Barnewsthe JOURNAL of the NSW BAR ASSOCIATION | SUMMER 2013–14
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Contents 2 Editor’s note Electronic briefs & briefing by email 3 President’s column Social media and the courts 5 Bar Practice Course 02/2013 Legal research in the electronic 6 Recent developments age Cover photo: istockphoto.com 24 Interview Technology and the world turned upside down Attorney-General George Brandis QC 72 Tutors’ & Readers’ Dinner 28 Practice 74 Bar history The dangerous art of cross- 76 Crossword by Rapunzel examination 77 Bar sports 35 Features 83 Appointments Technology in practice 91 Obituary Cloud services 93 Bullfry Discovery and electronically stored documents 96 Book reviews Websites, social media and a 106 Poetry barrister’s practice barnewsTHE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2013–14 Bar News Editorial Committee ISSN 0817-0002 © 2013 New South Wales Bar Association Views expressed by contributors to Jeremy Stoljar SC (chair) This work is copyright. Apart from any use as permitted Bar News are not necessarily those of Greg Burton SC under the Copyright Act 1968, and subsequent the New South Wales Bar Association. amendments, no part may be reproduced, stored in Arthur Moses SC Contributions are welcome and should a retrieval system or transmitted by any means or Richard Beasley SC be addressed to the editor, Jeremy process without specific written permission from the David Ash copyright owner. Requests and inquiries concerning Stoljar SC. reproduction and rights should be addressed to Kylie Day the editor, Bar News, c/- The New South Wales Bar 8th Floor Selborne Chambers Daniel Moujalli Association, Basement, Selborne Chambers, 174 Phillip 8/174 Phillip Street Nicolas Kirby Street Sydney, NSW 2000. Sydney 2000 Daniel Klineberg DX 395 Sydney Catherine Gleeson Victoria Brigden Contributions may be subject to editing Caroline Dobraszczyk prior to publication, at the discretion of Kathryn Millist-Spendlove the editor. Susan Cirillo Fiona Roughley Chris Winslow (Bar Association) Bar News | Summer 2013-14 | 1 EDITOR’S NOTE This issue of Bar News looks at practice better, cheaper or more And just to balance all the talk of some of the new technologies efficient. new technologies, the Hon John that have so recently and so Bryson QC has contributed a Of course, this issue includes quickly become a feature of many piece on how barristers’ practices much else besides technology. barristers’ practices. used to operate before computers Bar News is delighted that came along. Some of us can remember when the attorney-general of the email seemed new. Now there Lastly, since this is the final Commonwealth of Australia, the are all sorts of innovations. Social issue for 2013, Bar News takes Hon George Brandis QC, agreed media, cloud storage, electronic this opportunity to wish all our to be interviewed for this issue. discovery, iPads – the list seems readers a peaceful and relaxing to grow from day to day. It seems Among other things the holiday and all the best for the as if virtually every aspect of attorney-general discusses the new year. practice may be affected. challenges which he envisages Jeremy Stoljar SC may be expected during his term, For example, do we really need to including access to justice and take trolleys of folders to court if balancing free speech and human everything fits in an iPad? Do we rights. still need shelves of law reports in our chambers, or can research We are also delighted to publish now all be done electronically? in this issue the remarks of the If solicitors today use Google to chief justice of Australia at the find counsel – or at least counsel’s launch of Historical Foundations contact details – should we be of Australian Law, a recent advertising our services on our publication of Federation Press. own websites or through social Other contributors to this issue media? of Bar News include the Hon The articles in this issue’s James Spigelman AC QC on technology feature look at how Justice Pembroke’s recent book barristers can navigate and use on Arthur Phillip, Ian Barker QC the array of new technologies on cross-examination and Chester that are now on the market. No Porter QC on the famous case of one wants technology for its Frederick McDermott – the last of own sake. The articles examine which follows up from an article in whether new technologies make the last edition of Bar News. 2 | Bar News | Summer 2013-14 | PRESIDENT’S COLUMN Standing up for first class justice By Phillip Boulten SC identify issues and steer litigants self-employed people at $2,000 towards an appropriate outcome. per annum. The legal profession Without barristers, litigation would lobbied hard on this issue through be a complete mess. the Law Council and the Australian Bar Association. The proposal The association made it clear threatened to cause significant that we support and encourage problems for self-employed moves to make the delivery of lawyers, especially barristers. I justice more efficient through the am very grateful the government application of alternative dispute abandoned