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. However, the "efficiency" measures ment beyond what is proportional to the (b) juvenile offenders would seem to be introduced with the amendment of deprived of the protection given by Schedule 5 to the Magistrates' Court Act Article 14.4; and and the introduction by the Crimes (c) the assumption in Article 14.5, that (Criminal Trials) Act 1999 of pre-trial Until the common law a sentence may be reviewed and re­ admissions and summaries in the crimi­ duced by a higher tribunal so as to nal trial process (all canvassed in the revival takes place, we be appropriate to the offence com­ Spring 1999 issue) appear to be heading have a compensation mitted, cannot operate. in the opposite direction. scheme which derives Mandatory sentencing accords nei­ If we are to move to a system of in­ ther with the principles of the common quisitorial justice (and we do not advo­ from the Germany of law nor with Australia's international cate such a course) it should be done Bismark and which was treaty obligations. openly. The introduction of "pleadings" originally (but no longer) The editors note with concern, and in criminal trials, the gross inhibitions on some amazement, that the Common­ making a simple uncomplicated plea of an addition to, not a wealth Attorney-General, who was him­ "not guilty", the pressures placed on the substitute for, common self a practising lawyer for some accused and his advisors to relieve the law rights. considerable time, considers it "inappro­ Crown in part (and sometimes in large priate" for members of the judiciary to part) of the burden of proof, and the re­ comment on legislation of this kind. duction of the committal proceedings crime merely for the purpose of extend­ It is unfortunate that the Attorney­ (save where the defendant can justify ing the protection of society from the General, as chief law officer of the Com­ cross-examination) to a mere magisterial recidivism of the offender. The extent of monwealth, has seen fit not to support vetting of the prosecution brief do not a sentence of imprisonment which would the judicial condemnation of mandatory savour of the common law. Certainly, violate the principle of proportionality sentencing but has chosen to challenge they reduce and undermine the rights of can scarcely be justified on the ground the right of members of the judiciary to the accused as they have been known that it is necessary to protect society comment on legislation which (as the at­ since the abolition of the Star Chamber. from crime which is serious but non-vio­ torney-general must know) undermines It is little consolation to know that lent": Chester v. R (1988) 165 CLR 611 common law rights and infringes Austral­ Victoria is behind the other Australian per Mason CJ, Brennan, Deane, Toohey ia's international treaty obligations. States and many overseas countries in and Gaudron JJ at 618. Who better to comment on the admin­ the move to put efficiency ahead of jus­ This is precisely what happens with istration of justice than those fixed with tice. When the efficiency of the system mandatory sentencing of the type now in the task of administering it? prevails over the rights of the individual, force in Western Australia and the even in the criminal sphere, then anar­ Northern Territory. WE WERE WRONG chy has its attraction. Under international law the provisi­ The summer issue of Bar News was a ons of Article 14 of the Covenant on bad one for the editors. We accepted at MANDATORY SENTENCING Civil and Political Rights, to which face value the "loose translation" relating The issue of mandatory sentencing Australia is a signatory, appear to con­ to the award conferred on Bernie raises a major conflict between the rights flict with these mandatory sentencing re­ Borngiorno. For that we have received a of the person and the efficient protection gimes. justifiable rebuff from Paris. of property rights. All persons shall be equal before the courts We also erred (with Justice Kirby) in To give the court of trial no discretion and tribunals. In the determination of any making an assumption, by reason of Jus­ in relation to sentence and to fix that criminal charge against hlm, or of his rights tice Kearney's long-standing connection sentence without reference to the grav­ and obligations in a suit at law, everyone shall with PNG, that he had led Ron Castan in ity of the offence appears to be contrary be entitled to a fair and public hearing by a the claim for native land rights men­ to common law principle and to interna­ competent, independent and impartial tribu­ tioned by Kirby J, in his tribute to Ron tionally accepted concepts of justice. nal established by law ... : Article 14.1. Castano However, it was John Kearney, At common law a court, when exercis­ then a member of this Bar, who was ing its sentencing discretion, may prop­ In the case of juvenile persons. The proce­ Ron's leader in that case. erly have regard to the protection of the dure shall be such as will take account of We apologise for both errors. They community. But it may not impose a sen­ their age and the desirability of promoting are canvassed by Pat Donovan and tence not related to the gravity of the their rehabilitation: Article 14.4. John Kearney in the correspondence crime. Everyone convicted of a crime shall have the section. A sentence of imprisonment may not, right to his conviction and sentence being re­ according to common law principles, be viewed by a higher tribunal according to law: THE EDITORS increased beyond that which is prop or- Article 14.5.

