No. 112 AUTUMN 2000 Contents EDITORS' BACKSHEET ARTICLES 52 A Bit About WordslBeastly Words 5 Some Positive Steps Towards the 20 The Supreme Court in the New 53 Near-Death Experience Rule of Law Millennium 54 Readers' 10th Anniversary Dinner CHAIRMAN'S CUPBOARD 23 Owen Dixon Chambers East 55 Competition/Pen City Winner 7 A Rosette By Any Other Name ... Renovation Update 57 Law Men & Women: Biggibilla, ATTORNEY-GENERAL'S COLUMN 24 Joan Rosanove Chambers Up and Australian Aboriginal Artist 8 Autumn Session Legislative Reforms Running SPORT 27 Internet and E-mail: vicbar.com.au 59 Bar CricketlBar Cricketers Win Holy PRACTICE NOTES 28 The County Court: Time for Grail 10 Legal Profession Tribunal­ Specialisation Publication of Orders 60 Bar CricketlBar Bowled Over 30 GST: A Summary of its Impact on Opposite Trauma Centre 10 Professional Indemnity Insurance for Barristers at the Victorian Bar Barristers 61 Bar Hockey/Gifted Youthful Players 35 Why Legal Aid Needs More Money Wanted WELCOMES NEWS AND VIEWS 39 CONFERENCE UPDATE 11 Judge King 38 Identifying the Truly Good and Making 13 Chief Federal Magistrate Diana LAWYER'S BOOKSHELF It Truly Common 62 Books Reviewed Bryant QC 40 1999 Women Barristers' Association 15 Jane Patrick, Magistrate Annual Dinner CORRESPONDENCE 46 Debt Collection 403 Cover: 15 Letter to the Editors 47 Commercial Bar Association Cocktail His Excellency the Governor oj OBITUARIES Party and Art Exhibition Victoria, Sir James Gobbo, to open the 16 Master George Brett 48 Verbatim BCL's "new millennium" Joan 18 Bob Vernon 49 People v. Leopold and Leob Rosanove Chambers, previewed at 19 John D. Daly 51 Spring Racing Carnival Art Exhibition pages 24-26 oj this issue. Welcome: Judge Welcome: Chiej Homily preached by Women Lawyers: Biggibilla, Australian King Federal Magistrate Bishop Denis Hart Justice Catherine Aboriginal artist DianaBryant QC Branson speaks The County Court: TimejorSpecialisation Sport: Bar's 1st & 2nd XIs cricketers v. LIV; and Bar hockey 3 Victorian Bar Council VICTORIAN BAR COUNCIL Chairmen of Standing Committees of the for the year 1999/2000 Bar Council *Executive Conunittee Applications Review Committee Clerks: R Redlich QC, RF. A *Derham QC, D.M.B. (Chairman) Bar Constitution Committee R *Redlich QC, RF. (Senior Vice-Chairman) G Colbran QC, M.J. H *Rush QC, J.T. (Junior Vice-Chairman) Child Care Facilities Committee S Murdoch QC, P.B. D McLeod Ms F.M. B *Kaye QC, S.w. B Curtain QC, D.E. Conciliators for Sexual Harassment and Vilification F Dunn QC, P.A. A Habersberger QC, D.J. B *Ray QC, W.R Counsel Committee W *Brett QC, RA. (Honorary Treasurer) B Kaye QC, S.w. A *Pagone QC, G.T. Equality Before the Law Committee G Santamaria P.D. D Lewitan QC, Ms RA. PAllen D.L. H McGarvie R.w. Ethics Committee A Wright QC, H.McM. D Dixon Ms. J. A Richards Ms. J.E. Human Rights Committee D *McLeod Ms F.M. (Assistant Honorary Treasurer) D Fajgenbaum QC, J.I. D Riordan P.J. Legal Education Committee G Hinchey Ms S.L. BRay QC, W.R B McKenzie B.R • Readers' Course Sub-Committee F WalshM.J. BRay QC, W.R D Gronow M.G.R • CLE Sub-Committee A Moloney G.J. (Honorary Secretary) S Santamaria QC, J.G. R Burchell Ms S.E. (Assistant Honorary Secretary) Litigation Procedure Review Committees D Attiwill RH.M. (Acting Assistant Honorary Secretary) • Commercial Law A Derham QC, D.M.B. Ethics Committee • CommonLaw A Wright QC, H.McM. (Chairman) B Curtain QC, D.E. D Lyons QC, J.F. • Criminal Law A Pagone QC, G.T. M Richter QC, R H Young QC, P.C. • Family Law B Hill QC, I.D. R Redlich QC, RF. G Lacava P.G. Past Practising Chairmen's Committee B McMillan Ms C.F. D Francis QC, C.H. B Maidment RJ.H. Professional Indemnity Insurance Committee F Hartnett Ms N.H. (Assistant Secretary) H Rush QC, J.T. A Delany C.J. Strategic and Planning Committee B Grigoriou Ms G. (Secretary) G Crennan QC, Mrs S.M. D McLeod Ms F.M. B Connor Mrs F.J.S. Victorian Bar Dispute Resolution Committee D Riordan P.J. S Martin QC, W.J. F Burnside Ms C.M. VICTORIAN BAR NEWS Editorial Committee Printed by: Impact Printing Editors John Kaufman QC, Peter Lithgow (Book 69-79 Fallon Street, Gerard Nash QC and Paul Elliott QC Reviews) Brunswick Vic. 3056 Richard Brear (Assistant to the Editors) This publication may be cited as Editorial Board Carolyn Sparke and Bill Gillies (2000) 112 Vic B.N. David Bennett QC David Johns (Photography) Julian Burnside QC Advertising Published by The Victorian Bar Inc. Graeme Thompson Publications Management Pty Ltd Owen Dixon Chambers, 38 Essex Road, Surrey Hills, Editorial Consultant 205 William Street, Melbourne 3000. Victoria 3127 David Wilken Registration No. A 0034304 S Telephone: (03) 9888 5977 Opinions expressed are