Questions and Answers

The following questions were submitted to the Website Editor by users of this website.
the Website Editor's answers are also set out.
 

Question 1
finding out if a case is reported
Question 2
superceded versions of legislation
Question 3
the expression "barrister-at-law"
Question 4
use of the symbols / /
Question 5
direct access briefs
Question 6
media neutral citations
Question 7
the doctrine res ipsa loquitur

Question 8
the date of Easter

Question 9
 admission of lawyers with criminal records

Question 10
use of the title "Doctor" by lawyers

Question 11
 the use of "the cane" in schools

Question 12
lawfulness of "linking" to other websites

Question 1.

Do any of your research links provide a site which lets you know if a case is now reported e.g. if I look up Naomi Marble I locate the original unreported judgment but I don't know if has been subsequently reported. I can fiddle around and continue to search and it may come up in later judgments as a reported case but that is not a 100% certain way of knowing whether it has been reported.  Is there a faster way of checking it out?

No.

AustLII, for example, sometimes lists the reported citation, but there seems to be no consistency to this.

However, with the courts moving to media neutral citation, this should become less of a problem.

Question 2.

Do any of your research links provide a site which gives the history of an Act in its various forms e.g. the Qld Law Society Act (particularly s. 48 - the requirement for written client agreements) which seems to have had various names and versions over the past century?  The endnotes are not sufficient.

Again, no.

Some sites - like the Queensland Office of Parliamentary Counsel - offer superceded versions of legislation. But, for obvious reasons (i.e., cost), nobody has bothered to electronically format and upload legislation in a form which pre-dates their websites..

Question 3.

What is the origin of the at-Law component of Barrister-at-Law.  I have been told it is an anachronism which is no longer used.  However where did it come from? Were there originally e.g. barristers-at science, barristers-at-medicine, etc.?

It may be an anachronism, but it is definitely still in use. Many barristers have it on their letter-heads, business cards, etc. There used to be a similar expression, attorney-at-law, which (quaintly) is still used in America, but which I have never seen used in Australia - or in England, except for historical references. And, as you probably know, the Barristers' Admission Rules and Barristers' Board still use the expression "student-at-law".

The "-at-law" was not to distinguish legal barristers from other kinds of barristers - there never were any other kinds of barristers. It is simply that the original and formal title was "barrister-at-law", and that the word "barrister" is an abbreviation - in the same way that the original and formal title, "one of Her [or His] Majesty's counsel learned in the law" is abbreviated to "Queen's [or King's] Counsel".

Other professional and occupational designations have been abbreviated over time - examples which come to mind are "valet" for "valet de chambre", and "maid" for "maid-servant".

It appears that the title, "barrister-at-law", originally derived from the fact that, upon admission to the Bar, a person ascended from the status of "student-at-law" (or "apprentice-at-law") to "barrister-at-law". I guess that, in the case of students and apprentices, the "-at-law" was needed to distinguish them from students and apprentices in other professions and trades. But the word "barrister", deriving from bar, was never applied to any other profession or trade.

Question 4.

I would like to know where the copyright symbol gets its legal status/recognition.  It seems to be an internationally known symbol but I can't find it in the Copyright Act and am not sure where else to look.  I have trawled through some web sites but can find no mention of the symbol. I suppose the same goes for the trademark symbol .

First, as regards copyright. Under the Universal Copyright Convention of 6 February 1952, Article III clause 1 provided:

    Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright.

I understand that, at the time, US law contained - or was amended to include - a provision in accordance with this requirement. A copy of the 1952 convention is available here.

The 1952 Convention was superceded by the Berne Convention, which did not include the requirement to use the copyright symbol. The text of the (current version) of the Berne Convention is available here.

I understand that US law was then amended, in line with the Berne Convention, to remove the requirement to use the copyright symbol.

