All these new Australian blawgs pop up, and they keep on linking to me! Crazy! The most recent one is “Section 24”, which appears to have no connection at all to Section 51. (Hmm, another section comes to mind: s 53, especially paragraphs (c) and (d).)
In any event, in a post that now appears to be deleted, Mr or Ms Directly Chosen linked to a fun Jack Waterford column in The Canberra Times. He begins:
I AM DELIGHTED to announce that the word “epexegetical” is coming back into its own. This very handy word is to be found in a joint judgment by six of the High Court judges in an immigration case this week.
The reference is, of course, to NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 at [57] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan, and Heydon JJ.
Waterford, Editor in Chief, law graduate and adjunct professor, then proceeds to handicap each of the judges as to who was responsible for the insertion of “epexegetical” into the joint majority judgment (Kirby J wrote a separate concurring judgment). He concludes by offering 10/1 on odds for Gummow J.
It’s a conclusion with which I have to agree, because Gummow J, not uncommonly, uses the word in oral argument (perhaps even general conversation). For example:
- Andar Transport Pty Ltd v Brambles Ltd [2003] HCATrans 450 (“The rest that follows after those opening words is really epexegetical, so to speak, of the obligation to conduct at sole risk.”)
- Hoyts Pty Ltd v Burns S450/2002 (“Section 37 [of the Judiciary Act 1903 (Cth)] is just epexegetical of [section] 73 of the Constitution.”)
- Aktiebolaget Hässle v Alphapharm Pty Ltd S287/2001 (“… to treat that, as it were, as epexegetical of paragraph 38 …”)
- Allan v Transurban City Link Limited M90/2000 (“To use Sir Owen Dixon’s word, it is epexegetical what follows in the balance of the part.”)
- Vetter v Lake Macquarie City Council S27/2000 (“Anyhow, (3) is epexegetical, as they say, of (1).”)
- Re Macks; ex parte Saint A6/2000 (“It is epexegetical of section 6.”)
- Chakravati v Advertiser Newspapers Ltd A41/1996 (“They may all be epexegetical of paragraph 4(a) …”)
But, there are some exceptions. Well, only two in the AustLII database of High Court transcripts. Chief Justice Brennan used it on the second day of the combined Levy–Lange oral argument. And D F Jackson QC used it in Bayside.
Believe it or not, seeing as I actually read High Court transcripts from time to time, I did see one of those before I went searching for them. (No, I didn’t immediately know what it meant either.) And, for what it’s worth, I’ve already expressed my views about using obscure and esoteric (i.e., cool) words in judgment: “Selya-cabulary”, “Who reads judgments anyway?”, and “Reading judgments”.
