VICTORIAN No. 125 ISSN 0150-3285BAR NEWS WINTER 2003

Welcomes: Justice Heydon, Justice Morris and Judge Punshon Farewells: Justice Olney and Justice Frederico Obituaries: The Honourable Richard McGarvie, Peter Liddell QC, Peter McGavin and Elizabeth (Liz) Murphy Victorian Bar Legal Assistance Scheme 2002–03 Commonwealth Law Conference Technology in the County Court: Behind the Firewall Prosecutorial Misconduct: Goliath’s Slingshot Opening of the New Essoign Unveiling of Sculpture Designing Courts for People Junior Silk Speech A Perspective on a “Light-hearted Evening” 2003 Readers Burmese Days Terminal Prepositions

Tributes to the Honourable Richard E. McGarvie AC 3 VICTORIAN BAR NEWS No. 125 WINTER 2003

Contents EDITORS’ BACKSHEET 5 First Editor Combined a “Passionate Idealism with Realism” CHAIRMAN’S CUPBOARD 7 Statistics Versus Obligations ATTORNEY-GENERAL’S COLUMN 9 Tackling Violence — the Challenge of Genuine Welcome: Justice Welcome: Justice Welcome: Judge Leadership Heydon Morris Punshon CORRESPONDENCE 11 Letters to the Editors WELCOMES 13 Justice Heydon 15 Justice Morris 17 Judge Punshon FAREWELLS 19 Justice Olney 19 Justice Frederico OBITUARIES Farewell: Justice Farewell: Justice 21 A Man Who Was Prepared to Listen: The Olney Frederico Honourable Richard McGarvie 22 He Was Fair, Even-tempered and Wise: Tribute to the Honourable Richard E. McGarvie AC 25 Peter Liddell QC 26 Peter McGavin 28 Elizabeth (Liz) Murphy LEGAL ASSISTANCE COMMITTEE 29 Victorian Bar Legal Assistance Scheme 2002–03 32 VERBATIM ARTICLES 33 Commonwealth Law Conference Designing Courts Commonwealth Law Conference 36 Technology in the County Court: Behind the Firewall 40 Prosecutorial Misconduct: Goliath’s Slingshot NEWS AND VIEWS 44 Opening of the New Essoign 48 Unveiling of Sculpture 50 Designing Courts for People 53 Junior Silk Speech 57 A Perspective on a “Light-hearted Evening” 58 2003 Readers 60 Burmese Days Opening of the new Essoign Unveiling sculpture 63 A Bit About Words/Terminal Prepositions 64 CONFERENCE UPDATE LAWYER’S BOOKSHELF 65 Books Reviewed

Cover: The Honourable R.E. McGarvie AC (See report on pages 21–25). Junior Silk speech 2003 Readers

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2002/2003 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee H *Rush QC, J.T. (Chairman) W Brett QC, R.A. W *Brett QC, R.A. (Senior Vice-Chairman) Charitable and Sporting Donations Committee B *Ray QC, W.R. (Junior Vice-Chairman) D Riordan P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilification G *Howard QC, A.J. B Curtain QC, D.E. F *Dunn QC, P.A. A *Shand QC, M.W. (Honorary Treasurer) Counsel Committee F *Dreyfus QC, M.A. G Crennan S.C., M.J. B *McMillan S.C., Ms C.F. Equality Before the Law Committee G *Crennan S.C., M.J. B Millane Ms F. D *Beach S.C., D.F.A. Ethics Committee F *Quigley S.C., Ms M.L. (Assistant Honorary Treasurer) B McMillan S.C., Ms C.F. H *McGarvie R.W. D *McLeod, Ms F.M. Human Rights Committee D *Riordan P.J. D Fajgenbaum QC, J.I. W *Neal D.J. Legal Assistance Committee D *Duggan, Ms A.E. G Howard QC, A.J. D *Gronow M.G.R. Legal Education and Training Committee B *Coombs, Ms D.J. B Ray QC, W.R. F Knight, Ms K.J. Past Practising Chairmen’s Committee D *Attiwill R.H.M. (Honorary Secretary) G Berkeley QC, H.C. D *Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee Ethics Committee A Shand QC, M.W. B McMillan S.C., Ms C.F. (Chair) Victorian Bar Dispute Resolution Committee H Merralls AM, QC, J.D. S Martin QC, W.J. S Willee QC, P.A. Victorian Bar Theatre Company Steering Committee S Lally QC, W.F. A Derham QC, D.M.B. P Bartfeld QC, M. F Dreyfus QC, M.A. D Clark S.C., P.H. G Lacava S.C., P.G. H Lewis S.C., G.A. F Quigley S.C., Ms M.L. A Macaulay C.C. M Clelland, N.J. F Shiff, Ms P.L. G Judd, Ms K.E. D Riordan P.J.

VICTORIAN BAR NEWS Georgina Schoff, Paul Duggan, Peter Printed by: Impact Printing Editors A. Clarke, Nicola Gobbo, Victoria 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and Lambropoulos, Richard Brear (Editorial Brunswick Vic. 3056 Judy Benson Assistant) and Peter Lithgow (Book This publication may be cited as Reviews) (2003) 125 Vic B.N. Editorial Board Julian Burnside QC David Johns (Photography) Advertising Jack Rush QC Published by The Victorian Bar Inc. Publications Management Pty Ltd Graeme Thompson Owen Dixon Chambers, 38 Essex Road, Surrey Hills, 205 William Street, Melbourne 3000. Victoria 3127 Editorial Consultant Telephone: (03) 9888 5977 David Wilken Registration No. A 0034304 S Facsimile: (03) 9888 5919 Editorial Committee Opinions expressed are not necessarily E-mail: [email protected] John Kaufman QC, Olyvia Nikou S.C., those of the Bar Council or the Bar or of William F. Gillies, Carolyn Sparke, any person other than the author.

4 5 Editors’ Backsheet First Editor Combined a “Passionate Idealism with Realism”

DEATH OF FIRST EDITOR HE Honourable Richard Elgin McGarvie AC the first editor of TBar News died on 24 May this year. “Dick” McGarvie who retired from the Supreme Court to become Governor of Victoria in 1992 managed in a unique way to combine a passionate idealism with realism. A tribute appears elsewhere in this issue. OF TERRORISTS AND WARS, OF NATIONAL SECURITY AND THE EROSION OF RIGHTS Since 11 September 2002 governments in the “free world” have had a justifica- tion for proposing security controls for eroding individual rights — especially the rights of free association and free speech — in the name of national security. In the USA, a nation commonly and of war, and therefore are not entitled to lives, or to his sovereign in return for the inaccurately described as “America” it the benefits of the Geneva Convention; protection he receives. was said to be “unAmerican” to oppose they are not incarcerated in the United the war in Iraq. In Australia it became States, and therefore are not entitled to In the aftermath of World War II William “unAustralian”. the protection of US law. They are Joyce, “Lord Haw Haw”, was executed for Words such as these, while amorphous people just “held” by the US authorities treason because, although a US citizen, he and meaningless, carry a large emotive by virtue of the power which Mao held a British passport and was, therefore, content. They suggest that the “dis- Zedong said came out of the mouth of the “under the protection of” the King while senter” is no longer a full member of the gun. he was broadcasting on Hitler’s behalf community to which he or she belongs In a democracy and in a “freedom lov- from Nazi Germany. It was the protection or has betrayed that community. They ing nation” one would expect government of the Crown which established his duty carry a smear but no substance. They are to protect, so far as it could, the interests of allegiance and converted his speeches ugly words which substitute emotion for of its individual citizens. The Australian from Berlin to treason. reason. citizen held at Guantanamo Bay owes alle- The Commonwealth of Australia, how- It is disturbing that the “free society”, giance to the Commonwealth of Australia. ever, considers it is under no obligation which the invasion of Afghanistan and the Historically, and as a matter of present to extend its protection — even in the invasion of Iraq were designed to protect, law, allegiance is a two-way relation- form of representations to its American finds it difficult to accept free speech ship. The citizen owes a duty of fidelity ally to comply with the rule of law — to when the views expressed are incon- and allegiance to the sovereign (now the an Australian citizen apprehended by sol- sistent with those of the establishment. State) and in return the sovereign (or diers of the United States in Afghanistan. Equally disturbing is the fact that today State) owes a duty of protection to the The argument that such a person is loyalty is seen as a one-way street. citizen. As Field J (cited with approval in a terrorist misses the point. It equates There are detained a number of Ex Parte Teh) said in Carlisle v United to the argument that technical defences people, including at least one Australian, States: should not be taken on behalf of persons at the American Base in Cuba. They who drive under the influence of alcohol. were captured in an undeclared war By allegiance is meant the obligation of It reveals the same ignorance, or aban- against the then government of Afghan- fidelity and obedience which the individual donment, of principle which leads the istan, but, it is said, they are not prisoners owes to the government under which he layman to ask how you could appear for

4 5 a man who committed such dastardly in liberal democracy with which we have in an egalitarian appointments process crimes. flirted for such a short time and are on our they had allowed themselves to be mar- Among the freedoms we purport to way back to the security of totalitarianism ginalised. believe in, and which we trace to Magna or absolutism. It is to be hoped in this country we con- Carta and the Bill of Rights of 1688, are In which case, one must ask, what is it tinue to appoint the best people to judicial freedom from arbitrary arrest, equality we are purporting to defend? appointments, irrespective of their sex. before the law, the inability of the authori- We believe that the number of women ties to use torture and the right to silence. REALITY STRIKES IN FRANCE appointees in the last two or three years is None of these freedoms, as it appears According to the “Times Online” of 3 an indication of the change in the shape of from newspaper reports, are available to June 2003: “The French legal system is in the profession rather than a reflection of those confined in Guantanamo Bay. danger of becoming unbalanced as male any policy of affirmative action. It would Once we accept the proposition that judges find they have become a small be unfortunate to implement such a policy not all Australian citizens have the same minority”. now with view to reversing preferences rights or will be accorded the same pro- This imbalance in the French judicial when the balance swung the other way. tection by the State, it is only a short step system stems, it seems, not from any to accepting the proposition, not only that affirmative action program but from a NEW ESSOIGN CLUB membership of certain groups should difference in standards. According to The new Essoign Club has opened with be outlawed, but that such membership Dominique Perven, the French Justice a flurry of activity. It provides a more may properly be treated as justifying the Minister: “The women are more serious congenial environment, is more readily detention of people without trial. in their approach, harder working, more accessible and bodes well to be a centre Fortunately, the High Court just over determined and they stick to it better. I of social activity. We congratulate all those half a century ago (83 CLR 1) took the have to accept that they are of a better involved in the transition. view that there was no constitutional standard.” basis for legislation of a much less draco- The result is that in France it has THE COST OF DISCIPLINE nian nature. been suggested that male defendants and It appears that the figures quoted on There can be no question that there are claimants could lose confidence in a sys- the cost of discipline in the last issue of in existence groups which are properly tem dominated by females; and Dominque Bar News were inaccurate. The cost of described as “terrorist groups” and which, Perven has suggested that a quota system discipline has not grown at the rate we for whatever reason, are prepared to use could be introduced if men failed to obtain indicated. A letter from the Ombudsman random and horrifying violence against more posts through their own talents, correcting that error is published in this our society. although “there is no question of quotas issue. These groups wish to use violence to for the moment”. The article by the Chairman dealing impose their will on what is loosely termed It is hard to know what lesson we in with the role of the Ombudsman, which “western society”. They are largely intoler- Australia should draw from this — that was published in the same issue, attracted ant and “fundamentalist”. But they reflect affirmative action should be applied to a letter from the Ombudsman correcting only one aspect of a worldwide movement solve any apparent imbalance? That “inaccuracies contained in” that article, to place “the cause,” “freedom”, “the domination of the judiciary by males is and which was circulated to members State” or some political ideal above the the “natural” order of things and domina- of the Bar in May. A letter in response rights of the individual. tion by the female results in “imbalance”? from the Ethics Committee is published We all believe in the rights of the indi- Heaven forbid that we should draw the in this issue. vidual, in equal opportunity, in equality conclusion that women are cleverer, more The Editors before the law; but it seems we are not hard working or more committed than prepared to pay the price. The price of men. freedom is not just eternal vigilance; it Perhaps it will come to pass that as is giving those whom you regard as “the the late John Birrell used to contend, the Corrigenda enemies within” the same rights as those white Anglo-Saxon Protestant male will The Autumn issue of Bar News con- possessed by the “virtuous” members of become an endangered species. tained some errant captions to photo- the community. The comment by the Vice President of graphs as follows: The democratic state in which all men the French Magistrates Union, Veronique P. 38 Top right hand photo should have equal legal, if not economic, rights is Imber, is worth quoting: “No one ever read Judge Rachelle Lewitan. a relatively modern invention. Government talked about quotas when the judiciary P. 38 Buddhist temple photo cap- of the people by the people and for the was dominated by men, as it always used tions should read: people did not even have the standing of to be.” But she went on to “accept that it (Top) Angela Perry, Oscar Roos a theory 300 years ago. Universal suffrage is not healthy when a profession is over- and Tom Rowan. was unknown 150 years ago. whelmingly single sex, whether it is men (Bottom) Judge Rizkalla, Chief Once there are certain groups within or women. We must find ways of getting Magistrate Mr Ian Gray and our society, or certain individuals within men back into the judiciary, but quota is Robert Lancy. our society, who do not have the full pro- not one of them. We must encourage them, P. 39 Top left hand photo should tection of the law, who may be imprisoned but we must not appoint any old idiot just read Byrne J, Paul Anastassiou without trial or arrested “on suspicion”; because he happens to be a man”. S.C. and E. Teri Konstantinou. against whom the executive may act Francoise Toillon, who is just finishing P. 40 Judge Sheldon should read without fear of judicial interference; we her judicial training course, said that the Judge Shelton. have moved away from the experiment problem was one of men’s makings, that

6 7 Chairman’s Cupboard Statistics Versus Obligations

ECENT newspaper reports present also evident in the 80 or so readers who a conflicting message for Victorian sign the Bar Roll each year, and in the Rbarristers concerning their eco- continuing substantial voluntary contri- nomic circumstances. butions of numerous barristers to the The Financial Review (26 June 2003) community of the Bar, on the Bar Council reported that: and its many committees, as appointees on numerous external community legal ... barristers have emerged as some of the and educational boards and committees, most profitable workers in the market for and through the many subject area Bar professional services ... At the Bar, the Associations. money keeps rolling in. Average incomes All this indicates the preparedness of for barristers are $312,300 and top Sydney the individual barrister to make signifi- silks leave the rest of the nation behind. cant commitments. That commitment on this scale is forthcoming from a group of The following day the same newspaper, 1500 lawyers, comprising different back- citing as its source the Australian Bureau grounds, each independent of the other, of Statistics, stated the Victorian Bar had each experiencing the “joys and horrors” suffered a body blow. the “rewards and drawbacks” of a bar- rister’s life, says much for the underlying The Australian Bureau of Statistics has values that are the foundation of the vol- revealed that average incomes at the Vic- untary association which is the independ- torian Bar have been overtaken by those at Anecdotal evidence from a random ent Bar. the Bar of Western Australia. sampling of barristers’ clerks indicates It would be easy to lose sight of the that court appearance work has been slow core values in the day-to-day difficulties It reported a national average income for the whole Bar in 2003. The combina- of maintaining a practice and paying the for barristers of $312,300 and an average tion of a long Easter break, other public rent or insurance, not to mention putting income for Victorian barristers of some- holidays, and lack of availability of judges food on the table. Yet, the barrister exem- thing less than $250,000. may be in part an explanation. plifies the notion of the independent legal It is no secret that the fee income of On the other side of the coin, in the profession perhaps best described by Sir our NSW brethren has traditionally been last two years, after a succession of major Owen Dixon: higher. There are, no doubt, numerous commercial trials in Melbourne, the pen- factors to explain this phenomenon, dulum, for commercial work, seems, for Because it is the duty of the barrister to including the marking of so called “disap- a time, to have swung in the direction of stand between the subject and the Crown, pointment fees”, a practice not adopted New South Wales. and between the rich and the poor, the by the Victorian Bar. Also, it may be that In any event, the Bar Council has asked powerful and the weak, it is necessary that, there is greater restraint in the marking of for details of the Australian Bureau of while the Bar occupies an essential part in fees by Victorian barristers. Statistics figures and proposes to examine the administration of justice, the barrister Mark Twain wrote: “There are three all relevant data and issues. The informa- should be completely independent and kinds of lies — lies, damned lies and sta- tion is of great importance in an era of work entirely as an individual, drawing on tistics.” At the very least, statistics often increasing costs of practice and the exten- his own resources of learning, ability and do not reveal the whole truth, or tell the sive financial commitments of the Bar. intelligence, and owing allegiance to none. whole story. Statistics are one thing. There is, how- For example, barristers committed to ever, great optimism at the Bar. This is The separate duties owed by the bar- legal aid work — truly providing “access reflected in the decision to renovate Owen rister to the court and to the client are to justice” — earn very much less than Dixon Chambers East. The decision to not conflicted by partnership or the com- any sort of average. The 1997 Price renovate ODCE, like the decision to build mercial pressure of bending to a client’s Waterhouse review commissioned by the it, was not an easy one. The substantial wishes. A rule of practice fundamental Bar Council in connection with legal aid financial commitment, the recognised dis- to that independence is “the cab rank fees estimated the maximum income a ruption to barrister tenants could already rule” — the requirement that the bar- criminal law barrister performing legal be said to be justified by the renovated rister accept a brief and not discriminate aid work could earn at a very low figure. first floor of that building dedicated to in any way concerning the acceptance of And the research of the Bar Council work- common Bar areas — the new Essoign, that brief. ing with the Criminal Bar Association Readers’ course facilities, Griffith Library, In a paper delivered to the Common- throughout 2003 indicates that there has Forsyth Room and Bar Council Chamber. wealth Law Conference in Melbourne been little, if any, change in that area. Confidence in the future of the Bar is in April entitled “The Immunity of the

6 7 Advocate” Charles JA referred to a pas- Insofar as the cab rank argument bears on less was the relationship one between pro- sage from the judgment of Brennan J in the question of the advocate’s immunity, it fessionals and clients in which the overrid- Giannarelli which explains the impor- is not merely that barristers may be unfairly ing goal was the collaborative performance tance of the rule: exposed to vexatious actions. A much more of a task in a skilful and ethical way. More serious consequence is that if barristers and more, it was a relationship between Whatever the origin of the rule, its observ- lose their immunity for in court negligence, business and customers in which the over- ance is essential to the availability of justice it is likely to become more difficult, if not riding goal on both sides was the making of according to law. It is difficult enough to impossible, to insist upon compliance with profits. ensure that justice according to law is gen- the rule … I question, with respect, whether erally available; it is unacceptable that the those who discount the importance of the The blind pursuit of profit, the unques- privileges of legal presentation should be cab rank rule have given sufficient weight tioned implementation of competition available only according to the predilections to this possibility when concluding that the policy and so-called business principles of counsel or only on the payment of extrav- advocate’s immunity should be abolished. endangers “professional” life. agant fees. If access to legal representation I do not here use the word “profes- before the Courts were dependent on coun- Another aspect of “commitment” for sion” as a “badge of exclusivity”. Rather as sel’s predilections as to the acceptability of a barrister is that of service — service to Gleeson CJ has stated: the cause or the munificence of the client, it the community. As members of the Bar we would be difficult to bring unpopular causes assert public obligations of service to the It should be seen as an acceptance of to court and the profession would become community and we accept that such obli- responsibility and encouraged. Provided the puppet of the powerful. If the cab rank gations constrain the individual pursuit they understand the reason for their exist- rule be in decline — and I do not know that of self-interest. This explains our ethical ence, and accept that the public interest is it is — it would be the duty of the leaders of rules. It explains the “cab rank rule”. The the ultimate test of the legitimacy of their the Bar and of the professional associations acceptance of public obligation is a hall- practices, the professions are more neces- to ensure its restoration in full vigour. mark of a “profession”. The independent sary than ever and well worth keeping. Bar strongly promotes this principle of No other professional is bound by such service. Yet I perceive in the wider legal The Bar must continue to maintain a rule. Neither the accountant, the physi- profession this attribute is substantially those core values that legitimise “profes- cian nor the solicitor is bound to accept eroded — that the culture of business, sional” life. It would be in the interests of the unseemly client. profit and competition is consuming the the national profession if its peak body We recognize the rule as Brennan J notion of conduct for the public good. were to re-examine some of the more observed as an essential element of inde- How is the community to view the recent initiatives proposed, particularly pendent representation. I do not believe phenomenon of the conglomeration of so called multi-disciplinary practices. the rule is in decline at the Bar. On the large legal firms — firms driven by budget, Whilst average income and statistics are contrary, as barristers, we recognize the billable hours and profit. The nature of of importance, it would be in the interests importance of this rule — it is fundamental legal services so offered was colourfully of the national profession to ensure a con- to the justification for the Bar’s continuing portrayed by Heydon JA in a paper to tinuing focus on the lawyer’s underlying existence. Further, whilst the thrust of my mark the centenary of the New South duties and obligations. By so doing, we comments is this article are not directed Wales Bar: better ourselves and advance confidence at a defence of the advocate’s immunity, in the legal profession. the comment of Charles JA in his paper on They moved to high rise suites which were Jack Rush QC this aspect is worthy of repetition. Babylonian in their splendour ... Less and Chairman

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8 9 Attorney-General’s Column Tackling Violence — the Challenge of Genuine Leadership

TAKING RESPONSIBILITY FAMILY VIOLENCE AND STALKING S Chief Law Officer there is a con- Of course the law relating to sexual tinuing challenge to strike the right offences is not the only area in which Abalance between the interests of we can make a real difference. Despite those accused of criminal offences and reforms over the last 20 years, the law those against whom offences have been designed to respond to family violence is committed. I will always defend the still inadequate. One in four women have fundamental principles of our system or will experience domestic, or family that safeguard a fair trial and consistent violence in their lifetime. This horrifying and considered process. However, I am statistic speaks volumes of our failure to determined that it be capable of address- address one of the most significant social ing the complexities of crime and, in problems in our community, a problem particular, the experience of individuals which becomes even more palpable when who suffer sexual and family violence, the we realise that many women simply never large majority of whom are women and report the violence they experience, and children. of those who do endure it, the majority Rape and sexual assault; sexual abuse have the care of children. of children; stalking; family violence and Of course, for the law to respond to homicide: these monstrous crimes shame this epidemic, reform must be staged on us as a community and confront us as a variety of fronts. Amendments to the individuals. Yet, as a society, we still strug- Crimes (Family Violence) Act have just gle to understand the nature and extent been passed to ensure that intervention of these crimes, or to develop an adequate SEXUAL OFFENCES — VLRC INTERIM orders may be made by consent. For more response. We must all own this failure, REPORT comprehensive reform, the operation of including those in the highest positions This is why we referred the almost the whole of the Act has been referred of leadership who must acknowledge overwhelming area of the law relating to the Law Reform Commission, which their responsibility to protect the vulner- to sexual offences to the Law Reform will examine mechanisms for improving able. Unlike the national leadership, this Commission. The Commission was asked the lives of this silent mass of women and Government understands its responsibil- to investigate legislative, administrative children. ity to victims of crime. It knows that a or procedural changes to ensure that the Concurrently, we are developing a measure of any democratic society is how criminal justice system took sufficient model for the establishment of a dedicated it treats its most vulnerable members. account of the needs of complainants in family violence division of the Magistrates’ This means that a government has a sexual offence cases. This was no small Court. This Government believes that our responsibility to ensure that its legal sys- task, but the Commission has developed courts are critical in breaking the cycle of tem responds adequately to the devastat- 107 recommendations, contained in an violence, and a dedicated division would ing effects of crime — a responsibility that Interim Report released in early June, enable the involvement of those with is perhaps even more appropriate where and spanning the entire criminal justice expertise in the area, such as social work- the crime is so often the result of the most process. The Commission is now seeking ers, police, and specialised judicial staff. horrendous breach of trust. This means submissions from the community. It is an In addition to reform of family vio- that a government must constantly inter- enormous body of work — often confront- lence legislation, the Government is rogate the law, demanding it be effective ing in its detail — and I encourage all of reviewing the operation of the criminal and fair in its treatment of alleged offend- you who have experience in this area of offence of stalking. Stalking and preda- ers, and compassionate to those who the law to make what contribution you can tory behaviour are increasing problems in experience crime. to this important process. our community and, once again, the large

8 9 majority of victims of this kind of offence provocation should operate to reduce a engage with the community over which it are women. We have introduced legisla- murder verdict to manslaughter. As most adjudicates. tion to make “cyber stalking” illegal and readers would be aware, provocation has A crucial part of this message is, of will alter the requirement that the victim been criticised for excusing male violence course, our commitment to ensuring that be aware of the stalking in order for it to towards women, as it is mostly men who the best and the brightest candidates take be an offence, to ensure that the criminal raise the defence, often in the killing of judicial office in Victoria. I am determined offence is brought into line with 21st cen- their partners. that Victoria’s judiciary has the most tury behaviour. Additionally, my Department is cur- appropriate skills, flexibility and a breadth At the other end of the scale, however, rently implementing the recommenda- of experience. A community advised and are some interesting results from the tions of the Review of Services of Victims represented by a diverse profession is publication of the last seven years of data of Crime, conducted in our first term of more confident in the capacity of the law regarding Intervention Orders collected government. Their implementation will to be meaningful, to be compassionate from the Magistrates’ Court. Amongst deliver a collaborative, cohesive approach and to deliver real justice. other things, the data indicated that a to counselling and support services for vic- high proportion of Intervention Orders tims of violent crime and will complement CONCLUSION were being accessed by parties involved the access to pain and suffering compen- Injustice cannot be remedied with a in neighbourhood or community disputes, sation to victims of violent crime that was single piece of legislation, initiative or rather than traditional stalking. We are returned in our first term in office. appointment. It requires a sustained and conducting a review of these provisions Of course, all of these initiatives can realistic approach — an acknowledgment to examine whether this access is appro- go only so far in redressing injustice if our that improvement will be incremental. In priate, or whether a different mechanism legal system does not have the confidence acknowledging this, however, we must may be used to resolve these disputes. of the community. Victims of crime need also acknowledge that the rule of law to feel confident that they are understood in and of itself cannot produce equality. TACKLING INJUSTICE ON by our legal system and represented Violence, sexual or otherwise, must be EVERY FRONT within its ranks. The Judicial College of tackled head on by those in a position to Of course, broader issues of violence Victoria, now formally in operation, will change both the perception and the real- must also be interrogated and I have ensure that the judiciary has access to ity of the law. referred the issue of defences and par- information about the complexities of sex- Rob Hulls tial excuses to homicide to the Law ual and family violence and will indicate Attorney-General Reform Commission, including whether that the judiciary wants to connect and