Nonetheless, the view is still taken - I think correctly - that there is some benefit, at least under US law, in continuing to use the copyright symbol. As one writer puts it:

    It is still a very good idea to include a copyright notice on your web site and every other publication of items over which you claim copyright protection. It is very difficult for a party that infringes on your copyright to claim a defense based upon innocent infringement if your work contains a copyright notice prominently displayed. Additionally, if you fail to include a copyright notice, it is more difficult to prove that an infringement is willful. Proving that an infringement is willful has a significant impact on the damages you might receive for a proved infringement. Under the copyright laws, once you prove infringement, and assuming you have filed a timely copyright registration, you can elect to receive statutory damages. This means that instead of going through having to prove how you are actually damaged by the infringement (and sometimes it is difficult to prove that you were actually damaged), you can elect to take statutory damages of up to $25,000.00. The level of damages increases to $100,000.00 if you prove that the infringement was willful. It is generally much easier to prove that the infringement was willful if your work displays a prominent copyright notice.

The situation in relation to trade marks is a little different. In some countries - notably the US and Canada - the use of the symbol is required to designate a registered trade mark, as distinct from the symbol to designate a trade mark which is unregistered, but in respect of which common law rights are asserted.

As I understand the situation under Australian law, the use of these symbols is not required. However, it is an offence to falsely represent that a trade mark is registered if it is not: Trade Marks Act, sec.151. The words of sec. 151 are wide enough to include use of the symbol : it expressly prohibits the use of any other word or any symbol referring (either expressly or by implication) to registration.

IP Australia offers this advice on its website:

    Use of letters and

    Q. Who can use the ?

    You may use the (Registered symbol) next to your trade mark once your trade mark is registered. If your trade mark is registered overseas but not in Australia, you can also use the symbol, but you need to show the country of registration close to it. Anyone can use the symbol as this does not indicate that the trade mark is registered.

    Q. Is it an offence to use the , if your trade mark is not registered? What can I do if someone is using it and they do not have a trade mark registration?

    Yes, it is an offence - see section 151 of the Trade Marks Act 1995. The Trade Marks Office, however, does not police or investigate such matters.

    If you have real concerns about someone using the , you might consider contacting the Australian Federal Police, as it is a criminal offence, to ask them to investigate the matter. However, the AFP may not have the capacity to follow up the matter and would need to assess it in the context of their other priorities at the time.

    Q. Is there a penalty if the letters are used?

    No, however there is a penalty if is used on an unregistered trade mark. If is used on a trade mark which is registered overseas but not in Australia, the country of registration must be shown in close proximity to the .

Question 5.

Do SCs or QCs deal directly with non-lawyers? For example, if someone represented themselves at trial and succeeded, if the other party was to appeal, could that person then approach a barrister to manage the appeal?

Some years ago, the Bar Association in Queensland (and similar bodies in other States) changed the rule which previously required barristers to accept instructions only from solicitors. Queensland barristers are now permitted to accept what we call "direct access briefs" - that is, briefs directly from the lay client. But whilst Queensland barristers are permitted to accept direct access briefs, they are not obliged to do so.

Different barristers have different views about direct access briefs. Some barristers never accept direct access briefs. Some barristers will accept direct access briefs only from another professional person who is representing a client: for example, from an accountant representing a client in a tax matter, or from an architect or town planner representing a client in a town planning case. Some barristers will only accept direct access briefs is special situations, such as simple criminal matters. And, of course, there are some barristers who will take any work that they are offered, including direct access briefs.

You specifically ask about QCs and SCs - I cannot speak for all Queen's and Senior Counsel, but I know that most (if not all) are reluctant to accept direct access briefs.

Let me tell you why there is this reluctance to accept direct access briefs. Frankly, they are a lot of trouble for the barrister who accepts them. Barristers don't have the facilities to attend to such functions as the filing and service of court documents, interviewing and taking statements from witnesses, serving subpoenas, and so forth. Sometimes, when a barrister accepts a direct access brief, the lay client is able to attend to all of these things competently and efficiently; but 9 times out of 10, it is a disaster. Having a solicitor involved makes sure that the machinery of litigation runs smoothly.