6 Chairman's Cupboard A Rosette By Any Other Name ...

HERE are now 1363 practising than an accruals or earnings basis. The counsel at the Victorian Bar, in­ ATO issued a ruling late last year. The T cluding 170 Queen's Counsel. The effect of the ruling is that if a member Attorney-General, the Hon. Rob Hulls accounts for income tax on a cash basis, MLA, has announced that no more he or she may account for GST on the Queen's Counsel will be appointed - same basis. A copy of the ruling was pub­ only Senior Counsel. The proposal, as it lished in full in the Bar's publication In is presently understood, is that there will Brief and copies are available from the only be a change of name. There are Bar offices. The Bar Council thanks John some who might think that the exercise DeWijn and Jennifer Batrouney for their of the prerogative of the Crown is not so assistance in obtaining the ruling. easily altered. But the important ques­ Arthur Andersen have been retained tion from the point of view of the Bar is to advise on the impact of the GST on not how the proposed change is made, barristers and clerks. David Bremner, the but whether the change will impact on Executive Director of the Bar, has co­ the importance and value of the office of ordinated the efforts of the Bar and the Senior Counsel. In other words, does it clerks to gather information and assess matter that there is a change in the title? the impact of a GST on barristers' prac­ Plainly the title matters very much to tices. There is an article in this edition of some. But, in my view, what really mat­ the Bar News. I thank David Bremner for ters is the functional distinction between Chairman, and, before that, as Vice­ producing that. In addition there will be senior and junior counsel, and that the Chairman, Treasurer and member of the a booklet produced bringing together the office of senior counsel continues to be Bar Council. elements of the GST of greatest concern "useful" and to be a mark of professional to barristers. eminence. It is in fact useful to the court JUDGE KING and the administration of justice, useful On 1 March 2000 the Attorney-General THE BAR BALL to solicitors, clients and the public. The announced the appointment of Her Hon­ The Bar Council has decided that the usefulness of the office will not be af­ our Judge King to the Bench of the centenary of Federation and the new fected by a change in its title, at least in County Court. One of David Curtain's millennium deserve celebration. A ball is the longer term. Moreover, the proposed last official functions was to welcome to be held at the Royal Exhibition Build­ change (as I understand it) will not at­ Judge King to the Bench. There is an ar­ ing in October 2000. The ball will be tempt to be retrospective nor change the ticle in this Bar News about Betty King, open to all members of the Bar and their method of appointment. Senior Counsel so I will not say more than, on behalf of "partners", judges and judicial officers will continue to be appointed by the Gov­ the Bar, I congratulate and extend my (whether or not they are members of the ernor-in-Council, on the advice of the At­ best wishes to her. It is also appropriate Bar), clerks and their staff and the staff torney-General who, in turn, acts upon to recognise that in making this appoint­ of the Bar and BCL. The ball is going to the recommendation of the Chief Justice ment the Attorney-General continues be a little unconventional, and promises of the Supreme Court. That is due recog­ the approach announced at the time of to be great fun. For junior members it nition of the importance of the office. the elevation of Judge Kent - of ap­ will be subsidised. All I am prepared to pointing persons with appropriate litiga­ say at present is: don't expect to be RETIREMENT OF DAVID CURTAIN tion experience. stuck in a chair for very long. AS CHAIRMAN At the Bar Council meeting on Thursday GST AND THE BAR NED KELLY TRIAL 2 March 2000, David Curtain retired as The introduction of the Goods and Serv­ The Bar will perform a re-enactment and Chairman of the Bar Council. He served ices Tax will add another burden to all "retrial" of Ned Kelly during law week, in the Bar as Chairman for 18 months. Dur­ our practices. The Bar has done a great May this year. The Chief Justice, Justice ing his chairmanship the Bar Council has deal of work, in conjunction with the Phillips, has kindly given permission for operated smoothly and harmoniously. clerks, on the impact of the GST on bar­ the performances to be held in the Banco Under his chairmanship, the day-to-day risters' practices. For example, applica­ Court. The production is being directed problems of the administration of the Bar tion was made to the Commissioner of by Nicholas Harrington, and is expected have been handled efficiently and with Taxation on behalf of all members of the to run over two nights (19 and 20 May) good humour. On be.l1alf of all the Bar I Bar for permission for members to ac­ with the option of a Saturday matinee. thank David for his dedicated service as count for GST on a cash basis, rather The production will be staged in two