10 11 Letters to the Editors

As to whether it has “been dem- Bar is the only body with statutory power The True Cost of onstrated that the Ethics Committee to handle such disputes at first instance.” Discipline operates in a manner which is inferior The Committee has taken great pains to the Ombudsman”, my recent letter to with the Ombudsman to explain to her Dear Editors counsel dealt with some aspects of this. the Committee’s approach in accepting Interestingly, the authors of the article did costs and pecuniary loss disputes. The HE autumn edition of Bar News car- not suggest that my office operated in a Committee takes serious issue with the Tried what many would regard as an manner which was inferior to the Ethics allegation made by the Ombudsman that alarming item about the spiralling cost of Committee. Moreover, such an argument the Committee does not comply with its regulating the legal profession in Victoria. is not to the point as, in my view, it is obligations under the Act. The Committee Any reasonable reader would have been far more important that the public has has striven at all times to act in accord- justifiably outraged to learn that the cost complaints investigated by a body which ance with the law and to have regard to of regulation “rose from about $6,000,000 is independent of either branch of the its duties under the Act. The Ombudsman to $11,000,000 last year”. What’s more, profession. and the Committee hold different views according to the Bar News, the “vast about the acceptance or otherwise of dis- majority” of this money was “consumed Yours sincerely, putes. The Committee has not been per- by the ever-increasing permanent staff of suaded that the view of the Ombudsman the Ombudsman”. Kate Hamond is correct on this issue. What a scandal! A budget blow-out of Legal Ombudsman The Committee has explained to the more than 80 per cent, and nearly all of Ombudsman that in assessing whether or it going apparently into the pockets of not to accept a dispute, it has regard to the bureaucrats. A startling story worthy of Response to Legal information placed before it. Depending wider coverage, except for one thing — it on that information an assessment can was not accurate. Ombudsman be made whether to accept the dispute. The last two annual reports of the Legal Editors The Committee only accepts disputes Practice Board disclose a quite different which are genuine in the sense that there picture. In the last financial year the total y letter dated 12 May 2003 the Legal is some authentic and plausible basis for cost of legal regulation was $12,747,673. BOmbudsman (“the Ombudsman”) the dispute disclosed by the “details” that That figure includes the combined operat- wrote to all members of counsel purport- must be given by the complainant to initi- ing costs of the Legal Practice Board, the ing to “correct some of the inaccuracies ate a dispute under s.123(1) of the Act. Legal Professional Tribunal and the Legal contained in the article by the Chairman A mere assertion of a dispute, which is Ombudsman as well as public funds spent of the Victorian Bar Inc., Mr Jack Rush unsupported by proper details that dis- by the Law Institute and the Bar on their QC, in the last issue [Autumn 2003] of close the existence of a dispute, will not various functions as recognised profes- Victorian Bar News. be accepted by the Committee. sional associations. In the previous finan- In her letter to counsel the Ombudsman cial year that spending was $11,328,327. stated that she wished to respond in par- Withholding of Documents The article did not state clearly that the ticular to the claim by the Chairman of the The Ombudsman stated that “her office “about $6,000,000” starting figure was Bar that her office had never raised with became concerned that relevant docu- from 1996. the Bar “any significant criticism of the ments had been withheld from complaint So, instead of a staggering 83 per cent Bar’s disciplinary system”. files requested by the Legal Ombudsman increase in the cost of regulation in a sin- The Ombudsman said that “This state- for review. Eventually, but not until her gle year, as some may have assumed from ment ignores extensive correspondence office provided a copy of advice received the Bar News, the real increase was in the and discussions over a number of years from counsel to the Bar and the threat order of 12.5 per cent. Even this figure is between this office and the Bar concern- of court action the omitted documents cause for concern, however, none of that ing the investigation of complaints and the were made available. By omitting docu- increase can be attributed to the office of handling of disputes.” The Ombudsman ments from files requested by the Legal the Legal Ombudsman. Indeed, spending then set out what she says are the more Ombudsman for review the Bar was not by my office actually fell over the same recent matters which have caused her complying with its obligations under the period from $1,630,000 to $1,510,000. concern as follows: Act.” Instead of consuming the “vast major- Again the Committee takes serious ity” of the regulatory budget, my office Disputes issue with the allegation that it does accounts for less than 12 per cent of the The Ombudsman stated that “her office not comply with its legal obligations. On total funds spent. Furthermore, contrary has expressed concern that the Bar this issue too, the Ombudsman and a to the claim in the Bar News, there has has been reluctant to deal with costs/ majority of the Committee hold different been no increase in the size of my perma- pecuniary loss disputes in accordance views. The Committee has not been per- nent staff for at least four years. with its obligations under the Legal suaded that the view of the Ombudsman I don’t expect the Bar to share my views Practice Act 1996. The matter has been is correct but it considered that it was on the future of regulation. However, it is raised with the Bar on a number of occa- not a matter that should be the subject not too much to expect that the Bar News sions but the problem still persists. The of legal proceedings. Its view was that set out relevant facts fairly and accurately reluctance of the Bar to properly deal the requested documents (which were so the reader may reach his or her own with disputes means that consumers are administrative in nature) were unrelated conclusions as to the assertions made in denied access to conciliation and hearings to the Ombudsman’s review of conduct the article. in the Legal Profession Tribunal, since the investigations conducted by the Ethics

10 11 Committee. The Ombudsman took a con- to introduce emergency retrospective gestion is generally credited to Dowsett J., trary view even though the documents had legislation to remedy the problems aris- then a Supreme Court Judge, before his been made available to her at meetings of ing from the manner in which the Bar and transition to the Federal Court. It makes the Committee and to members of her the Law Institute had sought to delegate sense, at least in Brisbane’s climate, not office at inspections of Ethics Committee their regulatory powers. At stake was the to process in full-bottomed wigs and files pursuant to her monitoring role. legal validity of most, if not all, regulatory red regalia, in the hottest months of the actions performed by the two professional year. Regard to Irrelevant Considerations associations since the Act came into force. Secondly, Queensland has long had a The Legal Ombudsman stated that “con- The existence of proper delegations, com- tradition of a single ecumenical service, cern has been expressed that, in consid- plying with the requirements of the Act, rotated between various places of wor- ering complaints, regard may have been is fundamental to the lawful performance ship, conducted with the co-operation and given to the effect that an investigation by the Bar and the Law Institute of their representation of all major religious com- of a complaint could have on the premium regulatory duties under the Act.” munities, and attended by legal practition- a practitioner would pay for professional This criticism by the Ombudsman does ers of every faith — and, one suspects, in indemnity insurance. Such a considera- not raise any criticisms of the Committee many cases, no faith at all. tion is not relevant to, nor should it in any and its role in carrying out investiga- Perhaps this is more feasible in way influence, the deliberations of a regu- tions of conduct complaints or its role in Queensland, as compared with Victoria, lator entrusted with the statutory duty attempting to settle disputes. because the vast majority of the legal pro- of investigating complaints, and thus the fession are (at least nominally) members protection of the public.” General of one or another Christian denomination. The Committee also takes serious In the past the Committee has enjoyed This has not, however, been an impedi- issue with this allegation made by the excellent relations with the Ombudsman. ment to participation by Queensland Ombudsman. Again, the Ombudsman and The Ombudsman or her representa- practitioners from non-Christian religious the Committee hold different views. The tive regularly attends meetings of the traditions. Committee has not been persuaded that Committee at the invitation of the Bar. Over recent years, Chief Justice Paul the view of the Ombudsman is correct. The Ombudsman has in the past com- de Jersey — himself a prominent lay The issue relates to conduct complaints. plimented the Committee on its carrying member of the Anglican Church hierarchy The Committee’s view is that where a out of its functions under the Act. It can — has made a concerted effort to broaden conduct complaint on its face is without only be assumed that the recent flurry of participation in these events. Two years substance or misconceived, it should be criticism of the Committee is motivated by ago, the service was hosted by the Greek dismissed. In circumstances where there the current review of the Act. Whilst that Orthodox community, with the participa- is insufficient information the Committee is understandable in a political sense, the tion of His Honour Judge Samios. Last does not classify complaint unless or until Committee is not prepared to leave unan- year, the venue was the Salvation Army the complainant can provide further infor- swered the serious allegations now made Temple. mation to enable it to deal properly with by the Ombudsman. Queensland has a long history of the matter. It is incorrect and misleading sectarian division, especially between for the Ombudsman to allege, in effect, Kate McMillan S.C. Catholic and non-Catholic Christians. that the Committee takes the barrister’s Chairman, Ethics Committee The success of these events lies in the insurance into consideration in relation to fact that they bring together members an investigation of a conduct matter. of the legal fraternity of all religious In the regulation of barristers, the Brisbane’s Simple backgrounds — along with many who Committee considers that the interests of Ecumenical Service are not regular participants in any form the barristers should not be disregarded. of religious observance — in a spirit of The Committee fails to see how the views Dear Editors, professional fellowship and goodwill. It of the Committee on this issue can be in serves to emphasise what we have in com- derogation of the obligation to protect the ACH year, when I receive the Autumn mon with our colleagues, rather than what public. Indeed, the Committee’s concern Eissue of your fine journal, containing divides us. about increases to the barrister’s insur- images of the “Opening of the Legal Year” I do not know whether such an arrange- ance premium is in the public interest. services at various cathedrals, churches, ment would be either practicable or The recent media coverage of the increase synagogues, and temples, I am struck with acceptable in Victoria. But I can commend in insurance premiums for the medical the thought that we at the Queensland Bar the Queensland practice as an experiment profession is a prime example of the issue are — at least in one respect — wiser and which has proved highly successful. being in the public interest. more accommodating than our colleagues in Victoria. Yours faithfully Delegations In the first place, more than a decade Anthony J.H. Morris QC The Legal Ombudsman stated that “In ago, the “Opening of the Legal Year” for Brisbane the lengthy article there was no mention Queensland was relocated from February of the fact that the Government has had to July — an expedient for which the sug-

12 13 Welcomes High Court of Australia Justice Heydon

graduate work in law, still at Oxford, and magazine. George Cawkwell, a Classics graduated Bachelor of Civil Law, winning Oxford Don, recalled recently the stir the Vinerian Scholarship for the highest when Your Honour secured and pub- fi rst class honours degree in that course. lished an article on Jane Austen by the Those were heady days at University distinguished philosopher Gilbert Ryle College, Oxford. Your Honour was in dis- — trumping the English Department. tinguished Australian company. Fellow In 1967, you became a Fellow of, and Australian students there included David Tutor at, Keble College, Oxford. You also Hodgson (now Justice Hodgson of the lectured at the Inns of Court School in New South Wales Court of Appeal), John London. From Oxford, you visited the Finnis (now Professor of Law at Oxford University of Ghana as a lecturer in and a Fellow of the British Academy), 1969. In 1973, Your Honour returned to and the late Dr Peter Wilenski (sometime Australia to a Chair at the University of Professor, Chairman of the Public Service Sydney law school and, in 1978, became Board, Secretary of Transport, and of Dean of that law school — the youngest Foreign Affairs, and Australia’s permanent person to become Dean of any Australian representative to the United Nations). law school. The distinguished legal philosopher H.L.A. Your Honour has been a prolifi c Hart was Professor of Jurisprudence and scholar, continuing to publish long after Leonard Hoffmann (later Lord Hoffmann) you left the university and its imperative was Praelector in Jurisprudence. to “publish or perish”. You have published Friday, 14 February 2003 At Oxford, Your Honour was, in textbooks on restraint of trade, economic Kipling’s words, both a “fl annelled fool torts, trade practices law, evidence and R J. Rush, QC: May it please the at the wicket” and a “muddied oaf at the equity; and casebooks in most of these Court. On behalf of the Victorian goal”. You played cricket in a team called areas. All your books seem to have gone MBar, I welcome Your Honour “The Barnacles”, and what has generously into multiple editions — most recently, the to Melbourne. It is of note that it is but been described as a “vigorous” game of October 2002 fourth edition of Meagher, two years to the day since Your Honour rugby. Thirteen years later, in Sydney, Gummow and Lehane’s Equity Doctrines was sworn in as a justice of the Supreme you were still playing a “vigorous” game of and Remedies, of which Your Honour is Court of New South Wales and the Court rugby when it was suggested by the then co-author with Justice Meagher and Dr of Appeal. On Tuesday I had the honour of William Gummow that it was not fi tting Leeming of the New South Wales Bar. representing the Victorian Bar at the cer- for the Challis Professor and Dean of the In one of the New South Wales Bar emony to mark the presentation by Your Law School to be seen kicking heads on a centenary essays published last year, Your Honour of your commission to the Chief Saturday afternoon. Your Honour adopted Honour described Equity Doctrines and Justice. We are delighted to continue the Justice Gummow’s suggestion that you Remedies in the following terms: extension of Your Honour’s welcome on cease playing rugby, and his other sugges- the occasion of Your Honour’s fi rst visit to tion that you go to the Bar. It is beyond question that no greater legal Melbourne. Whilst at Oxford, Your Honour showed work has been written by Australians — Your Honour was born in Canada. Your great adaptability and played in the father, Sir Peter Heydon, was in the dip- Oxford–Cambridge Australian Rules and: lomatic service and was then secretary football match. This was long before New at the embassy in Ottawa. Your father’s South Welshmen at large developed any It has extremely strong claims to be placed diplomatic postings resulted in your being appreciation for the greater refi nement on, and indeed, at the top of, a short list of educated in London, Wellington and Rio and skills of that game. Julian Disney the greatest legal works written in the Eng- de Janeiro before returning to Sydney (then a Rhodes Scholar from South lish language in the twentieth century. to attend the Sydney Church of England Australia, now Professor of Public Law at Grammar School. In 1964, Your Honour the Australian National University) was If only we could all review our own graduated from the University of Sydney your captain, and you played, I am told, a work! To be fair to Your Honour, I think with a fi rst class honours Bachelor of reasonable game with the Oxford team. you were referring to the fi rst edition. Arts degree and the University Medal in Now, over 35 years since your com- Your Honour’s 1978 work on trade prac- history. You won a Rhodes Scholarship pletion of your degree and undergradu- tices, published in collaboration with Mr to Oxford University and won the Martin ate work at Oxford, Your Honour is still Bruce Donald, has been described as “an Wronker Prize for the top fi rst class remembered for your initiative as an essential tool for any lawyer professing to honours degree in law. You went on to undergraduate in establishing a scholarly advise in the area”.

12 13 The bench of the High Court of Australia prior to Justice Heydon’s appointment; L to R: Justices Hayne, Gummow, Gaudron, Chief Justice Gleeson, Justices McHugh, Kirby. and Callinan.

Your Honour read with Mr Peter Hely, case, largely adopted by Chief Justice State are confident that Your Honour will now Justice Hely of the Federal Court, Spigelman, contains the memorable make an enormous contribution to this and commenced active practice as a bar- phrase: “In short, equity does not bear High Court. Your Honour has a reputation rister in 1980. You rapidly built an exten- the same relationship to the instinct for for being extremely hard-working and of sive practice in this Court, the Federal revenge as the institution of marriage considerable intellect. Court and the New South Wales Supreme does [to] the sexual appetite.” Your appointment is indeed a meritori- Court. Your Honour served as a member I am not sure that that is how Dixon ous one. As we have heard, Your Honour of the New South Wales Bar Council for would have expressed it, but typically has an impressive list of educational five years, from 1982 to 1987. You took Your Honour made your point with and professional credits to his name. silk in 1987. extreme clarity, and we can only look After completing a Bachelor of Arts at Your Honour has been a great defender forward to reading Your Honour’s further the University of Sydney in 1964, Your of the independent Bar. In your essay last judgments in this Court. Honour became a Rhodes Scholar. Your year, “The Role of the Equity Bar in the You have replaced on this Court Justice Honour completed a Bachelor of Arts and Judicature Era”, Your Honour wrote of the Mary Gaudron — a Judge held in the a Bachelor of Civil Law — both with hon- nonexistent monopoly of the Bar, the con- highest regard by the Australian legal ours — at Oxford University. Your Honour stant propaganda disseminated by compe- profession. You have joined a Court that then completed a Master of Arts at Oxford. tition theorists and ideologues against the has justifiably obtained and maintained During this time, Your Honour was also Bar that resulted in key tactical decisions the highest of reputations in the common a Fellow and Tutor at Keble College, in litigation tending to be made without law world. It is a reputation and a history Oxford. In 1973, Your Honour was admit- the restraining influence of counsel. of which the Victorian Bar is immensely ted as a barrister in New South Wales and Your Honour is regarded as a master of proud. also became a professor at the University the Dixonian judicial method — a master The Victorian Bar congratulates Your of Sydney’s Law Faculty, being appointed at setting each explication of the law in Honour on your appointment and looks Dean of the Faculty in 1978. Your Honour the framework of the established and forward to your contribution to this great was appointed a Queen’s Counsel in 1987, developing judicial principles. You have Court. May it please Your Honour. before being appointed to the New South strongly endorsed the judicial philosophy Wales Court of Appeal in 2000. of former Chief Justice Sir Owen Dixon, Heydon J: Thank you, Mr Rush. Yes, Mr As my counterpart at the New South in particular as expressed in Dixon’s 1955 O’Shea. Wales Law Society, Mr John North, recog- address at Yale University, “Concerning nised at Your Honour’s welcome this week, Judicial Method”. A significant passage Mr W.P. O’Shea: May it please Your Your Honour is a prolific legal author and from Dixon’s 1955 Yale University address Honour. On behalf of the Law Institute editor. Generations of Australian students was quoted by Chief Justice Spigelman of Victoria and the solicitors of this State, have relied on your legal texts on evi- in the New South Wales Court of Appeal I have great pleasure in welcoming Your dence, trusts, and equity, some of which judgment in Harris v Digital Pulse Pty Honour here to Melbourne. Your Honour, you co-wrote with other eminent mem- Ltd, delivered last Friday. The court as we have heard, has an outstanding rep- bers of the legal profession. rejected the extension of exemplary utation as a jurist and someone who has It has been said of Your Honour that any damages to equity for breach of fiduci- already made a significant contribution to person not associated with you could not ary duty. Your Honour’s judgment in that the law in Australia. The solicitors of the conceive of your enormous capacity for

14 15 work. I might recount a story by Mr North have done so, and it is pleasing to see Should some great natural catastrophe which sums up Your Honour’s capacity some of those people here today. affect Australia and affect Melbourne in for hard work. When very busy, you have Any visit to the High Court in particular, an archaeologist who viewed been known to test the patience and sin- Melbourne automatically triggers recol- the physical ruins of Melbourne would cerity of solicitors who have requested lection of the distinguished Victorian infer easily that there was once a great an urgent conference by offering to meet jurists who have sat on the Court. It would material civilisation in existence here. If with them at 5 am. It is a testament to be invidious to discuss the living, but one no literary remains of that civilisation sur- Your Honour’s expertise, skill and reputa- recalls the remarkable abilities of Chief vived except for the Victorian Reports and tion that almost invariably the solicitors Justice Isaacs, Mr Justice Starke, Chief the contributions to the Commonwealth agreed to meet with you at that time. I Justice Dixon, Mr Justice Fullagar, Mr Law Reports of Victorian judges, future suppose, for a number of lawyers in our Justice Menzies and Mr Justice Aickin. It historians would be able to infer that in branch of the profession, they could have is perhaps a uniquely illustrious line. this State there thrived as well a great dropped in on their way home. I should give particular mention to Sir legal civilisation of the highest intellectual Another story which the former Keith Aickin. He and my father served quality. chairman of the Australian Law Reform in the Australian Ministry in Washington I look forward very much to participat- Commission recounts is about how he during the Second World War when Sir ing in appeals from the Supreme Court of mentioned to Your Honour the evening Owen Dixon was the Minister there. Sir Victoria, the other Victorian courts and before you were about to leave for a trip Keith did me various acts of kindness late the Federal Court sitting in Melbourne in overseas his desire for you to give some in his career. Quite apart from his acute Canberra, and also hearing special leave consideration to drafting a particular Act, powers as a lawyer, he was, as no doubt applications here, and I look forward to prior to your return from your trip. He many present will remember, a gentle- the centenary sittings of the Court here arrived at work the next morning to find man of the most faultless courtesy. His in its birthplace in October. I repeat again your draft of the Act on his desk — not- premature death was a great loss to the my thanks to all of you for your attend- withstanding you were scheduled to leave High Court and I think a great loss to the ance. the same day. country. In future, I think he will come Again, I cannot claim authorship or to be regarded more highly than he now responsibility on the following story that commonly is. comes from the New South Wales Law Society, but I am also reliably informed that, according to Mr North, Your Honour is “an entertaining after dinner speaker and a gifted mimic, who can recount an amusing incident in a day’s proceed- ings, accurately imitating all the parties Supreme Court involved to the great delight of those listening”. Your Honour brings to this Court great experience, wisdom and skill. On behalf Justice Morris of the Law Institute of Victoria, it is with great pleasure that I wish you a long, HE appointment of Stuart Morris After early education in the country happy and fulfilling term as a Judge of QC as a Judge of the Supreme Court public school system, Stuart was sent to this Court. As the Court pleases. Ton April 8 2003 is received with uni- board at Wesley College in Melbourne, versal acclaim, both at the Bar and in the then a single-sex school, and somewhat Heydon J: I am very grateful to Mr Rush wider community; indeed, notwithstand- more abstemious institution than at and Mr O’Shea for their kind remarks, ing His Honour’s well known association present: it was here — no longer under the and I am also very grateful for the attend- with, and membership of, the Australian watchful eye of his parents — that Stuart ance of so many counsel and solicitors Labor Party, it was a mark of respect appears to have acquired his penchant for here today. While my links with the that Shadow Liberal Attorney-General, mischief. In his leaving year — together Victorian Bar and the Victorian Bench Andrew McIntosh (a former member of with certain other members of the Wesley have not been as close as I would have this Bar) publicly applauded His Honour’s boarding house — Stuart was “sprung”, liked, I do have some Victorians as old appointment. sharing a bottle of alcoholic cider. Despite friends, like Mr Justice Callaway and Mr Stuart Morris was born in Wentworth, a strong plea from Stuart (he never did Karkar. More recently, I appeared at the New South Wales, on 21 July 1950, the excel in that field), the Headmaster’s Bar with or against quite a few Victorian son of parents who both practised as Methodism prevailed: hence, the com- silks: for example, Mr Justice Charles, doctors in that town, having moved from mencement of His Honour’s short, but Justice Merkel, Justice Goldberg, Justice Melbourne primarily to minister to the successful, stint “down the road” at Finkelstein, Mr James Merralls, Mr Alan medical needs of the large Aboriginal Melbourne Grammar where, apart from Archibald and Ms Susan Crennan. More community in the Mildura/Wentworth excelling as a vigorous (if less than skilful) recently, I have had quite extensive deal- area. Their social conscience, and dedica- rover, he was dux of humanities. ings with Mr Alan Myers. In those circum- tion to the welfare of the less privileged, His Honour commenced law/economics stances, it is natural that I formed a very had a marked impact upon His Honour at Monash University in 1968. From the high opinion of the quality of Victorian and has been a significant influence on his outset His Honour excelled: academi- counsel. It would be impossible not to professional and public life. cally, politically and on the sporting field

14 15 Thwaites (now Deputy Premier) and an application by Bob Jane for a permit to Sarah Lindsey. extend the Calder Park speedway, known Stuart signed the Bar Roll in 1976, and as “The Thunderdome”, a critical issue in consistent with his long-standing interest, which was the noise made by a particu- and involvement, in local government, larly fast and noisy type of dragster known planning and environment, his practice as “a top fueller”. Discussion ensued as to developed a heavy concentration in those how this vehicle might be described in a areas. He became known for his quick, if permit condition proposed by His Honour, on occasion somewhat vulgar, wit as well so as to impose restrictions on its use. His as his outstanding advocacy, intellect and Honour asked Bob Jane how “top fuellers” strategic thinking. No case in which he might be described for that purpose. Jane appeared was ever dull. thought for a moment, then replied “I’d His early years also saw some notable call them nitro fuel jet cars — I mean, appearances in prominent defamation liti- your wife could understand that”, to gation and the broader field of administra- which Your Honour responded proudly: tive law. It was in the latter capacity that “My wife’s got a Ph.D”. His Honour appeared as junior counsel to Bob Jane again considered the matter Alistair Nicholson QC (now Chief Justice and then offered the observation: “Well, Nicholson of the Family Court) on behalf tell her to put some nitro in it, and it will of the Australian Labor Party, before an really go.” Australian Broadcasting Tribunal inquiry In 1985 His Honour took on one of the (football). After completion of His into the proposed acquisition by News more interesting and controversial roles Honour’s year in economics, he took a Ltd/Murdoch interests of Channel Ten. of his varied professional career: that of year’s “sabbatical” to serve full-time as During the course of this inquiry His Chairman of the Local Government Board, General Vice President of the Australian Honour, in tow with his leader, perfected charged with the task of “inquiring” into Union of Students. He was particularly the unusual technique of tribunal advo- the feasibility of reducing Victoria’s 211 active in the environmental movement, cacy known as the “walk out”: in the face municipalities to around 40. In that with the newly established Public Interest of the Tribunal’s persistent “panel system capacity, a particular duty was to address Research Group (PIRG), founded in the of cross-examination”, (and various other and/or chair public meetings throughout United States by the environmental cam- breaches of the rules of natural justice) rural Victoria enquiring into the proposed paigner Ralph Nader. It was at Monash His Honour and Nicholson QC simply reform of local government. This gave that Stuart had the good fortune to meet, “walked out”, a procedure subsequently rise to significant levels of what might be and marry, Jenny Morris (same surname), endorsed by the High Court in issuing traditionally described as “odium, ridicule then a PhD student (and subsequently mandamus and prohibition against the and contempt” directed at His Honour graduate) in Urban Geography. Tribunal: R v Australian Broadcasting by vested rural interests opposing this His Honour graduated LLB with first Tribunal; ex parte Hardiman (1980) (correctly) perceived council amalgama- class honours and the Supreme Court 144 CLR 13. It should be noted that the tion program. Tomato pelting and flour prize in 1973. In 1974 he commenced Tribunal was chaired by “the first man on bomb throwing followed His Honour’s articles at Slater & Gordon under Michael television”, Bruce Gyngell, counsel assist- rural progress, somewhat redolent of his Higgins, now Judge Higgins of the County ing was T.E.F. Hughes QC, and Senior student politics days in the heady times of Court and Vice President of the Victorian Counsel for the Murdoch/News Corp the late 1960s. In one incident His Honour Civil and Administrative Tribunal, of Corporation interests was R.P. Meagher is said to have “escaped” rural anger by which His Honour will serve as President (now of the New South Wales Court of retreating to a backroom lavatory at a commencing June 2003. Whilst serving Appeal). It is a useful precedent for those country municipal hall, taking the oppor- articles, His Honour was elected to the who appear before Morris J in his capac- tunity to avail himself of the facilities. On Council of the Shire of Sherbrooke, serv- ity as President of VCAT, in the event that turning to dry his hands he noted the fol- ing on that Council for four years, the natural justice principles may be seen lowing graffiti on the newly installed high- latter two as Shire President (then the to be endangered by His Honour’s pen- tech hand dryer: “Press this button for a youngest in Victoria). It was in this period chant for efficiency and practicality!: as 20 second speech by Stuart Morris”. that he “cut his teeth” — and no doubt, to which, see City of Brighton v Selpam Ironically, His Honour’s recommen- on occasion, his opponents’ — in local Pty Ltd [1987] VR 54 (an appeal from dations — though politically unpalat- politics. a decision presided on by His Honour’s able at the time — were subsequently His Honour signed the Bar Roll in predecessor Tribunal) . implemented by the Kennett Liberal April 1976 and read in the chambers of As a diversion from the Bar, in 1983 Government, bringing much needed Graham Fricke, later Judge Fricke of the His Honour accepted a full-time appoint- reform and efficiency to local government County Court. He quickly established ment as Senior Member of the Planning in Victoria. himself as a “colourful figure” — to use Appeals Board of Victoria (predecessor His Honour returned to the Bar in the vernacular — whilst reading with to the Planning Division of VCAT), where 1987 and quickly established himself as Fricke, a fact which can be verified by the he remained until 1985. In that capacity a leading junior in the planning, environ- Bar’s current Manager (Legal Education he conducted hearings with maximum ment, local government field, renowned and Training), Barbara Walsh who was efficiency, minimum tedium and his (by particularly for strategic advice and then Fricke’s secretary. Subsequently, then) well established sense of humour. case presentation on behalf of a large His Honour himself had two readers, John In one case, for example, he was hearing and loyal array of private, corporate

