Justice Goldberg reserved his judgement until next week saying...

Justice Goldberg reserved his judgement until next week saying he was conscious of the need for haste in this case, but "preferred not to act like Nero and give a simple thumbs up or thumbs down".

The case appears to turn on whether there is any discretion for a judge to apply a subjective approach to the reading of a form, in this case the proxy form.

Counsel for Jervois (McGhee)argued that the circumstances taken as a whole and the various documents accompanying the form clearly indicated the chairman would use his discretion and what that intention was.

However, this "commonsense" approach is by definition subjective as it would mean the judge has to say that the statement doesn't mean what it says. He would have to construe it as saying it means the opposite of what it says and rely on surrounding circumstances to permit that intepretation.

It is possible that Goldberg J says that this case is an exception to the objectivity rule, but that would put him in potential conflict with the line of High Court cases, not something a Federal Court judge would do unless he had a very strong reason. The hierarchy of precedent is very strong in our legal system.

The other point made by Denton SC for the applicant was that Jervois can't very well say that the form was inherently confusing, so confusing that its meaning must be set aside, when they created the confusion by adding the extra items to the form, ie the removal of RC.

One indication that the applicants case may have legal force behind it was the remark of their counsel at the end. When Justice Goldberg made his reference to Nero, Mr McGhee said he felt like one of the Christians with Denton being the lion. Even if he felt under pressure, it was not the ideal jest to make in the circumstances.