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Sir Terence O'Rort
26 June, 2008  
Berna's poolside splash

Justice Berna Collier goes down in a planning appeal against “overbearing” Hamilton Hill development. Sir Terence O’Rort contrasts this brutal decision with Her Honour’s sensitive treatment of a couple of “assistance animals”


Justice Berna Collier of the Brisvegas Federal Court (aka Mrs Ruddock’s friend) had dreadful luck in the local Planning & Environment Court last week with Michael Rackemann DCJ dismissing Her Honour’s appeal against home extensions to her neighbour’s pile on Hamilton Hill.

imageAccording to Berna, and her hubby Alan, their neighbour’s proposed extensions were “oppressive … overbearing … incompatible … [and] inconsistent”.

There were also problems with overshadowing and being “overlooked” by the neighbours.

Rackemann (pic) had to break it gently to Her Honour:

“It is not unusual for one house to be able to overlook the property of another, particularly in hillside locations. The Collier property is already overlooked by the Horne property. The existing house has a veranda and set of windows which look down over the pool area to the rear of the Collier property. The Collier property, in turn, overlooks a set of flats to its immediate north.”

Further probing revealed that the extensions, once built, would have “minor glimpses at most” of Her Honour’s “outdoor recreation area including her pool”.

Quel horreur.

Rackemann thought that none of the objections raised by Berna and Alan were made out and dismissed the appeal, finding that the extensions did not constitute an unreasonable loss of privacy for Her Honour in her cossie.

Maybe Berna should invite the Tub around for a dip. That would shake the neighbours up.

* * *

I can’t help feeling that there must be some flaws in the reasoning used by Rackemann in finding against the Colliers.

Quite frankly he would do well to take a leaf out of Her Honour’s judicial approach – a stellar example of which can be found in Forest v Queensland Health [2007] FCA 936.

The case concerned Che Forest, who had a history of psychiatric illness.

Forest owned an eight year old Border Collie Kelpie cross called Buddy and a one year old Boxer called Knuckles.

The trouble started when the Cairns Base Hospital and the Smithfield Community Health Centre refused to let Buddy and Knuckles accompany their master to treatment and consultation sessions.

imageDistressed by this outrage Forest commenced proceedings, alleging that he was the subject of discrimination by Queensland Health.

When the matter came before Justice Border Collier (pic) Her Honour had no such problems and admitted Knuckles, the wonder dog, to the courtroom.

Forest told the court that Buddy and Knuckles “learned to be very sensitive to his broad mood variations and extra responsive to his instructions”.

The applicant told HH that he was unable to go out unless the pooch was with him.

Buddy and Knuckles also had special powers that Forest came to rely upon to “assist him with his psychological difficulties”.

These powers involved being able to “lick on command”, which apparently “lessens feelings of isolation, provides stability of mood and arrests panic attack” and an ability to “come and fold for hug”.

Forest told the Court:

“I feel as if I’m intrinsically different and alien. This makes me feel tense or anxious and isolated. When Buddy is with me I still experience these things. However, I do not feel alone because I have Buddy’s support.”

He feels alien? No. I won’t have it.

In contrast to Forest’s compelling evidence the plods from Queensland Health had a pile of small-minded objections to having the therapeutic pooches present during a liver biopsy. These included:

  • Knuckles turning-up wearing a dirty bandage;
  • Knuckles and Buddy fighting among themselves;
  • Knuckles lunging at, and attempting to bite, the surgeon trying to conduct a liver biopsy on Forest.

    This would not be the first time that readers of this family organ have encountered special canines.

    imageWe all know of the close relationship between Lord Eldon (trading as Anthony J.H. Morris QC) and various of his hounds including Rosamunda (pictured with his Lordship).

    Heaven only knows how the tragic loss of Rosamunda from “bloat” affected Eldon’s psyche. According to the website of the St Bernard Association of Queensland this is the death notice:

    “Farewell to Rosamunda (Tnias Molly) Hampson-Morris December 7, 1990 to July 17, 1999 … Her last day was just as she would have wished for, with a morning swim at Point Lookout, a meal of fresh mince, and an afternoon rest. She took ill at about 7 pm with what appeared to be ‘bloat’. She was rushed to the 24-hour veterinary hospital at Manly by car, boat and taxi – but they were unable to save her. She died on the operating table just after midnight. She died as she lived – with courage; with love for her family; above all with grace and dignity. She is greatly missed by her family – Alice Hampson, Tony Morris and Horatio.”

    But back to the main game. Justice Border Collier had to resolve the conflict of evidence between Forest’s surgeon, Professor Shaughan Terry, and Knuckles.

    Knuckles’ demeanour in the witness box was of great assistance to HH:

    “I note that over four days of hearing the applicant was in the witnesses box for much of two of those days, accompanied by his dog Knuckles. I formed the view at that time that Knuckles was extremely well-behaved, responsive to the applicant and his commands, and at all times under the control of the applicant. From viewing Knuckles … I am satisfied that Buddy and Knuckles are suitable for public access.”

    Despite this favourable impression, she accepted …

    “Professor Terry’s evidence that he believed in the circumstances that the dog lunged at him and attempted to bite him.”

    Her Honour soon dispensed with the dirty bandage allegation, finding that appearances were deceptive.

    It only looked dirty, “because of the nature of his injury and inevitable seepage and moistness, but was not dirty through neglect or lack of hygienic treatment”.

    In a tight 66-pages of reasoning Border Collier accepted that Buddy was an “assistance animal” under the Disability Discrimination Act 1992 and that the naughty Cairns Base Hospital had discriminated against Forest.

    If only Judge Rackemann had brought the same judicial technique to his reasoning.

    Unfortunately, this month the Full Federal Court (Black, Spender and Emmett) spoiled it all, rolling Border Collier three-nil and ordering poor Mr Forest to stump-up the costs of his misadventure before HH and the appeal.

    Jungle Justice.

    Sir Terence ORort reporting