this misguided resolution processes in appropriate proposal. cases. But, it is necessary to ensure that efficiencies do not undermine Regrettably, though, I recently legal rights. received advice from the minister for immigration and border protection, Scott Morrison, that The Bar Association recently the government has discontinued forwarded its submission to It is to be hoped that the Refugee Review Tribunal the Productivity Commission in economic rationalism does not Legal Advice Scheme. The Bar response to the issues paper, dominate the Productivity Association has been administering Access to Justice Arrangements. this scheme since 2000 which The commission is conducting a Commission’s report. has provided legal advice to over wide-ranging inquiry into issues 6000 people throughout that time. that touch upon the economic I wrote to the minister expressing costs and benefits of the civil regret about the decision. Denying Our submission demonstrated justice system. The association unrepresented and vulnerable the important role that barristers submission focussed on matters litigants access to specialised play in providing pro-bono work that related directly to barristers’ legal advice will inevitably lead to through formal pro-bono schemes practice and emphasised what injustice and will create extra costs and through barristers’ own good value barristers bring to the to the federal court system. It is informal arrangements. We also justice system. to be hoped that the government pointed out that barristers’ fees are soon identifies the benefits in Justice is not a commodity. Legal very reasonable when compared providing reasonable advice to rights have inherent value. They to other legal practitioners. litigants appearing before the do not always have a dollar value. The Bar Association will continue tribunal. The abolition of the An accessible and independent to engage with the Productivity scheme is a false economy. system of justice is essential in a Commission throughout its inquiry. civilised state. In the wake of the frenzy of It is to be hoped that economic uninformed criticism and personal The Bar Association argued that rationalism does not dominate the attacks upon Justice Stephen an independent bar adds value Productivity Commission’s report. Campbell following his judgment in to, and subsidises, our system of Meanwhile, I was extremely the Loveridge manslaughter case, justice. Barristers assist the courts pleased to hear the new federal I mounted a defence of the judge and tribunals to handle complex treasurer, Joe Hockey, announce through the media. Whilst courts legal and factual issues. We that the government had are not immune from criticism, provide efficiencies to the court abandoned plans to cap tax it is necessary that critics should both in terms of time and process. deductible education expenses for understand the proper role of Barristers shape court cases, Bar News | Summer 2013-14 | 3 PRESIDENT’S COLUMN The media attacks went so far as to suggest that all our sentencing judges were out of touch and lacking in independence. Nothing can be further from the truth. courts. The media attacks went any informed commentary on her Honour Margaret Beazley, so far as to suggest that all our sentencing issues. Perhaps we life members of the association. sentencing judges were out of need to find new and inventive Both Allsop CJ and Beazley P touch and lacking in independence. ways to spread the message that have made and continue to make Nothing can be further from the our judges provide first class extremely valuable contributions truth. justice in a world where true justice to our jurisprudence. We are all is a rare commodity. proud of them. It is an honour that There is a widespread they accepted the association’s misunderstanding of the Finally, I was pleased to announce offer of appointment. sentencing process. It is helpful for the appointment of two new barristers to explain it wherever life members. In October the possible. The association is one Bar Council resolved to appoint of the few voices providing Chief Justice James Allsop and 4 | Bar News | Summer 2013-14 | Bar Practice Course 02/13 Back row: Oshie Fagir, James Stelllios, Michael Astill, Jeff Tunks, Geoff O’Shea, Robert Armitage, Anton Hughes, Ahmad Moutasallem, Malcolm Gibson, Peter Kondic. Third row: Sudarshan Kanagaratnam, Peter Riordan, Tom Hollo, Jason Hale, Claire Wasley, David Hume, David Randle, Tom Warr, Craig Moran, Tony Vernier. Second row: Rhys Graham, Tom Quilter, Nick Read, Mahmoud Mandoh, Janet McKelvey, Karl Pattenden, Emma Beechey, Jason Moffett, Ramesh Rajalingham, Scott Schaudin, Daniel Krochmalik. Front row: Rachel Dart, Ishita Sethi, Nicole Compton, Michael Sciglitano, Zoe Hillman, Sarah Carr, Olivia Dinkha, Oliver Jones, Ye Catherine Lin, Josie Walker, Karen Beck. www.simonfieldhouse.org Bar News | Summer 2013-14 | 5 RECENT DEVELOPMENTS ‘Artificial price’ in the context of market manipulation Justin Simpkins reports on Director of Public Prosecutions (Cth) v JM [2013] HCA 30 The full bench of the High Court, in a joint judgment, 3.