Where have case sobriquet gone?

 
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Once upon a time, important decisions of the High Court of Australia attracted a sobriquet. This is a name that allowed a short-hand reference to the case. Some were delightful, some merely descriptive. There were abbreviations, subject matter based names, cryptic and more. Some were, and some still are, emotive.

 

The Delightful

Among the delightfully sub-named is Cole v Whitfield [1], the major decision on constitutional interpretation, and particularly s92 of the Constitution. It was called the “Tasmanian Lobster case”. R v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation[2]  is the mysterious “Omega case”. Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd[3] is the “Star Picket Fence Post case”. O’Shaughnessy v Mirror Newspapers Ltd[4] is the “Othello case”, because, rather obviously I expect, it arose from an allegedly defamatory review of a performance of the play of that name. Federal Commissioner of Taxation v Gulland[5] is called the “Three Doctors case” because it involved the tax arrangements of three medical practitioners.

Fencott v Muller[6] is called the “O’Connors Winebar case”, a name which gives no clue to the issue in dispute, being the jurisdiction of the Federal Court. In deciding that issue the High Court had occasion to consider the so-called” Adamson’s Case”[7], a case about a footballer of that name. Anyway, O’Connors Winebar became the sobriquet because premises by that name were sold by agents who allegedly made misleading and deceptive, as well as negligent and false, statements. The dispute was brought in the Federal Court. Could that court determine all issues? Whilst calling it the “O’Connors Winebar case” doesn’t help explain the dispute before the court, it has more appeal than “the Federal Court jurisdiction case”.

The Lame

There are some very lame names which don’t hold the imagination for long. These are the ones that are roughly descriptive of the issue to be decided. Commonwealth v John Fairfax & Sons Ltd[8] is called the prosaic “Defence Papers case”. Telstra Corporation Ltd v Australasian Performing Right Association Ltd[9] is the “Music on hold case”. Northern Suburbs General Cemetery Reserve Trust v Commonwealth[10] has similarly received a descriptive name: the “Training Guarantee Levy case”. Also, New South Wales v Commonwealth[11] is the same: the “Hospital Benefits case”. Bank of NSW v Commonwealth[12] is the “Bank Nationalisation case”. Then there’s the “Second Uniform Tax case”[13], the “Superannuation case”[14] , the “State Banking case”[15].

Alister v R[16] was the “Hilton Bombing case”. Attorney-General (NSW) v Grant[17]  was the “Presbyterian Church case”, a case about the power of a church to merge with other churches. Attorney-General (Vic); Ex rel Dale v Commonwealth[18] is the “Pharmaceutical Benefits case” and Attorney-General (WA) v Australian National Airlines Commission[19] is the “Western Australia Airlines case”. Continuing the aviation theme, there’s also a “Third Runway case”[20]. Australian Tape Manufacturers Association Ltd v Commonwealth is the “Blank Tapes Levy case”[21]. The “Medical Records Access case” is Breen v Williams[22]. The “Migration Agents case” is really Cunliffe v Commonwealth[23].

I will readily admit my short-comings: I can’t get excited by these names. Official Receiver v Federal Commissioner of Taxation[24] is called “Fox’s case” because Fox was the name of the deceased debtor. At least this name adds a layer of intrigue (or am I reading too much into this?).

The historic

Some names remind us of important events in history. There’s the “Female Minimum Rates case”[25], the “Rhodesian Information Centre case”[26]  – which concerned the legality of action to disconnect telephone, mail and other services to the Rhodesia Information Centre during the Ian Smith regime in that country – the “Tasmanian Dam case”[27] and the “Voyager case”[28], which name reminds of that peace-time nautical disaster. Then there was the “Cigarette Advertising case”[29] – remember when the proposed ban was contested? We now take that for granted, so in some ways the case known by that name is an important historic relic.

The Abbreviations

Some sub-names are abbreviations of a party’s name: R v Kirby; Ex parte Boilermakers’ Society of Australia[30] is the “Boilermakers’ case”. Re Australian Education Union & Australian Nursing Federation; Ex Parte Victoria[31] is the “AEU case”. Federal Commissioner of Taxation v Totalisator Administration Board of Queensland[32] is called the “Queensland TAB case”. Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth[33] is the “Jehovah’s Witnesses case”.

