MR MYERS: That really has been what I have been putting to your Honour for the last hour, and I do not think that I can put the submissions any differently.

KIRBY J: Nor could you have put them better.

MR MYERS: Your Honour is flattering.

KIRBY J: That was not necessarily flattery.

MR SHAW: ... "come home" is from Justice Dixon in Carden's --

GUMMOW J: We are adrift in a world of metaphors in these cases. What does "come home" mean?

KIRBY J: What is wrong with that? It helps to explain things.

GUMMOW J: It does not help to explain things.

MR SHAW: Your Honour, we are in a world of metaphors, but not adrift.

GUMMOW J: I hope you are right.

KIRBY J: It is very kind and tender of the parties to try and protect us from irrelevant material but the model does seem to be relevant.

MR SHAW: Your Honour, the contents of the appeal book are affected by the parties' wishes but ultimately determined by the Registrar.

KIRBY J: Are you saying that our Registrar imperiously refused to allow the model to be received?

MR SHAW: I am saying, your Honour, that if there is any blame, it is to be shared.

KIRBY J: That is generous of you.

MR BARKER: Firstly, whether the appellant was wearing the boots at all on the day in question.

KIRBY J: But they were his size, were they not?

MR BARKER: They were of his size.

KIRBY J: And unusually large boots. They were size 12, I think.

MR BARKER: I do not know whether they were unusually large.

KIRBY J: Well, I have always been accused of having a large foot, so I am very sensitive on such matters.

KIRBY J: What is a wuss?

MR HANKS: I think in Victoria it is a wooz.

KIRBY J: What is it?

McHUGH J: It is you when you drink only one glass of beer.

KIRBY J: I would not fall out of the window.

---
CALLINAN J: This is real Clint Eastwood, John Wayne stuff.

MR RANA: I would like to start with the maxim, generalia specialibus non derogant, which means general things do not derogate from special things which was applied at the case of GPAO v Northern Territory. In that his Honour Justice Kirby was the only dissenter and I think he was right. Why I say that is that --

KIRBY J: That is a very good start to your submission.

CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR JACKSON: It would be a big night, Your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, Your Honour, young people sometimes...

KIRBY J: I just think "drunk" is a label and I am a little worried about -- it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.

MR JACKSON: Yes.

KIRBY J: "A drunk" has all sorts of baggage with it.

HAYNE J: Perhaps "hammered" is the more modern expression, Mr Jackson, or "well and truly hammered".

MR JACKSON: I am indebted to Your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word "hammered" before, never. Not before this very minute.

GLEESON CJ: Mr Walker and Mr Griffin, I hold some shares in Woolworths Limited, which I assume is the holding company of the respondent.

McHUGH J: And so do I.

HAYNE J: As do I.

KIRBY J: I do not, but I do go to shop at Woolworths from time to time, quite happily.

MR WALKER: As long as your Honour does not strike hard bargains.

MR HUGHES: It is perfectly plain what his Honour was getting at. The difficulties were created by the manifest incompetence of the lawyer [Mr Cantwell] appearing for the elderly defendant who could not give evidence because of illness. ...

GLEESON CJ: Mr Cantwell is a Victorian practitioner I see.

MR HUGHES: Yes, I was hesitant --

HAYNE J: You were forbearing from mentioning this fact I am sure, Mr Hughes.

MR HUGHES: On the basis, your Honour, that, as Sir Owen Dixon once said, advocacy is tact in action.

MR GAGELER: He then says:

That arrangement with Richard Thomson was verbal. No written agreement was entered into between Alphapharm and Richard Thomson.

GUMMOW J: "Oral", he means.

GLEESON CJ: "Verbal" might be appropriate.

MR GAGELER: I am sorry? I missed that.

GUMMOW J: He means "oral". Unless they are verballing one other, as the Chief Justice says.

MR GAGELER: Your Honour, I did not read the second paragraph --

GUMMOW J: I wonder who drafts these affidavits, really.

MR HUTLEY: In our respectful submission, your Honour, this is not an appropriate vehicle for special leave.

CALLINAN J: You know, I always think that is a very unattractive formula and not a very good submission. I remember unsuccessfully appearing here once and my client saying, with an expletive, "What have I got to do, drive a Cadillac into Court?" It never impresses me, if standing alone.

MR HUTLEY: It was not intended to stand alone your Honour --

MR HUTLEY: We say it is not an appropriate vehicle - if I can be allowed to repeat those words?

CALLINAN J: You can repeat it as much as you like. It is very unpersuasive.

MR BENNETT: We are also talking about a judge with an asset worth $3 million.

GAUDRON J: No, no, with a notional value - with a commuted value according to actuarial calculations of $3 million. Now, pension is not worth $3 million if the judge is ill, or the like, or a bachelor.

