Language – Mare’s Nest

The Macquarie Dictionary (Online) defines this collocation of words as “something imagined to be an extraordinary discovery but proving to be a delusion or a hoax”.

Other dictionaries afford a supplementary meaning.  In the Merriam-Webster (Online) Dictionary, a like definition appears, but with a further meaning being “a place, condition or situation of great disorder or confusion”.

In old English a “mare” – or “maere” – was a malicious entity of some kind.

Used in jurisprudence, the following are examples, redolent of the latter meaning above:

• CGU Insurance Ltd v Watson (as Trustee of the Deed of Arrangement in respect of Graves) [2007] NSWCA 301, per Giles JA at [44]:

Use by r 12.4 of “cause of action” brings something of a mare’s nest.  Instead of the relatively flexible concept of abuse of process, consideration of a stay requires identification of causes of action;  even the room allowed by “substantially the same” requires the identification. What is meant by “cause of action” is notoriously difficult.  Further, proceedings for declaratory relief … may not be proceedings on a cause of action as ordinarily understood.  The rule can be difficult to apply, and it may  not extend, or readily extend, to the full range of proceedings which can be brought.

• R v Hillen [2019] NTSC 27, per Graham AJ at [25]:

What does the jury make of the mare’s nest?  Is it invention, is he confused?  Is it Mr Nguyen’s fault for not putting the allegation to his wife or to him in examination in chief?  This type of factual dilemma was not untypical.

• Windsurfing International Inc v Sailboards Australia Pty Ltd (1996) 69 ALR 534, per Burchett J at [549]:

But the second respondent’s tortious attempt at justification did not end there;  for the examination of the circumstances shows that he decided to ignore his obligation under the undertaking, at a time when he knew that he could not fulfil the conditions of the concession, even if they had been applicable.  The whole chapter of evidence is reminiscent of CS Lewis’ brilliant mixed metaphor about chasing a red herring all the way into a mare’s nest!