At the same time, the client also benefits from the involvement of a solicitor. For one thing, a solicitor usually has staff - filing clerks, articled clerks, messengers, and so forth - who can do the running around involved in preparing a case much more cheaply than a barrister could do it. More importantly, though, a solicitor can ensure that you have the right barrister for your case at the right price.

Think about a situation where you have a very serious ailment. You go to your GP, and he or she recommends a specialist. You can count on your GP to recommend someone who is appropriate for the job. Your GP won't send you to a brain surgeon for a heart complaint, or to a plastic surgeon to have your gall-stones removed.

The bar comprises a very wide variety of individuals, having different areas of expertise, and different levels of skill and experience. There are, for example, barristers who specialize in personal injuries cases, or criminal cases, or family court cases. If you pick a name out of the phone book, you may find you have the world's best criminal lawyer, but that doesn't help if you are fighting a family court battle.

And it isn't just a matter of specialization. Depending on levels of experience, skill and expertise, barristers can cost anything from a few hundred dollars a day, to several thousand dollars a day. Obviously, if you have a supreme court case involving $10 million, that would probably justify a higher level of experience, skill and expertise that a magistrates court case involving $1,000.

So, you may be able to find a barrister - perhaps even a QC or an SC - who is prepared to accept a direct access brief. But I would warn you to be careful. You may well find that you don't have the best person for the job. In fact, you may even want to ask yourself: If this barrister is any good, why is he/she accepting direct access briefs ? Is it because he/she isn't sufficiently respected by solicitors to get work in the usual way ? And if, by good luck, you get a barrister who is appropriate for the case, you will need to ensure that you aren't paying either too much or too little - too much is an obvious problem, but too little again might make you wonder whether you have a barrister who is sufficiently experienced.

Question 6.

Could you please tell me what a media neutral citation is, and where are they being used?

Very simply, a media neutral citation is a form of case citation which is not specific to a particular series of reports, or other medium.

Take the case of Crimmins v. Stevedoring Industry Finance Committee. The traditional mode of citation would be, (1999) 200 C.L.R. 1. This is media-specific, because this citation only works if you are using the Commonwealth Law Reports. If you cite the case as [1999] HCA 59, the citation is the same in the CLRs, ALRs, ALJRs, or on the Internet, so it is media neutral.

As I understand the situation:

  • Media neutral citations are now used in all High Court, Federal Court and Family Court judgments, and those courts require the use of media neutral citations where available;
     
  • Some State courts are offering media neutral citations, but there is not yet any requirement to use them;
     
  • Obviously, the obligation to use a media neutral citations only applies where they are available - for cases before about 1997, there are no media neutral citations.

Question 7.

Why is the doctrine res ipsa loquitur applied only in civil cases?

The expression res ipsa loquitur is generally applied only in civil cases, because it is specifically relevant to issues of negligence. If, say, a wall collapses and injures a passer-by, it may be difficult to prove the exact cause of the collapse - whether, for example, the wall was defectively designed, or defectively constructed, or inadequately maintained, or weakened by misuse, or whatever - yet a civil court can conclude, on the balance of probabilities, that walls don't ordinarily collapse unless there has been some negligence.

However, whilst the expression is generally only used in civil cases, the same process of reasoning sometimes operates in criminal cases, when a jury is asked to draw conclusions from the established facts. In criminal cases, this is often called "inferential reasoning", but it is (in substance) the same thing. In Plomp v. The Queen, for example, there was no body, yet Plomp was convicted of murder. The process of reasoning was, in essence, res ipsa loquitur - people don't ordinarily disappear without a trace, unless they have been killed.

I guess the reasons why the expression res ipsa loquitur is not used in criminal cases are partly historical and partly conceptual. Historically, use of the expression res ipsa loquitur developed in tort cases - specifically, what are now called negligence cases - and it is rare for the expression to be used in other branches of the law. Even in non-tortious civil cases - like actions for breach of contract or equity suits - the expression is seldom used.

