The Federation Press

Old Law, New Law

A Second Australian Legal Miscellany


Old Law, New Law follows the author’s Lawyers Then and Now in offering a miscellany of genuine legal stories drawn from Australian legal history as well as its modern law. If there is any change of focus, this work looks at the people of the law through the prism of established or changing legal doctrines and processes.

The chapter headings will show that quirky humanity intrudes into the most doctrinaire of fields (such as statutory interpretation and tort law) and that law intrudes into every facet of human life (including food, drink and sex). As in the former work, there is much comparing of attitudes past and present, while observing the underlying constancy of human values and biases within every corner of the law.

Readers will discover:

  • the constitutional distinction between financial and moral bankruptcy
  • the New South Wales judge who responded to a submission on behalf of the Queensland Commissioner for Railways by stating “You don’t think we are going to let you banana-benders get away with that, do you?”
  • Chief Justices who entered dodgy marriages, committed contempts of court or were described as “sexy” by litigants they encountered
  • judges who upheld appeals from their own judgments
  • strange aspects of matrimonial law and lore, including “wife sales” and forced outcomes of the biblical “one flesh” concept
  • some (rare) sightings of appellate judges abusing each other
  • several instances of cannibalism and the law.

Table of Contents


Part 1: Men and Women

1. Women (and Men) in the Law
Legal disabilities of women and the struggle to overcome them “One flesh” in marriage Women and juries Valuing a woman’s marriage prospects

2. Matters Matrimonial
Getting married Getting out of marriage legally: void and voidable marriages “Getting out” by other means such as wife sale and bigamy Dissolution of marriage

3. A Little Chapter about Sex
Changing attitudes since the 1960s Lovers who fall out The language of sex Sexy Chief Justices

Part 2: Essentials of Life

4. Food and Drink
Rich pickings for lawyers Cannibalism Slip and fall Intoxicating drink Food lines

5. Death and Taxes
Death Will disputes Family provision claims Taxes

Part 3: Law’s Ways and Means

6. Statutes and Their Makers
Supremacy of Parliament Parliamentarians Construing statutes Difficult provisions Judicial anger about statutes

7. Trials and Tribulations
Lengthy hearings Clock-watchers Circuits Turning up (or failing to) Robes

8. Cut, Thrust and Contempt
Cut and thrust Judicial insults “Courageous” barristers A smattering of contempts

9. Appeal Courts
Multiple functions Colonial Governors’ Courts of Appeal Appealing from Caesar to Caesar Reasons in an appellate court

10. How Judges Write and Reason
Long, short, quick and slow Opening remarks Inadequacy of reasons Brutality, passion and hyperbole

11. Getting Technical
Finer points of law Drawing lines and dodging logic Maxims and latinisms Legal fictions

Part 4: Guarding Patches

12. Hierarchies and Precedents
Duty to follow precedent Tension between the tiers Riverine, nautical and botanical metaphors Absence of precedent

13. The Rule of Law: Courts and the Executive
The rule of law The Rum Rebellion The Victorian government defies its Supreme Court in 1865 Sir Henry Parkes defies the Supreme Court of New South Wales in 1888 Governments pushing judges to the limit The Tait saga Threats to the rule of law from others, notably judges

Part 5: Public and Private Wrongs

14. Exclusionary Conduct: Colourful Aspects of Constitutional Law
Attempts to exclude interstate trade, commerce and intercourse Attempts to exclude non-European immigration Attempts to exclude Egon Kisch, Communists and other European “undesirables” Attempts to exclude interstate lawyers and litigants Attempts to exclude refugees and boat people

15. Torts: Injuries to Body or Reputation
Negligence claims Defamation

Table of Cases
Table of Names
General Index

Of interest...