7 Attorney-General's Column parts, the first being a theatrical re-en­ and to associated chambers. In the re­ actment of the original trial, the second sult, the P ABX has now available virtual being a retrial. For the retrial, two senior ISDN (Integrated Services Digital Net­ Autumn Se members of counsel will be briefed to ap­ work) lines and all extensions to the pear to prosecute and defend Kelly. The P ABX are now accessible through the briefs will include copies of the original prefix 9225. depositions and statements from 1880. Reforms The audience will be the jury. RENOVATION OF ODCE GROUND FLOOR BARRISTERS' CHAMBERS The ground floor of Owen Dixon Cham­ Many of you will have already seen the bers East is to be renovated. The renova­ HE ree · nLly conun need autwnn new Joan Rosanove Chambers. They will tions are expected to commence in late session of tate Parliament sees be opened by His Excellency Sir James May or early June this year. The works T the introduction of a number of Gobbo on 14 April 2000. In this edition of are anticipated to take three months significant legislative reforms for the the Bar News there is an article about only. During the period of the renova­ Bracks Government - including the in­ the chambers. tions the clerks on the ground floor of troduction of the Juries Bill, the Admin­ Owen Dixon Chambers East will be relo­ istration and Probate (Dust Diseases) INTERNET CONNECTION cated. There is more information about Bill, the Whistleblowers Protection Bill One of the features of Joan Rosanove the renovations later in this edition. and amendments to the Equal Opportu­ Chambers, a feature which BCL is pro­ nity Act gressively offering throughout its cham­ PRO BONO SCHEMES Firstly, the introduction of the Juries bers, is a direct connection to the On behalf of the Bar Council, I thank all Bill reafffirms juries as the cornerstone internet. This enables 24-hour continu­ those members of the Bar who have of our legal system. The Bill deals spe­ ous access. The effect is that e-mail given their time to represent litigants in cifically with the issue of jury vetting - comes to you, rather than you dialling in need of assistance. In particular, I thank and was drafted partly in response to the to your Internet Service Provider to col­ those members of the Bar who have par­ decision of the High Court last year in lect it. Once connected, it costs $25 per ticipated in the Bar's Pro Bono scheme, Katsuno v. the Queen. The Court held month. Everyone connected agrees that the Bushfire scheme and those who have that the provision, by police to the pros­ it is a superb system. E-mail addresses assisted with the East Timor evidence ecution, of material relating to the crimi­ are also now available. E-mail addresses project. nal histories of potential jurors is are "[email protected]". In general, unlawful. The Bill also expands the range the direct internet connection and e-mail NEW BAR READERS of potential jurors and clarifies who is addresses are available to members of Finally, I wish to extend a warm welcome disqualified from sitting on juries. the Bar, their secretaries, readers and to the new Bar readers, including three It is my view that people should only clerks (as well as to BCL and the Bar from Papua New Guinea and one from be excluded from jury service on the ba­ Council staff). It will be available incre­ Vanuatu, who commenced the Bar Read­ sis of clear legislative criteria. For this mentally. It is presently available in Joan ers' Course on 1 March 2000. reason, jury vetting by the prosecution Rosanove Chambers and Owen Dixon should not be permitted and will be abol­ Chambers West in accordance with no­ Mark Derham ished in favour of a disqualification re­ tices which have been circulated. A large Chairman gime significantly more rigorous than group in Latham Chambers have also that in the current Juries Act. been connected as a result of the initia­ The Bill provides a lifetime disqualifi­ tive and energy of Michael Wheelahan. It cation for anyone who is sentenced to will be available in Owen Dixon Cham­ three years or more in prison. It provides bers East. Until the renovation of that AUTOMOTIVE a ten-year disqualification for persons building, however, the service will de­ who have been sentenced to a period of pend on surface cabling. More informa­ ENGINEER imprisonment of between three months tion about the service is provided in an and three years. In addition, the Bill pro­ article in this edition of Bar News. PHILIP F. DUNN vides for a period of five or two years dis­ BAR HOME PAGE qualification for persons charged with Expert opinion regarding: serious offences, depending on the sen­ Those of you who use the internet will tence received. Those on remand and find the home page of the Victorian Bar • Mechanical repairs undischarged bankrupts will also be dis­ at www.vicbar.com.au. It has been • Failure investigation and diagnosis qualified. completely redone since it was first es­ • Detailed reports This scale of disqualification strikes tablished through the skill and dedica­ • Cost of repairs an appropriate balance between concern tion of David Levin QC. Linked with it is • Dispute resolution about convicted criminals sitting on ju­ the home page of BCL. That page is still • Microscopic photography ries, and the right of people who have under construction. served sentences being again able to par­ DUNN AUTOMOTIVE SERVICES P/L ticipate in an important civic right and BAR TELEPHONE SYSTEM PO Box 107, Glen iris, Vic 3146 obligation. In 1998 BCL upgraded the PABX tel­ Phone: 0500 575859, Fax: 0500 545253 Further to my commitment to provide ephone system provided to its tenants access to justice and the enshrinement