16 17 and government clients. In addition might suggest this was because as he con- have “walked” into the position of Labor he appeared in a number of significant sidered he knew just about everything on Leader in the Upper House of Victorian environment cases on a pro bono basis, any given topic, he was more than happy Parliament: Parliament’s loss was the including a high-profile land clearing case to share those views with others, includ- Bar’s gain, and now that of the Supreme for the Friends of the Earth and other pro ing opponents, concerning the merits or Court. bono cases instructed by the Environment otherwise of their cases! Notwithstanding, His Honour has been married to Jenny Defenders Office. His Honour took silk in his views were well considered, based on for 30 years and they have four children: 1991 and broadened what was already a intellectual rigour and always worthy of Sam, Cassie, Victoria and Todd (naturally, very significant practice into the field of strong consideration. named after a recently retired Melbourne land valuation, quickly becoming a Senior In 1999 His Honour gained pre-selec- footballer of some note). Sam (Law) and Counsel of first choice (he has appeared tion for the Upper House State seat of Victoria (Engineering) are at University, in most of the reported valuation cases in Waverley for the Australian Labor Party. and the younger two at school. Jenny the last decade). Despite suggestions that His Honour con- Morris is, in her own right, a leader in the As a leader in his field His Honour’s ducted his campaign with less “shoulder field of transport planning. advice and counsel were naturally sought to the wheel” than might normally be Justice Stuart Morris is an outstanding from junior (and indeed fellow Senior) expected (that is to say attendance at appointment to the State’s highest Court. Counsel. In that capacity he was selfless: fewer chook raffles, and less handshak- His unique combination of common the door of his 18th floor chambers in ing and baby kissing than is usual for a sense, humour, and intellectual rigour ODCW (when he was not otherwise in con- “maiden” candidate) His Honour achieved will enhance its reputation and efficient ference, which was frequent) was always a huge swing, losing the seat by less operation. open, and he gave of his time generously. than 1000 votes (less than 1 per cent). The Bar welcomes his appointment. Lack of confidence never having been Strong anecdotal evidence suggests that a flaw in Stuart’s character, the cynical had His Honour been elected he would County Court Judge Punshon

following edited extracts are from both Schools, at Altona North, then Footscray addresses. Technical Schools, then at Footscray High His Honour has practised at the Bar, School. His Honour graduated bachelor of specialising in criminal law, for nearly 30 laws from the University of Melbourne. years. His Honour is a strong believer in the His Honour has deep roots with work- state education system — and actively ing people of this State. His father, Frank, supports it on a state education website. and his father before him, were both Justice Vincent assisted His Honour in waterside workers. His mother, Elva, was obtaining articles with Jim Hill at Slater & fore-lady of the Nugget factory, until she Gordon, with whom he had served his arti- married. His father saw the support of the cles. His Honour came under the influence family as his responsibility. His Honour of the “gun” lawyer at that firm, Michael was one of five children. Higgins (now Judge Higgins). Justice Frank Vincent of the Court of After admission, His Honour took a year Appeal had an early and lasting influence off to travel around Australia. His Honour on His Honour, personally and profes- travelled with his best friend from law sionally. His father, Frank Vincent senior, school, Philip Toyne, who later became was also a wharfie, and worked with His head of the Australian Conservation Honour’s father at the King Island ferry Foundation. He was instrumental in hand- terminal. ing over Uluru to the Aboriginal people. Frank Vincent junior, now Justice He established the Pitjantjatjara Legal N Friday 11 April 2003 at a ceremo- Vincent, encouraged His Honour not to Service in Alice Springs. nial sitting at the County Court, His leave school, but to transfer from techni- His Honour returned to Slater & OHonour Judge Roy Punshon was cal school to high school, so as to matricu- Gordon, doing workers’ compensation welcomed by Jack Rush QC, chairman of late and go to law school. and personal injuries. the Victorian Bar, and Bill O’Shea, presi- His Honour was educated at Robert Richter QC persuaded His dent of the Law Institute of Victoria. The Williamstown and West Newport Primary Honour to come to the Bar — he said he

16 17 would have more spare time to read books. practical way his deeply held convictions policy, or more relevant in the contempo- His Honour has never had spare time at concerning Aboriginal people. rary justice debate, than it was under His the Bar. His Honour had been a voracious His Honour represented clients in a Honour’s stewardship. reader before he became a barrister. number of high-profile cases including the His Honour’s role in attempting to His Honour read with Ted Hill, Jim long-running Coronial Inquest into police achieve some fairness in fees for barris- Hill’s brother. His Honour was Ted Hill’s fatal shootings of suspects. ters doing legal aid work was signficant first reader. In many other regards, His Honour’s and vital to the increase in legal funding. Jim Hill as a solicitor, and Ted Hill as three decades as a criminal lawyer have His Honour is deeply committed to counsel, were the leading practitioners in been characterised always by intellectual social justice. His Honour is a member workers’ compensation. And His Honour rigour, respect for the law and passion for and former committee member of Liberty had practised in that area at Slater & justice. Victoria. Gordon. It was therefore scarcely surpris- In November 2000, His Honour was in His Honour has always been supported ing that His Honour’s practice at the Bar the first group of men and women to be by a strong family. His partner of some 18 began in workers’ compensation. appointed Senior Counsel (rather than years, Margaret Fried, is a lawyer with the It was His Honour’s mentor, Ted Hill, the old title of Queen’s Counsel). Department of Justice. They have three who encouraged the switch to crime. A His Honour has been a role model for children, Larry aged 13, Rex aged 11, and couple of years in compensation was fol- fellow barristers over many years. His Miranda aged eight. lowed by two years travelling in Europe approach to each case, as if it were his first, Throughout his career in the law, His and Asia. is a lesson that has not been lost on those Honour has maintained a reputation as His Honour returned to the Bar in 1977 who have worked with him. They talk of being scrupulously fair — as being straight to the purity of criminal practice, to which his unparalleled skills in cross-examina- forward — as holding on to maintaining His Honour since been dedicated. tion, the thoroughness of his preparation, his principals — these attributes explain For over 15 years, His Honour had his sharp intellect and his dauntingly high why His Honour is so highly regarded at chambers on the third floor of Equity standards. His Honour had seven readers: the Bar — they are attributes that will Chambers. His Honour began in the room Michael Cosgrave, Mordy Bromberg, Chris make him a fine judge. next to Sir Eugene Gorman. Des Whelan, Beale, Sean Cash, Michael O’Connell, the first Chief Judge of the County Moira Jenkins, and Gerard Mullaly. All Court, was in the room the other side of attest to his guidance, his care and con- Gorman. cern, and unfailing loyalty. His Honour’s friend Phillip Toyne was Over and above the demands of a busy instrumental in a large number of Victorian practice, His Honour has always been pas- barristers working in Alice Springs in the sionate about political views, deeply com- Aboriginal Legal Service. Justices Eames mitted to social justice, and fervent in his and Coldrey of the Court of Appeal and belief that the legal profession has a role in Supreme Court, and Judge Howie of this promoting a fairer and more just society. APPEAL BOOKS Court, spent substantial time there, as did This is reflected in his years of- serv COURT BOOKS David Parsons S.C. Justice Vincent was a ice on the Criminal Bar Association, as APPLICATION BOOKS regular visitor. a member of Liberty Victoria, and in his Personalised confidential service His Honour was one of many others tireless promotion of legal aid. Professional attention to detail who served there. In the early eighties, His His Honour’s work as Vice-Chair under Honour relieved Judge Howie for two-and- Chief Judge Rozenes, then chair of the Urgent instructions accepted a-half months in Alice Springs. His Honour Criminal Bar Association, has rightly Mobile: 0412 227 675 made another trip to far northern South earned plaudits across the legal profes- E-mail: [email protected] Australia, briefed by Phillip Toyne. This sion. The Criminal Bar Association has THE APPEAL BOOK COMPANY was not only work — it represented in a never been more influential in government

18 19 Farewells Federal Court Justice Olney

Court and moved to Darwin. After two described by Olney J at the end of his years in Darwin His Honour moved to judgment”. Melbourne, resigning the Family Court His Honour’s career in the law is nota- commission. ble for his involvement with Aboriginal An earlier connection with Melbourne Australia. This goes back to his days in the occurred when on the Supreme Court profession when he undertook pioneering His Honour heard a major mining case legal work for a number of Aboriginal com- concerning a dispute over the royalty munities, setting up incorporated bodies agreement between Lang Hancock and in the Kimberley and Pilbara regions of his partner Peter Wright and Hamersley Western Australia. He served two terms Iron Pty Ltd for the production of iron ore as Aboriginal Land Commissioner under from Mt Tom Price. The parties elected to the Aboriginal Land Rights Northern retain what are sometimes referred to in Territory Act 1976 and conducted 24 Perth as Wise Men from the East. S.E.K. enquiries. From 1994 he was a Deputy Hulme QC and Frank Caraway appeared President of the National Native Title for Hamersley and Doug Williamson QC, Tribunal. In his role as Federal Court Jeffrey Sher QC and Peter Heerey for judge he heard the trials of two major Hancock and Wright. His Honour found native title cases, Yorta Yorta and Croker for Hamersley but on appeal the Full Island. In both cases His Honour’s judg- Court reversed that decision two-one. ment was upheld by the Full Court of the Hamersley appealed in one of the last Federal Court and the High Court. N 30 April 2003 a packed court- Australian cases to go before the Judicial At His Honour’s farewell Mr Tom room in the Commonwealth Law Committee of the Privy Council. Pauling QC, Solicitor-General for the OCourts building in Melbourne heard That august body restored His Northern Territory, said that His Honour addresses marking the retirement of the Honour’s judgment: see (1985) 64 ALR had “broken down walls of mistrust and Honourable Howard William Olney as a 19 and “A Last Hurrah — Privy Council suspicion and shown (himself) to be a judge of the Federal Court of Australia. Days” Bar News, Spring 1986, 30. In the paradigm of impartial justice according His Honour was born in Western course of delivering their opinion their to law”. His Honour’s combination of cour- Australia and educated at Perth Modern Lordships said (at 21) that they had “read tesy, good humour, human insight and fine School. Like Fort Street High School in and re-read with respectful admiration legal skills have made his career a most Sydney and Melbourne and University the lucid narrative accounts in the sev- successful one. High Schools in Melbourne, this selective eral judgments below of the operation We wish him a long and happy retire- entry State school has produced many of the beneficiation process” and (at 28) ment. eminent Australians, including Prime that part of that process was “so vividly Minister Bob Hawke and the current Attorney-General Daryl Williams. His Honour graduated in Law from the University of Western Australia in 1956 and went into private practice where he was mainly concerned with industrial Family Court law, first as a solicitor and then at the Independent Bar. He took silk in 1980. For two years His Honour served in the Legislative Council of Western Australia Justice Frederico as an Australian Labor Party member. The fact that he was appointed to the REDDIE served as a distinguished father at Selbourne Chambers. He had Supreme Court of Western Australia in member of the Family Court from walked a considerable distance before he 1982 by the Charles Court Coalition gov- F1976 until his retirement in April was found and returned home. ernment is striking testimony to the wide- 2003. His primary and secondary educa- spread respect his Honour had achieved It is said that his pursuit of the law tion was more conventional in that he in professional and public life. His Honour commenced somewhat unconventionally attended Koska Hall (where he was Dux) served on the Supreme Court until 1988 in that at three years of age he set out and Xavier College (where he found row- when he accepted joint commissions for from his home in Brighton to walk to the ing). Whilst at Xavier at 16 years of age, both the Federal Court and the Family city accompanied by his dog to join his due to a failure to diagnose appendicitis,

18 19 Administrator of the Southern Region Kevin’s College, Melbourne Grammar and of the Family Court and undertook his Brighton Grammar). He coached the first responsibilities with quiet efficiency. He Newman college crew to win the intercol- was particularly proud of his success in legiate boat race and has understandable the planning development and construc- pride that he coached the first Australian tion of the new Federal Courts complex crew to win an international gold medal where he worked closely with Chief with the coxed fours at St Catherines, Justice Black of the Federal Court. For his Canada, in 1967 and a world champion- whole time on the Bench he was greatly ship bronze in 1977 with the first ever assisted by his associate, Pam Carnell Australian lightweight eights. He was whose diligence and knowledge of the the president of the Victorian Rowing “system” became legendary. Association for approximately 20 years A review of Freddie’s time on the and gave generously of his time to count- Bench would not be complete without less rowing activities. In 2000 he was reference to his role in the Judges Duty awarded the Australian Sports Medal in List and his involvement with the Ballarat recognition of his tremendous contribu- Family Court Circuit. For many years he tion to the sport of rowing. spent significant periods as the Duty List In 1978 Freddie’s wife Beth died of Judge in Melbourne. Cases were dealt cancer, leaving him to care for their four with expeditiously, ex tempore judge- children, before he married Genevieve ments were usually given and the out- with whom he now has two children. He he became severely ill and was given two come was invariably both practical and has always been a devoted father and hours to live. Following emergency surgery legally correct. For more than quarter whilst proud of each of his children is his chances of survival were increased to of a century Freddie regularly sat as the delighted that one of them practices law. 5 per cent but after a lengthy recovery Family Court Circuit Judge at Ballarat. His other interests include loyalty to period he resumed active sporting and In that time he earned the respect of and the Collingwood football club, a love of the academic life (perhaps in that order). He formed friendships with the diverse group island of Vanuatu and a general interest in was cox of the first eight at Xavier. of family lawyers who appeared before and knowledge of history and geography. He obtained his law degree at him at Ballarat. He was president of the Victorian Branch Melbourne University where he was a resi- It is not possible to accurately sum- of the Order of St Lazarus from 1984 to dent at Newman College. His passion for marise Freddie’s involvement with row- 1990. rowing did not abate and on one occasion ing. He was a member of a number of Freddie has made a significant con- he forgot to attend a French examination victorious Kings Cup crews and repre- tribution to the community, both on the as he was at a rowing training session. His sented Australia in international rowing. Bench and off it. The Bar wishes him a advocacy skills came to the fore and he He coached a number of Head of the long and happy retirement. was permitted to sit a specially set exam a River school crews (Xavier College, St few days later, which he passed. On 10 September 1956 Freddie signed the Bar Roll. Family law has only ever a small part of his practice which was predominantly that of a common lawyer. In the later period of his time at the Bar he was highly sought after in defamation cases and in 1976 was Chairman of the Joint Committee on Defamation Law. His manner on the Bench did not change significantly in the 27 years he was a Family Court Judge. It was said of his late father who was a County Court Judge for 14 years that he “was a kind man and if there was a hint of abruptness, it was always tempered by that dry, even at times sardonic, wit for which many of us remember him most” (Vic Bar News Winter 2001). Much the same could be said of Freddie, who was invariably qui- etly spoken and polite to both practition- ers and litigants. He was, however, always anxious to deal with the real merits of the case before him and made it clear if he was not being “assisted” by a line of ques- tioning or an aspect of submissions. In 1988 he was appointed Judge

20 21 Obituaries A Man Who Was Prepared to Listen: The Honourable Richard McGarvie

HE Honourable Richard Elgin (some of those perspectives appear in the McGarvie AC was Governor of extracts which follow). In every aspect, TVictoria from 1992 to 1997. He was however, the overwhelming characteristic also a barrister, a legal educator, an author, which emerges is that of “caring”. a Supreme Court judge and a family man. Dick McGarvie was essentially a com- He graduated with the Supreme Court passionate man who, despite his own Prize in 1950 and on completing articles strong intellect, listened with care and came to the Bar on 1 February 1952 attention to whatever was put to him. He where he read with Sir George Lush. He had the capacity to see the other person’s was Vice-Chairman of the Bar from 1971 point of view, to listen to it and evaluate it. to 1973 and Chairman of the Bar Council It would be too much to say that he was from 1973 to 1975. He was appointed to “prepared to suffer fools gladly”, but he the Supreme Court of Victoria on 1 June did not dismiss them. His whole approach 1976 and served on that Court until his was based on the assumption that the appointment as Governor of Victoria on other person had something worthwhile 23 April 1992. He died on Saturday 24 to say. May 2003. When he listened to you with his head One matter that is seldom mentioned slightly on one side, he did so in a way that by those who relate his history is the indicated the importance of what you were major role which he played on the Council saying and that your views mattered. To of Legal Education and in particular as him they did. This characteristic extended Chairman of the Committee which came to his relationship with all groups, with to be known as the ACAC Committee (“the all persons, with all ages. He could listen Academic Course Advisory Committee”). as intently and seriously to the words of As Chairman of that Committee he was a friend’s four year old as he could to the the person primarily responsible for arguments put to him by senior counsel in establishing the 11 areas of knowledge court. which today provide a guide throughout His work as a teacher and as a writer, Australia for admission of overseas gradu- as Chancellor of Latrobe University ates or practitioners. and as Chairman of the Academic Course It is well known that he was an inde- The Honourable Richard McGarvie AC. Appraisal Committee, was all sandwiched pendent lecturer in contracts at the in — the phrase is appropriate because University of Melbourne. His major role as much committee work was done over a consultant in the subjects of contracts sandwiches in his chambers at lunch and industrial law at Monash University time — between his judicial duties. He is less well known. He brought to the did not allow his commitment to these teaching of these subjects a pragmatic other interests and responsibilities to appreciation of the realities of practice. interfere with his duties as a judge of the He straddled with ease the two worlds, Supreme Court. Somehow he fitted them that of the academic and that of the prac- in. titioner. Equally, although he worked hard, he All of us remember him from a dif- managed to fit in time for his family. He ferent perspective. Those such as Ray enjoyed all aspects of his role as Governor Northrop, who served with him in the but the greatest joy it gave him was the Navy, and those such as Xavier Connor, opportunity to spend so much time with, who worked with him in reforming the and working with, his wife, Lesley. Labor Party, have a perspective quite dif- He combined, apparently without ferent from that of those who appeared effort, a passionate idealism with a total against him in court and who appeared sense of what was practicable. His design before him when he was on the Bench Richard McGarvie with his wife Lesley. of a republic model which would preserve

20 21 all the essential features of Australia’s cur- the Corowa Conference in the hope of The true persona of Dick McGarvie, as I rent constitutional system illustrates both igniting thought and debate on the Head saw it, is revealed by the statement of a aspects of his character. Although care- of State issue. teenaged girl (not a member of his family) ful not to take sides in debate between Unlike many people who obtain high on hearing of his death: “But he was so monarchists and republicans, he was office, Dick McGarvie did not thrust young. I don’t mean that he looked young utterly determined that any constitutional himself forward. Where there were views but he was young.” change should not undermine the sound that he felt needed to be heard he was Unlike most of us as the years passed foundations of Australian democracy. prepared to express them and to espouse he did not put his ideals on the back He drew attention to grave flaws he per- them passionately. But he remained bal- burner. He continued to pursue them. ceived in the proposed Republican ver- anced and logical, and, above all, accept- He was a remarkable man and we shall sion that John Howard put to referendum. ing of others. miss him. After the referendum failed he, with oth- Too often we see people through what ers including Jack Hammond, organised we consider to be their public persona. G.N. He Was Fair, Even-tempered and Wise: Tribute to the Honourable Richard E. McGarvie AC

Read by Richard W. McGarvie on behalf of the family

HERE is a wonderful, lyrical, Irish tion of the Australian community, Dad film called “Waking Ned Devine” remained to the end a fervent believer in Tin which, through a twist of a very the inevitable certainty of his model’s ulti- funny plot, a man is present to hear his mate success, should Australia ever finally own funeral tribute. Looking out at all your get around to becoming a republic. faces it occurs to me what a great pity it is His love of Australia and the commu- that Dad cannot be here today to see you nity he lived in was reflected in every- all and hear the words spoken about him. thing he said and everything he did. He I know how much he would have loved to devoured books on Australian history, have been here — to have shaken each of politics and constitutional affairs. He your hands, listened with real interest to could recite the entire Banjo Paterson what each of you had to say, and spoken ballads: “The Man from Snowy River”, quietly, sincerely, and I suspect this week “Clancy of the Overflow” and “The Man very sadly, about the topics of the day. from Ironbark” as well as Henry Lawson’s He would have gently probed your views “The Fire at Ross’s Farm” — by heart. He about the Australian Head of State issue, taught his children and grandchildren to and referred you to his book, Democracy: do the same. Choosing Australia’s Republic, into Dad was always very proud of his fam- which he put so much work, and which ily. He was the greatest and kindest hus- contains a lifetime’s experience, learning band, father and grandfather any family and, above all, wisdom. Richard W. McGarvie could wish for. He was fair, even tempered The Head of State issue and the and wise. He would always consult each importance of maintaining Australia’s in an Australian Constitutional Council member of the family when any important democratic system and constitutional the Queen’s only remaining constitutional decision needed to be made and would strength dominated Dad’s so-called function — of appointing or dismissing genuinely listen to, and take account of, “retirement years”, in which he contin- the Australian Head of State on the Prime all views. ued to work as hard as he ever had. The Minister’s advice. It was the second-most In all of his dealings with us, he was republican model he devised, after much favoured model at the 1999 Constitutional just and ethical, and encouraged all of us careful thought and hard work, was, like Convention, runner-up to the ill-fated to maintain the highest standards. When all great solutions, devastatingly simple. Australian Republican Movement model, any suggestion was made that we engage The McGarvie Model, as it came to be which Dad always regarded as deeply in questionable behaviour, he would gen- known, would retain all of the features of flawed. With perspicacious supporters tly persuade us of the correct course. Australia’s democratic system by vesting from all sides of politics, and every sec- For example, if one of us as children

22 23 suggested we ring home to be picked up immediately after the opening bar of a whip ropes. While his rope work skills from the local railway station on a public Melbourne Symphony Orchestra concert, were useful when he later took up sailing, phone by shouting into the earpiece to in front of any television program other serving as a seaman on a naval destroyer save using a coin, Dad would point out than news and current affairs, in the car did not teach him much about small boat that such behaviour was not honest. All of whenever he wasn’t driving, or at any fam- sailing. After the war, he taught himself to his children recall his system of imposing ily gathering immediately after lunch. sail a yacht by trial and error, exposing fines for misbehaviour which came out of As a result of his upbringing on a dairy his young wife and friends to the many our pocket money. In fact, my youngest farm at Pomborneit East, in Western perils of Port Phillip Bay. On many occa- sister, Ann, regularly ended up owing Dad Victoria, Dad was an accomplished bush sions Mum would find herself swimming money by the end of the week, but he was carpenter who could build work benches, frantically after the yacht after a capsize too kind to enforce the debt and would tree houses, dog kennels and even ferret while Dad attempted to right the boat. wipe the slate clean. His system of having hutches and who could fix practically Dad finally learned to sail skilfully without each child open Christmas presents one anything with twisted fencing wire. He actually drowning anyone in the process. at a time in order of age from youngest to could ride as well as any stockman, could We always speculated that it may well oldest ensured that everyone participated shoe a horse, catch and skin a rabbit, milk have been these hair-raising years which in appreciating all gifts given. His love of a cow or kill a snake with single bullet, gave rise to Dad’s favourite expression, reading was instilled in us all. Every birth- or a length of fencing wire if no gun was reproduced on the back of today’s order of day and Christmas present every year to handy. service: “Worse things happen at sea.” everyone was a book which he had care- Dad’s first career after leaving the He took all of the family out sailing as fully chosen for each of us. farm was as a sailor. He joined the Royal often as he could manage it and instilled He was meticulous in his preparation Australian Navy, which he chose purely in us his love for the sea. The moment for everything he undertook. However, because of his impatience to enlist as a the yacht was launched from the beach despite the enormous effort he put into serviceman in the latter years of World Dad would be ecstatic. He would begin each of his careers, in the time we have War Two. The Navy was then the only one each voyage by roaring with delighted known him — as a barrister, a QC from the of the services that would allow boys to laughter and launching into a loud but age of 37, a judge for 16 years, Chancellor enlist at 17. Dad’s two years as an ordinary entirely tuneless rendition of a British of La Trobe University for 11 years, seaman and later an able seaman on the naval song, “Sons of the Sea”, the most Governor of Victoria for five years, and a lower deck of a destroyer had an impor- memorable line of which we all joined in passionate constitutional commentator to tant formative part in his life. He not only being “jolly great lumps of duff” which the day he died — he always made time developed his love of the sea, he was also apparently describes some type of ined- for his friends and for those he loved. exposed for the first time to people and ible naval pudding. Often Dad would take When we were young, Saturday mornings ideas from all walks of life. This helped my brother Michael and me sailing around were set aside for fabulous games of hide- shape his progressive social and political the bay from Beaumaris, sleeping over- and-seek at our home in Beaumaris, where views. He always retained his nautical night at such exotic locations as “on the Dad would always be “he”, and all the kids skills and could deftly knot, splice and beach at Altona”. in the neighbourhood would join in. Family holidays were spent in the Dad always told us that he believed the early days at Apollo Bay, where he loved way to get the best out of others when nothing better than early-morning swims, working on any project was by doing much As a result of his freshly baked bread and jam, walks in the of the preparation and work himself but upbringing on a dairy forest and cricket on the beach — using giving credit for any successful outcome balls he carved from the thick stems of to them. In the event of rare failure, Dad farm at Pomborneit East, kelp washed up in the surf. In later years, would always shoulder the responsibility in Western Victoria, Dad the family would go camping at places himself. Dad was always a source of wise was an accomplished like Tidal River at Wilson’s Promontory, advice in troubled times. He had a tremen- Lerderderg Gorge and Sheepyard Flat dous capacity for logical thought and an bush carpenter who could near Mansfield. uncanny ability to see how others would build work benches, tree Throughout his life, he retained a pas- view or interpret events. His advice was houses, dog kennels and sion for growing vegetables, and liked always impeccable. nothing better than getting out into the All of his life Dad has had the most even ferret hutches and garden tending his crop. Many a night amazing work ethic. To each of us he who could fix practically he would be found in the backyard with a would say that a job worth doing was anything with twisted torch on a search and destroy mission for worth doing well and he always acted on snails and slugs. Spare Saturday mornings his own advice. When we were growing up fencing wire. He could ride were often spent shovelling horse manure it was not unusual for the study light to be as well as any stockman, in the veggie patch while whistling “The burning well after midnight and again from could shoe a horse, catch Road to Gundagai” out of the side of 4 am when he was preparing or running a his mouth. Dad’s passion for gardening case as a barrister, or toiling over yet and skin a rabbit, milk a had to be restrained during his years at another reserved judgment as a judge. As cow or kill a snake with Government House, although he was seen a result, if there was one thing Dad never single bullet, or a length on occasions eyeing the croquet lawn as if had enough of it was sleep. He became the assessing its potential to be dug up for a master of the catnap and could fall asleep of fencing wire if no gun vegetable patch. at the drop of a hat — at the dinner table, was handy. One thing which was never restrained

22 23 Farewell Drinks for Former Governor Richard McGarvie Friends and colleagues of the late “Dick” McGarvie gathered in the Essoign on Friday 6 June 2003 to remember and celebrate the life of a man who contributed so much to the Victorian Bar, the legal profession generally, and the Australian community.

Honorable Xavier Connor QC, Clive Harris, Richard McGarvie, Judge Ross and Stuart Murdoch propose a toast to the memory of the late Richard McGarvie.

Robin Brett QC, Richard McGarvie, Ian Fehring, Mark Carey and Greg Wicks, Gerry Nash QC and Judge Ross and Jack Rush QC. Michael Richards. Rohan Hamilton.

Dimity Lyle, Judge Campbell, Roger Richard McGarvie with Elspeth Gillard QC and Tony Southall QC. Strong.

24 25 was his ability to laugh and his wonderful floor, running on the spot in his bedroom On one occasion in his final weeks dry sense of humour. Most importantly, he each morning doing his Canadian Airforce he was holding court, propped up in a always had the ability to laugh at himself. designed “5BX” exercises. Until his final hospital chair, unable to move from the One of his aides, Damien Farrell, tells the days, he had been to hospital just twice in neck down. In attendance were a retired story of one of many visits Dad made as his life for minor ailments and very rarely judge and his wife, Mum, a daughter- Governor to schools throughout Victoria. had days off sick. in-law, physiotherapists and nurses. He A group of children had listened with rapt Right to the end, Dad counted his spoke with nothing but glowing praise attention to Dad’s description of the role blessings. Ten weeks ago, Dad suddenly for the medical services and care he had of Governor and of life at Government contracted a debilitating illness — sub- received, the extraordinary medical tech- House. At the end of the session, Dad sequently diagnosed as Guillain-Barre nology being deployed for his benefit, and asked whether there were any questions. syndrome. This neural disease progres- of how lucky he was. A serious-looking boy at the front raised sively robbed him of all use of his legs He was undoubtedly luckiest of all in his hand and, no doubt to the consterna- and arms and left him entirely dependent his marriage to my mother, Lesley. Their tion of his teacher, asked “Why have you on my ever-faithful mother and nursing marriage was always loving, strong and got such a large gap between your two staff to minister to all of his needs. While happy. As a couple, they always presented front teeth?”. Dad dissolved in laughter. retaining all of his powerful mental facul- a united front and did everything they Despite his huge workload as a judge of ties, he found himself physically as help- could to ensure that their children grew the Supreme Court, university chancellor less as a baby. It must have been torture of up knowing that their parents would and subsequently as Governor, Dad always the acutest kind, for a man of his immense always remain together. They did, for 49 made time for his grandchildren. All of strength and independence, to have had wonderful years. Some of their happiest us fondly remember sunny afternoons to rely so heavily on others for his welfare. years were those spent working together at Government House when Dad would Despite this, he remained always dignified in partnership as Governor and Governor’s play hide-and-seek as he had done with and optimistic. wife. They spent more time together in us years before. Government House was He told my younger sister Robyn: “I’m those years than ever before. Their pro- hide-and-seek heaven. One of his grand- like the king on the chessboard. I remain found love for each other was never better children, then aged about three-and-a- still while everyone moves around me.” shown than during the course of Dad’s half, found the prospect of hiding in one While he agreed that the paralysis was final illness. Mum spent all day every day of literally hundreds of rooms somewhat the worst thing that had ever happened beside Dad’s hospital bed encouraging, daunting. He would wisely take the pre- to him, he hastened to add: “If the worst- comforting and nursing him. She made caution of telling his grandfather where ever thing happens at age 76, then I’ve the unbearable bearable. Their love for he proposed to hide. He would whisper: been very lucky.” each other was boundless. “Grandpa, I’m going to hide under the ottoman in the ballroom, but don’t find me first.” Dad always obliged. While at Government House, Dad and Mum had the great idea of really get- ting to know all of their grandchildren as individuals, by taking each of them Peter Liddell QC over seven years, one after another, on holidays to Australian islands — such Mr. Liddell I wonder if you would enlighten Kevin’s and graduated from the Melbourne as Lord Howe, Flinders, Kangaroo, and the court, in terms of the anabranch, University with an Honours Degree in Law King Island. No matter how busy Dad was whether we are dealing with an anastomo- in 1956. He did articles with Norris Coates writing his book, researching or debating sis or a bifurcation. & Herle and signed the Bar Roll in April constitutional affairs concerning the issue 1958 reading in the chambers of the late of Australia’s Head of State, they always HUS spoke Gibbs C.J. in the course H.R. Newton. Liddell took silk in 1974 at made time to spend two weeks each year of argument in Hazlett v Presnell the age of 40. with another grandchild. T(1982) 149 CLR 107. Neither my As junior he was widely sought after Dad always considered himself lucky learned leader nor I in the course of our in a practice of remarkable breadth, as but, from what we could see, he made studious preparation had dealt exten- perusal of the Victorian Reports during his own luck. He was a practical optimist. sively, or at all, with this conundrum. We the sixties and seventies will testify. The While he believed that things would turn had always believed that the issue related firm of Alexander Grant Dickson and King out for the best, he always worked long to ownership of an island in the Murray was one of his principal supporters during and hard to ensure that they did. Usually River and not medical negligence. this period. As Sir Reginald Ansett was a he would prove to himself and us that Liddell, however, was equal to the task client it was only a matter of time before his optimism had been justified by mov- and responded in the following terms: he commenced working in the aviation ing mountains to bring about the desired field and ultimately held a retainer for result. Your Honour, I think the answer is most ATI. Liddell appeared as silk in a number Throughout his life, Dad enjoyed the simply stated by saying it depends very of Royal Commissions notably, perhaps, best of health and did everything he much upon the side of the river upon which the Inquiry into the Petroleum Industry. could to maintain his physical vitality. He one is standing. As well he had a penchant for appear- exercised regularly, ate moderately and ances in some of the more exotic South sensibly and had regular medical check- Peter Anthony Liddell was born on 27 East Asian Jurisdictions such as Papua ups. We all remember Dad pounding the February 1934. He was educated at St. New Guinea, Fiji and East Timor.