not necessarily Facsimile: (03) 9888 5919 those of the Bar Council or the Bar. E-mail: [email protected] 4 - - - - -- - Editors' Backsheet . - - Some Positive Steps Towards the Rule of Law WORKCARE AND COMMON LAW RIGHTS T seems that steps are now in train to revive, at least in part, the common I law rights of injured workers. This will inevitably produce work for the Bar not only in litigating those rights but also in interpreting, or arguing over the inter­ pretation of, the words of the amending legislation. We welcome any expansion of the work available to members of the Bar. On the other hand, any work which becomes available must be paid for. There is a cost, in one form or another, to the com­ munity. We understand that WorkCover premiums are to rise to meet that cost. This cost and the putative benefit to the Bar are, however, irrelevant to the main issue. It has been, and is, entirely anomalous that the owner of factory premises may be liable in negligence to a trespasser, or to a casual stranger who comes to the door to solicit subscriptions The courts which determine the and in a way equivalent to the entrench­ for the Blue Light Disco, but that there is rights of an injured worker need to be ment given to the powers of the no such liability to the worker, who is, conscious of the history of the legisla­ Supreme Court. after all, on the premises not only at the tion, of its purpose and of its effect. To The same Act has abolished s.46 of invitation of the owner but (one as­ interpret or apply the provisions of the the Public Prosecutions Act 1994, which sumes) for the benefit of the owner. No Accident Compensation Act by resort to inhibited the power of persons other system of statutory compensation justi­ semantic quibbles, which may be appro­ than the Attorney-General to apply to a fies the abolition of the worker's right to priate when dealing with the Income Tax court for punishment of a person for a sue for negligence unless the tort of neg­ Assessment Act, is not only unfortunate; contempt of court. ligence is to be abolished right across the it is unjust. There is no legitimate role board. It has never been suggested we do for a scholarly and clinical analysis of the LEGAL AID that. fine print, pursued in ignorance, or dis­ These are all positive steps towards a regard of the purpose and substance of State governed by the rule of law. How­ WORKCARE LEGISLATION IS the legislation. Those who preside in ever, legal aid funding (as indicated else­ BENEVOLENT Workcare cases should at all times be where in this issue) remains inadequate, Until the common law revival takes conscious of the fact that the life of the despite the increase in Commonwealth place, we have a compensation scheme law is not [mere] logic but experience. funding. which derives from the Germany of The decision of the Court of Appeal in Bismark and which was originally (but no INDEPENDENCE OF THE Phung v. R would seem to require longer) an addition to, not a substitute DPP judges presiding over criminal trials of for, common law rights. That legislation The legislature has re-affirmed in a very indigent accused, in all but exceptional in its current "narrow and meagre" ambit positive way the independence of the circumstances, to order that Victoria Le­ is intended to ensure that the injured Director of Public Prosecutions. The gal Aid provide legal representation for worker receives some compensation. It is amendments to the Constitution Act in­ the accused. This necessarily places a legislation which, according to all princi­ troduced by the Public Prosecutions greater demand on legal aid resources ples of statutory interpretation, not to (Amendment) Act 1999 have en­ than has previously existed. At the same mention humanity, should be interpreted trenched the powers of the Director of time it makes clear that the role of a trial benevolently. Public Prosecutions, so far as is possible judge when considering an application 5 under s.360A of the Crimes Act is di­ tionate to the crime of which the Where the legislature requires the im­ rected towards the ensuring of a fair trial accused has been convicted. position of a mandatory sentence based not the protection of the VLA coffers. "[I]It is now firmly established that on the antecedents of the offender, not our common law does not sanction pre­ the gravity of the offence: INQUISITORIAL JUSTICE ventive detention. The fundamental prin­ (a) the accused would appear to be de­ This would seem to be a major step for­ ciple of proportionality does not permit prived of the equality promised by ward in ensuring a fair trial according to the increase of a sentence of imprison­ Article 14.1; law.