8 The Whistleblowers Protection Bill will protect people who disclose informa­ ssion Legislative tion about improper conduct or activities of public officers. Protection will be available to persons who make a "public interest disclosure", defined to mean a disclosure which shows, or tends to show, a public officer is engaging, or pro­ poses to engage, in "improper conduct" e.g. corrupt conduct or substantial mis­ The prohibition of discrimination against management of public resources. Sub­ people on the basis of their gender iden­ stantial protections will be offered to tity will apply to people who assume the those persons who make a public inter­ characteristics of the other sex, or who est disclosure, including protection from seek to live as a member of the opposite civil and criminal liability, as well as sex. It will also apply to people of inde­ immunity from any alleged breach of terminate gender who seek to live as a confidentiality and protection from re­ particular sex. These amendments pro­ prisals, including the right to bring pro­ vide real avenues of redress for people ceedings for damages and to seek who experience significant levels of dis­ injunctive relief. This legislation is crimination in everyday life. ground-breaking for Victoria - the A badly needed reform in Victoria is model is unique and far-reaching. contained in the Administration and Pro­ The draft legislation is available on the bate (Dust Diseases) Bill. This Bill will Department of Justice website and I en­ provide for the survival of actions for courage the profession to participate in pain or suffering, bodily or mental harm making submissions. and curtailment of expectation of life, I have taken active steps to improve upon the death of a plaintiff. Currently access to justice in rural areas, particu­ claims for these types of damages lapse larly in improving the conditions of court when the plaintiff dies. This was high­ facilities. I have just announced that the lighted in the recent case of Kerry Ann Government will be providing $8.9 mil­ of equality of opportunity, I propose to Halleur, who died only the day after set­ lion for a new Mildura court complex and introduce amendments to the Equal Op­ tling her asbestos case with the Com­ will be purchasing a site for a new court portunity Act 1995. The Act will be ex­ monwealth. This Bill will allow a complex in Warrnambool. tended to include breast-feeding as a plaintiffs estate to continue these I remain committed to ensuring ac­ protected attribute, i.e. mothers cannot claims. The Administration and Probate cess to justice for all Victorians and be discriminated against because they Act currently provides an opportunity growing the whole of the State, both are breast-feeding in public. for windfall gains for defendants if they through legislative change and the iden­ I also propose to introduce amend­ don't settle before the death of a plain­ tification of areas where reform is ments prohibiting discrimination on the tiff. The survival of such actions will en­ needed. In respect of both, I welcome basis of a person's sexual orientation. sure that plaintiffs and their families are ongoing contribution by the profession The term "sexual orientation" will in­ not disadvantaged by delay on the part and look forward to future consultation. clude heterosexuality, homosexuality of defendants. This is a terrific boost for and bisexuality. The Bill will clarify that plaintiffs through reform of an archaic Rob Hulls "homosexuality" includes being a lesbian. law. Attorney-General

MELBOURNE HEAD OFFICE 322 Burwood Road, Hawthorn, Vic. 3 122 Phone: (03) 98181571 BLASHKI Fax: (03) 9819 5424 Email: [email protected] ESTABLISHED 1L858 Hours: Monday-Friday - 9am-Spm Saturday - 9am-12noon THE LEGAL SHOP DOUGLAS MENZIES CHAMBERS I st Floo~, 180 William St~eet, Melbourne Vic 3000 • Legal • Military • Academic Phone/Fax: (03) 9608 7790 • Medal Mounting Hours: 9am-3pm - • Municipal • Dress Wear Tuesday, Wednesday & Thursday • Fratemal Societies • Embroidery • Corporate o~ by appointment Your contacts:- P. BLASHKI & SONS PTY LTD Glenise Masters & Rosemary Bromiley Melbourne, Adelaide, Perth, Brisbane, Sydney, Auckland