24 25 trying weather, or the state of the pitch tice in June 1995. It was hoped that he and or the over abundance of special Flinders his wife Jan would be able to enjoy many Island March flies but the effect was the fruitful years on the Island. It was not to same. By the end of the day players were be. Jan cared for him with utter devotion unable to determine whether they were for the remainder of his life. He is survived convicts or gentlemen or indeed whether by this three children, all of whom are they came from the north or the south. married. It was an occasion of sadness for those who knew him when he retired from prac- P.G.

Peter McGavin

ITH the death of Peter Edwin John Laurie McGavin on 19 WFebruary 2003 the Bar lost one of its last links with the 1939–45 War. The McGavin family were English but had had a long connection with the From the seventies Liddell’s days of Indian Civil Service. His father Alan was a wine and roses were played out upon his Magistrate in India. His mother Hazel Bain beloved Flinders Island in the Furneaux had been a nursing sister with the first Group where he purchased a cattle prop- A.I.F. They were married in India in 1919. erty. Under the British Raj Peter and his Initially his only means of conveyance older brother Alan had an interesting was a push bike, never having held a driv- and sometimes exciting boyhood. On one er’s licence. Shortly after purchasing the occasion, whilst attending to their pet property, however, he found the skeletal rabbit in its hutch, a cobra was about to remains of an old tractor and through the strike. Fortunately their father saw it in industry of his friend “Badger” Dennis the nick of time and shot it. it was brought back to life. The sight of When Peter was only seven he and his Liddell astride this machine approaching brother went to board at St Edmund’s the pub in the main (and only) street of School in London until 1937. His father Whitemark was bloodcurdling, only to be then retired and the family decided to complaints concerning Private McGavin outdone by the sight of its exit. He rode move to Australia where they lived at to Colonel Rhoden, he received back a rather than drove the vehicle reminiscent Black Rock. curt note — “I have one war on my hands of T.E. Lawrence in the film urging his In 1940 shortly before his eighteenth fighting the Japanese and cannot handle camel on at full tilt. birthday, Peter enlisted in the Second another; so would you please stop”. Sometime later Liddell did procure a A.I.F. and thereafter served in the 2nd/ In battle, however, Peter showed driving licence from the local constabu- 14th Battalion in which his brother was an his finest qualities. During 1940–42 the lary which conduct most of the tests in a officer. The battalion was commanded by 2nd/14th fought in Palestine, the Western building with which Liddell had consider- the late Colonel Philip Rhoden, a promi- Desert and Syria. At all times under fire, able familiarity. This led to the acquisition nent Melbourne solicitor. Peter’s courage and calm were an inspira- of a motor vehicle of sorts. It eventually From the beginning of his military tion to the comrades fighting alongside perished by immersion on a tidal flat while career as a recruit at Puckapunyal, Peter him. its owner was off in the distance catching was known by his comrades in the 18th Recalled to Australia in 1942 the Unit flounder, having failed to appreciate the Platoon as a colourful personality and then fought in the Owen Stanley Ranges ratio decidendi of tidal law. Its demise, somewhat of a rebel. In his disciplinary Campaign, at Gona and in the Ramu however, was not altogether a source of brushes with his Platoon Commander Valley. It was on the Kokoda Trail that the sadness as for a considerable time its door Peter began to hone his legal skills. Their battalion showed its ultimate greatness. mechanisms had been salted up, leaving relationship has been described as some- As the High Commissioner for Australia the boot as the only means of access and what like that of the matador and the bull. later said at a memorial service in 1998: egress. Peter refused to clean his boots unless “At that time a downward thrust if suc- Apart from his exploits as a Formula I the Army provided him with boot polish. cessful, would have exposed the entire tractor driver and fisherman, he excelled Rather than having to supply the entire Australian mainland to invasion — the as a sportsman as the legendary host battalion with boot polish, it was decided Battles of the Kokoda Trail marked the of the annual Richmond Park Cricket not to charge Private McGavin for refusing turning of the tide. Theirs was a victory matches played between teams variously to clean his boots. not only of the jungle battlefield, but a vic- described as Convicts v Gentlemen and The brushes continued and when at the tory of courage and tenacity. A victory of North v South. The level of libation was height of the New Guinea campaign his sacrifice and selflessness.” usually not insignificant due to either the Platoon Commander forwarded further At the same service Colonel Rhoden

26 27 said of his Battalion: “Although outnum- times hankered after a life in which he rights. At times he was angered by what bered six to one or more and certainly played the piano in the cafés of Europe. he perceived as some injustice to his cli- out-gunned — the battalion turned its His favourite pieces were Fats Waller’s ent. undoubted professionalism and its experi- “Aint Misbehavin’ ” and the music from On one such occasion at Ballarat when ence and ability to the limit — it was the “Show Boat”, but he was also no mean Peter was appearing for a plaintiff the two ability to hold on after all hope is dead, player of the Greig A Minor Concerto. defendants were represented by Norman continuing to fight until there was scarce Throughout his life, whenever there a Fowler and John Roberts respectively. At breath left in the body. The troops were was piano at a party, Peter invariably was the end of the day there was an unusu- fully aware of Australia’s dependence urged to play on until the small hours of ally robust interchange with Roberts. upon them.” the morning. Next day, to Fowler’s consternation, On the Kokoda Trail all men carried On 11 December 1948 Peter mar- immediately before the opening of the a minimum pack load of 45 pounds and ried Alison Affleck who worked at the Court Peter placed on the Bar table in a rifle. In addition all men were required University Commission as a secretary. The front of him what appeared to be a pistol. to take their turn in carrying the Bren marriage proved a very happy one and The consternation of Roberts was even machine guns and ammunition. All this they were always devoted to each other. greater, until later in the day when it was was done in mud and tropical rain pours, In order to support his wife and himself ascertained that the weapon was, in fact, and for five weeks the men were continu- Peter became Associate to Sir Edmund a water pistol. ally in wet clothes. When the battles of Herring and continued his law course part Out of court there was no more delight- Kokoda were finally won, of the 546 mem- time. ful companion. Peter might attack his bers of the Battalion who fought on the In 1950 Peter was admitted to practice opponent with the utmost vigour and then trail only 89 survived. and on 6 October 1950 he signed the Bar disarm him by inviting him out to dinner. In 1945 the Battalion moved on to Roll and soon developed the standard He was a brilliant and witty conversation- Borneo and Balikpapan but by this time junior practice of that era — landlord alist, a superb raconteur with a huge fund Peter had become gravely ill and had and tenant, “crash and bash”, police of stories, who enjoyed nothing more than to be hospitalised and later discharged. offences and other small civil claims. He spending an evening with his fellow law- Fortunately his constitution was unusu- loved cricket and played an active part in yers. If there were a piano he was soon ally robust. arranging cricket matches for the Bar XI playing and amongst his enormous reper- Of Peter himself Colonel Rhoden said against the services and the Governor’s toire were many of the favourite songs of that “he was a popular member of the XI. As a cricketer he had a sound batting Noel Coward. Battalion, who acquired those qualities technique and was a competent medium Declining health and, in particular, of courage, endurance, mateship and fast bowler. failing eyesight due to cataracts led to sacrifice so dear to the members of his In 1953 Peter was offered the post of his retirement on 19 February 1987. He Battalion”. a Crown prosecutor in Tasmania. In 1955 had hankered after a rural life and he At that time (in marked contra-distinc- he returned to Victoria where he worked and Alison acquired a 10 acre property at tion to the present) servicemen received briefly as a barrister, and then as a solici- Smythe’s Creek, on which they ran horses little or no counselling whatever. They tor doing many court appearances. Finally and chickens. By this time his eyesight were simply told to forget about the war he re-signed the Bar Roll on 15 February was negligible. and to get on with their lives. 1968. At this stage he developed a rela- After laser surgery Peter, to his great Peter McGavin tried to do just that by tively large circuit practice and in particu- joy, was able to read again, and, although enrolling in the Melbourne Law Faculty lar at Ballarat. his health was poor, his mental vigour and by playing an active part in student Peter was spending so much time remained unabated almost to the end. He life. He proved to be a good student and at Ballarat that eventually in 1975 he loved to sit and discuss politics, history, had one unique academic distinction acquired a large house on Black Hill in or philosophical issues and, in particular, — he obtained the Exhibition in Roman which his family was very comfortably cricket, of which he had an encyclopaedic Law whilst in a drunken condition. The accommodated. From that time on he knowledge. examination was fixed for the afternoon controlled the Ballarat County Court and Peter died on 19 February 2003 and but when Peter arrived at the library Supreme Court lists, but also did further was buried in the Ballarat New Cemetery. about 10 o’clock he was wrongly informed work in the circuit towns of the Western He is survived by his wife Alison and four the exam had been that morning. To con- district, to which he drove in his large of his children, Virginia, Alan, Andrew sole himself he repaired to Norton’s Hotel Rolls Royce (later changed to a “Merc”). and Peter. He will live on in the memories where he drank until lunch time. About Peter was a sound lawyer with a fine of his many friends as an unforgettable 1 p.m. he came back to the cafeteria for grasp of legal principles. He was a delight Dickensian character. some coffee only to learn the exam was to his clerk in that he could be sent any- in fact that afternoon. After more coffee where and do anything. As a barrister he C.F. Peter duly sat the exam but required was noted for his deep, rich and beauti- frequent comfort breaks. To everyone’s fully modulated speaking voice. In many surprise he obtained the Exhibition. ways Peter reminded one of Rumpole, At times Peter hankered after the and was not dissimilar in build. He knew Bohemian life. He was a superb pianist much of Shakespeare and the Oxford with a beautiful touch and a rare talent Book of Verse by heart, and often quoted for melody. He had an excellent ear and appropriate passages in address. He was a invariably played without music. He spoke fine and fearless advocate, an opponent to French and German proficiently and at be feared, who fought hard for his clients’

26 27 Elizabeth (Liz) Murphy

and member of the Melbourne Football it occurred when returning from Dowling Club. My late father’s first job in the law Forest to Ballarat City. was in his home town of Echuca where he The defendant had made certain did clerical and minor legal duties on holi- incriminating admissions to the police days with Jack Mueller’s father who was at the scene of the accident and when, a local solicitor. Jack Mueller would need by pure chance, I learned that Liz had no introduction to supporters of Aussie been a participant in the post-accident Rules Football. On Grand Final night Jack activities, I quizzed her as to his capacity brought a number of the Melbourne play- in her opinion to give a statement at the ers to my home where my parents were scene. Liz advised me he was comatosed having a “singalong”. Jack drove Liz back without doubt and was prepared to say to St Vincent’s Hospital where she was so in court. She felt he would not have doing her nursing course and deposited been in a fit state to make any state- her at the nurse’s home. This major event ment. I called her as a defence witness in Liz’s life was oft repeated by her. at the trial before Judge Jim Forest and Prior to Liz undertaking the law course, a jury. The learned trial Judge, who had she had done nursing at St Vincent’s quite a background knowledge of Liz from Hospital in her early post-school years early days, had no hesitation in accepting and subsequently travelled to England her as an expert witness because of her where she did specialist courses in anaes- English qualifications in anaesthetics and thetics and resuscitation. Some time after resuscitation. The jury eventually acquit- IZ Murphy was born on 10 October, her return to Melbourne, she decided ted my client who immediately, with his 1927. She was the older of the two to change career direction and became recently acquired entourage of Born Ldaughters of Dr George and Angela a sales representative with Nicholas Again Christians, displayed his Bible to Murphy (nee McCumiskie) of Armadale. Aspro. She started with that company me, as did his support group, and advised Largely because of their mother’s in Melbourne and was later transferred me that it was the man upstairs who had poor health Liz, as she was known to her to Sydney where she spent something in looked after him. I suggested that at the many friends, and Judith, her sister, were the order of 10 years doing the New South next Church meeting they might perhaps sent to board with the Mercy Nuns at Wales circuit. Liz became the leading recite a prayer for Liz. Ballarat East. Their father was a General salesperson for Nicholas Aspro which is Liz did her articles with Galbally & Practitioner in High Street, Armadale. One perhaps proof of the forceful personality O’Bryan (articled to Peter O’Bryan). This of my earliest recollections of Liz, who that she displayed at the Bar. Liz believed was a plumb position which she obtained. was a second cousin, was on a bleak cold that she had no long-term future with However, Liz was keen to try her wares at day when an Aunt of mine took Liz Nicholas Aspro because she was a female the Bar and after finishing articles joined and her sister, together with my older and in those days (late 60s, early 70s) the Bar in 1979. She remained at the Bar brother Bob and myself to the zoo. She she had no potential for promotion. She for approximately 15 years, but her health was aged 9 or 10 and we still have a pho- returned to Melbourne and undertook her made it difficult for her to continue, and tographs of the occasion. When first at Matriculation studies before commencing after her retirement she moved to a retire- the Bar, Liz lived in a unit below the same a law course at Melbourne University. ment village on the Mornington Peninsula, Aunt who owned a block of flats in East Several members of the profession, at Mornington, where she became heavily Melbourne. I well recall in one of her first including quite a number at the Bar, stud- involved with Probus. The Probus Group years at the Bar following the Bar Dinner, ied at Melbourne University in her time. from Mornington was very well repre- many members of counsel descended I understand she became somewhat of a sented at her funeral. upon Liz’s unit and a good night was had known personality. At the Bar Liz was instrumental in by all. A further experience of my own relating organising, setting up and running the Liz’s mother died when she was only to Liz occurred whilst she was a law stu- first aid facility. This has become - aper about 13 years old and she and her sister dent but relates to the period when back manent Bar facility. Her background in continued at Ballarat East in the boarding in Victoria she was travelling the country- nursing was of invaluable insistence in school until they finished their school- side with Nicholas Aspro. I was briefed in that endeavour. ing. I felt it was a great compliment to Ballarat to defend a person accused of Her earlier nursing involvement Liz, and indeed to her sister Judith, that culpable driving which resulted after the resulted in Liz acting on a committee with four Nuns who had been in Liz’s class accused had spent the greater part of the Dame Rita Buxton in an appeal for funds at school drove from Ballarat to attend afternoon in a hotel at Wendouree. On his for a rehabilitation centre at St Vincent’s her Requiem Mass at the Sacred Heart journey home he came into collision with Hospital. This was a very successful effort Church, Sandringham. another vehicle, an occupant of which was and the Board of St Vincent’s Hospital Another early recollection of Liz was killed. Liz, who, whilst on these country recognised her efforts by making her a after Melbourne’s Grand Final win in 1948. circuits, always seemed to managed to get Life Governor. Liz was very proud of this I might say that as years passed Liz became to the races when they were at Ballarat, honour. a very ardent and committed supporter came across the accident scene soon after Liz was also to the fore in the introduc-

28 29 Legal Assistance Committee

tion of female members at race clubs. Liz saw no reason for females to be denied membership and fought for their rights. The race clubs had previously drawn white Victorian Bar lines across the ground areas over which females were not allowed to tread. This was like a red rag to a bull, as far as Liz was concerned, and she was very instrumental Legal Assistance in changing the perception of ladies within such organisations. She became a member herself of both the VATC (as it then was) and the VRC. She used to regularly attend Scheme 2002–03 race meetings at both venues. She made many friends on the racecourse including race course dignitaries. HE Victorian Bar, through its legal increase. In 2002–03 the scheme received Another of Liz’s passions was the assistance scheme (“the scheme”), 289 inquiries, an increase of approxi- Melbourne football club, and even in Tcontinues in its endeavor to increase mately 32 per cent compared with the her later days whilst living in the retire- and improve the accessibility of pro bono previous year. Of these inquiries, 70 refer- ment village and, with limited resources, legal assistance provided by Victorian bar- rals were made to barristers, an increase she often found her way clear to pay for risters to the community. The scheme, of 43 per cent. Where appropriate, appli- the football club membership despite which is now in its third successful year cants were also referred to other services her membership of the MCC. Before she of administration by the Public Interest such as Victoria Legal Aid, an ombuds- became an MCC member, Liz would watch Law Clearing House (PILCH), is overseen man, a community legal centre or another the football from a regular spot on the by the Bar’s Legal Assistance Committee community-based organisation. wing, frequently in the company of Judge (LAC) to which PILCH reports regularly. As well as operating the scheme, PILCH Chester Keon-Cohen and his son Edward. The scheme costs about $84,000 pa to also administers its own public inter- After obtaining her actual MCC member- operate and, whilst it is substantially est referral service and, since October ship she was a regular in the stand in front funded by the Bar, it is appropriate to 2002, the Law Institute’s legal assistance of the Long Room where she would often acknowledge the significant financial scheme. This “one-stop shop” arrange- save a seat for Chester who would arrive assistance of almost $29,000 provided to it ment sees the three major organised pro later. As indicated Liz was a member of the for 2002/2003 by the Legal Practice Board bono schemes in Victoria being housed MCC in her later years, but she was a life- as its contribution to the Bar’s access to in the same office and sharing the same time cricket fan. She loved attending the justice program. administrative structure. This provides a Boxing Day Test Matches and many other Over 400 barristers — more than 25 number of advantages, including maximis- cricket games at her beloved “G”. In both per cent of the practising list — have ing public access to the services, improv- cricket and football Liz became, at least in volunteered to participate in the scheme. ing cross referral between schemes and her own view, something of an expert. She Many others, although not formally regis- ensuring consistency of approach. The was able to intelligently discuss the activi- tered, welcome requests to assist when Bar is pleased to be a part of this model ties which had occurred on any particular approached. The Bar Council extends its of co-operative pro bono service delivery, day relating to any particular game. In thanks to those barristers who volunteer which is an Australia-wide first. football often her acclaimed best players and provide their work to the scheme. The scheme has recently welcomed were adjudged similarly by the scribes. Such generosity on the part of the Bar Susannah Sage as its first part-time Because of her ill health Liz retired is noteworthy, particularly in light of a Manager, employed by PILCH. Susannah’s from the Bar in 1994, but retained a very public misconception that lawyers are credentials, which are wide and varied, keen interest in her associates and legal generally greedy and self-interested pro- include a recent stint as a technical friends. Basically a non-drinker Liz would fessionals. advisor to the justice sector in the regularly, when in attendance at race Applications received by the scheme Solomon Islands and, before that, working meetings, be in the company of various are assessed on the basis of legal merit, as an associate to a judge of the Federal judicial officers such as Bruce McNabb, lack of means and whether assistance is Court. Her primary role will be to manage John Nixon, Cairns Villenuve-Smith and required in the “interests of the admin- the scheme and its clients, while fostering others. On her somewhat infrequent visits istration of justice”. The majority of the development of pro bono work at the to Melbourne in recent years Liz would applications come from individuals, many Bar. try to fit in lunch in the Essoign Club and with complex legal problems and no other In 2002–03 migration law was the area would sit at the “Head” table where she options for legal assistance. Referrals of greatest need, with many applications always seemed welcome. made to barristers may be for advice, to the scheme coming from asylum seek- Liz’s passing has robbed the Bar and drawing documents and/or appearance ers held in detention. The LAC’s Asylum the profession of an “identity”. There are, work. Matters dealt with cover diverse Seekers’ sub-committee, convened by these days, too few identities within the areas of law including administrative law, Michael Gronow, has continued to meet profession and it is the poorer for Liz’s migration, crime, family, general com- in 2002–03 in order to assist in the co- passing. I believe Liz is now experiencing mercial and civil, personal injury, employ- ordination of pro bono legal assistance the peace which she so justly deserved. ment, debt and bankruptcy and tenancy to refugees. Members of the Bar, PILCH and discrimination. and other organizations represented on G.T. Demand upon the scheme continues to the sub-committee have been involved in

28 29 Samantha Burchell, Co-Executive Director of PILCH; Susannah Sage, Manager of the Victorian Bar Legal Assistance Scheme and Paula O’Brien, Co-Executive Director of PILCH. a number of successful initiatives during barristers can receive guidance from Victorian barristers. While the focus of 2002–03. These have included: those more experienced when acting this report is on the work of the scheme, • Assistance in the provision by com- pro bono in migration/asylum seeker it is important to acknowledge that mitted lawyers at Legal Aid Victoria matters. barristers also give generously of their of a duty solicitor scheme at migration The sub-committee is pursuing the expertise and time in many other ways. directions days at the Federal Court and possibility of obtaining additional private This includes participation in the work of the Federal Magistrates Court. funding to employ a part-time lawyer/ other refugee and migration organisations • The conduct of an “audit” of organi- migration agent to work with both PILCH such as Spare Lawyers for Refugees, the zations involved in the provision of and other interested bodies in this very Refugee Information and Advice Network, pro bono legal assistance to refugees important area of need. the Asylum Seekers Resource Centre and in Victoria. The results of the survey This is by no means a comprehensive several interstate organisations, especially will assist those advising refugees and statement of all the pro bono activities of in South Australia and Western Australia. asylum seekers in identifying the bod- Members of the Bar also support the ies and organizations best able to help schemes administered by the Federal them and in preventing duplication of Court and the Federal Magistrates effort. The sub-committee is Service, community legal centres and by • Working with the Federal Court and pursuing the possibility accepting pro bono matters directly from the Federal Magistrates Court schemes clients and others in the course of running in coordinating the provision of assist- of obtaining additional their own practices. PILCH and the LAC ance. private funding to employ act co-operatively with these schemes, • Assisting in the conduct of two very a part time lawyer/ activities and bodies in coordinating the successful and well attended seminar provision of pro bono legal assistance. programs to educate barristers in the migration agent to work The work of the Bar scheme, along conduct of migration cases. These with both PILCH and other with the additional activities outlined, were organized respectively by Julian interested bodies in this constitutes a very important community Burnside QC and Rachel Doyle. service which the Victorian Bar can feel • Finally, promotion of a mentoring very important area of justly proud of. However, this work can scheme whereby less experienced need. and should never be seen a substitute

30 31 Victorian Bar Legal Assistance Scheme Case Studies

FAMILY LAW review of that decision. They also suc- rol. Five months later he represented HE Victorian Bar Legal Assistance cessfully applied for a bridging visa to himself in the Dandenong Magistrates’ Scheme (“the scheme”) responded have the clients released from deten- Court where he pleaded guilty to two Tto an inquiry from the Family tion. The Immigrant Women’s Domestic theft charges and was convicted and Court of Australia seeking assistance Violence Service was able to arrange sentenced to 75 hours of community for an otherwise unrepresented litigant accommodation for the clients, who are work over six months. The conviction in a long running and complex child now living in the community pending the and sentence were appealed to the contact matter. The litigant was required hearing. County Court. With the assistance of to make legal argument concerning the counsel arranged through the scheme DEBT RECOVERY applicability of section 19N of the Family and Youthlaw, a young people’s legal cen- Law Act and the admissibility or other- Counsel assisted a client of the Consumer tre, the appeal was allowed. The order of wise of statements made to a counsellor. Credit Legal Service who was facing the Magistrate was set aside and the sen- Counsel responded to the request from bankruptcy proceedings under a credi- tence reduced to a bond for 12 months the scheme at short notice, conferred tor’s petition. Following a motor vehicle and a fine of $100 with a compensation with the client, prepared legal argument accident, the creditor had obtained a order of $53. and appeared on behalf of the litigant default judgment against the client in the following day. the Magistrates’ Court. The Consumer MERITS ADVICE Credit Legal Service believed the client The Law Institute of Victoria Legal MIGRATION LAW had a complete defence to that action, Assistance Scheme received an applica- Following an inquiry from the Immigrant as the client was not involved in the acci- tion from a client wanting to challenge Women’s Domestic Violence Service, dent. The default judgment had come a judgment debt arising from a County the scheme referred a matter to coun- about as a result of the client’s disability, Court proceeding. The creditor had sel to assist a migrant woman and her which meant that he did not respond instituted recovery proceedings in the daughter who were taken into immigra- to the court summons. With assistance Supreme Court, and the Sheriff’s Office tion detention following the refusal of a from counsel arranged through the had advertised the family home for sale visa. The Law Institute of Victoria Legal scheme, the original judgment debt was to pay the debt. Before referring the Assistance Scheme was also involved, set aside, and the proceeding was settled complex matter to a solicitor, coun- and referred the matter to a solicitor for (including costs). Further, the creditor’s sel’s opinion was sought through the further assistance. petition was dismissed, and the client scheme on the merits of an appeal from The solicitor and counsel worked was able to protect his family’s home the County Court judgment. Counsel together on behalf of the clients to from seizure. advised that the appeal did not have rea- obtain documents from the Department sonable prospects of success. Based on of Immigration relating to the visa CRIMINAL LAW that advice the client took out a loan to refusal, and to file an application with In late 2002, a young man was involved pay the judgment debt and avoid having the Federal Magistrates Service for a in the theft of number plates and pet- the family home sold.

for the provision by governments of an Executive Directors of PILCH, Samantha scheme with commitment, dedication, adequate and just legal aid service for the Burchell and Emma Hunt (and to Paula professionalism and good humour. whole of the community. O’Brien who has recently replaced Emma In conclusion I am pleased to offer the whilst she is on maternity leave), and to Anthony Howard Bar’s thanks and appreciation to the Co- all of their staff, who have operated the Chair, Legal Assistance Committee

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30 31 Verbatim Articles Verbatim

I leave here today I will be getting a few ment, you may also lose your $70,000 A Misleading Title cans for the tram trip home, for sure. discount. It goes the other way, of course, An article in The Australian Law Gillies QC: But you deny that you’re an for Mr Martin. Journal, Volume 63, p.250 is entitled “A alcoholic? Mr Martin: Mr Oszczeda (an earlier wit- Lawyer’s Guide to Misleading or Deceptive Plaintiff: I’m not an alcoholic. ness) was of course Polish. Conduct”. Gillies QC: Okay, but you regard that as His Honour: Yes, that’s right. moderate, normal drinking? Mr Shaw: I don’t think we got the fish or Gillies — No Fun Plaintiff: Well, I don’t know what you the bones from Mr Oszczeda. would class as moderate, normal drinking, County Court of Victoria but I wouldn’t want to go to the football Horsing Around 20 March 2003 with you because apparently you would Coram: Judge Duckett only have one can. But to me, I’d class County Court of Victoria Strachan v J. Wilson Pty Ltd totally different. R v Carman & Wilson J.V. Kaufman QC with L. Feaweader for Gillies QC: What, you need to have a Sharpley for Carman Plaintiff beer on the tram, do you? S. Lindner for Wilson Gillies QC with R.C. Forsyth for Plaintiff: It kills time. I don’t mind about Halpin prosecuting Defendant having a can of beer and reading the paper on the way home. His Honour: Yes, understand what your Gillies QC: So the situation is that at submission is I think. I don’t think I have around about 11 o’clock on the Monday Unsatisfied Appetites any difficulties understanding it, it’s just a morning you’re buying a couple of cans for question of is there any evidence open to consumption on the tram? … Mm’hm. You Supreme Court of Victoria go to the jury on this question. It seems to consume the two cans on the tram and 3 April 2003 me there has to be. then, having got off the tram, went to the Interceramics Australia Pty Ltd v Mr Sharpley: Yes, well I won’t flog the bottle shop and bought another two cans, Quadric Pty Ltd horse any more Your Honour. and then sat down in the bus shelter and Coram: Byrne J His Honour: Yes. had a can of beer while you were waiting Martin QC with Fyfe for the Plaintiff Mr Halpin: May I respond, Your Honour, for the bus? Shaw for the Defendant perhaps to my friend’s comment about Plaintiff: Yes. I would have done exactly objective and subjective once more. that, exactly that way too. His Honour: There is an old Polish story, His Honour: Your horse is also dead. Gillies QC: That doesn’t strike you as Mr Shaw, that says if you want the fish you Mr Halpin: Probably Your Honour, but I being strange in …? have got to have the bones. Now if you won’t be giving him the last rites. Plaintiff: I came from the city, and when want to get rid of the $3.1 million agree-

High Court Not Routed Or Nothing Comes from Nothing

HE following are extracts from Mr T.J. Rout: Yes, I do, yes. of hydrogen which is … I proved that the Tthe High Court transcript in an Kirby J: Very well, you proceed to speed of light is alterable and controllable Application by Theodore Rout heard on advance the arguments you wish to put. and I have delivered the evidence verbally 14 March 2003. Mr T.J. Rout: Okay, I might point out in the Supreme Court on 29 August. I then Mr T.J. Rout: Appeared in person. that the High Court of Australia, the legal went on in September last year to prove Kirby J: You are Theodore Rout and you system and I are victims of a mythological that time and the speed of light equal one are the applicant in the application for peer review organisation that does not another, such you alter one, you alter the leave to issue a proceeding before the exist and is staffed by volunteer workers other, and this in turn enables the alter- Court now? of which there are none. So I am respon- ing of the speed of light within Einstein’s Mr T.J. Rout: Yes. sible for more than just proving there is relativity. Kirby J: We have the written documents another set of dividing and multiplying by Now, I am given no credit or recogni- that you have placed before us. You now zero and that it is incorrect. I have also tion for any of my work at any time. I have have the opportunity to advance some proven in 1993 that Einstein’s … relativ- proved in 1994 that energy is ceasing to oral arguments. Do you understand you ity is law. Now, all this data is related to, exist naturally in the phenomena because are limited in time? directly and indirectly related to, fusing Continued on page 66

32 33 Articles Commonwealth Law Conference Melbourne Convention Centre, 14–17 April 2003

Cherie Booth QC

The 2003 Commonwealth Law Conference was originally to be held in Zimbabwe. The crisis in government in that country meant that it could no longer be said that the rule of law prevailed. Under the present Zimbabwean regime it would have been difficult to discuss the concepts of human rights, common law and freedom of speech. In those circumstances a decision had to be made to change the venue and it was agreed that the Law Council of Australia would host the 13th Commonwealth Law Conference in Melbourne in April of 2003.