But I think that there is also a conceptual reason. In effect, the doctrine res ipsa loquitur reverses the onus of proof: when an event has occurred of a kind which does not ordinarily occur without negligence, it is up to the defendant to show that the cause was something other than negligence. Except as provided by statute, the law does not allow any reversal of the onus of proof in criminal cases. So where a jury is considering whether a criminal offence was committed - even a criminal offence which involves an element of negligence, such as manslaughter - the onus always rests on the prosecution. The prosecution may discharge that onus by adducing evidence of facts from which an inference of negligence can be drawn; but, conceptually, that is somewhat different from reversing the onus of proof and requiring the defendant to establish that there was no negligence.

This also underscores the fact that civil cases are concerned with probabilities: applying the doctrine res ipsa loquitur, a civil court may safely conclude that, on the balance of probabilities, negligence was causative of loss; but in a criminal case, the standard of proof is beyond reasonable doubt, so the prosecution must adduce evidence from which the jury can be satisfied, beyond reasonable doubt, that the only inference which can be drawn from the evidence is that the accused person is guilty.

Question 8.

I am looking for some rational approach to knowing when Easter occurred in past years. Do you know the logic behind the "movable feast". I seem to recall it being based on the phases of the moon.

It is a bit complex, actually - going back to the fact that the Last Supper occurred during the Jewish celebration of Passover, and the Passover was fixed by the phases of the Moon.

The technical definition of the date of Easter was adopted at the Council of Nicaea in 325, namely that Easter Sunday is the first Sunday after the first Full Moon on or after the Vernal (Spring) Equinox in the Northern Hemishere. But just to complicate things, the Council of Nicea also decided that the Equinox always falls on 21st March (though this is not, in fact, always the case), and that the full moon always occurs 13 days after the new moon (which, again, is not in fact always the case).

There are some rather complex formulae for the calculation of the date of Easter, which you can see at: http://www.friesian.com/easter.htm

A different algorythm is provided at http://aa.usno.navy.mil/faq/docs/easter.html

However, if (like me) you are a mathematical moron, the simle solution is a site which does all the work for you - just enter any year, between 326 AD and 4099 AD, and it will give you the date for Easter Sunday in that year: http://users.chariot.net.au/~gmarts/eastcalc.htm

Question 9.

I would like to know if a convicted person in Queensland can, say 10 years after the conviction, undertake a law degree and be admitted to the profession?

There is no restriction on undertaking a law degree - but a criminal conviction may be a ground for refusing admission.

Relevant factors include:
the nature and seriousness of the offence (especially whether it involved dishonesty);
the length of time since the offence occurred; and
evidence that the person has fully reformed.

To give an example: a person convicted of a minor drug offernce 10 years ago, and who can prove that he or she no longer uses drugs, would probably be admitted; a person convicted of a fraud offence 3 years ago would have almost no chance. But there are no "hand and fast" rules - it is a matter for the Court's discretion, based on the individual circumstances of each case.

Question 10.

We are having a little wager in chambers as to whether a barrister or solicitor who possesses, for instance, a Ph.D. or medical qualification (but not an LL.D.) may use the title "Dr" when announcing their appearance in court, or on their professional letterhead. We would be grateful if you were able to shed any light on the debate.

I cannot give you an authoritative answer, but I was told by a very senior Judge, now retired, that:

(1) Traditionally, the only people who are entitled to be called "Doctor" in court are people who hold the degree of Doctor of Civil Laws (D.C.L.);

(2) However, it is acceptable for a person who holds a Ph.D., LL.D. or other doctorate in law to describe himself/herself as "Doctor" - examples included Mr Justice McPherson (when he was at the Bar), Dr Kevin Ryan QC and Dr H.V. Evatt QC, each of whom held a Ph.D. or LL.D. in law;

(3) It is improper to use the title "doctor" in court if you hold a non-legal doctorate, or if you are a medical doctor or dentist.

Question 11.

I am in a debating team with my school, and I was wondering if the cane is allowed to be used in the public and private schools of the world, Australia or simply W.A? The debating team is competing next week and the topic is, 'Should the Cane be Brought Back.' This is the reason for my curiosity.

