [1989] VicSC 238, Vic Sup Ct, 30 May 1989.

9. “Perhaps I may be pardoned for saying that when I read the evidence of the appellant it appears as a modern story which might well have merited inclusion in an updated version of the book of fairy stories by his namesake.” per Brindsen J in Grimm v Roy Galvin & Co Pty Ltd (1988) 6 ACLC 852; 13 ACLR 745 at 755.

10. “There is I think, room for confusion about the arguments of Counsel on this appeal and what was intended by them. At the time, I must confess that I was not clear what Mr Moshinsky sought to contend. Even if I am wrong in my understanding of his argument, I think it was open to him to contend the following, if indeed it was not in substance what he put.” per Marks J, in Norris v Sibberas [1990] VicRp 15; [1990] VR 161; [1989] ANZ Conv R 596; [1989] Aust Torts Reports 80-288; [1989] V Conv R 54-345, Vic Sup Ct (FC), 16 June 1989.

11. “Francesco Salvo and Salvatore Cotruzzola each have a farm of 30 odd acres at Beverford. They have got into litigation with the Shire of Swan Hill. There has been a ‘how-do-you-do’ over the advent in the Shire of the Big Bin system of household rubbish collection. We are all by now familiar with the Big Bin; made of black plastic, with its two wheels and hinged lid, it quite dwarfs ordinary dustbins and calls to mind the siege tower of ancient warfare as it trundles slowly forward. Mr Salvo and Mr Cotruzzola have very long drives. They do not want the Big Bin; they say their houses are too far from the road for the bin to make a weekly journey on its strong, but tiny, wheels, from house to highway and back again. Their Big Bins stand despondently in the long grass by their gates, unwanted and unused. They say the Shire’s garbage contractor must call at their door if the collection service is to be of any use to them. They point to a plebiscite, which they claim showed the General Will to be against the new system.” per Brooking J in The Shire of Swan Hill v Salvo and Cotruzzola, VSC, 21 October 1988, MC 8/1989.

12. “As has been observed in the psychiatric field, opinion-givers should remain on tap and not on top.” per Nathan J in O’Keefe v Tankard [1989] VicRp 34; [1989] VR 371; MC 14/1989, VSC, 5 September 1989.