(4)
A decision determining which of two competing rules should apply to a
case.
196
There are also procedural suggestions for encouraging brevity. Sir Frank Kitto
recommended writing in longhand,
197
Sir Owen Dixon urged judges to write
their judgments while standing.
198
Justice Roderick Pitt Meagher advocated
using a pen and inkwell.
199
Finally, by way of interest even if not guidance, two examples of brevity are
set forth. In s2(1) of the Torts (Interference with Goods) Act 1977 the United
Kingdom parliament abolished the tort of detinue
because it was largely
redundant. Detinue provided a remedy for wrongful detention of goods.
However, subject to a possible exception, the
scope of detinue
was already
substantially covered by two other torts. One consisted of the action for
trespass to goods (trespass de bonis asportatis), while the other was the tort
of conversion.
The possible exception was loss or destruction of goods in breach of duty by
a bailee. To ensure that this part of detinue was still actionable, s2(2) of the
Act made a statutory extension to the common law tort of conversion by
providing that this action by a bailee now fell within the scope of conversion.
Section 2(1) abolished detinue
with minimum fuss and the total absence of
flourish. It provided: “Detinue is abolished”.
This is memorable,
in both
senses of the term.
Another example is a will. In 1906, the will
of Thorne v Dickens became the
shortest
will
ever contested.
200
It
consisted of
only three words: “All
for
mother”. Despite the brevity, there was still ambiguity. The testator’s own wife
had given birth so it was not clear whether the reference to “mother” was a
literal reference to his own mother or a colloquial reference to his “wife and
mother [of his child]”. Hence, it was unclear whether he meant his own mum
or his wife who was also a mother. The court held the latter.
___________________
196
This is referred to by Enright as ambiguity of competing rules – see
Christopher Enright Legal Method
Chapter 10 Classifying Meanings.
Examples are Haseldine v Daw [1941]
2 KB 343, [1941] All ER 524,
Hynes v NYCRR (Springboard Case)
(1921) 231 NY 229, Thompson v
Bankstown Corporation (1953) 87 CLR 619, Southern Foundries v Shirlaw
[1940] 1 AC 701.
197
Gibbs (1993) p 495, Kirby (1990) p 706
198
Kirby (1990A) p 706
199
Kirby (1990A) p 706
200
Thorn v Dickens [1906] WN 54
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