Language – Specious

The Cambridge Dictionary says:

Specious (adjective)

seeming to be right or true, but really wrong or false:

a specious argument/claimspecious allegations/promises

The Macquarie Dictionary (4th ed) says:

Specious (adjective)

1. Apparently good or right but without real merit; superficially pleasing: specious arguments.
2. Pleasing to the eye, but deceptive.
3. Obsolete pleasing to the eye; fair.

[Middle English, from Latin speciosus fair, fair seeming, from species sort, kind]

In Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992), Deane and Gaudron JJ said:

53. In the very early days, the explanation of the disregard of Aboriginal claims and the resulting dispossession and conflict may have been that the new arrivals were ignorant of the fact that, under pre-existing local law or custom, particular tribes or clans had established entitlements to the occupation and use of particular areas of land. That explanation is not, however, a plausible one in respect of later events. Increasingly, the fact that particular tribes or clans enjoyed traditional entitlements to the occupation and use of particular lands for ritual, economic and social purposes was understood. Increasingly, that fact was even acknowledged by government authorities and in formal despatches(286) See, e.g., the examples given by Reynolds, The Law of the Land, (1987), Chs.III and V. Thus, on 14 March 1841, James Stephen, probably the most knowledgeable of all the nineteenth century permanent heads of the Imperial Colonial Office, noted on a despatch received from South Australia(287) Colonial Office Records, Australian Joint Copying Project, File No.13/16, Folio 57:

It is an important and unexpected fact that these Tribeshad proprietary rights in the Soil – that is, in particularsections of it which were clearly defined or well understoodbefore the occupation of their country”.

Two years later, Stephen wrote(288) ibid., File No. 18/34, Folio 106 (9 June 1843) of the “dispossession of the original Inhabitants”.

54. Nor can it be said that it did not occur to the Imperial and local authorities that the dispossession of the Aboriginal inhabitants might involve the infringement of rights recognized by the common law. The story of the development of South Australia, including the ineffective reservation in the Letters Patent of 1836(289) Appendix to Reprints of the Public General Acts of South Australia 1837-1936, vol.8, pp 830-831 protecting “the rights of any Aboriginal Natives (of South Australia) to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any land therein now actually occupied or enjoyed by such Natives”, demonstrates that the contrary was the case(290) See, e.g., the sources referred to in Reynolds, op cit, pp 103-120. Another example is apposite. In Williams v. Attorney-General for New South Wales(291) (1913) 16 CLR, at p 439, Isaacs J. referred to Governor Bourke’s Proclamation approved by the Colonial Office, refusing to recognize Batman’s 1835 Treaty with the local Aboriginal elders for the purchase of a large tract of land on the shores of Port Phillip, as a “very practical application” of the doctrine that the Crown had acquired full legal and beneficial ownership of all the lands of Australia. Examination of the contemporary documents discloses that the purchasers obtained advice from no less an authority than Dr. Stephen Lushington(292) Then a leader of the English Bar and judge of the London consistory court and subsequently the eminent English Admiralty Judge and a member of the Judicial Committee of the Privy Council. In an Opinion dated 18 January 1836(293) See HRA, (1923), Series 1, vol.18, p 389 (emphasis added), Dr. Lushington advised that the purported grants of land by the Aborigines were “not valid without the consent of the Crown”. He added(294) ibid that he did not think “that the right to this Territory is at present vested in the Crown” but that it was “competent to the Crown to prevent such settlements being made by British Subjects, if it should think fit”. Presumably, Dr. Lushington was recognizing the radical title and associated right of pre-emption of the Crown but acknowledging the rights in relation to the territory of the Aboriginal occupants. When a copy of Dr. Lushington’s Opinion was forwarded to the then Secretary of State for the Colonies, Lord Glenelg, he conceded(295) ibid., p 390 “the great weight which is due to the deliberate judgment of Dr. Lushington on a question of this nature” but dismissed Dr. Lushington’s advice on the specious ground that he must have been “under a misapprehension of some of the most material parts of the case”. It is perhaps relevant to mention that, in an earlier despatch to Bourke, Glenelg had written that, although many circumstances had contributed to render him anxious that the “Rights” of the Aborigines “should be studiously defended”, to concede to them “any right to alienate to private adventurers … would subvert the foundation on which all Proprietary rights in New South Wales at present rest”(296) ibid., p 379.

MacMahon Contractors Pty Ltd & Advanced Pipeline Technology v Power & Water Authority [1996] QCA 452 (19 November 1996), McPherson JA said:

In the present case, the defendant’s claim is unliquidated. If s.4(1) of the deed of variation prevents it or part of it from being set off, it can to that extent only be made the subject of a counterclaim. If, however, in the end, the counterclaim succeeds, the ensuing money judgment on the counterclaim will itself be set off against the amount of any summary judgment the plaintiff might obtain against the defendant. See McDonnell & East Ltd. v. McGregor [1936] HCA 28; (1936) 56 C.L.R. 50, at 62. Having regard to the practice referred to, it therefore seems that, even if the plaintiff were now to succeed in obtaining summary judgment, it would not receive payment of the judgment sum before the issues on the counterclaim are determined. The counterclaim or claims are not so obviously specious as to make a stay under O.18, r.1(2) an improbable outcome of success on the summary judgment application. In these circumstances, it is difficult to see what useful purpose is served by giving judgment on the claim now rather than leaving it to be determined in conjunction with the defendant’s set off or, as the case may be, its counterclaim at the trial. Having regard to the fact that the defendant is a statutory authority, it seems improbable that, like some other defendants, it will decamp before the action is tried or judgment given.