Christmas Tidings

Learned friends,

Whatever your religious beliefs and views on the evils of codified law, Christmas is a time for:

a) Gathering around the Nordic Yule goat and observing traditional Episcopalian Christmas practice by singing songs of praise to Jesus Christ like "Good King Wenceslas" and "Whence Is That Lovely Fragrance Wafting";

b) Sitting down with your family and reading aloud the dissenting judgment of Lord Justice Denning (as he then was) in Candler v Crane, Christmas & Co [1951] 2 KB 164 where he bravely held that a relationship enlivening a duty of care to future investors must be one where the relevant accountant or auditor preparing the accounts was aware of the particular person and intended use of the accounts being prepared; and

c) Getting heavily inebriated at Breakfast and appearing in the Waverly Local Court dressed as Santa Clause while announcing your appearance as celebrity raconteur and barrister Mark “Touchdown” Holden.

Truly a glorious time of year!

Along with those time-honoured rituals, like so many hard-working Australians, this year I will spend midnight on each of the 12 nights of Christmas reciting the last 60 pages of Ben Affleck's screen play for the Christmas classic “Reindeer Games” on the steps of the Downing Centre. I find these public recitations are more than just an important social good, they are a great time for reflection on the year that’s been. 2010 was a tumultuous year for yours truly; from the bitter lows of my unlucky (and possibly unconstitutional) loss in Eden Monaro and the continued silence in the mainstream media about my failure to be elevated to the High Court to the highest of professional highs, beating Jonathan Sumption QC in a best-of-three-real-tennis-sets match at my local jeu de paume club and successfully avoiding the inland revenue for yet another year. Indeed a time to remember!

I hope that you also had a successful year on your path to lawmanship.

To you and yours, seasons greetings and all the best for a happy, healthy and jurisprudentially conservative 2011.

Your obt. svt.,

Bullstrode Whitelocke K.C.


May the road rise up to meet you.

May your harm be reasonably foreseeable.

May the Court registry staff shine warm upon your face,

and complaints about your fees soft upon your ears.

And until we meet again,

May Denning MR hold you in the palm of His hand.

Cheerleading follows Pine-Baiting into the Dustbin

I have just got off the phone from my dear friend Judge Stefan Underhill who has recently delivered his opinion in the United States District Court, District of Connecticut matter Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker, individually and on behalf of all those similarly situated, and Robin Lamott Sparks, individually v. Quinnipiac University No. 3:09cv621 (SRU)*. I have given Stefan a ferocious haranguing but he is steadfastly refusing to change his manifestly flawed determination that Cheerleading is not a sport*.

In his opinion, Stefan said "Competitive cheer may, some time in the future, qualify as a sport under Title IX.......Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."

This criticism could equally be levelled against Ultimate Frisbee, Kabaddi or Australian Rules Football and is the type of short-sightedness that led to my preferred sport of pine-baiting being outlawed in Australia.

Pine-baiting became popular in New South Wales in the late 1830’s as a result of the difficulties for bear-baiting enthusiasts posed by Australia’s overwhelming lack of bears. Early European settlers experimented with baiting alternatives such as recidivist convicts and emus before realising that both Norfolk Island Pine and the rare Wollemi Pine provided wonderful sport.


Australia's most celebrated Pine-Baiter of the 1930s Norman "Splinters" Royan shows off his skills.

Pine-baiting was Australia’s most popular sport for the next 100 years until some meddling lefties in London challenged the validity of the practice in the UK High Court of Justice. Unfortunately, in the now infamous High Trees decision, Lord Denning put an end to Pine Baiting for many of the same reasons Judge Underhill has relied upon to derogate the gentle art of cheerleading. The one positive from this sorry episode was that in obiter in High Trees, Lord Denning accidentally invented the doctrine of Promissory Estoppel. Only time will tell if Judge Underhill’s decision in Volleyball v Cheerleading will have a similar impact on the future development of contract law.


* http://sbmblog.typepad.com/files/quinnipiac.pdf
** http://www.nytimes.com/2010/07/22/sports/22sportsbriefs-titleix.html
*** Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130