HE Prime Minister of Australia, the utterer of the words to then go on and Law Council President Ron Heinrich, the Honourable John Howard MP, describe how things have deteriorated the host of the conference on behalf of Topened the conference on the since. I think in the area of the governments the Commonwealth Lawyers’ Association, 14th of April at the Melbourne Convention of the Commonwealth and the rule of law, said: Centre. The conference had not been it is fair to say that things have advanced held in Australia since 1965 and the greatly since 1965. The rule of law is more Lawyers from developing countries will Prime Minister noted in his speech as fol- widely respected in Commonwealth coun- sit side by side with colleagues from more lows: tries now than I believe it was then. prosperous countries to discuss and debate a broad spectrum of common issues and … in 1965, the last time this conference was These then were some of the opening concerns. It is very rare that lawyers from held in Australia, it was opened by my very words to a conference which was attended such broad walks of life have this kind of distinguished predecessor Sir Robert Men- by more than 150 international judges, 30 opportunity to come together. zies. The world was a very different place chief justices, 200 speakers and 1300 in 1965 than it is now, and when one makes delegates from Commonwealth countries The conference was a great success statements like that audiences often expect around the world. and the Law Council of Australia, together

32 33 In addition to overseas speakers, the Chief Justice of Australia, the Honourable Justice Murray Gleeson AC, and the Federal Attorney-General the Honourable Daryl Williams AM QC PM delivered the traditional State of the judicature and State of the nation addresses respec- tively.

… in 1965, the last time this conference was held in Australia, it was opened by my very distinguished predecessor Sir Robert Menzies. The world was a very different place in 1965 than it is now.

Many members of the Victorian Bar The Prime Minister, John Howard. presented papers and took part in the con- ference. The business sessions fell within six streams: human rights and the rule of law, criminal law and practice, litigation in the new millennium, technology and the law, commerce and corporations law and the legal profession and its future. Members of the Victorian Bar and judiciary who spoke included Richard Bourke on the death penalty; Justice Hayne and David Curtain QC on restrict- ing litigiousness; Justice Marilyn Warren together with Ms Cherie Booth QC on the Commonwealth — women and the law; Henry Jolson QC on mediation and the courts; Jonathan Beach QC on issues con- cerning multiple litigants; Justice Stephen Charles on the liability of advocates; Paul J Hayes and Henry Jolson QC on sports law; Geoffrey Sher QC together with Daryl Williams QC, Attorney-General. Cherie Booth QC and Justice Linda Justice Kirby and Geoffrey Robertson QC Dessau. on jurisdictional issues arising from inter- national e-commerce and publications via with the Law Institute, are to be congratu- racy and human rights as core common the internet; Alan Myers QC on fiduciary lated on the organisation of a conference commitments for its members, and remind duties of the new millennium; and Judge of such a scale within such a limited time states about the wealth and advantages that McInerney and Judge Harbison on tech- frame. flow from the realisation of those commit- nology behind the firewall, concerning Cherie Booth QC addressed the confer- ments. technologies in the Court. ence on Human Rights in relation to the There was an active social program Commonwealth. Her address was centred Other keynote international speak- commencing with the welcome recep- on the subject of the Commonwealth: ers included the Right Honourable tion on Sunday, 13 April, and a gala din- Christopher Patten CH, the External ner dance at the Exhibition Buildings, … the common commitment which mem- Relations Commissioner of the European which was truly an uplifting event. The bers of the Commonwealth have made to Commission; Lord Woolf of Barnes, Lord other highlights of the social calendar three core values — human rights, the rule Chief Justice of England and Wales; the were many dinners and home hospital- of law and democracy — and the “wealth Right Honourable Beverley McLaughlin, ity put on by the lawyers of Melbourne. both economic and otherwise — which Chief Justice of Canada; the Right Bar member Paul J Hayes claims that the flows from that common commitment Honourable Justice Albie Sax of the party which he hosted was, of course, the …” For the Commonwealth to be true to its Constitutional Court of South Africa; social highlight of the conference. Those namesake, it must actively promote democ- Geoffrey Robertson QC, and Kapal Singh. who attended have not disagreed.

34 35 Geoffrey Robertson QC.

Christopher Patten CH. Cherie Booth QC with Prime Minister, John Howard.

The Commonwealth Lawyers Associat- who both provide facilities, education and sented by Judge Marilyn Harbison at the ion held its Annual General Meeting at computer backup to the law. Overall the conference in reply to the presentation which the current President Dato Cyrus conference was a success largely to the of Judge Michael McInerney concerning Das of Malaysia relinquished his office efforts of the conference chairman Mark technology and the courts. It is hoped that to a new President. The conference was Woods and his deputy Roderick Smith. other papers from the conference will be also notable for an exhibition of those Following this article is a paper pre- published in Bar News in the future.

34 35 Articles Technology in the County Court: Behind the Firewall A commentary on the presentation of His Honour Judge Michael McInerney by Her Honour Judge Marilyn Harbison, Judge in Charge of the Business and Damages Lists, County Court of Victoria, given at the Commonwealth Law Conference.

T is worthwhile observing that there indeed to the executive officers of those needs to be a specific purpose to use businesses who instruct the firms of solici- Itechnology for it to be of assistance in tors. It is no use complaining — what we the courtroom. Technology of any descrip- have tried to do is to use the solicitors’ tion is generally very expensive and has to own facilities for communication within be continually maintained and updated. their firms and with their opponents in We are all familiar with examples of situa- order to streamline our own workload and tions where technology does not assist us to manage it effectively. to conduct our lives usefully, and in fact Our first task was to reduce the level in many occasions makes it harder. My of in-court appearances required by prac- favourite example is that of computer per- titioners, be they barristers or solicitors. sonal organisers. I can’t understand how It is not until you watch the proceedings they work, and why anyone would want to from the Judge’s side of the Bench that use anything other than a pen and pocket you realise how much time is wasted diary. I have to confess that although I may in court with matters that really do not seem to be parading myself as a learned require a personal appearance of anyone, speaker on new technology, I don’t even let alone that of a highly qualified lawyer. know what a firewall is. Although I am sure my Chief Judge would My point is that the use of technology never allow me to say publicly that our in the courtroom is not attractive to me Court did not need more judges (it is because it is new or exciting or different. an article of faith within all levels of the Courts are naturally rightly suspicious of Judge Marilyn Harbison. judiciary that more judges will always change for its own sake. We need to ensure be needed and that you can never get that we do not embrace technology just letters were all dictated to stenographers enough judges no matter what your case because it is exciting but because it has who took shorthand or were handwrit- load) I often wonder why we are so judge- some purpose that assists us with the task ten. I won’t elaborate any further — such centred in looking at the requirements of which we have to perform as judges in the observations by aging baby boomer law- the Court. Often what we need is not more modern world. Badly designed computer yers are now commonplace. judges but an analysis of what we require systems can be as crippling to courts as However, it is fundamental to our use judges to do, so that the judges that we they can be to business enterprises. of technology to understand that we are do have are being used productively. In my view, we have embraced the now dealing with an environment in which Paradoxically, it is often the most senior technology which Michael [McInerney] exchanges between solicitors and counsel has described for two reasons. Firstly, now take place in a technological environ- it is the environment in which the busi- ment unfamiliar to baby boomer judges. ness community and the legal practition- Lawyers now correspond by fax or e-mail It is not until you watch ers with whom the Court must deal on a and even mobile phone text message. The the proceedings from the daily basis now conduct all their business. typed letter posted by normal prepaid Secondly, the Court’s attitude to its rela- post is fast becoming extinct in our daily Judge’s side of the Bench tionship with the community has funda- lives. that you realise how much mentally changed. At the County Court we have set our- time is wasted in court I will talk about the first proposition selves the task of utilising these changes in first. the legal profession to assist us to manage with matters that really I do not need to tell you that the way the work that we have to do. It is apparent do not require a personal in which lawyers practice their craft has to anyone coming from a private legal firm appearance of anyone, changed to an extent unrecognisable in that the resources available to the courts future generations. When I did my articles, are generally far inferior to those avail- let alone that of a highly my firm used a blue ink photocopier and able to the partner of a city legal firm, or qualified lawyer.

36 37 Articles

and experienced of legal practitioners judge to decide contested issues to do a few reforming judges and those counsel who are most likely to insist on a personal with the template or the timetable as soon who know how the judge likes his or her appearance in court before a judge about as this can possibly be done, so that these orders. a trivial matter. Our first task has been to issues cannot be used to hold a matter The advantage in having our orders and encourage the legal profession to become up for trial or to artificially increase the procedures so transparently clear is that it far more discerning as to what matters costs of a trial. We must be alert against gives the opportunity for the profession to needed to be placed before a judge at all. creating opportunities for practitioners educate each other as to our procedures Our orders module provides a template and to monitor each other’s performance for the management of a civil trial. The in the light of the template which we template is designed to remove all unnec- provide. Our best allies in case manage- essary work from the Court and redirect ment have been the high volume plain- that work into solicitors’ and barristers’ tiffs’ and defendants’ firms who are able offices. to fashion their own internal procedures Those orders are supported by a on the basis of the Court’s requirements. Consolidated Practice note which deals In this way efficient firms can obtain trial with the whole civil jurisdiction of the dates much faster than firms who do not Court, and which is in effect a handbook take advantage of the Court’s procedures. to assist in understanding and utilising the However, in order to take advantage of orders which are on the template. the procedures, one does not need to be These standard form orders give an a mega firm. Many country and suburban indication of how we expect a case to practitioners with very small practices are progress and they help to crystallise able to very usefully and effectively utilise issues which really will need a determina- the Court’s procedures to obtain early trial tion by a judge before trial. dates and to enforce the Court’s regime of Solicitors work out between themselves case management against large city firms what the template for their particular case Judge Michael McInerney. in which files are continually lost or cor- is, what the appropriate timeframe should respondence goes unanswered. be for the provision of exchanges of infor- to manoeuvre themselves into favourable In effect the Court is acting as a quality mation between practitioners before trial, costs opportunities through rigid court assurance agent within each legal firm and the nature of interlocutory steps to be processes. between the firm of solicitors and counsel completed, and even the exact date and It is vital to stress that the templates engaged in the case — setting accessible length of the trial — having regard to their which we establish must always be subject parameters for the completion of work commitments, their client’s commitments to the imprimatur of a judge — a system and sketching out the framework which and the intricacies of the case to be tried. in which responsibility for the progress will be provided to the trial Judge as to It is only in those cases where agreement of a file was handed back to the legal the way in which the trial is to proceed. cannot be reached on these matters, or profession through uncritical acceptance I think that we have observed a change where the agreement that is reached of “consent orders” would undermine the in the attitude of the legal profession as is not within the Court’s guidelines for principle we have established that it is the a result of the procedures that we have appropriate orders, that the matter needs Court in control of the litigation, not the instituted. Obstructive activity by prac- to go to a judge. parties. titioners is now rare. Often defendants’ I have found it extraordinary when On the whole, we have found that the firms are as anxious, if not more anxious, I first was given the task of conducting profession is comfortable with our proce- to prepare for trial as plaintiffs’ practi- directions hearings that practitioners dures because they mirror their own work tioners. Practitioners are more aware as would passively wait for me to set dates practices. The great advantage of this to what issue it is that they wish to have for interlocutory steps when I was the accessibility is that it is accessibility not decided at trial. Counsel are less likely to only person in the courtroom who had just to a few practitioners who understand fight on all issues and concede on none. no idea what work would be required for this particular jurisdiction, but to any arti- Any obstructive attitude is now not only those steps to occur. cled clerk who is able to access the inter- obsolete but very expensive. I think it a common trap in case man- net or indeed to any litigant in person. I Lawyers are now more likely to see trial agement regimes that there are far too have a dread of specialists list in which preparation as a joint project to be under- many directions hearings listed by the specialists charge high fees to appear. My taken by cooperation between all parties Court. Well-meaning judges often con- memory as a young practitioner is of some than as unrestricted warfare. sider that case-management requires this. such lists in which it was impossible for an As a consequence I think that we have In our system most files are now case- outsider to understand the procedures, let been able to reduce the volume of Hydra- managed to trial without any directions alone the in-jokes between counsel and headed Practice Court interlocutory hearings at all. the Bench. Any system of case manage- applications. When I first started doing I might say that it is vital that any ment within a court should be absolutely Directions, I was occasionally confronted system such as this is not ruled by an transparent and should not have to rely with practitioners wishing to have arid inflexible system of proforma orders. I upon counsel coming to know the pre- arguments about whether or not a partic- appreciate that that may lead to much dilections of a particular judge. It should ular interrogatory they sought to admin- more unnecessary and artificial inter- also be a system which is common across ister was really a Request for Further locutory activity rather than less. It is the whole jurisdiction of the court and not and Better Particulars or the other way absolutely vital that there is access to a confined to the particular predilections of round. Practitioners still occasionally

36 37 refuse to file a Defence until they have Along with many courts, we now take tem, now switch from timeframes for dis- seen an Amended Statement of Claim, unto ourselves the responsibility for the position to ensuring that each individual whilst their opponents refuse to file an efficient progress of litigation through the piece of litigation is disposed of within a Amended Statement of Claim until they Court. It is not just a matter of practition- period of time which is appropriate to it. have seen the Defence. All trial judges ers certifying that a case is ready for trial. You can do as much injustice by forcing on have seen cases in which the extent of The Court will take responsibility for the a case in which the parties have not had interlocutory activity on the file was only progress of the trial from the time the fully time to prepare as you can by letting exceeded by the extent of its irrelevance proceedings are instituted in the Registry, a case languish in a list which should have to the issues in dispute between the par- until the time when the file is archived in been disposed of long ago. The trick is to ties. Often these disputes are driven by the Registry. But the problem is that we know what cases you have and what is an the personalities of the legal practitioners have not in the past known how big or appropriate pattern of disposition for each involved, rather than the real interests of small our potential workload is, or what of them. the clients. type of work it is that we are actually From the use of CLMS we can start But it is much easier for the Court to likely to be having into the future. In a to obtain this information over an entire intervene as circuit breaker whenever jurisdiction as large as the County Court jurisdiction. We can also manipulate our issues such as this now arise. It is also of Victoria, with so many individual pro- workload by keeping accurate lists of cer- bracing to know that not only the solici- ceedings of different classes, it is impos- tain types of cases, by predicting the way tors but the clients can now look up the sible for any real responsibility to be taken in which cases will settle or not settle, by progress of their case on the internet by the Court until we know what work it predicting different case flows in circuit through Court Connect, where the full is that we have and have formed a view as locations, or by listing similar cases in the details of all cases and all interlocutory to how appropriate it is for that work to be same lists in a way that is far more effec- and final orders made are available to timetabled in a particular way. tive than any manual recording system them. It is my view that although “justice would be in a court of this size. The second aspect of the use of the delayed is justice denied” was an appro- We have established in this Court the technology in the Court that I identified, priate catchcry for early proponents of principle of trial date certainty, which was my view that the Court’s attitude to case management, the emphasis should means that we really will have a judge the community has changed. in any appropriate case management sys- available on the day that the proceeding

38 39 is listed for trial. The trial date is given Now such work is invariably dealt with proceeding is treated in its interlocutory at a very early stage of the proceedings by law firms in Melbourne — or even in stages. On the day of the trial the pros- at the first Directions Hearing where the some cases, adding greatly to the aggrava- pects are much more limited. The trial entire timetable or template for the file is tion, by law firms in Sydney. judge is faced with pleadings which have established. I regard the fact that local firms in already been prepared. He is faced with a Although there is abundant access for country areas have this type of access history which cannot be altered as to the practitioners to come back to the Court to to the Court as being one possible means progress of the case. change that trial date, if they can convince of assisting country communities to keep It is gratifying to be able to make a a judge that there is sufficient justification their legal practitioners and therefore contribution to this process. There may for that to be done, it is the foundation assist their local business community to be in future in this Court fewer occasions stone of our Case Management System function. in which a trial judge has to sit on an inad- that a proceeding managed through our I finish by saying to you that I think it is equately prepared trial under the gaze of a Court must be ready for trial on the trial very narrow to talk about the administra- bemused litigant who does not understand date allocated to it. I usually tell prac- tion of justice within the courts as being why the matter has taken so long to get titioners who ask for proceedings to be something which occurs on the day of the before a judge, who has only on the day of adjourned sine die that I have no idea what trial itself. the trial been told how much the litigation that term means. It is not a procedure that Of course it is very important to focus has cost, and who, whether he obtains a is used at all in the Court. Every proceed- on the procedures that manage trials once judgment in his favour or not, may leave ing is given a trial date and is expected to they are under way to ensure that they are the courtroom with nothing but a half- be ready to be heard on the date given, fair and effective. articulated despair that the matters which not adjourned off to a black hole never to But it is my personal view that we can had troubled him for so long and which be heard of again. Of course, if we are not have much more effect on the reputation he thought were going to be resolved at able to provide a judge on that day, then of the legal system within the general trial, have not been, for reasons which he the whole purpose of what we are doing community and the availability of jus- regards as unintelligible. collapses. tice within the community by the way a We cannot expect the profession to work towards a fixed trial date if there is any doubt as to whether the trial really will start on the date allocated. I will now come back to where I started, which is the ability this technology gives us to manage an entire jurisdiction over a large geographical area. The video link is able to take place because of the technological facilities that we have but it really only makes sense as a case management tool because we Fine Wine Appreciation are able to give to those practitioners in Melbourne circuits the complete range of orders or templates available to city practitioners. An introduction to the pleasure of Australia’s finest table wine. Country practitioners know as well as city 4 X 2 hour weekly sessions, relaxed yet highly informative practitioners what is required of them. classes. There should never be any need for any 7pm to 9pm weeknights, country firm to brief a Melbourne agent Upstairs at La Luna Bistro, in any interlocutory matter. As well as 320 Rathdowne Street, North Carlton. being able to appear like this in a video link, they can also appear by a video link Classes have a maximum of 12 participants and contain 24 premium wines for tasting (6 per session). to the Practice Court in Melbourne. The same orders are on the orders module Fabulous food by renowned chef Adrian Richardson will and on the Court Connect facility, as in complement the wine tasted in each session. Melbourne, and circuit practitioners will $240 covers all tuition, wine, food, and tasting notes. of course have the same capacity for Gift vouchers. e-filing as their city counterparts. Group bookings. I was reminded by our former Chief Judge that many years ago if insurance www.finewineappreciation.com.au matters were to be dealt which in circuits Matthew Hansen Tel: 9351 0278 then a local firm was instructed by the Email: [email protected] Mobile: 0410 451 932 insurance company to deal with them.

38 39 Articles Prosecutorial Misconduct: Goliath’s Slingshot

1820s, coinciding with the country’s move The ideal is that the toward a system of popularly elected offi- American Prosecutor cials. Mississippi was the first state to hold public elections for its district attorneys. represents the people, By 1912, almost every state had followed this trend. Today, only the District of the state and the Columbia, Delaware, New Jersey, Rhode Island and Connecticut maintain a system government. Many see of appointed prosecutors. the prosecutor as the DUTY good guy who wears The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, the white hat and is on who seeks truth and not victims, who serves the right side of the law the law and not factional purposes and who approaches his task with humility. — seeking justice and Robert H. Jackson (District Attorney) the American way. In Berger v United States, 295 US 78, 88 (1935), the United States Supreme This article considers Ashley Halphen is a member of the Court defined the prosecutor’s role as: “A Victorian Bar who practices in the representative not of an ordinary party whether that perception area of criminal law. He is the Vice- to a controversy, but of a sovereignty is entirely accurate President of Reprieve Australia, an whose obligation to govern impartially is organization that provides legal and as compelling as its obligation to govern and explores what humanitarian assistance to those at all; and whose interest, therefore, in a facing execution by the state around criminal prosecution is not that it shall win is referred to in the world. He is currently working at a case, but that justice shall be done. As American jurisprudence the Office of Capital Post-Conviction such, he is in a peculiar and very definite Counsel in Jackson, Mississippi. sense the servant of the law, the twofold as prosecutorial aim of which is that guilt shall not escape or innocence suffer. He may prosecute misconduct. with earnestness and vigor — indeed, he replicated in colonial America. Before the should do so. But, while he may strike American Revolution, the victim main- hard blows, he is not at liberty to strike HISTORY OF THE AMERICAN tained the sole responsibility for appre- foul ones. It is as much his duty to refrain PROSECUTOR hending and prosecuting the suspect. In from improper methods calculated to N the early Middle Ages, when no the eighteenth century, the population produce a wrongful conviction as it is to formal system of criminal justice in colonial America grew. Large urban use every legitimate means to bring about Iexisted in England, the victim acted as areas began to develop and the crime rate a just one. police, prosecutor and judge. This private increased. The private mode of prosecu- Ethical strictures are modelled on this approach reflected the philosophical view tion was no longer able to sustain order. In judicial pronouncement, placing a special that a crime involved a wrong against the response, a system of public prosecution obligation on a prosecutor to “seek jus- individual. evolved which sought to manage the crime tice”. The overriding responsibility is not Reformists such as Jeremy Bentham problem in a manner that better suited the to convict, but to act as guardian of the and Sir Robert Peel were instrumental interests of society as a whole. rights of the accused and to enforce the in developing a public system of pros- Virginia became the first colony to rights of the public. ecution. In 1879, Parliament passed the appoint a public prosecutor. Other colo- Closer examination of this responsi- Prosecution of Offences Act, conferring nies followed suit and prosecutors were bility reveals a tension between a pros- limited prosecutorial powers on the initially either appointed by the court or ecutor’s affirmative duty to protect and Director of Public Prosecutions. the governor. promote the truth and a negative duty to These developments in England were The elected prosecutor emerged in the refrain from any conduct that impedes the

40 41 Articles

discovery of the truth; a tension between ecutors have extorted money by demand- be a lawyer in good standing … he is a winning at all costs and doing justice. ing payments to forgo prosecuting certain mercenary, a hired gun …” Elsewhere, in felonies. As recently as 1977, a prosecutor an Illinois courtroom a prosecutor said to THE CULTURE was disbarred for offering to make “prob- a jury, “He may be small but he’s a pretty Winning has become more important than lems disappear” in a land development dirty trial lawyer.” doing justice. Nobody runs for the Senate matter. Eight cases were cited between Even the judiciary has not escaped the saying I did justice. 1915 and 1984 involving prosecutors mis- acidic wrath of the prosecutor’s tongue. Alan Dershowitz appropriating public funds. In California, a district attorney was sus- In New York in 1975, a prosecutor was pended for saying to a grand jury in open “Seeking justice” has found its own disbarred after pleading guilty to unlawful court that the judge was “nothing but a expression in practice where the concept imprisonment. In 1984, a state’s attorney crook”. is tantamount to securing a conviction, was suspended for three years for filing engrained to the point that a tally-keeping a false police report. A prosecutor in mentality has evolved. Take, for example, Minnesota was suspended indefinitely in the State’s Attorney’s office at the Cook 1988 for fixing traffic tickets to people Inflammatory remarks County Criminal Courts in Chicago where to whom he was indebted. In 1989 a New or unduly impassioned there used to be an ongoing competi- Jersey prosecutor was suspended for oratory directed at a jury’s tion among prosecutors to be the first to the theft of evidence. In 1996, an Illinois convict defendants whose total weight prosecutor was disbarred for conspiring to prejudices is known as exceeded 4000 pounds. Men and woman purchase drugs. “overreaching”. Examples were marched into the office and weighed. include name-calling, The competition was referred to as the 2. Improper Comments “two-ton contest” or, because most of the I have never yet tried a case where the making improper remarks defendants were African American, “nig- state’s attorney did not say that it was the about defence counsel gers by the pound”. worst, cold blooded, inexcusable, premedi- and even expressing In the United States, winning is eve- tated case that ever occurred. rything: it is the measure of personal Clarence Darrow derogatory comments to success and the yardstick for career the judge. advancement. In a system of justice that Inflammatory remarks or unduly relies on elections rather than appoint- impassioned oratory directed at a jury’s Courts acknowledge the latitude that ments, convictions are regarded as an prejudices is known as “overreaching”. should be given to zealous advocacy essential prerequisite for election and Examples include name-calling, making during heated cases. At the same time, promotion. improper remarks about defence counsel there is also an insistence on the need to As one writer observes: “A prosecu- and even expressing derogatory com- enforce proper boundaries during closing tor must give the people what they want ments to the judge. argument and to maintain the necessary — someone who is tough on crime. Defendants in criminal trials have professionalism consistent with the grav- Seeking the death penalty helps prove the been branded such things as “a demon”, ity of the case. prosecutor running for election is not soft “a mutant from hell”, “scum”, “a gross Overreaching includes the presenta- on crime like his opponents. Prosecutors animal”, “young Mr Hitler”, “a lying rap- tion of gruesome physical evidence that seek convictions to campaign on them by ing murderous dog” and “Mr Mentally holds little probative value. One prosecu- reminding voters of their notorious cases. Retarded”. tor in Illinois displayed the actual bloodied Prosecutors use their ‘wins’, especially In Oklahoma, the prosecutor involved and brain-splattered uniform of a mur- those in the death penalty context, in in the capital trial of Jay Neill had this dered police officer on a headless torso campaign advertisements. Campaigning to say to the jury in closing argument, mannequin. In another case, this time in on their trial success, their convictions, “disregard Jay Neill … you’re deciding Mississippi, a prosecutor took the clothes has been deemed by some as essential to life or death on a person who is a vowed of the deceased, displayed them to the be elected as a prosecutor.” homosexual”. jury and laid them on the floor for the jury The natural by-product of this mental- In an argument recently criticized by to see. When describing how the deceased ity has been a resort to misconduct. The the Supreme Court, the prosecutor said was killed, the prosecutor stomped the types of misconduct range from improper about the defendant, “You got this quitter, ground around the clothes in a dramatic remarks during closing argument to out- this loser, this worthless piece of [exple- manner. On appeal, it was argued that the right illegal activity. tive]. He is as mean as they come. He is use of theatrical performance in closing lower than the dirt on a snake’s belly.” argument was calculated to inflame the PROSECUTORIAL MISCONDUCT An Oklahoma prosecutor in closing jury. Interestingly, the Court noted that, 1. Illegal Activity argument in the trial of Jimmy Slaughter “nothing indicated that the prosecutor’s There are a small yet significant number could not resist the temptation and after demonstration was grossly overreach- of cases where prosecutors have acted reciting the gruesome details of the mur- ing …” unlawfully during the conduct of a trial. ders went on to say that, “the defendant The blatant arrogance of certain pros- There are eight reported cases, the has truly lived up to his name”. ecutors in Jefferson Parish, Louisiana, most recent in 1979, where prosecutors Defence attorneys are also not was documented in The New York Times accepted bribes in exchange for discon- immune. In Florida, a prosecutor attacked as recently as 5 January 2003. The report tinuing proceedings that were under way. the integrity of his adversary when he noted that when the father of a death There are known instances where pros- said, “See this man here who claims to row inmate walked into a courtroom he