MR BENNETT: It might be worth more if the judge is particularly healthy and has a young wife and infant children. He is unlikely to have infant children, I suppose, but it is possible.

McHUGH J: Why?

MR BENNETT: I was talking about a judge retiring at 72 when I said that.

McHUGH J: Have you not heard of Viagra?

MR BENNETT: Yes. I will avoid getting into that one deeper...

MR CLOUD: I have two applications seeking special leave - - -

KIRBY J: You are asking us to have patience. I have infinite patience, but I have to hear you, so you will have to speak up.

HAYNE J: I think, to that end, if we muted the Brisbane end, it might help us.

KIRBY J: So long as Mr Keane can hear. Can you hear, Mr Keane, now? We cannot hear you, but as long as you can hear. If you cannot hear, please make vigorous waving sounds and noises...

KIRBY J: How big was the gun?

MR PEEK: We have it in Court and I was going to actually give a very brief demonstration of the cocking procedure later. Would it suffice if your Honour looked at it at that time rather than now?

KIRBY J: Is it a big gun or a pistol?

MR PEEK: It is a pistol, I am sorry, your Honour. It is a Luger pistol and not a particularly big pistol. It is an automatic pistol, or a semi-automatic to be quite precise, rather than a bulky revolving cylinder pistol.

GLEESON CJ: If you are going to point it at us would you mind pointing it in the direction of Justice Callinan?

MR PEEK: I see.

KIRBY J: I am glad I was excluded.

MR LOWE: In fact, your Honours, it may be a convenient point to hand up the decision of South Australia v The Commonwealth (1941) 65 CLR 373. I have a copy.

GUMMOW J: Is this The First Uniform Tax Case?

MR LOWE: Yes.

McHUGH J: It is not 1941 either, is it?

MR LOWE: It carries 1941.

McHUGH J: Is it?

MR LOWE: Yes, I hand up a copy - - -

KIRBY J: Justice McHugh's photographic memory has ill served him for the first time since I sat here.

McHUGH J: I doubt it.

GLEESON CJ: I think Justice McHugh is right: it was decided in 1942.

MR JACKSON: As she sat down she missed the seat completely ... she struck the coccyx on the metal support. There should have been a warning sign in the foyer saying words to the effect: "Take care. Seats retract automatically. Ensure your seat is down before you sit."

KIRBY J: Did it have to be in the foyer? Could it not have been on one of those tedious pre-film snaps that you get when you go into the cinema, telling you to buy all sorts of products ---

MR JACKSON: From the Canadian Film Corporation, normally.

KIRBY J: --- including, I think, cigarettes.

MR JACKSON: I would not be able to tell your Honour about that...

McHUGH J: Well, it may not be effective if you have it on the screen. There are plenty of people who do not get to the cinema until about 15 or 20 minutes after the advertised starting time, so they do not have to sit through trailers and advertisements.

KIRBY J: But then you might miss out on a seat.

MR WILSON: The judiciary should never be given, nor allowed to assume, total power whereby they can conceal their own incompetence, corruption and treachery. I have said that many times.

GUMMOW J: We cannot have total power, and I will not hear you use expressions like that.

MR WLLSON: It is plain English.

GUMMOW J: Talking generally about corruption.

MR WILSON: It is intended to get the message across that ---

GUMMOW J: The message is one of total constitutional incoherence at the moment I am afraid I have to tell you.

MR GAGELER: Your Honours will then see in the same statement of Mr Van Der Pluijm:

I relied upon the conversations set out with Mr Peter Rogers of Finemores when I appropriated the goods to Finemores' vehicles. If I had not been given those assurances by Finemores I would not have allowed Finemores to carry the goods.

The point is here he is asserting control, and similarly in paragraph 6 on the same page - - -

HAYNE J: What was this man's occupation?

MR GAGELER: Mr Van Der Pluijm?

HAYNE J: Yes. Queen's Counsel, perhaps?

MR GAGELER: He may have been assisted in the preparation of his evidence - - -

HAYNE J: Good heavens, was he, Mr Gageler?

MR GAGELER: He was not my witness. This is the evidence of the other parties, your Honour.

CALLINAN J: This is what you get with intensive case preparation and statements prepared in advance and evidence not given orally in the orthodox way.

MR GAGELER: Yes, to give him credit, at page 174, he had a bachelor's degree in information technology and a master's degree in business administration. He might have done a business law course at one stage. Your Honours will like this as well, page 190 at about line 25:

In respect of the two transportations the subject of this claim, I visited Finemores' premises where I labelled the product and then allocated it for transport by Finemores to the locations identified on the labels. At that point in time I regarded the goods as appropriated for Alphapharm's specific orders - - -

GLEESON CJ: All that is missing here is the evidence of an expert witness who says that, having psychoanalysed the deponents, he concludes that the plaintiff has the better case.

HAYNE J: Having measured the skid marks.