Others

Some names are emotive: Australian Communist Party v Commonwealth (“Communist Party case”) [1951] HCA 5; (1951) 83 CLR 1 and State of New South Wales –v- Commonwealth of Australia (“WorkChoices case”) [2006] HCA 52 come to mind. They are emotive for probably opposite reasons: the “Communist Party case” because of the protection of people’s rights and the “WorkChoices case”  because of their (at least perceived) loss.

Some names are cryptic. For instance, Attorney-General (Vic); Ex Rel Black v Commonwealth[34] is called the “DOGS case”. This stands for defence of government schools. It has nothing to do with canines. Autodesk Inc v Dyason[35] is the “AutoCAD case”, this being the name of a copyright program. There are patently trade mark cases like the “Lego case”[36] and the “Rohoe case”[37]. And then there are names which disclose that they are patently patent cases like Dart Industries Inc v Decor Corporation Pty Ltd[38], the “Lettuce Crisper case”.

There’s the case that helped make our Prime Minister’s name, Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd[39] which is called the rather exciting “Spycatcher case”.

The Needy

Some cases should have sub-names but don’t. For instance, there’s three cases named Attorney-General (NSW) v Perpetual Trustee Co Ltd and, short of reading the decisions, they are only distinguishable by their case citations although the legal issues are far removed: [1940] HCA 12; (1940) 63 CLR 209 (concerned a charitable trust); [1952] HCA 2; (1952) 85 CLR 237 (a pleading point); [1966] HCA 33; (1966) 115 CLR 581 (construction of a will).

Then there’s cases by the name of Commissioner of Stamp Duties (NSW) v Perpetual Trustee Co Ltd appearing in the list of High Court cases on four different occasions within a span of 14 years: [1915] HCA 91; (1915) 21 CLR 69 (concerned duties on estates of deceased persons), [1926] HCA 14; (1926) 38 CLR 12 (assets of a deceased’s estate for duty purposes), [1926] HCA 26; (1926) 38 CLR 272 (ad valorem duty on a conveyance), and [1929] HCA 27; (1929) 43 CLR 247 (duty on a gift).

Another lot of same-named cases is Elder’s Trustee & Executor Co Ltd v Federal Commissioner of Taxation, where there are also four cases, this time within a decade: [1951] HCA 65; (1951) 96 CLR 563, [1953] HCA 42, (1953) 88 CLR 200 and [1966] HCA 73; (1966) 118 CLR 331 (all of which involved estate duty issues) and [1961] HCA 1; (1961) 104 CLR 12 (income tax).

The unofficial

Some cases don’t have “official” sobriquet, but seem to have unofficial ones. For instance, in Levy v Victoria[40] Brennan CJ refers to “the Free Speech cases” meaning Theophanous v Herald & Weekly Times Ltd[41] and Stephens v West Australian Newspapers Ltd[42]. As far as I can tell, those cases aren’t called that name except in the Chief Justice’s decision. The judge’s reference to them by the sobriquet he gave shows the benefit of important cases having sub-names (although reference to ‘free speech’ is clearly inaccurate in the Australian context).

The peak

The pinnacle of creative names is Levy v Victoria: the “Duck shooting case”. It is that case, with that delightful name, that gave me the reason to write this article. That’s because Levy v Victoria  was about a lot more than ducks and the hunting season. It’s about the Constitutionally implied freedom of communication on government and political matters, but don’t tell me that the “Duck shooting case” isn’t a better name than that!

Lost art?

Why aren’t there more case sobriquet? How is it that Attorney-General (Vic) v Commonwealth[43]  is the “Marriage Act case”, but The Commonwealth –v- Australian Capital Territory[44] is not the “Gay Marriage Act case”? This makes me ponder: have we lost the art and wit of case sobriquet?

Darryl Browne[45]

[1] [1988] HCA 18; (1988) 165 CLR 360; (1988) 78 ALR 42; (1988) 62 ALJR 303.

[2] [1981] HCA 33; (1981) 147 CLR 471.

[3] [1989] HCA 6; (1989) 167 CLR 177.

[4] [1970] HCA 52; (1970) 125 CLR 166.

[5] [1985] HCA 83; (1985) 160 CLR 55.

[6] [1983] HCA 12; (1983) 152 CLR 570.