40 41 couldn’t believe his eyes: “There was a viction was overturned. He was charged relationship he was having with this wit- noose swinging from the prosecutor’s with murdering a woman. During the ness was a fact not revealed to the jury. chest … The noose was on a necktie. trial, prosecutors suborned perjury from In another case, on an extremely hot Then he saw … two prosecutors wearing a witness who claimed that Munsey had day, alibi witnesses went mysteriously ghoulish ties, one with a dangling rope, the confessed to him while they were in missing when required to give evidence. other with an image of the Grim Reaper.” prison together. Prosecutors knew that They were apparently escorted to the The prosecutors later explained that: “The the witness and the defendant had never district attorney’s air-conditioned office neckties were jokes.” been in prison together, yet persisted with and could not be located when sought. the evidence anyway. The perjury came to The defence was forced to rest prema- 3. Improper Conduct light when another man later confessed to turely. (i) Suppressing the truth the crime. In 1994, prosecutors argued alterna- In the celebrated case of Brady v In Louisiana, prosecutors remained tive theories to convict two people in two Maryland, 373 US 83 (1963), the court tight lipped while a young man languished separate trials. In one case, reliance was held that a prosecutor has a constitutional on death row for almost six years. If not placed on confessional evidence. In the and ethical duty to disclose favourable for the act of a good Samaritan who other case, police witnesses were called evidence to the defence. Favorable evi- anonymously delivered a video to the to challenge the truth of the same confes- dence is defined as anything that has the defendant’s attorney, he would probably sional evidence in what was ultimately potential to illuminate the truth and even still be there. The video was footage of the a successful strategy to convict the co- exculpate an accused person. In almost defendant playing basketball at precisely accused. every petition filed on behalf of a- con the same time as the murder occurred. In 1998, San Diego prosecutors deter- demned person, a ground for relief sought Leslie Dale Martin was granted a stay mined to convict four gang members for will invariably include a Brady claim. twenty minutes before his execution was murder, lavished witnesses with privileges In 1979, Isaac Knapper was accused scheduled to proceed on 8 February 2002. and arranged for the witnesses (who were of murdering a tourist. He was convicted, Absent forensic or eyewitness testimony, all in custody) to be relocated to private but more than a decade later the Louisiana the most compelling evidence at his trial cells with a television, showers and con- Supreme Court reversed his conviction was the testimony of a “jailhouse snitch” jugal visits. because prosecutors didn’t disclose a who told the jury that the defendant had police report undercutting their case. The made a full confession to him when in SAFEGUARDS report documented the arrests of three custody together. A trial judge has a number of powers men for a different robbery five blocks In the week preceding the scheduled available to circumvent the ill arising from away using the gun that killed the tourist. execution, the attorney acting for Martin any misconduct. These powers include In the United States, there is a market discovered that the trial prosecutor had admonishment in the form of a curative for just about everything, especially infor- not disclosed the fact that the snitch jury instruction, permitting the defence to mation about crimes and the people who had previously given evidence of another formally respond or ordering a mistrial. In commit them. Those who “jump on the confession in another capital trial. Nor more serious circumstances, a prosecutor bus”, and testify that a defendant con- had the prosecutor disclosed the snitch’s can even be held in contempt or reported fessed to them while in prison together medical reports confirming an admission to the relevant disciplinary authority. may have never even met the defendant to a psychiatric hospital and a diagnosis A convicted defendant can seek an before. It is not uncommon for a pros- as a pathological liar. order for a mistrial on appeal. Where the ecutor relying on this sort of testimony to The impact that these matters may misconduct is intentional, as when the provide immunity in the form of a reduced have had on a jury will never be known, state presents or fails to correct false or sentence. Leslie Dale Martin was executed on 10 misleading evidence, then the state must Prosecutors are notorious, in violation May 2002. show, beyond a reasonable doubt, that of Brady, to fail to “reveal the deal”. In there is no reasonable likelihood that the case of Anthony Carr, the prosecution ii) Subverting the truth the error affected the verdict. This is knowingly presented false testimony that The erosion of the truth by deliberate, in contrast to situations where the mis- the informer did not receive any favour- proactive measures has been egregiously conduct is not considered as flagrant. In able treatment for testifying against him. pursued by prosecutors in a multitude of these circumstances, the burden is on the The court was assured of the fact that the different cases. appellant to show that but for the miscon- informer was not offered or promised any- Zollie Arline was convicted in 1972 duct, it was reasonably probable that the thing in exchange for his damning testi- of manslaughter. Arline claimed self- result of the proceedings would have been mony. The court was misled. The informer defence, saying he used a club to protect different. was in fact facing 45 years in prison when himself after the victim attacked him An order for a new trial is considered he testified and the agreement was that with a knife. Police gave the knife to the costly to taxpayers and converse to seek- no time would be served. The defence prosecutor who not only hid it from the ing justice because of the resultant delays. attorney in the later appeal argued, “His defence but exaggerated its absence at Consequently, trial courts and appellate reward was purchased with the life of trial. “Did you see any knives?” he asked courts are extremely hesitant to grant Anthony Carr.” It is worthy to note that, each witness, always getting “no” for an such relief. aside from the informer’s evidence, there answer. Arline’s conviction was reversed was no evidence linking Carr to the capi- because of this deception and the charges SANCTIONS tal murder. The case is still the subject of against him were dropped. Prosecutors just don’t prosecute prosecu- appeal proceedings. In Texas, a prosecutor coached a state tors. In another case, Charles Munsey’s con- eyewitness to ensure that the intimate Lawrence Marshall

42 43 As these legal safeguards are designed convictions recorded since 1963 that little optimism. The consequences erode to protect a defendant, prosecutors are were reversed on appeal due to prosecu- the very foundations of the justice system: left unscathed. Some argue that conse- torial misconduct, not a single prosecutor “From the perspective of the criminal jus- quences should be directed at prosecu- received a public sanction or faced trial tice system … there is an incalculable tors to specifi cally deter them from future for misconduct. Only two of the cases cost in damaged integrity that may be misconduct. Suspension, disbarment, resulted in charges being fi led that were diffi cult to repair, and which affects the damages, criminal penalty or professional each dismissed before trial. In another social fabric in a manner that implicates embarrassment are the key sanctions to study, a search for disciplinary action more widespread consequences. Separate curb the utilisation of improper means to since 1998, revealed only one record of a and apart from the raw tally of identifi able pursue convictions. prosecutor who received public sanctions misconduct in scores of cases involving Bodies such as state bar agencies have for misconduct. In Illinois, only one public experienced and high ranking prosecu- proved inadequate in addressing prosecu- sanction was issued in twenty-six years. tors at the state and federal level, there is torial misconduct. This is so because com- The Offi ce of Professional Responsibil- an equally troubling evisceration of funda- plaints are rare. Third parties must take ity was created by the Justice Department mental protections.” the necessary action but prosecutors have in 1975 to investigate complaints against Of the 381 defendants, 67 had been no clients and defence attorneys hesitate state attorneys involved in the violations sentenced to death. Nearly 30 of these to antagonize their adversaries with whom of legal and professional standards. A inmates were subsequently exonerated, they deal on a regular basis. recent study revealed that out of a total a further 25 were convicted again but Appellate courts that overturn convic- of 200 complaints made to the Offi ce, no did not receive death sentences. Martin tions because a defendant’s rights have action was ever taken. Luther King once remarked: “Injustice been violated by prosecutorial misconduct anywhere is a threat to justice every- rarely identify the prosecutor by name and THE AFTERMATH where.” In the context of a public agency are only likely to do so when the opinion As a commentator points out the reality with an abundance of resources and is an unpublished one. Prosecutors also is that: “The only check on prosecutorial power, no degree of impropriety ought be enjoy immunity from civil suits and are misconduct is the morality of the indi- tolerated, or else behold the insidious and unlikely to be criminally prosecuted. vidual prosecutor.” sweeping implications. The research is illuminating; of 381 The overall inaction leaves one with

42 43 News and Views

The Essoign dining room and bar in full swing following the opening on 26 May 2003. Opening of the New Essoign On 23 May 2003, Tony Howard QC, Chair of the Essoign Development Committee, launched the new Essoign on Level 1 of Owen Dixon East, and traced its development and the facilities now available to Victoria’s barristers, judicial officers and guests.

OUR Honours, members of the 600 members, very few of these were the Bar and ladies and gentlemen, as younger or female members of the Bar. In YChair of the Essoign Development fact, only a small percentage of its mem- Committee, I am delighted to welcome bers actually used its facilities on a regular you all to the new Essoign. The open- basis. For example, it was reported that ing of the new Essoign this evening is less than 100 used the Club one or more indeed a special moment in the history times per week.* Moreover, the Essoign of the Victorian Bar. In 2001, following Club operated only for limited hours, for BCL’s decision to refurbish Owen Dixon lunch or afternoon/evening drinks and, Chambers East, the Bar Council seized being on the 13th floor at the back of the opportunity to revitalise the Essoign ODCE, it was in an inconvenient location. Club by redeveloping it as a private Rufus Daniell, Head Chef, serving up Financially, the Club was just breaking venue which would meet the needs of all a monthly changing modern eclectic even (if that). Victorian barristers, judicial officers and menu in the Essoign dining room. In March 2002, the Essoign Develop- their guests well into the 21st century. It ment Committee (EDC) was established was intended that the new Essoign would to take place on the first floor of ODCE, with the task of developing the new combine its operations with a number namely those of the Bar Council, Readers’ Essoign. The EDC comprises Michael of significant Bar activities which were Course, Continuing Legal Education, the Colbran QC (also Chairman of the McPhee and Forsyth meeting rooms and Essoign Club), Phillip Dunn QC and Sara *This picture emerged from the report of a well the Griffith library. Hinchey (also members of the Essoign regarded firm of food and service consultants, The Bar Council’s decision to establish Club Committee), Paul Santamaria S.C., Bibra & May, retained by the Bar Council to the new Essoign was taken in light of the David Bremner, Executive Director of the report on the viability of the old Essoign Club fact that the old Essoign Club was not Victorian Bar, and Sharyn May of Bibra in its proposed new location on the 1st floor of apparently serving the needs of all coun- & May food and service consultants, in ODCE. sel. Although it numbered approximately addition to myself. In December 2002 the

44 45 News and Views

committee was joined by the Essoign’s • I am sure you will agree upon the new manager, Nicholas Kalogeropoulos. elegant design and ambience which It is appropriate that tonight I pay the new Essoign provides. It is indeed special tribute to a large number of a modern place for a modern era. people and organisations who have pro- • The new Essoign provides an impor- vided inspiration, drive and support to the tant networking opportunity, particu- new Essoign project. They are: larly for readers and younger counsel, • the members of the Bar Council given its interaction with the other Bar between 2001 and 2003, particularly activities taking place on this floor. The the former Chairman Robert Redlich Essoign will become the place where QC (as he then was, now Justice Kirsty MacMillan and Sharon Johns opportunity knocks. Redlich of the Supreme Court) and the enjoying lunch in the Essoign dining • There are different and varied dining current Chairman of the Bar Council, room. options available to you. These range Jack Rush QC; from the informal café/lounge/take • the members of the EDC who have away area to the more sophisticated, worked in a tireless and dedicated way quieter dining experience in the bis- to bring the project to fruition; tro with table service and “fast-track” • the Directors of BCL, its CEO Daryl meals for those on the go. The orders Collins, Company Secretary, Geoff will go to the kitchen via a centralised Bartlett and their staff; computer facility. • David Bremner and his staff; • Additionally, the new Essoign has • Robert Pahor of Spowers architects expanded hours of operation — from and project managers, his staff and 7.00 am to 7.00 pm — and provides other BCL consultants; and finally Jenny Brennan, Penny Treyvaud, breakfast for the first time. Lunch will • the builders, Hooker Cockram Ltd. [On Sharon Johns and Kirsty MacMillan of lead into an afternoon/evening bar for 15 May 2003 David Judd, Managing the Family Law Bar. those wanting a drink at the end of a Director of Hooker Cockram formally long day. We are looking forward to live handed over Level 1, ODCE to Ross jazz (and Happy Hour from 5 pm to 7 Robson QC, Chairman of BCL.] pm) on a Friday evening. I want to especially mention the • Importantly, the new Essoign can contribution of Judge Graham Crossley cater for Bar association and clerking of the County Court, or “Croc” as he is dinners and for members’ special occa- affectionately known, who is present here sions and functions such as birthdays, this evening. Croc originally drew the logo bar mitzvahs and weddings. Last night, — the dancing barristers — for the Bar’s the first Readers’ Dinner was held here sesquicentenary celebrations. He kindly for about 140 and it was a great suc- agreed to the use of it by the original John de Koning, Julie Davis, John cess. Essoign Club and now by the new Essoign. Saunders and Michelle Williams • We have new staff. Following many The logo is a symbol of the joy and unity making use of the ever-popular round years of outstanding service, Jayne which we share at the Bar and highlights tables. Menesdorffer, the head chef and the meaning of “essoign”, namely an manager of the old Essoign Club, excuse for not appearing in Court! has decided to retire. We thank and Our vision is that, as the social and pro- • You can see for yourself what a won- acknowledge her for her wonder- fessional hub of the Bar, the new Essoign derful vista there is across William ful efforts over the years. We have will provide a welcoming environment for Street to the Supreme Court. Indeed, found that we need two people to and reflect the diversity of its members you can sit here with a beer or coffee replace her! As mentioned, Nicholas — young and old, male and female and and aspire to high office! Kalogeropoulos has been appointed those from a range of backgrounds, all of as the manager of the new Essoign. which characterise the modern legal pro- Some of you will have already had the fession. We are confident that this vision pleasure of meeting him. Rufus Daniell will be realised considering the special Our vision is that the new has recently been appointed as the new features of the new Essoign which I will Essoign will provide a head chef (to commence on 23 June). briefly outline: Both come from a most impressive • The new Essoign is a private venue for welcoming environment food and service background. Nicholas, you and your guests. There will be no for and reflect the Rufus and the staff look forward to pro- members of the public or current cli- diversity of its members viding you with the highest standards ents, litigants or witnesses. of comfort and culinary excellence. • The venue is conveniently located on — young and old, male and • Finally, there is the no-smoking policy. the first floor of ODCE with easy access female and those from a The new Essoign commenced opera- (and departure) via the ground floor range of backgrounds, all tions on Monday 26 May. The Bar Council, staircase next to the Commonwealth the EDC and the many others that I have Bank for those who want to avoid wait- of which characterise the mentioned, can only realise the vision ing for the lifts. modern legal profession. outlined if current members continue to

44 45 support the Essoign as they have done • indeed, for it to become the reason in the past and if others join and actively you get out of bed in the morning use it. Reactions to date have been over- and come to work (and, as my wife whelmingly positive and many have indi- says, perhaps the reason you come cated that they would like to join the new home). Essoign. It is now my pleasure to introduce to We want you to share in the process of you Jack Rush QC, the Chairman of the transforming our vision into a reality. We Bar, who, with “a face that could launch want you to be: 1000 ships”, will declare open the new • inspired by the Essoign; Colin Harris, Bar Manager, serving Essoign. • to see it as the place to be at the Bar; one of the many wines available by the Jack Rush QC then formally opened and glass in the Essoign. the new Essoign. Am I Just a Frustrated Lawyer? Nicholas Kalogeropoulos, Manager, The Essoign

VER since I met my wife, who is and listened intently as to why I was the a solicitor, I’ve wondered what it man for the job. One of the main questions Ewould be like to be a lawyer. I imag- was why I wanted to work for the Essoign. ined discussing cases with her after work, I couldn’t tell them my real reason — my having long heated debates about the law, dream! “Life balance” was the answer. Not the system and counsel; it would be great. having to finish work at 3.00 am five nights But spending five years at law school a week would be a Godsend. I would get to wasn’t attractive so I decided not to pur- see my wife and to me that sounded great, sue this calling. However, whilst studying to others maybe not. The yearning to hotel management, I used to spend a lot work for a brand new venue and have an of time at that other bar and I kept won- input into the Essoign from the ground up dering — how hard could it be? If I had was not only a challenge but one that has been a lawyer I would definitely have gone ultimately proved to be a most rewarding to the Bar, especially being the shy kind Nicholas Kalogeropoulos, Club experience. To assist in providing a haven of guy I am (not!). Being a barrister would Manager, looking forward to lifting for the members of the Essoign, one that be great, the theatrics, the showmanship, the profile of the Essoign by creating a would offer quality food and beverages intimidating witnesses, swaying the jury professional and friendly environment with friendly yet attentive service was too and just talking a lot. I loved the bit where for all members. good to pass up. The running of a venue you get to talk a lot. But I was brought for me involves not only the meeting of back down to earth when “The Practice” enced, hands-on manager to assist in the budgets and financial viability, but to be a finished and I was quietly informed that re-development of the Essoign and then part of helping members and guests expe- the Australian legal system does not work continue with the daily management of it. rience hospitality in all its forms — food, in a similar fashion. There was no roam- Until then, I had been managing Dracula’s beverage, ambience and above all service ing around the courtroom, leaning over Cabaret Restaurant catering for up to 340 — and to know that patrons depart happy the witness or crying in front of the jury. people a night and leading a team of 30 and content and that my team contributed My aspiration to go to the Bar was all but vampires — someone (a non-lawyer of to that experience. quashed; I was destined to work behind course) suggested I would be very suit- Well, it must have worked; here I am in the bar rather than at the Bar. able for a gang of blood-sucking barris- the middle of June writing an article for Thinking my legal candle was all but ters! Before that I had my own corporate Victorian Bar News right in the thick extinguished, I received a surprise call restaurant, Alley Blue Kitchen & Bar on of things! After 14 months of planning from a recruitment company in October Little Bourke Street, where I was host to and fine tuning, the Essoign opened on last year. many lawyers. Monday 26 May 2003 to an incredibly posi- “There is an opening at the Essoign I had two interviews with the Essoign tive response from all members of the Bar Club for a manager” they said. Development Committee. I arrived at and Judiciary. A most successful opening “The who? The what?” I replied. the first scheduled time. Unbeknown to launch was held on the preceding Friday “The Essoign, a private club for mem- the panel of five who were to road test and a very popular function for about 100 bers of the Victorian Bar.” me, I had arrived home from Dracula’s at women barristers and judges was held on Shock, could this be it, a chance to 3.15am. With three hours sleep I walked 12 June. The Essoign has seen many new work for the Bar, behind the bar? I did into the Chairman’s Room prepared and and old faces. We have had well over 150 some research. I enquired of a legal friend ready to represent my biggest client new applications to join the Essoign Club as to why barristers had their own club? — me! I really was at the Bar. It was quite — just ask me or a staff member for an “Because they can”, was the glib reply. a daunting experience being in a room application form. The Bar Council’s brief was simple and with people whose surnames finished with With its new operating hours, the to the point. It was looking for an experi- Q and C. But they all made me feel at ease Essoign is now open daily from 7.00 am

46 47 No-smoking Policy at the New Essoign

N the course of developing the new doing so and the delay to the ODCE Blake was attacked by two men at IEssoign, the Bar Council, BCL and project defeated this proposal. Members Manhattan’s trendy Guernica nightclub. the Essoign Development Committee who want to smoke will now have to Police say he was knifed in the lower (EDC) decided the new venue would do so outside the premises of the new abdomen and died in hospital.” be smoke free. The views of a number Essoign. Apparently such smoking bans evi- of interested parties concerning this It is instructive to consider the New dence a worldwide trend. In Holland, issue were canvassed. These included York experience in this regard. On 4 April Dutch café proprietors are also fuming Bar Council members, BCL, members 2003 it was reported in The Age that a over the issue. The Age of 31 May 2003 of the Essoign Club and its committee, New York restaurant had “… cooked up a reported that the favoured pastime of members of the Bar and staff members way to beat the city’s tough new smoking smoking marijuana in Amsterdam cof- of the new Essoign. Particular regard ban. Italian restaurant Serafina Sandro fee shops where “you can smoke a ‘joint’ was had to BCL’s policy that there be unveiled a “Tobacco Special” menu … chosen from the menu and not bother no smoking within any of its premises, boasting such delicacies as gnocchi with the coffee” is under threat by a and to the personal and legal difficul- made with tobacco, and fillet mignon proposed ban on smoking. One proprie- ties surrounding the issue of subjecting in a tobacco-wine sauce, garnished with tor offered a novel solution: “We can set workers to a smoke-filled environment. dried tobacco. Tobacco pana cotta — an up a special fan that will waft a range of While the views of smokers were consid- Italian cooked cream dish — is available marijuana fumes through the premises. ered, another important consideration for dessert, followed by a strong glass Customers can sit back and enjoy with- was providing for the comfort of non- of tobacco-infused grappa.” However out actually smoking”! smoking members of the Essoign. enforcement of the ban in New York has The closest the new Essoign has come The Bar Council and the EDC were proved to be problematic. Shortly fol- to the New York experiment was to have very conscious of the obvious effect of lowing The Age article, another article served smoked chicken salad entrée at the new policy for smokers. This was a appeared in the Herald-Sun under the the first Readers’ Dinner held at the new contentious issue for some and enquir- heading “Smoking Kills — Bar Worker venue on Thursday 22 May. So, be gentle ies were made as to the feasibility of Murdered”. It was reported that “A New on the staff of the new Essoign if they building an outdoor deck which would York bouncer has been stabbed to death seek to enforce the ban … and please, accommodate the needs of smokers. as he tried to enforce the city’s new ban don’t ask for any marijuana fumes to be Unfortunately the significant cost of on smoking in bars. Dana “Shazam” wafted in from the kitchen!

for breakfast. It will remain open all day to Menesdorffer is leaving the Essoign to service the needs of the Bar, Judiciary and run the Philip Island food store. We all guests with morning tea, snacks, lunch, wish her well. Our new head chef is Rufus afternoon tea and drinks. Both the dining Daniell who has been cooking with great room and the café/lounge have proved distinction for over 25 years. Rufus is clas- very popular, offering, as they do, a wide sically trained; he has extensive experi- range of dining options. The support that ence in à la carte modern eclectic dining members showed the club on the first day and he is eager to develop the continuing of trade was overwhelming (180 people café which offers a wide selection of pre- success of the new Essoign. Rufus comes were served in the café and dining room), prepared meals, coffee and cake. The café to us after three years at the Kent Hotel however, there were consequential delays is open until 5.00 pm daily so as to serve in Carlton (previously owned by barrister in service and food delivery. The idea of the needs of counsel who finish court out- Michael Ruddle) where he has assisted hiding in the cool room at this point and side the traditional meal times. For those in the service of over 400 meals a day. chanting “is it over, is it over?” sounded who are still hungry there are tasty morsels Before the Kent, Rufus was head chef at appealing to the staff but they soldi- in the form of tapas with a drink after the fashionable and innovative Candy Bar ered on and did not rest until all meals 5.00 pm. We also have Happy Hour on a on Greville Street, Prahran, and, before ordered had left the kitchen. Thankfully Friday evening with all drinks at reduced that, the proprietor of the Hardware these were only teething problems to prices from 5.00 pm to 7.00 pm. And, of Street Café on Hardware Lane. Rufus be expected in any new venue, and we course, we can put on great functions and commences with the Essoign on Monday have all been working hard to deal with dinners for the Bar’s jurisdictional asso- 23 June — please call in and sample some them. The staff are settling in well and we ciations, clerking list, for the Judiciary, of his delights! encourage constructive comments on any groups of chambers or those members There are great plans afoot for the new aspect of our operation. with individual needs. For example, we Essoign, including special wine and food A selection of “fast track” meals in the can serve up an intimate dinner for 30 tastings. I hope to see many new patrons dining room is available and highlighted or so in the Bar’s Richard Griffith library there especially the younger and female on the menu for members in need of a which has direct access to the kitchen. members of the Bar. Everyone can feel quick lunch. Those who want an even After nine years of devoted service as welcome and relaxed in the new venue … speedier meal or to take away can use the head chef and manager, on 24 June Jayne after all, it is your place at the Bar!

