THE BAR ASSOCIATION OF QUEENSLAND
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Issue 99: March 2025
About Us

Congratulations to the pupils of Bar Practice Course 81.

After completing a rigorous six-week program in Brisbane, these pupils are now prepared to take the next steps in their careers.

We express our sincere thanks to the Bar Practice Course Committee, the judiciary, members of the Bar and the Bar Association of Queensland for their dedicated efforts in ensuring the success of this program.

The Association sends its best wishes to the following pupils as they pursue their future goals.

Oxford Languages says

noun

  1. a portion of a larger whole, especially a sample taken for chemical analysis or other treatment:

“an aliquot was examined daily for the appearance of cholesterol monohydrate crystals”

verb

  1. divide (a whole) into aliquots:

“this solution was then aliquoted for three separate mass spectrometer analyses”

The Cambridge Dictionary says:

an amount taken from a larger quantity, so that it can be tested, etc.:

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Recently in Trident Austwide Pty Ltd v Bagcorp Pty Ltd as trustee for the Rico Tea Trust [2024] NSWSC 479 (30 April 2024), Hmelnitsky J said:

  1. Trident’s entitlement on account must first be ascertained by reference to the Partnership Agreement which, as I have noted, entitles it to its partnership share of partnership property and to its share of the goodwill of the business. There was no suggestion that I should read this provision as referring only to book values. Given that the pre-emptive provisions of the Partnership Agreement dealing with retirement were not engaged, Trident’s position under the Partnership Agreement would appear to be that it is entitled to an account for its partnership share of the partnership property including goodwill, at market value.
  2. Authority generally supports the taking of an account in these circumstances by calculating the outgoing partners aliquot share of the enterprise value as at the date of retirement. In Chia v Ireland, the Court held that the appropriate measure of Dr Ireland’s entitlement on retirement from a medical practice was “her proportionate share in the net proceeds remaining after all the partnership assets have been sold and after payment of the partnership debts and discharging liabilities.” That must be understood as a reference to a notional sale as a going concern, which is how it was understood in Truong v Lam at [28].

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In Masson v State of Queensland [2018] QSC 162 (23 July 2018), Henry J said:

[12] Mr Peters concluded Ms Masson was “hypoxic and deprived of oxygen and required oxygen immediately”.[12] His response to the risk inherent in oxygen deprivation was to ventilate and oxygenate her by the application of a bag valve mask.[13] The operator of the mask indicated she was difficult to oxygenate.[14] Mr Peters applied an intravenous cannula into her cubital fossa (elbow pit) to administer intravenous drugs.[15] One minute after arrival at 22.59 he commenced administering intravenous salbutamol in aliquots (portions) of 250 micrograms.[16]

               …..

[14] In all, eight aliquots, a total of two milligrams, of salbutamol were progressively administered from 22.59 to 23.20.[17] This was actually twice the maximum dose of one milligram recommended in the Salbutamol drug data sheet in the Clinical Pharmacological section of the QAS Clinical Practice Manual.[18] However the plaintiff did not rely upon that as a particular of the alleged negligence.

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Oxford Languages says exegesis is a noun meaning:

critical explanation or interpretation of a text, particularly of scripture: “the task of biblical exegesis”.

The Macquarie Dictionary defines exegesis as

critical explanation or interpretation, especially of Scripture. [new Latin, from Greek: “explanation”].

In Fortescue Metals Group Limited v The Commonwealth (2013) 250 CLR 548; [2013] HCA 34 (7 August 2013), French CJ (at [16]) said:

In the forefront of consideration in this case is the interpretation and application of ss 51(ii) and 99 of the Constitution. Their interpretation depends upon their text. It is informed by their drafting history and the decisions of this Court interpreting and applying them. Those decisions do not yield single, simply expressed and exhaustive explanations and definitions of the limitations on legislative power imposed by those provisions. The Court responds to the cases it is called upon, by the accidents of history, to decide. Judicial interpretation in particular cases must be seen in the context of the Court’s function. As Windeyer J said in the Payroll Tax Case [Victoria v The Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 403; [1971] HCA 16.]:

“Exegesis must not be substituted for the text.”

In Thompson v Macmillan [2023] QCA 183 (8 September 2023), Bond JA (at [35]) said:

The primary judge’s reasons expressed a sufficient exegesis of the resolution of the determinative issues in the case before him. The reasons dealt with all matters of relative significance. Grounds 1 and 3 fail.

In Ashton & Anor v Dorante & Anor [2012] QCA 175 (26 June 2012), White JA (at [56]) said:

This is not the occasion for an exegesis on the separation of powers but it is plain that Henry J, in common with all Queensland judges, having taken the oath of office to judge matters impartially, is not in a position of conflict with these respondents.

Oxford Languages says:

Noun – an extremely difficult or involved problem.

              ….

Brittania says:

Gordian knot – proverbial term

Gordian knot, knot that gave its name to a proverbial term for a problem solvable only by bold action. In 333 BC, Alexander the Great, on his march through Anatolia, reached Gordium, the capital of Phrygia. There he was shown the chariot of the ancient founder of the city, Gordius, with its yoke lashed to the pole by means of an intricate knot with its end hidden. According to tradition, this knot was to be untied only by the future conqueror of Asia. In the popular account, probably invented as appropriate to an impetuous warrior, Alexander sliced through the knot with his sword, but, in earlier versions, he found the ends either by cutting into the knot or by drawing out the pole. The phrase “cutting the Gordian knot” has thus come to denote a bold solution to a complicated problem.