[7] Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [1979] HCA 6; (1979) 143 CLR 190.

[8] [1980] HCA 44; (1980) 147 CLR 39.

[9] [1997] HCA 41; (1997) 191 CLR 140; (1997) 146 ALR 649; (1997) 71 ALJR 1312.

[10] [1993] HCA 12; (1993) 176 CLR 555.

[11] [1983] HCA 8; (1983) 151 CLR 302.

[12] [1948] HCA 7; (1948) 76 CLR 1.

[13] Victoria v Commonwealth [1957] HCA 54; (1957) 99 CLR 575.

[14] Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufacturers  [1986] HCA 23; (1986) 160 CLR 341 .

[15] Melbourne v Commonwealth [1947] HCA 26; (1947) 74 CLR 31.

[16] [1984] HCA 85; (1984) 154 CLR 404.

[17] [1976] HCA 38; (1976) 135 CLR 587.

[18] [1945] HCA 30; (1945) 71 CLR 237.

[19] [1976] HCA 66; (1976) 138 CLR 492.

[20] Botany Municipal Council v Federal Airports Corporation [1992] HCA 52; (1992) 175 CLR 453; (1992) 79 LGERA 241.

[21] [1993] HCA 10; (1993) 176 CLR 480.

[22][1996] HCA 57; (1996) 186 CLR 71.

[23]  [1994] HCA 44; (1994) 182 CLR 272; (1994) 124 ALR 120.

[24] [1956] HCA 63; (1956) 96 CLR 370.

[25] Australian Woollen Mills Ltd v Commonwealth [1944] HCA 37; (1944) 69 CLR 476.

[26] Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557

[27] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.

[28] Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39; (1990) 170 CLR 394.

[29] Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594.

[30] [1956] HCA 10; (1956) 94 CLR 254.

[31] [1995] HCA 71; (1995) 184 CLR 188; (1995) 128 ALR 610; (1995) 69 ALJR 451.

[32] [1990] HCA 48; (1990) 170 CLR 508; (1990) 96 ALR 321; (1990) 65 ALJR 17 .

[33] [1943] HCA 12; (1943) 67 CLR 116.

[34] [1981] HCA 2; (1981) 146 CLR 559.

[35] [1992] HCA 2; (1992) 173 CLR 330.

[36] Interlego AG v Toltoys Pty Ltd [1973] HCA 1; (1974) 130 CLR 461.

[37] Howard Auto-Cultivators Ltd v Webb Industries Pty Ltd [1946] HCA 15; (1946) 72 CLR 175.

[38] [1993] HCA 54; (1993) 179 CLR 101; (1993) 116 ALR 385; (1993) 67 ALJR 821; (1993) AIPC 91-028.

[39] [1988] HCA 25; (1988) 165 CLR 30; (1988) 78 ALR 449; (1988) 62 ALJR 344; (1988) 10 IPR 385.

[40] [1997] HCA 31; (1997) 189 CLR 579; (1997) 146 ALR 248; (1997) 71 ALJR 837.

[41] [1994] HCA 46; (1994) 182 CLR 104.

[42] [1994] HCA 45; (1994) 182 CLR 211.

[43] [1962] HCA 37; (1962) 107 CLR 529.

[44] [2013] HCA 55.

[45] Darryl Browne is the principal of BROWNE. Linkenbagh Legal Services. He is an Accredited Specialist in Wills and Estates. He is the Chair of the Law Society’s Ethics Committee. He is a Councillor of the Law Society, a member of the Specialist Accreditation Board and the Society’s Property Law Committee, Criminal Law Committee, Fidelity fund Management Committee, Disclosure Committee and the Future Committee, the Working Group on Future Prospects for Young Graduates and the Working Group on Elder Abuse. He is a member of the Law Council of Australia’s Elder Law and Succession Committee and its Working Group on Elder Abuse. He is a member of the Legal Aid Commission Board and the University of Sydney’s Law Extension Committee. He writes bi-monthly Case Notes on wills and estates for LSJ and occasional other articles for that and other journals. He facilitates the Law Society’s online Wills and Probate Procedures for Solicitors. He designed and presents the Masterclass on Powers of Attorney. He is a member of STEP and SMSF Association. The opinions expressed in this article are his own.

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