9 Practice Notes Legal Profession 1TIbunal Publication of Orders

NDER section 166 of the Legal by failing between 1 July 1999 nity insurance whilst engaged in legal Practice Act 1996 ("the Act") , and 1 January 2000 to maintain practice was withdrawn by the Victo­ Uthe Victorian Bar Incorporated, as professional indemnity insurance rian Bar Incorporated. a Recognised Professional Association, is whilst engaged in legal practice. 3. The orders of the Tribunal were as required to provide the following infor­ (b) He was guilty of unsatisfactory follows: mation in relation to orders made by the conduct in that he contravened (a) On Charge (a), the practitioner is Legal Profession Tribunal ("the Tribu­ rule 74(b) of the Practice Rules to pay a fine of $300 to the Legal nal") on 15 February 2000 against one of the Victorian Bar Incorporated Practice Board. of its regulated practitioners, Alan in a manner not amounting to (b) On Charge (b), the practitioner is Swanwick. misconduct by not replying to a reprimanded. 1. Name of practitioner: Alan Swan- letter dated 1 October 1999 from (c) The practitioner is to pay the Vic­ wick ("the practitioner") the Ethics Committee of the Vic­ torian Bar's costs of these pro­ 2. Tribunal Findings and the Nature of torian Bar by 18 October 1999 ceedings, fixed at $1250. the Offence when asked to do so. 4. As at the date of publication, no no­ The practitioner pleaded guilty to two A charge that whilst engaged in le­ tice of appeal against the orders of charges, namely that: gal practice the practitioner was the Tribunal has been lodged. The (a) He was guilty of unsatisfactory guilty of misconduct within the mean­ time for service of such notice under conduct in that he contravened ing of section 137 of the Act by failing the Act has expired. section 227 of the Act in a man­ between 1 July 1999 and 1 January ner not amounting to misconduct 2000 to maintain professional indem- Professional Indemnity Insurance for Barristers

OLLOWING a recent amendment tional and Other Provisions of the Act The Bar will notify the professional in­ to the Legal Practice Act 1996 states that "a current practitioner who is demnity insurers who service the Bar of F ("the Act"), barristers will be re­ a regulated practitioner of the Bar must, the fact that barristers must renew insur­ quired to renew their professional in­ on or before 31 May 2000, give the Bar ance by 31 May 2000. This will enable demnity insurance prior to 31 May in satisfactory evidence, in a form approved the insurers to issue renewal notices and future years commencing with the year by the Board, that the practitioner has offers of insurance in sufficient time for 2000. In past years, barristers have been professional indemnity insurance as re­ barristers to consider their positions. required to renew their professional in­ quired by this Act in respect of the pe­ The manner in which barristers will in­ demnity insurance by 30 June. riod from and including 1 July 2000 to 30 form the Victorian Bar of the renewal of Section 59(5) of the Savings, Transi- June 2001." insurance will be advised in due course.

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10 Welcome Judge King

HE warmth of the welcome of Her Honour Judge King to the County TCourt testifies to the universal ap­ proval which greeted her appointment. Such were the numbers of her family, members of the judicialY, counsel, solici­ tors as well as representatives from the State and Federal Directors of Public Prosecutions and Government attending that certain prominent senior counsel and judges could only find seats in the dock; others attended in the corridor outside. Mr David Curtain QC, represent­ ing the Bar Council, and Ms Tina Miller, President-elect of the Law Institute, spoke in glowing terms of Her Honour's progress from a student at University High on to law school at Melbourne Uni­ versity through her years at the Bar to the Bench (thereby becoming the first graduate of University High School to be elevated). Her Honour was to celebrate two milestones in her life this coming August - her 50th birthday and 25 years at the Bar. She will now have to channel all her energy into her 50th birthday party, a task that she will not find difficult. Al­ most 25 years ago Her Honour agreed to read with John Kaufman QC believing him to be a criminal advocate and he be­ lieving Her Honour to be an aspiring commercial lawyer. Although he didn't realise it at the time he was correct - it only took Her Honour 22 years to prove it. After only three weeks they decided Her Honour's interests lay with crime (his did not) and, in what proved to be truly masterful advice, he suggested that she observe a few trials. Ramon Lopez came into her life. Ramon recognised her potential immediately. One day, after just five months at the Bar, he asked her Her Honour Judge Betty King to wait outside court where, soon after­ wards, she was approached by a Mr Ro from the Public Solicitor's Office and im­ "why did you hit my client?" to which he since those early days when female mediately offered a brief. When she replied "I didn't mean to, it just hap­ counsel were rare. Early in her career asked why, he said that Mr Lopez would pened". Her Honour had several more her Honour was appearing in the County not accept his brief unless she was also questions but was prevailed upon by sev­ Court at Colac for a person charged with briefed to act for one of the defendants. enteen other counsel, acting in instant theft of petrol. The all-male rural jury Ramon's foresight and instructions were accord, to sit down and not take the mat­ was not impressed that Her Honour, who immediately rewarded - she was one of ter any further. Indeed she so impressed was heavily pregnant, referred to herself the eighteen counsel in the trial, and, be­ one of the solicitors present, James as Miss King until they spotted the rings ing one of the most junior, she was Ruddle, now Assistant Victorian Govern­ on Her Honour's left hand. The accused amongst the last to cross-examine the in­ ment Solicitor, that he married her. was ultimately found not guilty. In those formant. Her first question was simply Times and attitudes have changed days it was not unknown for jurors to

