The Sword of Damocles provenance OF a phrase By Thomas Moorhead
Lawyer Advocacy and Professional Development The Law Society of Western Australia Classical references are a common feature of common law jurisprudence. An allusion to a mythological episode can add colour to a judgement and assist to illustrate a point of law. It is also a means by which a learned judge can demonstrate their learning.1 This article discusses one such reference and its use in Australian case law, the ‘Sword of Damocles’.
The term has also been employed in academia, notably in a learned article titled ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’,12 which possibly misapprehends the original myth as there was never any suggestion that the sword hanging above Damocles was at any time sheathed.
The Parable
In Western Australia
The Sword of Damocles was brought into popularity by the famed Roman lawyer and statesman Cicero, in his Tusculan Disputations of 45 BC.2 The tale centres around the court of Dionysius II, who was the King of Syracuse in the late 4th Century BC. Dionysus II ruled harshly and had made many enemies, and he was so fearful of assassination that his bedroom was surrounded by a moat.
Former President of the Law Society and current Justice of the Supreme Court Kenneth Martin has used the expression at least thrice in his judicial decisions, once in 2012 to reject an argument on the characterisation of ‘high iron unbeneficiated fines material’,13 in 2019 regarding potential imprisonment for tax offences,14 and most recently in 2020 regarding removal of an applicant’s matter from the inactive cases list.15
One day, Damocles, a courtier, commented to Dionysus how fortunate he must be to be king. “Since this life delights you,” an annoyed Dionysius replied, “do you wish to taste it yourself and make a trial of my good fortune?” Damocles quickly agreed and began to live it up, eating succulent meats on a golden throne.
Master Sanderson has also recently used the allusion regarding inactive cases, considering that the sword is embodied in Order 4A Rule 28(1) of The Rules of The Supreme Court 1971 (WA).16
However, Dionysius II had made some arrangements to teach Damocles a lesson, and: There was a sharpened sword above his head That hung there by the thinnest simple thread.3 Damocles became so anxious that the sword would fall on him at any moment that he could no longer enjoy the feasting and was desperate to be excused. At the time, the parable of Damocles was one of the first illustrations in literature of the theme that those who hold power are also under constant pressure. This theme was particularly popular in the Middle Ages and found its place in Shakespeare: ‘Uneasy lies the head that wears a crown’.4 A more recent exposition of the principle may be found in Spiderman: ‘With great power comes great responsibility’.5
The Sword of Damocles in Australian Jurisprudence The Sword of Damocles is a versatile expression that has been employed in a variety of legal contexts. It has been used 169 times in Australian judicial decisions.6 Its first use in Australia is found in a 1928 High Court decision regarding awards made by the Arbitration Court which could be nullified by another tribunal.7 It has since been used in Commonwealth Courts in intellectual property matters,8 native title,9 admiralty law,10 and commercial law,11 to name a few.
The expression has also been used by the Court of Appeal to describe ‘mystery evidence’ (a video of a plaintiff in personal injuries matter), which may or may not be tendered.17 Fellow Brief contributor Justice McKechnie (as he then was) has also employed the phrase to describe suspended sentences.18
Conclusion: Damocles and Mental Health As the above examples have shown, the usage of ‘Sword of Damocles’ in judgements is to generally refer to threats, describe the practical effect of an order or rule, or the adverse consequences for a party if an uncertain interpretation of a statute or a contract is accepted. This usage is slightly different from the original parable which centred on Damocles not understanding what Dionysus II was going through as king. If the Sword of Damocles is taken to be anything that might be hanging over us and inducing anxiety, then there are many swords that hang over the lawyer. Managing the expectations of clients, courts and employers, the spectre of a complaint to the Legal Profession Complaints Committee, or a claim to explain to the Insurer are all part and parcel of practising law. Taking good care of one’s mental health, the theme of this edition of Brief, is crucial. This article has been a brief exposition of one of many classical references found in common law decisions. I hope it has provided some background to the expression, and I hope the Sword of
Sword of Damocles, Richard Westall 1812
Damocles will be alluded to in submissions, conversations and judicial decisions for centuries to come.
End notes 1 For some good examples, see Elwyn Elms ‘On the Use of Classical Allusions in Judgment Writing’ UNSW Law Journal Volume 31(1) 2 Accessible at https://www.gutenberg.org/ files/14988/14988-h/14988-h.htm page 185 3 Chaucer, Canterbury Tales, Lines 2028-2030 4 William Shakespeare Henry IV. Part II, 1597 5 http://www.quotecounterquote.com/2012/07/with-greatpower-comes-great.html 6 According to the Westlaw database 7 “Private or public confidence must be wanting respecting awards that constantly have hanging over them a sword of Damocles that is suspended, it may be, by the frailest hair of legal technicality”. Amalgamated Engineering Union v Alderdice Pty Ltd [1928] HCA 38; (1928) 41 CLR 402 (26 November 1928) Per Isaacs J 8 CQMS Pty Ltd v Bradken Resources Pty Ltd [2016] FCA 847, GM Global Technology Operations LLC v SSS Auto Parts Pty Ltd [2019] FCA 97, both decisions quoting Bowen LJ in Skinner & Co v Perry (1893) 10 RPC 1 at 8, ‘The legislature desires that threats of patent action shall not hang over a man’s head; that the sword of Damocles, in such a case, should either not be suspended or should fall at once …’ 9 Smirke v Western Australia (No 2) [2020] FCA 1728, at 369 – this was a submission of Counsel quoted in the judgement 10 Atlasnavios Navegacao LDA v The Ship “Xin Tai Hai” (No 2) [2012] FCA 1497 at 134 11 Australian Gas Light Company v Australian Competition & Consumer Commission [No 3] [2003] FCA 1525 per French J (as he then was) at 612 12 Lorana Bartels, ‘The use of suspended sentences in Australia: Unsheathing the Sword of Damocles’ Criminal Law Journal, Volume 31, No 2, 2007 13 Economically marginal UBF or HIUBF stockpiled by the defendants simply cannot have a ‘ Sword of Damocles ‘ hanging over it, dependent upon the defendants’ eventual decision about their ultimate use Process Minerals International Pty Ltd -V- Consolidated Minerals Pty Ltd [2012] WASC 268 (31 July 2012)
Kenneth Martin J at 60
14 Arbuckle -V- Commissioner Of Taxation [2019] WASC 7 (17 January 2019) at 139 15 So there will be another, in effect, ‘ Sword of Damocles ‘ poised over the applicant who succeeds in getting their action taken off the Inactive Cases List, if they do not then progress it along, once it is restored. Phoenix Eagle Company Pty Ltd -V- Tom Mcarthur Pty Ltd [No 3] [2020] WASC 272 (22 July 2020) at 62 16 Ansa Enterprises Pty Ltd -V- Australian Finance Group Ltd [2020] WASC 378 (20 October 2020) Per Master Sanderson at 7 17 Boyes v Colins [2000] WASCA 344 per Pidgeon J, Ipp J And Wallwork J at 83. 18 Marshall v Martyn, [2009] WASC 272 at 25
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