46 47 News and Views

Unveiling of Sculpture Hartog Berkeley QC and Sir John In Owen Dixon Chambers East on Monday the 31st of March 2003 Young KC, KCMG “lift the veil”. the Former Chief Justice of Victoria Sir John Young unveiled the sculpture in the foyer of Owen Dixon Chambers East. In March The Brief was that the proposed theme 2003 the sculpture was presented to the Bar by the donations of the of the work should be a contemporary one Senior Bar. The Sculpture Committee comprised Hartog Berkeley that was both innovative and engaging of passers-by. QC, Robin Brett QC, Peter Jopling QC, Michelle Gordon and The 13 sculptors who were invited Campbell Thompson. to and did submit proposals included Inga King; Rick Amor, Peter Cole, Buku The following is the text of Sir John’s speech together with the Larnggay Mulka Centre, Adrian Mauriks, words of the sculptor Paul Selwood about his concept and how it Neil Taylor, Robert Bridgewater, Jilmara relates to Owen Dixon Chambers. Arts, John Kelly, Bruce Armstrong, Maningrida Arts and Culture, Bronwyn Oliver, and Paul Selwood. N 31 March 2003 — two years after conceived to decorate and enhance that The selection process took place the germination of the idea for it space. The Bar Council ultimately agreed, around September 2002 and the O— a ceremony was held to unveil and authorized the establishment of a unanimous choice was Paul Selwood, a the new sculpture in the foyer of Owen Committee to carry the idea forward. The sculptor resident in NSW. The commission Dixon Chambers East. How did the idea Committee invited Ms Elena Taylor, sen- of the metal sculpture coated in zinc and for the sculpture come about? ior assistant curator of Australian paint- painted red — costing $80,000 — pro- When plans for the renovation of Owen ing and sculpture at the National Gallery ceeded. Dixon East were gaining momentum in of Australia and Ms Bronwen Coleman, In his speech at the unveiling cere- 2001, Peter Jopling QC put a proposition Project Director of Urban Art for the mony, The Honourable Sir John Young AC to the then Bar Council Chairman that it Docklands Authority to advise it regard- KCMG said: “The donation of a sculpture might be appropriate to commission — as ing the selection of a panel of sculptors to to the Bar is an act which would not have a gift by the silks to the Bar — an artwork be approached to tender for the commis- entered anyone’s head as a possibility 50- to grace the foyer of ODC East just as sion, and to assist it in the development of odd years ago when I joined the Bar, and the silks’ tapestries in ODC West were a detailed artist’s brief. it demonstrates how our community has

48 49 it is for us to see what the mirror reflects. Our need to understand is especially true when we look at contemporary art. Those not deeply immersed in contemporary art on being confronted with a new work are apt to react hastily, thoughtlessly and often ignorantly and to express their con- clusions accordingly. Of course everyone is entitled to his or her own opinion but opinions are more valuable if they are properly informed, and I hope we shall be properly informed about this sculpture.” The sculptor’s notes of his concept describe the piece thus: “One of the themes of my sculpture over a long period of time has been the Australian landscape … from drawings of cliffs, rocks, caves and the effects of weathering, I have syn- thesized forms and evolved an abstract Hartog Berkeley QC, Michelle Gordon, Paul Selwood (sculptor), Robin Brett language to make sculpture that expresses QC, Peter Jopling QC and Bronwen Coleman, Project Director of Urban Art, insights about that landscape; deep shade Docklands Authority. against highlight, the architecture of cliffs, The Sculpture Committee comprised Hartog Berkeley QC, Robin Brett QC, Peter the rhythmic line of ridges converging in Jopling QC, Michelle Gordon and Campbell Thompson. Campbell Thomson did valleys. Having classical ideals in mind, I not attend the unveiling. want my sculpture to by a system of logical order. I want the sculpture to engage the changed and indeed how prosperous it force of gravity, both structurally and con- has become. But it demonstrates much ceptually. In this sculpture all the assem- more than that: it demonstrates not bled plates are vertical as are the lines only that we have become a much more formed at their intersection; a vertical line, sophisticated community but also that by extension, connects to the Earth’s cen- we have become much more aware of tre, it conveys stillness, balance and the the various talents — particularly artistic experience of gravity as a metaphysical talents — that make up our community. presence. While the sculpture is abstract, No historian worth his salt would consider images of mountains and ranges have attempting to describe a community of informed it and been my reference. Rather a past era without at least studying not than an object, the sculpture presents a only the great events of the period — the pattern of shapes and tonal values that politics, the wars, major disasters and the change with the movement of the viewer Hartog Berkeley QC. like — but also the artists of the day and around the work. The aesthetic resolution their work — the writers, the painters, the of the sculpture, the harmony of its com- sculptors, the musicians, the playwrights, position from all points of view will reward the actors and indeed every form of and engage the viewer. A working title for human activity. the piece, “The Mountains”, is mainly for identification. Yet it suggests many meta- phors. The structure consists of six steel plates, each shaped to synthesise a land When plans for the form. The first three are assembled into a triangle, through its sides, creating, in renovation of Owen plain view, a six-pointed star. The system Dixon East were gaining of interlocking triangles forms a very sta- momentum in 2001, ble and rigid structure.” What is the view on the ground? Peter Jopling QC put a Sir John Young speaking and Concierge John Rutter isn’t saying much, proposition to the then Bar unveiling the sculpture. though he has heard plenty of comments Council Chairman that it on it from his workstation a few meters “If we wish to understand our own away. One comment overheard by Bar might be appropriate to times and our own community so must News was to the effect that the structure commission — as a gift by we listen to and try to understand what resembled a collapsed Parisian urinal ... the silks to the Bar — an all sections of the community, particularly but the jury is still out. What is certain is the writers and artists, are saying. It is the that the piece will provoke both thought artwork to grace the foyer writers and the artists who so-to-speak and artistic controversy for some time to of ODC East. hold the community up to a mirror, and come.

48 49 News and Views

Designing

Courts for People Daryl Jackson

A highlight of Law Week 2003 was the seminar “Designing Courts for People” held in the Ceremonial Court of the County Court, chaired by Chief Judge Michael Rozenes, and featuring architect Daryl Jackson, interior designer Geraldine Maher, and Judge Michael Strong.

ITH their unique knowledge of the building, the speakers dramatic façade, the building provides Warticulated the rationale and aesthetically pleasing and functional “feel” of their vision of the court complex. spaces for jurors, victims, the public and Speaking about the architectural and the legal professionals. design elements, Daryl Jackson high- Chief Judge Michael Rozenes outlined lighted the need to convey to users of a brief history of the project which com- the court an understanding of the menced in 1997 with calls for expressions decision-making processes and the of interest, and culminated in the offi cial signifi cance of “justice” for the com- opening of the new County Court complex munity. Daryl discussed the vision on May 31 2002. for the complex and outlined the planning The building is owned by The Liberty process which incorporated the ideas Group Consortium Pty Ltd, a wholly owned and opinions of court users including subsidiary of Challenger International, and judges. He talked about the need for is leased to the Victorian Government for the building to be expressive of an “evolv- 20 years. The Liberty Group also provides ing democratic institution; itself part of IT services, building and maintenance the modern city, but without losing the services and court user management and representative power or role of the judici- Judge Michael Strong. security. The County Court is the larg- ary”. est single jurisdiction court in Australia The technical needs of a modern state-of-the-art technology in the court- accommodating 46 courtrooms, registry courtroom also required incorporating room in an unobtrusive way. Behind its and administration areas, secure custodial

50 51 News and Views

Chief Judge Rozenes. Question time.

of these zones is achieved by “deeply cut access corridors or lane-ways of light” that allow “contact” with the exterior. All courts achieve natural light either through a central light well or perimeter windows. Discussing the use of materials, col- ours, light and space, the selection and placement of details such as the innovative “in-court” technology and the artworks strategically placed throughout, Geraldine Maher gave us a sense of the “challenge of transferring concepts of peace, fortitude, prudence, magnanimity, temperance and justice into a built form in a modern yet respectful way, whilst addressing prag- matics of budget, technology, security and function”. The use of natural materials including specially selected timbers, zinc and natural fi bres for integrity, stability and warmth, the angled walls envelop the proceedings whilst niches and alcoves Professor Kathy Laster, President Victoria Law Foundation; Eugenie Mitrakis provide for privacy and solace. board member; Chief Judge Rozenes and interior designer Geraldine Maher. His Honour Judge Michael Strong spoke about the idea that the County centre accommodating up to 60 persons refl ects the city with both low and high Court complex has provided judges with in custody, jury administration and rise components, the Williams St façade, modern facilities and areas for work and associated areas accommodating up to a series of folded etched zinc, anodized refl ection without a sense of dislocation 400 in the jury pool, ample judicial accom- aluminium or white polished pre-cast from the community. He remarked on modation for judges (presently number- concrete forms, leads the eye along to the the wonderful fl ow of the zones as sepa- ing 58), their associates and tipstaves, as dramatic entrance and to the Supreme rate yet connected areas, and spoke of well as facilities for other users such as Court Dome, enhancing the physical pres- the ease and warmth of feeling which is corrections, police, Court Network and ence for legal jurisdiction in the State. afforded to all County Court users. others. Daryl quips that “already the wits at the Law Week 2003 was jointly coordinated Introducing architect Daryl Jackson, Bar are calling it the guillotine”. by the Victoria Law Foundation and the His Honour described the building as The interior has four circulation zones Law Institute of Victoria. Tours and lec- an impressive architectural statement, a that clearly segregate the judges and tures in courts are a regular feature of this distinctive and identifi able public build- juries from each other and from the pub- high profi le week. The Executive Director ing, with imaginative use of space and lic and their legal advisors, and allow for of the Victoria Law Foundation, Professor light. persons in custody to be isolated except Kathy Laster described the seminar at the The exterior plan of the complex when appearing in court. The segregation new County Court and the open days at

50 51 News and Views

Chief Judge Rozenes’ Introductory Speaker’s National Pro Bono Notes Resource Centre A Brief History: courts and further accommodation for We wish to advise the the National Pro Bono Resource Centre is now • September 1997 — Kennett Govern- judges and staff for future expansion. operating out of the White House ment called for expressions of inter- Features: est. at the University of NSW. • December 1999 — Bracks Govern- • Four circulation zones to ensure that the public, the judges, the juries and The Centre has been funded by ment approved the project. the Federal AG’s Department to • June 2000 — building commenced. the prisoners don’t trip over them- support and promote pro bono • Building opened on 27 May 2002. selves. • Completed the legal precinct — if • A fully integrated court technology legal services in Australia through VCAT -> old County Court. system research, projects, information and — video and audio recording; events. This is a PPP: — remote video and audio record- • The building is owned by TLG (a ing; The Centre’s website is online at wholly owned subsidiary of the — video and telephone conferenc- www.nationalprobono.org.au Challenger Group). ing; listing our details, activities and • It is leased to the Victorian — remote witness facility; and publications including the Centre Government for 20 years. — real time transcript. eNewsletter National Pro Bono News • The building is an impressive archi- • TLG provides: which will be published every two tectural statement — a distinctive — IT services; months. The fi rst eNewsletter is — building and maintenance serv- and identifi able public building ices; and — with imaginative use of space and available at the site and we invite — security. light. you to subscribe for updates on • By comparison to the old building pro bono news. Size: — it is “squat” rather than tall and Should you be interested in • Nearly 44,000 sq metres, 1,480 this permits the thousand-odd peo- rooms, it is the largest court complex ple that need to be in court by 10.30 an article about the Centre for in Australia. to get there in good time. Victorian Bar News, please contact: • Forty-six courtrooms. • The court rooms are large and airy. Lynne Spender • Present occupation for: • The jury rooms similarly so. Publications Coordinator — 58 judges and their associates • The judges are supported by state- Ph: 02 9385 7381 and tipstaves; of-the-art technology and library — a registry and administration of facilities and the court is at the van- [email protected] approx 60; and guard of leading edge case manage- — cells and jury facilities. ment systems. • Facilities for other users: — Corrections; When the system is completed the — Court Network; County Court will be a world leader in — Police; case management and judicial IT sup- — OPP; port. — Security; At the recent Commonwealth Law — VGRS; Conference, judicial delegates from all — Others. over the common law world marvelled at what is being achieved here. Future growth: T H E There are two vacant fl oors capable of Architect: Daryl Jackson being turned into an additional eight Interior designer: Geraldine Maher ESSOIGN Open daily for lunch courts as “an opportunity for the people Group available at www.thelibertygroup. See blackboards for daily specials of Victoria to visit these signifi cant public com.au Happy hour every Friday night: buildings and approach the law and the Watch for next year’s Law Week legal system on their terms”. calendar of events and other fea- 5.00–7.00 p.m. Half-price drinks A virtual tour of the County Court is ture events throughout the year on Great Food • Quick Service • Take-away available in the General Information area www.victorialaw.org.au. food and alchol of the County Court website www.county Ask about our catering: quality food and court.vic.gov.au with further information Aileen Duke competitive prices guaranteed on the facility and its owner, The Liberty (Victoria Law Foundation)

52 53 News and Views Junior Silk Speech Speech by Pamela Tate S.C. proposing the toast to the guests of honour at the Annual Dinner of the Victorian Bar held at ZINC, Federation Square, Melbourne, on Saturday 24 May 2003.

R Chairman, honoured guests, they must resist the urge to rise to their I had the pleasure to read) granted an other distinguished guests, ladies feet upon the tipstaff’s command “All adjournment to Simon Wilson QC on the Mand gentlemen. It is my privilege stand”. basis of Wilson’s wife’s refusal and neglect this evening to propose a toast to our hon- Fortunately, our new judges have all and deliberate omission to feed her hus- oured guests. been issued with the official 2002 “Guide band red meat — a breach which could It may interest Judge Strong to know to Judicial Conduct” published for the only be remedied by a long lunch at the that the influence of Gilbert and Sullivan Council of Chief Justices of Australia.2 Essoign Club. The Bar does not condone upon the law extends well beyond his But alas — the official Guide is incom- the granting of adjournments based on chambers in the County Court. Indeed, plete. No doubt it wasn’t prepared with “conjugal neglect” — what might be called it is rumoured to extend to the chambers the particular challenges in mind that face “Wilson adjournments” — for fear of open- of Chief Justice Rehnquist of the United judges sitting in the State of Victoria. Nor ing the floodgates. States Supreme Court, who, after seeing was it prepared in contemplation of the No doubt Justice Nettle’s former men- a performance of Gilbert and Sullivan’s idiosyncratic applications that might be tor, the Honourable Justice Hayne, will Iolanthe, has adopted four gold stripes on made by members of the Victorian Bar. ultimately persuade him to adopt his each sleeve of his black robe to emulate To remedy these deficiencies, the Bar more frugal approach to the grant of an the Lord High Chancellor. has prepared a handful of Guidelines of indulgence. The Bar does not anticipate that the its own. The Bar’s Guidelines also prescribe appointment of the Honourable Justice The first Guideline cautions new judges that a new judge ought not to damage Heydon to Australia’s ultimate appel- to be wary of applications for extended the language. This Guideline was found late court, the High Court of New South luncheon adjournments on the ground necessary in light of Her Honour Judge Wales,1 will have a similar effect on judi- that counsel has only that one opportunity Gaynor’s fondness for creating new words. cial dress. to obtain that of which his wife deprives Her Honour is responsible for invent- Judicial dress is only one of the many him. The Bar considered it necessary to ing the verb “to junior”. At the Bar her changes to which newly appointed judges issue this Guideline upon hearing that the Honour was not “led” by Senior Counsel must become accustomed. Notoriously, Honourable Justice Nettle (with whom (like the rest of us) — rather, Her Honour

52 53 “juniored” Senior Counsel, including his slightly taller cousin, George Hampel. the likes of Robert Redlich QC (now the The time came for him to announce his Honourable Justice Redlich). No doubt appearance. Inevitably, the gown got the choice of a verb was considered, by caught in the chair. Justice Oliver Gillard, Her Honour at least, to reflect who it was a formidable but fair man, said that he was that truly had the active role in the matter. willing to accept His Honour’s appearance One can only be grateful that a junior is from a kneeling position. His Honour pro- not known colloquially as a “roger”. tested that although he was bent over, he Her Honour is responsible for another did have his feet on the ground. Guideline — this cautions judges to It is rumoured that the Chief Judge refrain from being advocates. In a recent has also been taking lessons in closing criminal trial over which Her Honour pre- the court from his lifelong friend, Justice sided a question was asked of a witness Finkelstein. It was Justice Finkelstein to which objection could be taken. Sure after all who, in his salad days as a judge, enough, with lightning speed, the words left the Bench, intending to reserve, “I object” echoed throughout the court- with the simple statement that he would room. Her Honour looked to the Bar table “consider the matter”. Returning to the to identify the source of the utterance. courtroom in search of a tardy associate, Gradually it dawned on her that the origin Jack Rush QC, Chairman of the he found a sea of faces all eagerly antici- of the words could be traced to the Bench. Victorian Bar. pating the delivery of a judgment. She declined to make a ruling. The Bar recommends that on the Bench the new judges avoid the pose of the crouched judicial figure. This can be achieved if, before they direct the tipstaff to adjourn the court, they check first that

The Bar recommends that on the Bench the new judges avoid the pose of the crouched judicial figure. This can be achieved if, before they direct the tipstaff to adjourn the court, they check first that their robes The Honourable Chief Justice Gleeson Judge Michael Strong. are not caught on the AC, Chief Justice of the High Court of wheels of their chair. Australia.

their robes are not caught on the wheels The official “Guide to Judicial Conduct” of their chair. The Bar anticipates that warns that it’s necessary for a judge to compliance amongst the new judges will avoid any conflict of interest or appear- be uneven. Few will have the aplomb ance of bias, including bias based upon which the Honourable Justice Morris dis- professional or personal association. played this week when confronted with a The Bar’s Guidelines go further and recalcitrant chair. warn against any appearance of judicial Little hope is held in this regard for conspiracy. It has to be said that on this the new Chief Judge of the County Court, score those of our honoured guests who Chief Judge Rozenes, although it is well have accepted appointment to the County known that he is at least familiar with Court are guilty of an aggravated breach the problem. As a first-year solicitor His — for what else but a conspiracy could Honour was sent by Frank Galbally to explain the combined appointment to the appear for the defence in a murder trial County Court of those who attended the — Mr Frank (as he was known) told His Readers’ course of September, 1981, or Honour, “You’ll need to start by yourself, those who formed friendships with them. Sir John Young and the Honourable just pick the jury and I’ll be there shortly.” His Honour Judge Bourke joins two fellow William Kaye. His Honour quickly borrowed the gown of readers already appointed to the Court

54 55 Steve Wilmoth, Dan Flynn and Robert Taylor, Mark Moshinsky Charles Gunst QC, Maree David Levin QC, Andrew Laird Tony Southall QC. and Greg Ahern. Kennedy S.C. and Tim Seccull. and Ian Percy.

Jim Doherty, James Gordon, Chief Judge Rozenes, Judge Gina Schoff and Andrew Douglas and Judge Punshon. Maryniak.

David Pannifex, Barbara Phelan, Jenny Brennan, Keith Boulton and Richard Brear.

Judge Rachelle Lewitan.

Frank Parry S.C. and Susan Pullen and Michelle Judge Jane Campton. Williams.

Sue Walpole and Mick Dodson. Justice Hayne. John Simpson, Mirella Trevisiol, Frank Parry S.C. and Andrew McIntosh MP.

Erin Gardner and Elspeth Sue Crennan QC and Tom Karin Emerton, Jenny Beard Andrew Broadfoot and Simon Strong. Hurley. and David Neal. Tisher.

54 55 News and Views and will share the Bench with judges women as equal participants within the Perhaps Justice Young is unaware of linked by friendships, His Honour Judge legal system. Their appointment contrib- the warning given by Sir Gerard Brennan Roy (Dubya) Punshon; His Honour Judge utes to public confidence that the system in McKinney’s case6 of the dangers of Gullaci, Her Honour Judge Gaynor, and of the administration of justice is itself a the High Court inappropriately prescrib- His Honour Judge Coish. fair system. ing a rule of practice for application Another of our honoured guests is also Finally, this occasion should not pass in all Australian jurisdictions based on from the same illustrious group of readers without a reference to the boast made experience gleaned only from New South from September 1981. He is Dr Michael by Justice Peter Young of the New South Wales. Dodson (Mick Dodson), whom we honour Wales Supreme Court, that he is “proud to The common aim must be not to tonight for his service to the indigenous be a New South Wales male lawyer”.3 appoint a judge like Justice Powers, of whom it was lamented when he was on the High Court, that all the matters that came before him were ultra vires. In Victoria, we celebrate the appoint- ment of our new judges — to them we say:

May each decree As Statute rank And never be Reversed in banc. All hail!7

Ladies and gentlemen, would you please charge your glasses and be upstanding for the toast to our honoured Susan Borg, Maurice Phipps FM, Heather Gordon, Murray McInness FM and guests. Lesley Fleming M. Our honoured guests. community and social justice. His Honour Judge Howie has also demonstrated throughout the course of his life his com- mitment to the legal rights of Aboriginal people. Of course, the overarching Guideline for judicial conduct must be preserving the Rule of Law. This is a principle to which Charles Francis QC has dedicated his professional life and for which we honour him tonight. Compliance with this Guideline is perhaps particularly effort- less for the Honourable Justice Young of Justice Cummins, Justice Heydon and Sir Ninian Stephen, Judge Lazarus the Family Court as His Honour not only Justice Hansen. and Judge Rendit. preserves the Rule of Law; he owns it; trains it; races it at Cranbourne, and prof- He advises: NOTES its from its winnings. 1. See Sir Anthony Mason, “The Centenary of Amongst our honoured guests are five far from complaining about the operation of the High Court” (Paper presented at the female appointments to the Victorian the federal system, non-New South Wales Constitutional Law Conference Dinner, Par- Judiciary: the Honourable Justice Dodds- lawyers should realize that federation has liament House NSW, 21 February 2003). Streeton; the Honourable Justice Williams; given lawyers from less populated States 2. Published by The Australian Institute of Her Honour Judge Gaynor; Her Honour the opportunity to achieve heights that Judicial Administration Incorporated. 4 Judge Campton, and Her Honour Judge would otherwise be unattainable. 3. (2003) 77 ALJ 83. Wilmoth. Their role is, thankfully, a far cry I pause to express the collective grati- 4. Ibid, 84. from the request made of Allayne Kiddle, tude of the Victorian Bar. 5. Ibid, 84. the second woman to sign the Roll of While he concedes that very occasion- 6. McKinney v The Queen (1991) 171 CLR Counsel in Victoria, to prepare the flowers ally a lawyer from some other State may 468, 483. for the opening of Owen Dixon East. emerge who is worthy of appointment to 7. Gilbert and Sullivan, Trial by Jury. These five appointments, in addition the High Court, he observes that: to their individual importance, have a broader public significance because the the chances of the best lawyers emerging exercise of authority and judgment by from New South Wales [are], at least in these women encourages other judges; the present state of the economy, much barristers; solicitors, and clients to view greater.5

56 57 News and Views A Perspective on a “Light-hearted Evening” 2003 Bar Dinner

Olyvia Nikou S.C.

E may never know for certain why the numbers attending the Wannual Bar Dinner increased this year from last year by more than 50 per cent to 413. Perhaps it was curiosity regarding the new venue “Zinc” at the recently opened Federation Square. Directly overlooking the Yarra, the venue presented tranquil privacy despite being right in the heart of Melbourne and its relatively large capac- ity of 500. Perhaps the calibre of the speakers was the magnet. Jack Rush QC welcomed the guests and introduced the Honourable Chief Justice Gleeson AC. With his custom- ary impeccable manners, Chief Justice Gleeson respected the request (threat?) to keep his speech short and toasted all the Bars of Australia within the three to four minutes limit he was allocated. His Honour Judge Michael Strong then underscored the celebratory tone of the evening by some very witty singing and Ian Mawson, Olyvia Nikou S.C. and Justice Peter Young. reflections on the trials and tribulations of judicial office and the judicial system. Thankfully, his speech was so entertain- He abided by his 10 minute limit which ing, we didn’t need to concern ourselves he pointed out to Chief Justice Gleeson with His Honour speaking for over twice exceeded the time given to the Chief as long his allocated 10 minutes. Justice of the High Court of Australia. The With his tongue very firmly in his frequent laughter punctuating his pres- cheek, His Honour wondered out loud entation at regular intervals was a clear whether Chief Judge Waldron wanted indicator of appreciation of the humour his old job back. Chief Judge Rozenes of his words. The strong applause at the was also gracious enough to translate the end was a measure of the quality of His Yiddish joke for those of us whom he iden- Honour’s musical talent. Pamela Tate SC gave the Junior Silk’s address and the queue of people waiting to congratulate her immediately after- Chief Judge Rozenes. With his tongue very wards was sufficient testament as to how well it was received. She congratulated appointed judges from granting counsel firmly in his cheek, His the Honourable Justice Heydon on his extended luncheon adjournments to rem- Honour wondered out appointment to the “High Court of New edy “conjugal neglect”. loud whether Chief Judge South Wales” and welcomed the appoint- Next was His Honour Chief Judge ment of five women to the Victorian judi- Rozenes who did not concern himself with Waldron wanted his old job ciary. Ms Tate S.C. also cautioned newly threats of time limits imposed on him. back.

56 57 News and Views

At the Zinc, Federation Square, 413 were in attendance for the 2003 Bar Dinner. tified as not practising in the commercial and public speakers should His Honour jurisdiction. wake up again at 2 am and reconsider the This was as humorous and polished wisdom of accepting the position of Chief a public speech as anyone would have Judge of the County Court. been lucky to enjoy anywhere. The Chief Perhaps the tone of the evening also Judge’s mobile phone rang at the precisely owed something to the fact that we are calculated moment to facilitate one of inching forward to represent a broader His Honour’s jokes. This all amounted to cross-section of our community (albeit evidence that the only ones who should at a glacial speed). In 1992 approximately be concerned are professional comedians 19 per cent of the attendees were female. In 2003 the proportion of females present was nearly 28 per cent. The wines (Mantons Creek “The 2003 Read Three Pinots” Sparkling 2001, Portee TAILORING Chardonnay 2000, Yellow Hammer Hill Shiraz/Malbec 2001, Koppamurra On Thursday 29 May 2003, Suits tailored to measure Cabernet Sauvignon 2000 and Cape 46 readers from the March Alterations and invisible Mentelle Semillon Sauvignon 2002) didn’t intake (pictured above with do any harm. The Flaming Bombe Alaska mending added a touch of retro but the main meal, Barbara Walsh, the manager of Quality off-rack suits though tasty, could only be described as the Readers’ course) signed the “Osso Buco” by the very imaginative or Bar Roll at a ceremony in the Repairs to legal robes those with an avant garde interpretation newly-refurbished Bar Council Bar jackets made to order of Italian cuisine. The custom which has developed Chamber on the first floor of over the years of some people “running Owen Dixon East. a book” on the length of the speeches so as to ward off boredom was not nec- LES LEES TAILORS essary on this night, (although nothing MMEDIATELY after this picture was prevented some hard core gamblers from taken, the Readers proceeded to the Shop 8, 121 William Street, so doing). IEssoign Club — preempting its formal Melbourne, Vic 3000 There was nothing pompous about this re-opening by one day — to enjoy the Tel: 9629 2249 light-hearted evening which was aptly traditional post Roll-signing dinner with Frankston summarised by the frequently heard com- their mentors, the first group to sample Tel: 9783 5372 ment throughout the night: “I don’t go to the fare at the new facilities. Joining the these Bar Dinners very often but I’m glad Readers and their mentors at the dinner I chose this one to attend.” were a number of guest participants from

58 59 ers Back Row: Peter Agardy, Vicki Marty, Elizabeth Miller, Richard Antill, Gino Pierorazio, Thomas Pikusa, David Kent- Hughes, Theodosios Alexander, James Boulton, Russell Hammill, Simon Tisher, Simon Rubenstein, Jason Kane, Simon Zebrowski. Centre Row: Barbara Walsh, St John Hibble, Claire Harris, Jane MacDonnell, Jeremy Smith, Diana Piekusis, Frank O’Loughlin, Shane Tyrrell, Nabil Orow, Michael Schulze, Scott Johns, Suzanne McNicol, Elizabeth Langdon, Deborah Morris. Seated Row: Elizabeth Rhodes, Penny Cefai, Malcolm Harding, Patrick Montgomery, Daniel Holding, Anne Kajir, Alexandrina Manova, Niki Wilson, Jason Harkess, Amanda Ring. Front Row: Andrew Fraatz, Hamish Redd, Sergio Petrovich, Jennifer Beard, Marcus Hoyne, Alastair Ritchie, James McQuillan, David Purcell, Garry Hindson

the Readers’ course, including President George Hampel QC and Felicity Hampel; terpreted by and in the Court of Appeal. of the Court of Appeal The Honourable and magistrates Lesley Fleming and Although this was by all accounts a hard Mr Justice John Winneke AO; Appeal Donna Bakos. act to follow, further entertainment was Justices The Honourable Stephen Charles, The after-dinner address was given by provided by some of the Readers them- Geoffrey Eames and Peter Buchanan; the Judge Liz Gaynor who entertained the selves. Jason Harkess sang a solo rendi- Honourable Justices David Byrne and gathering with witty and humorous reflec- tion on life at the Bar to the tune of “New David Habersberger of the Supreme tions on life on the County Court Bench, York New York”; and St John Hibble, Claire Court; His Honour Michael Rozenes, Chief including the perils of having one’s jokes Harris and Elizabeth Miller performed a Judge of the County Court; Justice Peter immortalized in the transcript of proceed- sketch “Not the News”. For those who can Gray of the Federal Court; Justice Linda ings and the even greater hazard of having remember (because the hospitality was Dessau of the Family Court; Professor one’s droll judicial pronouncements misin- lavish) the evening was a huge success.

58 59 News and Views Burmese Days Simon McGregor

Before I visited the Union of Myanmar, the former British colony of Burma, I knew little more than that it was a poor Asian country under military rule. I also suspect that this was more than many of my fellow Australians knew. First hand experience, however, revealed to me that contradictory forces within Myanmar have created this simplistic caricature. The reality is a fascinating region poised at a political and legal crossroad. Author realises sunglasses are compulsory atop Mandalay Hill.