11 fraternise with those associated with the recognised Her Honour's prosecution which she inherited from her parents, proceedings after a case and it tran­ skills but her absolute integrity and the Marie and Roy, found real form in the spired that a major influence on their de­ trust placed in her. conduct of her practice, and the promo­ cision was that the victim, the petrol Her return to the Bar from the NCA in tion of the Bar (and in particular the station owner, was himself a rogue be­ 1996 marked a significant expansion of Criminal Bar where she served on the cause whenever there was a shortage of her practice. Whilst still conducting executive). She has always given barris­ petrol he would put his prices up. criminal trials, Her Honour also advised ters encouragement and assistance. Hers Her Honour's late stage of pregnancy and represented many bodies including was a door that was never shut no matter also attracted the attention of the local the Medical Board (where, after a how busy she was. She always had time press. After the acquittal, the local news­ number of significant wins, she came to to help others either individually or by paper reported both the verdict and the be known as "Saint Betty of the Medical participating in the Leo Cussen Institute birth of her daughter, Elizabeth (now a Board"), the Victorian Government So­ courses and in the Bar Readers Course fifth-year law-science student herself), licitor especially in running test cases to over many years. the following day with the headline "Ver­ determine the parameters of legislation As David Curtain QC so eloquently dict Just Beats Stork". such as the Crimes (Mental Impair­ stated at Her Honour's Welcome: Some years later, in the early 1980s, ment and Unfitness to be Tried) Act Your Honour's appointment to the County Her Honour was appointed one of the 1997, and also as counsel assisting the Court is one for which the Bar and the com­ first female crown prosecutors - and Victorian Casino and Gaming Authority. munity can be proud. later became the first prosecutor for the More recently, and perhaps in Commonwealth. fulfilments John Kaufman's judgment 20 Your Honour's existence as an outstanding Her thoroughness and balance made or so years earlier, Her Honour has de­ criminal advocate at the Bar, together with her formidable but fair. This was demon­ veloped a practice in the arcane world of Your Honour's generous and caring nature strated in her prosecution of two ac­ taxation and administrative law, to which equip Your Honour well for life as a judge. cused - represented by Ramon Lopez she has brought new insights. In a recent On behalf of the Victorian Bar, we and Remy Van de Wiel, both of whom case in the Federal Court, when asked welcome you to the County Court Bench had chambers on the same floor of Owen how her client would answer a particular and wish you a long and fulfilling career. Dixon Chambers as Her Honour. Each interrogatory, she replied her client morning they would all go to court, and would never answer an interrogatory after a short time Remy Van de Wiel's cli­ against his interest. Whilst the judge ent asked if he could carry Her Honour's pointed out that this was the very pur­ bag for her. pose of interrogatories, he did concede In 1992, with her close friend and fel­ that interrogatories were generally use­ low pioneer at the Bar, Lillian Leider, her less and then engaged Her Honour in the Honour took silk. In 1994, in another first intricacies of conducting a criminal trial for her gender, she was appointed one of for contempt in a civil context (an issue the three members of the National Crime which made the tax legislation in ques­ Hard to Please Authority; her Honour was said to occa­ tion seem almost rational). sionally call herself "the member without As a barrister Her Honour has fought HE sun doth caste Justitia's breast a member". Here Her Honour spent for her clients and for the Bar, an institu­ T upon my room. nearly three years crisscrossing the tion that to her is second only to her I'll move to West to avoid the gloom. country conducting various investiga­ family. Those qualities of generosity and tions. This was a position that not only honesty, independence and balance Anon