The answer to your question is probably a lot more complicated that you imagined. But this is the simplest explanation I can give.

In most (probably all) countries, it is a crime to hit a person. Usually, in English-speaking countries, the crime is known as either "assault" or "battery".

However, there are some cases where the law says that you have a valid excuse for hitting a person. One situation is where the person hits you first. Another situation is where the person is trying to kill you or injure you. Another situation is where the person is trying to steal your property. Another situation is where the person is trying to break into your house. In all of these situations, the law says that you have a valid defence to a charge of "assault" or "battery".

Another situation where the law in SOME states and countries says that you have a valid excuse for hitting a person is if you are a parent or teacher, and you hit a child by way of punishment or correction. But in such cases, the degree of force which you use must be reasonable in the circumstances. The degree of force which you use on a 16-year-old would obviously be too much for a 6-year-old. The degree of force which is appropriate for a really serious matter (such as taking drugs) would be too much for a less serious matter (such as telling a fib).

In Western Australia, the relevant law is contained in the "Criminal Code", section 257, which says:

CRIMINAL CODE - SECT 257
257. Discipline of children
It is lawful for a parent or a person in the place of a parent, or for a schoolmaster or master, to use, by way of correction, towards a child, pupil, or apprentice, under his care, such force as is reasonable under the circumstances.
 
In most States and countries, the law is similar. I do not know of any state or country where the law says that a parent or teacher can NEVER hit a child.

You have probably been told that the law has changed in recent years. That is not strictly true. The wording of section 257 is the same as it has been for about 100 years. What has changed is the way in which the law is interpreted and applied by courts - that is, by judges, juries and magistrates.

The question, in every case, is how much "force ... is reasonable under the circumstances". Twenty or thirty years ago, a court would have said that using the cane is reasonable if a child has done something naughty. These days, a court may take a different view.

Usually, the decision whether or not a certain amount of force is "reasonable under the circumstances" is left to a jury. That is because a jury - consisting of 12 ordinary people selected at random from the community - gives the best indication of modern community thinking. Twenty or thirty years ago, if you asked 12 people chosen at random from the community, they would probably have said that using the cane is a good thing. Obviously, that attitude changed over the years.

I believe that the community attitude is beginning to change back to what it was 20 or 30 years ago. People are sick and tired of street crime by youths - such as violence, stealing, vandalism, home invasion and drug use. People are beginning to see that, if these youths had more discipline when they were at school, they might be better behaved. So, today, if you asked 12 people chosen at random whether the cane should be brought back, you would probably get a majority of them - maybe 8 or 10 out of the 12 - saying "yes".

Question 12.

Do you need the permission of the owner of a website to link to their site before automatically doing same?

In my opinion, no. It is no different from - for example - publishing a book which contains a reference to another published book. Merely providing a link would clearly constitute "fair dealing" on any view of copyright law. Moreover, given the nature of the Internet, I believe that anyone who publishes material on the Internet (unless it is "password protected" or access is otherwise restricted) thereby grants an implied licence for anyone else to link to the material which has been published.

Of course, the situation may be different if you engage in "deep" or "embedded" linking - that is, if the link is set up in such a way that the linked page (or anything contained within the linked page) appears within a frame in, or is otherwise subsumed into, your own or another website.

Also, of course, you may not claim or imply that the linked page, or any part of it, is your own work.

Often, websites have a "linking policy". There may be no legal obligation to comply with such a policy, but it is regarded amongst webmasters as an appropriate courtesy. My own "linking policy" appears at: http://www.lexscripta.com/linking.html

Visitors to this website wishing to submit questions to the Editor may do so by email, or by using the feedback form on this site.

the Website Editor will only answer questions of general interest - not specific questions about specific cases. The answers given on this page, as with all other information on this website, should be read subject to the disclaimer.

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Anthony John Hunter Morris QC
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Brisbane, Queensland
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this page last updated 31 March 2005