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?
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.
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
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superceded versions of legislation.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..
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,
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for historical references.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".
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.
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
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.
Australia offers this advice on its website:
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
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 ®.
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?
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
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
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
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
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  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
citations, but there is not yet any requirement
to use them;
- Obviously, the obligation to use a media
citations only applies where they are available
- for cases before about 1997, there are
no media neutral citations.
Why is the doctrine res
ipsa loquitur applied only in civil
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
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
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.
I am looking for some rational approach to knowing when Easter occurred in
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:
A different algorythm is provided at
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:
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.
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.
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:
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.
- 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.
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".
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.
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
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.