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12 T

Chief Federal Magistrate Diana BryantQC

T was a well-kept secret but no-one was surprised when tIle Federal I Attorney-General announced the ap­ pointment of Diana Bryant QC as Chief Federal Magistrate. The Federal Govern­ ment's decision to establish a new court is the first time that a lower level Com­ monwealth court has been created in Australia. There will be six magistrates based in New South Wales and the Aus­ tralian Capital Territory, four in Victoria, three in Queensland, one in Tasmania based in Launceston and one in South Australia. The Northern Territory will be covered by a circuit magistrate operating out of Townsville. Western Australia al­ ready has magistrates under the State Family Court system. The Federal Magis­ trate Service will provide a cheaper, sim­ pler and faster method of dealing with less complex family law matters and civil matters arising under federal law. It will help ease the pressure on the Family Court and reduce waiting lists. It will also allow the judges of the Federal and the Family Courts to concentrate on more complex matters. As the first Chief Magistrate, Diana Bryant is a popular appointment. Born on 13 October 1947 in Western Australia and educated at Firbank Granunar School in Melbourne she completed her Bachelor of Laws at Melbourne Univer­ sity graduating in 1969. In 1999 she com­ pleted her Master of Laws degree at Monash University. She was articled to Gordon Duxbury at Darvall & Hambleton, Chief Federal Magistrate Diana Bryant QC Solicitors, and admitted to practice in Victoria in 1970. Thereafter she spent 18 friends with Peter Dowding, later to be­ was involved in preparing submissions to months living in London working as a liti­ come Premier of Western Australia. the Family Court and the West Austral­ gation clerk with a firm of solicitors be­ Within a short time she became a partner ian and Federal Governments on a vari­ fore returning to work with Darvall & of the firm which as it expanded merged ety of family law issues. It is fair to say Hambleton, Solicitors. with Phillips Fox & Masel giving Diana that since 1977 she has been involved at In 1977 Diana was admitted as a bar­ the opportunity to apply her family law some level or another in making repre­ rister and solicitor in Western Australia. skills beyond the State boundaries of sentations in the legal framing and im­ She commenced work as a solicitor advo­ Western Australia. plementation of virtually all major family cate with Lavan & Walsh and took re­ As the practice of family law around law issues. One of the most enduring and sponsibility in the firm for family law. Australia became a speciality, it caused satisfying areas in which she was in­ The Family Court of Western Australia the establishment of family law practi­ volved was the committee chaired by the had only just commenced operation. tioner associations. In 1985 Diana Bryant Honourable John Fogarty which advised Most of the experienced practitioners was the founding member and President the Government on the model for the had been appointed. Diana's talents were of the Western Australian Family Law child support scheme. Diana Bryant was soon in high demand. She became Practitioners Association. In this role she the only practising lawyer on the

13 committee. She was instrumental in all high places. The Victorian Bar was very tive of the Family Law Section of the Law aspects in the preparation of the child fortunate she made the decision to corne Council and assistant Editor of Austral­ support legislation and its implementa­ to this State. She read with Michael Watt ian Family Lawyer. tion. In her other waking hours while in now the Honourable Justice Watt of the The community is fortunate that Western Australia she was a member of Family Court. There was a rising star Diana Bryant has chosen to accept the the Barristers' Board (the Disciplinary next to her name from the very first day position as the first Chief Federal Magis­ Board for the profession), elected a she started appearing as a barrister in trate. She has seen the development of member of the Law Society of Western family law cases in Victoria. The Family family law from its inception. Her contri­ Australia and a founding member and Law Reports include many "landmark" butions as a solicitor, advocate, barrister Secretary of the Women Lawyers of decisions in which she has appeared as and law reformer have been significant. Western Australia. She was appointed to counsel. They include Deputy Commis­ The secret of her success has been her the boards of the Perth Royal Hospital siorwr oj Taxation and Speanjich constancy to purpose. She has the intel­ and Australian Airlines. It has been said (1988) FLC 91-974; Schwarzkopjf and lect and determination to make the Fed­ that her appointment to the latter entity Schwarkopjf (1992) FLC 92-303; Re K eral Magistrates' Court a success and to was an entirely appropriate one for a (1994) FLC 92-461; Smith and Smith fill the niche in the operation of the legal family lawyer who has an appetite for (1994) FLC 92-488 and the High Court system for which it is intended. She has travel! In these organisations she learned decision in AlF v. AMS (1999) FLC 92- the full support of the profession and the how large organisations work and found 852 in which she successfully argued im­ courts as she sets sail on this new voyage that like most things, there is always a portant constitutional issues as they of her life. The Bar warmly congratulates place, as the Honourable Guest has been effect family law. her and wishes her well. known to say, for "the highest authority In November 1997 Diana was ap­ The profession will formally welcome of all, common sense". pointed one of Her Majesty's Counsel. Diana Bryant in June of this year when In 1990 she left Western Australia to She has served on the Victoria Bar Coun­ the Federal Magistrates' Court com­ relocate to Melbourne. There is little cil. She has been a member of the Ethics mences sitting. doubt had she remained in Western Aus­ Committee, Vice Chairman of the Family tralia she would have been destined for Law Bar Association and on the Execu-