HE contradictions abounded. We people, has almost as many soldiers in were in a taxi travelling the tree- uniform as the United States of America. Tlined streets of Yangon (formerly Apart from military installations, tech- Rangoon), in Myanmar. Our taxi pulled nology is low and the emphasis is on life’s up at a red light, where a destitute news- simple pleasures. People are friendly and paper seller noticed my wife’s interest in honest. They also possess a nifty style Time Magazine’s article on Aung San Sui of dress which is not nearly so garish as Kyi, the country’s long-suffering leader other Asian cultures can appear to west- of the National League for Democracy.1 ern eyes. Smelling further sales, he promptly pro- Between December and February each duced a copy of the Michigan University’s year, Myanmar is a flowering garden of Journal of Democracy featuring a paradise, but during the wet season last- similar story, and sold it to us for the ing the other nine months of the year, equivalent of US$3. He did this openly Simon McGregor meets Bar Councillor conditions are so hot and stifling that even on a main street, so clearly there was Daw Khin Mar Mar Lutt. the locals can’t sleep. This landscape is no risk of law enforcement. Now, at this inhabited by ethnic groups so diverse that price I know it wasn’t free press, but it into their act.2 They were imprisoned for only love of food and devotion to Buddha was much cheaper than that journal 12 years as a result. Although now free, seems to be all they have in common. would be in America or Australia. The they remain banned from “public per- This ethnic diversity is the first clue to regime under which the newspaper seller formances”. Nonetheless, knowledgeable unraveling some of these contradictions. worked seemed to actually value cur- travellers can visit their house, for a fee, Before the colonial era, the region expe- rency above control. And as for his prod- and observe a “demonstration” of their art, rienced many dynastic shifts, as various uct range, I doubt that any Herald-Sun which appears to be at least as lucrative as cultural groups gained ascendancy for a street vendor in Australia would have their original performances. time, and dominated the others by force had contraband academic publications Modern Army bases stand in striking of arms. For most of this time, the Bamar on hand! contrast to adjacent shanty dwellings. people (the lowlanders who make up the The contradictions continued. In the Geo-politically, Myanmar is sandwiched current leadership) held sway. old imperial capital of Mandalay, The between the two most populous nations Before Myanmar obtained independ- Moustache Brothers are a circus-style on earth, China and India. As a result, ence from Britain in 1948, the law of the troupe who incorporate political satire Myanmar, a nation of about 50 million Union was comprised of a hybrid of cus-

60 61 News and Views

drafted was only debated by the Cabinet, Structure of the Myanmar Court System and thence directly proclaimed to be law. Interestingly, this Cabinet also includes the Chief Justice. Supreme Court The Judiciary of the Union are recruited directly from law school. They are gradually promoted from clerks, to Yangon Sitting Mandalay Sitting junior Magistrates and so forth through (6) (5) the hierarchy of courts shown opposite. State and The Deputy Attorney-General asserted Divisional Courts that the Judiciary was independent from (17) the Executive, because the Department of Justice was separate to the Attorney- General’s offi ce, and each had their District Courts (63)

Township Courts (323)

Special Courts (22)

The life of contemplation, Bagan. Juvenile Courts Municipal Courts Other Courts own “Member of Cabinet”. Nonetheless, Judges are reviewed at each promotional stage by the Executive, and many eventu- Source: Government of the Union of Myanmar, Supreme Court, The Judicial System of the Union of ally transfer to join the Attorney-General’s Myanmar, Yangon, 2001, at p.29. Department, which is viewed within today’s Union as a more prestigious post- tomary ethnic law, Buddhist law, colonial ing. era statutes and case law, to which has Signs of corruption are all around. I now been added post-independence spoke to one father who despaired of edu- statute and case law. Deputy Attorney- cating his children because he could not General U Khin Maung Aye advised that pay the bribes required to induce teach- precedents from Singapore, Malaysia and ers in the “free” State education system to India were more persuasive than those actually teach his child. I also witnessed from the more culturally remote “western” disgruntled private drivers being forced to common law nations like Australia and the hand cash to traffi c police in order to drive UK. The Constitution is being reviewed, down the public roads. which provides a focus for reformers Hence the dilemma for democratic hopes that some elements of democracy activists and other potential tourists: after will be restored in this process. Although Julie Deleljak experiences life in an years of abuse and neglect, the country no the current Constitution provides for a outer suberb of Mandalay. longer possesses the institutions which Parliament, it has not been allowed to constitute a democracy. Both parliament sit since the eleven Generals who com- ered, this system refl ects nothing less and an independent judiciary have been prise the State Peace and Development than the “native genius” described by the gone for so long that even if the SPDC Council (SPDC) took over. Highlighting Union’s preeminent jurist, Dr M. Muang.3 was willing to restore them, few people this legal contradictions of the status quo, Unfortunately, according to my values, would be capable of operating them. For these Generals now refer to themselves as this legal overview is merely a formal posi- instance, since 1990, the non-military “Cabinet”. tion in this country. The de facto position universities have been open for only about As a fellow practitioner of a common is that following a succession of coups fi ve years. As a result, many degrees have law background, I was impressed by the commencing a few years after independ- been truncated into intensive courses coherent way in which indigenous and ence, the entire machinery of government lasting only a few weeks. Various capacity non-Christian religious law could be com- is appointed or approved by the military. building projects will be necessary before bined with western Christian-based law, in On the law-making process, Mr U. any transition to democracy is to be effec- a society where clearly the political will to Kyaw Sein, Director of the Attorney- tive. Building this capacity involves spend- achieve this end exists. When Australia’s General’s Legislative Drafting Department, ing some money, and from that exchange, own diffi culties in this area are consid- explained to me that the legislation he the military government will make a profi t

60 61 of some sort. Further, if any capacity is built, the SPDC will be in the best posi- tion to take advantage of any renewed trade opportunities. The country has economic problems, and these have added momentum to the SPDC’s efforts to rehabilitate its international image. Despite coming off a low base, Myanmar is still experienc- ing net international “dis-investment” as traditional sources of investors, such as Singapore, move toward more lucrative markets like Vietnam, and multi-nationals Buddhist initiation ceremony, Art and censorship in Mandalay. such as Pepsi respond to consumer pres- Mandalay.

NOTES 1. The 1990 elections were the first free elec- tions since Independence from Britain in 1947. The NLD won 78 per cent of the vote, but the military junta (then referred to as SLORC) arrested many of the candidates and did not allow them to take office. 2. In Myanmar, bribes to traffic policemen are commonly dropped into their helmet. The Moustache Brothers did a sketch where a peasant proudly showed off her wide- Market in Yangon. Bilingual police station, Ngapoli. brimmed coolie style hat, saying, “It’s wide enough to cover all of me!”. A nearby police- sure groups and withdraw. Hyperinflation no female judges, and this was a point of man then produced his own hat, saying has seen the local “kyat” currency drop some contention. I nodded knowingly. “And my one is wide enough to cover all of to about 1/10th of its value in 1995. Most Within the Union, there is no distinc- Burma!” Burmese work two jobs, seven days a tion between solicitors or barristers, but 3. Muang, M., Burma’s Constitution, Martinus week, in an attempt to pay for their food practitioners have varying “rights of audi- Nijhoff, The Hague, 1959, at p. vi. and “under the table” expenses con- ence” in the courts. After completing a nected with the free State education. This law degree or sufficient time as a clerk FURTHER READING military government’s response has been in the Attorney-General’s office, one may Collis, M., Trials in Burma, Faber & Faber, to stick its head in the sand, as evidenced join the independent Bar as a “Pleader”. London, 1938. by their omission to compile a national After at least one year has elapsed, you Government of the Union of Myanmar, Supreme budget for 2000. may sit an exam to become an “High Court, The Judicial System of the Union It seems that the absence of democratic Grade Pleader”, where one remains until of Myanmar, Yangon, 2001. process has contributed to an absence of you have accumulated at least ten years International Labour Conference, “Special sit- accountability. of experience. At least one year of this ting to examine developments concerning This nation of approximately 50 mil- experience must be in a different District the question of the observance by the Gov- lion people is served by only 500 judges, or ethnic State from that of your birth. At ernment of Myanmar of the Forced Labour none of whom any longer have the assist- this time, you may sit your final examina- Convention, 1930 (No. 29)”, Part Three, ance of juries. The number of private tion to become an “Advocate”, where- Provisional Record of the Ninetieth Ses- legal practitioners is also surprisingly upon you have a right of audience in the sion, Geneva, 2002. low, totalling only 14,000. The Attorney- Supreme Court and can justify charging Burma Law Reports (available at Monash Uni- General’s Office is comparatively large at your clients significantly higher fees. Most versity Law Library). around 2000 practitioners, as most com- Pleaders aspire and eventually become Constitution current circa 1974. mercial work and litigation involves the Advocates. Looby, M. et. al., Mynamar (Burma), Lonely government. As in our system, criminal Due to our common colonial back- Planet Publications, Melbourne, 2002. matters are conducted by specialist State ground, certain similarities exist between Muang, E., Burmese Buddhist Law, Daw Prosecutors. Legal aid is available only to Australia and Myanmar. Depending on Than Tint, Rangoon, 1970. citizens facing the death penalty. your perspective, this may pique your Muang, M., Burma’s Constitution, Martinus Within the profession, gender bal- interest in what can be done to assist the Nijhoff, The Hague, 1959. ance is remarkably good. Member of the people of Myanmar, or just prompt you Muang, M., Law and Custom in Burma and Myanmar Bar Council, Mrs Daw Khin Mar to appreciate the vigour of the governing the Burmese Family, Martinus Nijhoff, Mar Latt, told me that both the judici- systems we have in Australia. Either way, The Hague, 1963. ary and practitioners were comprised of the caricature of Myanmar is not as simple Orwell, G., Burmese Days. women and men in roughly equal num- as it seems, and the way forward involves, bers. She noted, however, that their high- first and foremost, having to deal with the est court, the Supreme Court, contained non-democratic leadership.

62 63 News and Views/A Bit About Words Terminal Prepositions

NGLISH grammar, like English his- great politiques of. (Bacon Of Good- to demonstrate that the anxiety which tory, is scattered with myths the ness and Goodness of Nature) afflicts so many English speakers is Eorigins of which we can only guess • … let us descend and see if we can nothing but a “cherished superstition”. at. One is that infinitives must not be meet with more honor and honesty in He marshals dozens of examples of final split. Perhaps times are changing for that the next world we shall touch upon. prepositions in work by the great writers one: there seems now to be a tendency (Aphra Behn Oroonoko or The Royal of English. Burchfield, in his 3rd edition to boldly split infinitives that have never Slave) of Modern English Usage, describes the been split before. • The subject was too delicate to ques- phenomenon as “one of the most persist- Another is that a sentence should not tion Johnson upon. (Boswell Life of Dr ent myths about prepositions”. end with a preposition. That idea has Johnson) Fowler’s research suggests that the three remarkable features. First, that the • “Yes,” said the good lady, who now original culprit was Dryden, who “went ardour with which it is embraced has built knew what ground we were upon. through all his prefaces contriving away all progressively over the centuries, whilst (Charlotte Bronte Jane Eyre) the final prepositions he had been guilty of many other aspects of proper grammar The Fowler brothers published The in his first editions”. (It is lucky for us all have fallen into disuse. Second, that even King’s English in 1906. They inadvert- that Dryden wrote after Shakespeare, into the 21st century it continues to be ently gave offence by its opening sen- or we might have lost the reassurance repeated and insisted on. And third, that tence. Longer than is now fashionable, Shakespeare offers by his frequent the desperate need to avoid a terminal other than in the law reports, it occupies excursions into the forbidden territory). preposition drives otherwise rational peo- an entire paragraph. It reads: Dryden’s zeal left its mark on generations ple into grammatical contortions of the of school children. Even now, when most most grotesque sort. The compilers of this book would be want- people are taught very little grammar, The word preposition comes from ing in courtesy if they did not expressly say most seem to know the “rule” about final the Latin praeposition-em which is self- what might otherwise be safely left to the prepositions. The matter is made the explanatory: it seems to insist that the reader’s discernment: the frequent appear- more absurd (and difficult) because some thing be put before the noun or pronoun ances in it of any author’s or newspaper’s words are both prepositions and adverbs, it governs. In the Oxford Companion name does not mean that that author or in which case the dictates of usage and to English, Tom McArthur explains newspaper offends more often than others folklore are different according to the role that, because of the original meaning of against rules of grammar or style; it merely played. Examples of prepositions which preposition, “the classical prescriptive shows that they have been among the nec- can also be adverbs are: about, beside, rule emerged for standard English that essarily limited number chosen to collect beyond, forth, inward, midway, near, sentences should not end with a preposi- instances from. off, round, round about, since. tion.” Nevertheless, in early times of inno- Despite the tenacity of the superstition, cence, even writers of the first rank ended A reviewer dismissed the book out of it remains true that style is the determin- sentences with prepositions, leaving the hand on account of that sentence. But ing consideration. Some sentences would relative far behind. Shakespeare was a the Fowler brothers had not intended be absurd with the preposition at the frequent offender: to be provocative. The matter was of no end; others may be constructed with the • Now all the blessings of a glad father, account to them: The King’s English preposition at the end or not according to compasse thee about. (The Tempest v. contains no discussion of terminal prepo- taste; others again will be unreasonably i. 180) sitions. As H.W. Fowler remarked in a note distorted if the imagined rule is allowed to • The day is broke, be wary, looke about. in the 1930 edition: intimidate good sense. (Romeo and Juliet iii. v. 40) In the following examples, the alterna- • And let me speake to th’ yet unknowing … it had not occurred to us to examine tives do not work, even as a joke: world How these things came about. seriously the validity of what, superstition • She went into the church (The church (Hamlet v. ii. 391) or no, is a widespread belief. is what she went into). • Indeede I am in the waste two yards • I look forward to meeting you (Meeting about. (Merry Wives of Windsor i. ii. The sentence irritated a lot of peo- you is what I look forward to) 44) ple who, as irritated people tend to do, In the following, the choice is one of • We have some secrets to confer about. wrote corrective letters. H.W. Fowler got taste: more formal or less? (Two Gentlemen of Verona iii. i. 2) his quiet revenge in Modern English • I wanted a seat from which I could see He was not alone: Usage (1927), with an entry under the the game. (I wanted a seat I could see • A great altar to see to. (Bible Joshua topic: Preposition at End. Having ignored the game from.) xxii. 10) the subject in 1906, Fowler amasses, in • For which firm do you work? (Which • They are the fittest timber to make just two pages, overwhelming evidence firm do you work for?)

62 63 Conference Update

In some sentences, only recasting will remove the supposed problem: • The bed had not been slept in. (No-one had slept in the bed) Conference • What did you do that for? (Why did you do that?) At the end of his entry about fi nal prepositions, Fowler offers the following Update advice: Follow no arbitrary rule, but remember that there are often two or more possible arrangements between which a choice 10–17 August 2003: Thredbo, NSW. The Tel: (07) 3236 2601. Fax: (07) 3210 1555. should be consciously made; if the abnor- Australasian Legal Conference presented E-mail: [email protected]. mal, or at least unorthodox, fi nal preposi- by Continuing Professional Education. 19–21 September 2003: Freemantle, tion that has naturally presented itself Contact Rosanna Farfaglia. Tel: (07) WA. 21st Annual AIJA Conference. sounds comfortable, keep it; if it does not 3236 2601. Fax: (07) 3210 1555. E-mail: Contact Rommie Masarei. Tel: 0417 sound comfortable, still keep it if it has [email protected]. 979867. Fax: (08) 9384 9663. E-mail: compensating vigour, or when among awk- 18–19 August 2003: Brisbane. Graffi ti [email protected]. ward possibilities it is the least awkward. and Disorder: Local Government, Law 25–28 September 2003: Perth. 23rd Enforcement and Community Responses. Annual Congress — Trauma and Survival. It was some years later that a depart- Presented by the Australian Institute Contact the Conference Organiser. Tel: mental memo, which had gone to extreme of Criminology in conjunction with the 9509 7121. Fax: 9509 7151. lengths to avoid a fi nal preposition, drove Australian Local Government Association. 1 October 2003: Sydney. Controlling Churchill to note in the margin: “This is Contact Conference Co-Ordinators. Tel: Crime: Risks and Responsibilities. the sort of bloody nonsense up with which (02) 6292 9000. Fax: (02) 6292 9002. Presented by the Australiana and New I will not put”. It is a sentiment most E-mail: [email protected]. Zealand Society of Criminology. Contact: would agree with. 17–23 August 2003: Sydney. Biennial Conference Secretariat. Tel: (02) 9241 The durable myth that educated Congress on the Law of the World pre- 1478. Fax: (02) 9251 3552. E-mail: people should not end a sentence with sented by World Jurist Association. [email protected]. a preposition was neatly exploited by Contact Conference Travel International. 7 October 2003: Monash Camps a Chicago reporter in the aftermath of Tel: 631 2932511. Fax: 631 2932322. Prato Tuscany. Second International the Loeb-Leopold trial (1924). After 12 E-mail: [email protected]. Conference and Workshop — Avoiding years in prison, Dickie Loeb was stabbed 21–22 August 2003: Melbourne. Forensic Disaster: Engineering, Technology and to death by another prisoner, James Day. Disabilities: Services in the Community. the Law. Contact Jenny Crofts Consulting: Day was charged with his murder. His Contact the Conference Organiser. Tel: Tel: 9429 2310. Fax: 9421 1682. E-mail: defence was that Loeb had made a homo- 9509 7121. Fax: 9509 7151. [email protected]. sexual advance, and that he was defend- 30 August–3 September 2003: 20–21 October 2003: Second National ing himself. With more wit than taste, the Lisborn, Portugal. 47th Congress Union Pro Bono Conference: Transforming journalist wrote: “Richard Loeb, despite Internationale des Avocats. Presented Access to Justice presented by the his erudition, ended his sentence with a by International Association of Lawyers. National Pro Bono Resort Centre in proposition.” Main Themes: Migrations and Human conjunction with PILCH. Contact Ann Julian Burnside Rights; Corporate Governance and Legal Johnson. Tel: (02) 9385 7776. E-mail: Practice; Globalization of the Law and the [email protected]. Legal Profession. Contact Centre UIA. 6–9 November 2003: Geelong. Annual Tel: 33 1 4488 5566. Fax: 33 1 4488 5577. Conference: Forensic Psychiatry at E-mail: [email protected] Work presented by RANZCP. Contact 1–5 September 2003: Tokyo. 18th the Conference Organiser Pty. Ltd. Tel: Biennial Conference of Law Asia. Contact 9509 7121. Fax: 9509 7151. E-mail: Secretariat of Law Asia 2003. Tel: 81 3 [email protected]. 3263 6474. Fax: 81 3 3263 7537. 24 November 2003: London, UK. 14–19 September 2003: San Francisco. International Intellectual Property Law IBA Conference 2003. Contact Internat- presented by Hawksmere. Contact ional Bar Association. Tel: +44 (0) 20 76 Claire Vipas. Tel: 44 20 7881 1813. Fax: T H E 7629 1206. Fax: +44 (0) 20 7409 0456. 44 20 7730 4672. E-mail: Claire.vipas@ E-mail: [email protected]. hawksmere.com. ESSOIGN 18–24 September 2003: Rome, Italy. 12 April 2004: Capetown. Second World Pan Europe Asia Legal Conference Bar Conference presented by the South Open daily for lunch presented by Continuing Professional African Bar. Contact Dan O’Connor, Great Food • Quick Service • Take-away Education. Contact Rosanna Farfaglia. Secretary ABA. Tel: (07) 3236 2477. food and alchol Ask about our catering: quality food and competitive prices guaranteed

64 65 Lawyer’s Bookshelf

practical realities of legal disputes. Such data storage and instantaneous communi- Australian Civil discussions will not surprise busy litiga- cations including the internet, are com- Procedure (5th edn) tors (nor be of enormous benefit to them) mon place and an intrinsic part of most but are appropriately included in a text personal and commercial lives. By Bernard Cairns also intended for use by students. This text generally covers the protec- Law Book Co. 2002 The utility of the book could be tion of trade and personal secrets by pp. v–lxxxviii, 1–629, index 631–664 enhanced by a comparative table of rules. common law and statute. Breaches of con- SSOCIATE Professor Cairns is a pro- While the reader could achieve the effect fidence involving both the employee and Alific contributor to the law of civil of such a table by reading the text in con- fiduciary relationship are covered in some procedure in Australia. He was the princi- junction with the comprehensive table detail. As far as the development of the pal consultant to the Queensland Justice of statutes included, such a process is common law is concerned not much has Department in the project that resulted cumbersome. A comparative table would changed since the seminal judgment of in that State’s revolutionary Uniform make the book a handy reference as well Justice Megarry (as he then was) in Coco Civil Procedure Rules of 1999, and has as a useful text, and would be a welcome v A N Clark (Engineers) Ltd [1969] RPC become somewhat of an institution at the inclusion in future editions. 41 at 47. The application of the equitable University of Queensland, where he has Many of the repetitions and redundan- principles identified by Justice Megarry taught civil procedure for many years. cies which plagued earlier editions have have of course been dealt with by the The first edition of his text was published been removed, reducing the size of the Courts in many and different factual cir- in 1981. book without depriving it of useful mate- cumstances. In this respect Dr Dean again After describing issues of jurisdiction rial. However, that purge was far from includes an appendix to his work which and case management, the book follows Stalinist in its thoroughness, and a reader categorises secret information cases by a predictable course through the typical could be forgiven for feeling the occa- subject matter. Likewise, cases involving litigation process, ending with chapters on sional tingle of déjà vu while reading. the grant or refusal of Anton Piller relief costs, appeals and the execution of judg- Cairns’ book provides a useful overview are also included in an appendix catego- ment. Somewhat anomalously, chapters of the civil justice system and a general rised by subject matter. dealing with equity proceedings and with introduction to principles of procedure. Perhaps the most recent advances in partnerships as parties appear at the end It also provides a means to compare the area of trade and personal secrets of the book. These would more appropri- Victorian civil procedure with its federal has been the development of the common ately have been included in the course of counterparts and that of other states and law in respect of privacy (Australian discussion rather than as an afterthought. territories. In that regard it is an excel- Broadcasting Corporation v Lenah The book attempts to describe the lent textbook and a useful aid to practice. Game Meats Pty Ltd (2001) 208 CLR litigation of civil trials in all superior However, the reader should refer to more 199) and statutory protection of trade, Australian jurisdictions, with a brief but specialised works for a detailed examina- personal and privacy secrets and rights. useful reference to the appeals process. tion of civil procedure in any particular The text updates and canvasses most The chapter on case management deals jurisdiction. of the relevant case law, literature and separately with the systems used by the S.J. Maiden statutory materials in relation to the topic. superior courts of record in each State In particular, the chapter on protection of and Territory, as well as the Federal computer software and output has been Court. Where citations are provided, the almost wholly revised and updated to author has provided references to the The Law of Trade keep track with what is a fast changing relevant provision of the rules of each area of the law. of those courts. In situations where the Secrets and Personal In the first edition of this work Dr Dean practice in some courts differs markedly stated in the preface: from that in others, each method is dealt Secrets (2nd edn) with separately. Where procedural varia- By Dr Robert Dean The object of the book is to examine the law tions exist in respect of particular subject Law Book Co. (Thomson Legal & in a way which will afford to those who need matter (for example, in personal injuries Regulatory Limited) 2002 to find a reference to a particular aspect of litigation and building cases) those varia- pp i–lxxviii, 1–686 (hard cover) any topic the opportunity to do so without tions are considered in some detail. difficulty. To this end the book attempts While the book is thorough, it does not R Robert Dean has returned to prac- to set out the law with respect of secret stray beyond the appropriate boundaries Dtice at the Victorian Bar and, perhaps, information in what is hoped is a coherent of a civil procedure text. The chapters reintroduces himself to practice with the structure making maximum use of headings dealing with pleadings and evidence are second edition of his text on the law of and a detailed index. comprehensive but focused on procedural trade secrets. The work has now been aspects. Likewise, the chapter on trials extended by two chapters to include a In my opinion the second edition satis- sets out the theory and practice of the chapter on the statutory protection of fies the objects indicated by Dr Dean and adversarial hearing, but does not drift into private information and a chapter on free- is a useful work for all commercial lawyers. issues of advocacy. dom of information and its impact on the The book’s wide ranging and practical cov- The author pays suitable attention to author’s main subject. erage of what is sometimes a difficult topic the commercial issues surrounding litiga- In 1990 when the first edition of this makes it a very useful reference. tion, spending some time discussing the work was published the use of computers When writing this review I had occa- procedures involved in settlement and was novel but increasing. By 2002, and sion to return to the first edition of Dr “alternative” dispute resolution and the the second edition, computer technology, Dean’s work and note that the introduc-

64 65 tory page had been corrected subsequent chapter on specific performance grounds the area, the law of professional liability, to publication with a white sticker revising its discussion of the issues and authorities “has been one of the growth areas of the the reference to the author’s occupation well in an elegant use of classic and mod- Australian common law”. One factor he and qualifications. No doubt the second ern statements of principle. mentions, bringing about this develop- edition is probably also sold with such a There are some odd omissions. For ment, “has been the transformation of corrective sticker. example, the discussion of undue influ- Australia from an agricultural and indus- S.R. Horgan ence is based largely on the House of trial economy to a predominantly service Lords’ decision in Barclays Bank v economy”. O’Brien [1994] l AC 180, and hardly The book deals with the professional Principles of Equity mentions Garcia v National Australia liability of the following to each of which Bank Ltd (1998) 194 CLR 395, which is devoted a chapter — doctors; solici- (2nd edn) is important to the present law in tors; barristers, accountants and auditors; Parkinson, ed Australia. In a book which concentrates building professionals; valuers; and insur- Law Book Co. 2003 on AngloAustralian equity jurisprudence, ance brokers. Each chapter has its own pp 1082, including index (soft cover) I would have expected at least a dis- table of contents. In chapter 1 (pages 1 cussion of the differences between the to 149) there is an in-depth discussion of HIS is one of the better legal text books approaches taken in the two cases, even if the general principles of law in the area. TI have used recently. It sets out lucidly, the author considers the House of Lords’ Having considered the liability of the pro- concisely and authoritatively all the main analysis to have been preferable to the fessional groups concerned (chapters 2 to principles of equity. It maintains a con- High Court’s. 8) the book then sets out in appendices sistent style throughout, notwithstanding Nevertheless, overall this is a valuable some helpful practical items such as draft a diverse (though often distinguished) work, and a worthy alternative or better statements of claim (Appendix 2 and 3). authorship. The layout and sub-headings still, companion, to the classic Australian Appendix 1 also sets out some other items make the information both easy to find, equity texts Meagher Gummow and relevant to practice (including, for some and easy to digest. Lehane’s Equity Doctrines and Remedies reason, the Hippocratic Oath). All main equity topics are covered. and Spry’s Equitable Remedies. There is no doubt that this book is They include the history and nature of a worthwhile addition to the law in this equity, unfair dealing and equitable relief Michael Gronow area in setting it out succinctly and in against it, obligations of trust and confi- very readable fashion. Extensive tables dence, equitable assignments and assur- of cases (usefully setting out citations) ances. There is also extensive treatment Professional Liability in and statutes and a very good index also of equitable remedies, including specific help the reader who may be after a quick performance, injunctions, constructive Australia answer on some technical point. The book trusts, equitable compensation, tracing, By Walmsley, Abidee and Zipser might, however, have included a short dis- declarations, rescission, and rectification Law Book Co. 2002 cussion on the liability of arbitrators and and equitable defences and set off. pp i–lxi; 1–771 mediators — a very important issue given Some of the chapters are very good the growth in ADR in recent times. indeed. The chapter on equitable assign- HE categories of negligence are Nevertheless anyone working in this ments, for example, is clear and well writ- T“never closed” said Lord Macmillan in area will find this book a helpful and ten, and includes a concise statement of Donoghue v Stevenson. And in his fore- rewarding source. nearly everything a practitioner would word to this book on professional liability, want to know about the subject. The Mr Justice McHugh notes that the law in D.J. Cremean High Court Not Routed Continued from page 32 it ceased to exist and in September 1994 that they are adhering to, enables me developed the superior science. I proved that energy can be created from — it causes things to cease to exist. Now, I … nothing which in turn proves that nothing have proven everything is on nothing so if Kirby J: Yes, thank you very much, Mr is of a … state of energy. Now, I required to everything is on nothing and you multiply Rout. I will ask Justice Heydon to give increase the speed of light within a fusion it by zero, then the entire universe and the the reasons of the Court for the ruling engine so as to fuse the four hydrogen world does not exist. I have proven it con- that will be made and announced on this atoms which I claim become susceptible clusively. I am not hiding, am not hiding, application. to fusing through the increased speed of it is then and in there in the universities, Heydon J: On 14 February 2002 the Chief light. Now, I have given no credit to … they hide behind their … labels and they Justice dismissed an application by the Kirby J: Mr Rout, you are now in the High hide behind their status and they hide applicant for leave to issue process being Court of Australia which is the highest behind protected by the media who will an electoral petition annexed to an affida- court in our country and you are seeking not expose them. So I have proven it. vit of 5 January 2002. The applicant seeks to have the Court give you leave to pro- … leave to appeal against the Chief Justice’s ceed with an electoral petition. Kirby J: Did you work at one stage for a order. The applicant has not demonstrated … university yourself? any error in the Chief Justice’s conclusion Mr T.J. Rout: No, it does because the Mr T.J. Rout: No, I am a self-made scien- or in his order. The application for leave is dividing and multiplying by zero, the set tist. I am the man responsible for having dismissed.

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