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Microsoft Bing – Copilot says:

The Gordian Knot is an Ancient Greek legend associated with Alexander the Great. The story takes place in Gordium, a city in Phrygia. Here’s the tale:

  1. The Knot’s Origin:
    • A peasant farmer named Gordias became king of Phrygia. In gratitude, his son Midas dedicated an ox-cart to the Phrygian god Sabazios (whom the Greeks identified with Zeus).
    • The ox-cart was tied to a post with an intricate knot made of cornel bark. Roman historian Quintus Curtius Rufus described it as “several knots all so tightly entangled that it was impossible to see how they were fastened.”
  2. The Prophecy:
    • An oracle declared that whoever could untie this complex knot would become the ruler of all of Asia.
    • In 333 BC, Alexander the Great arrived in Phrygia, which was then a satrapy (province) of the Persian Empire.
  3. Alexander’s Solution:
    • Alexander wanted to untie the knot but struggled to do so.
    • Instead of laboriously untangling it, he dramatically drew his sword and cut through the knot with a single stroke.
    • Some versions suggest he pulled the linchpin from the yoke, exposing the ends of the cord and allowing him to untie it without cutting.
    • Regardless of the method, Alexander’s action fulfilled the prophecy.
  4. Symbolism:
    • The Gordian Knot has become a metaphor for a seemingly intractable problem that is solved by exercising brute force.
    • It represents the idea that sometimes unconventional solutions are necessary to overcome challenges.

In summary, the Gordian Knot legend reflects both Alexander’s ingenuity and his determination to conquer Asia. Whether he unraveled it or sliced through it, he demonstrated his resourcefulness and decisiveness. 

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In Ahern v R [1988] HCA 39; (1988) 165 CLR 87 (18 August 1988), the High Court of Australia – comprising Mason C.J., Wilson, Deane, Dawson and Toohey JJ. said:

12. In Reg. v. Finn and Niblock (1985) 1 Qd R. 212, at pp 215-216 McPherson J., speaking for the Court of Criminal Appeal in Queensland, referred to the passage from Phipson and said:

“But that means no more than that evidence of the acts of others may be admitted to prove the existence and nature of the agreement before proof is adduced for the purpose of establishing that the accused was a party to the agreement…. However, when it comes to proving that a particular accused was a party to the agreement – that he participated in the conspiracy – the acts of other persons may not be relied upon. The accused must be connected with the conspiracy by evidence admissible against him according to ordinary principles of the law of evidence…. Participation by the accused in the alleged conspiracy can therefore be established only by evidence of his own acts or admissions and not by the acts or admissions of others, except to the extent that they are shown to have been authorized or adopted by the accused himself. Until such participation is established, the acts of others are available only to show the existence of an agreement and its nature or terms.”

As we read that passage, McPherson J. was expressing the view that the participation of an individual in a conspiracy cannot be proved by evidence of things said or done by other conspirators in furtherance of the conspiracy unless that participation is first proved beyond reasonable doubt by other evidence. Such a view is understandable, particularly when it is borne in mind, as it should be, that the other conspirators, whose acts and declarations in the absence of the individual are sought to be used in evidence, may not be available for cross-examination by the individual. It is a view, however, which deprives the evidence of any probative effect, other than with respect to the nature and extent of the conspiracy, by requiring as a prerequisite of its use, proof of the very thing which it is led to prove, namely, that the accused was guilty of conspiracy. The need to cut this Gordian knot has been generally recognized, although there has been no general recognition of the point at which it should be cut.

              …..

In Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 009, Mullins J (as her Honour then was) said, when considering an application to fix costs:

[37] At the other end of the spectrum are extremely simple cases. In Keen v Telstra Corporation Limited (No 2) [2006] FCA 930 an applicant for judicial review who had been successful before the Federal Court in the review of a decision of the Administrative Appeals Tribunal obtained a fixed costs order. Rares J referred to the statement in Beach Petroleum about the power to order fixed costs being appropriately used in complex cases and then stated at [6] – [7]:

“6 In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation. It is a commonplace for the court to fix in administrative appeals under the Migration Act 1958 (Cth) and amount of costs for a successful party.

7 In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter.”

Bayliss v. Cassidy (No. 2) [2000] 1 Qd R 464 at 473:

[When considering waiver of legal professional privilege]

McPherson J.A.:

I have had the advantage of reading the reasons of Davies J.A., with which I agree, as I also do with the orders he proposes for disposing of this appeal, including the order as to costs. The basis for treating the privileges otherwise attaching to a confidential communication (such as legal advice) is said here to be ‘‘fairness’’ to the other party. See Standard Chartered Bank of Australia Ltd v. Antico (1993) 36 N.S.W.L.R. 87, 94–95, and Torcasio Developments Pty Ltd v. County Park Developments Pty Ltd (unrep. Byrne J., S.C. Vic. Sept. 9, 1991). As a criterion for decision, ‘‘fairness’’ has always seemed a somewhat imprecise guide because, like the Chancellor’s foot, it is largely the product or impression of a subjective state or attitude of mind which has a propensity to vary greatly from one individual to another.

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Hangin’ at the West End markets in my sling and new jumper! Harvie and Sadie…. “Whereza leads? Whereza leads?”