II I ~ o/~ II

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14 Welcome Jane Patrick, Magistrate

E welcome the appointment of being awarded her Master's, she was sexual harassment and vilification. Her Jane Patrick, a member of the then articled to the firm Burdon-Smith & co-conciliator was the late Ron Castano WBar, as a Magistrate. She was Associates, who practice in West Mel­ During her time at the Bar she has been educated at Firbank and then graduated bourne. an active member and supporter of the from the University of Melbourne in 1973 After she was admitted to practice, Women's Barristers Association. in Law. She did not go into practice but she worked with the Commonwealth Di­ She has three children by her first studied for a Diploma of Education at the rector of Public Prosecutions for three marriage and now three stepchildren. then State College of Victoria, and taught years and then went to the Equal Oppor­ Her interests have always been in read­ for two years. tunity Commission as a Legal Officer for ing, the theatre and music. She adds as She then left the workforce when she a further three years. an additional interest "attempting to first had her children. She returned to She came to the Bar in 1995, reading keep fit". Melbourne University and completed her with Ray Lopez. Her principal area of The Bar warmly welcomes Jane Master of Laws by coursework. As a practice was in equal opportunity law. Patrick to her appointment and it is mark of her breadth of experience, She also appeared in employment cases gratifying to see a person with such whilst completing her Master's, she tu­ and in crime. One of her most memora­ rounded experience being appointed to tored in constitutional and administra­ ble experiences was her appointment as the Bench. tive law, torts and crinUnal law. After a conciliator to the Bar for complaints of

Correspondence

looked after by the native villagers. My D'Oneur v. d'Honneur A Gentle Giant wife Alison and I stayed in Lae near the 25, avenue Bosquet, The Editors Court which sat in the Masonic Building. 75007 PARIS The trial went back in history to the ON Castan QC AM was a long-time days of German Chancellor Bismark, The Editors Rfriend and professional confrere at Kaiser Wilhelm and the Great War. Aus­ the Melbourne Bar and the International tralia claimed title to the land as succes­ Dear Sirs, Commission of Jurists. We shared a sors to the Germans by right of conquest s usual, I have read the latest mutual interest in basic human rights. in 1914. The big question was, did the Anumber of Bar News with interest May I endorse the tribute by Alan Germans acquire valid title and if so and pleasure. Down to seeing the name Goldberg, Ron Merkel and Jack how? Was it by purchase from the native of the son of an old friend in the list of Fajgenbaum published in the Australian occupiers - albeit for trinkets, blankets new QCs (Jeremy Gobbo) which ac­ newspaper of 27 October 1999. or axes - albeit more than was paid to counts, I assume, for the somewhat unu­ Ron Castan and I appeared together the Indians for Manhattan? Or was it by sual opening of the Chief Justice's in 1971 for the Kamkuman and Butibum occupation of terra nullius? Australia address acknowledging "the presence of peoples of the Bumbu and Bussu River was hooked on the horns of a dilemma. His Excellency the Governor and Lady coastal region in New Guinea. The The native claims to compensation Gobbo". natives claimed land rights - native title succeeded thanks primarily to Ron However, I write on another minor is­ - compensation in relation to the air­ Castano sue. As part of the award conferred on port and city of Lae at the mouth of the Ron's scholarship, modesty, compas­ Mr Bongiorno QC, there appears (p.54) a Markham River delta. sion and commitment to the Kamkuman "loose translation by a secretary at It was a major land rights case heard and Butibum community was inspiring. Co.As.It." of Foreign Orders. It says "In by the Supreme Court of Papua New Ron Castan played a major role in the France they receive La Legion D'Oneur". Guinea by way of trial, as distinct from trial. He was respected and loved by all Well, it may be loose, but it is not Eng­ appeal from the Land Commission. The of our native clients. It was a real life lish, Italian or French. Having been trial judge was Justice Kelly of the Su­ lawyer - family - tribal experience for named recently by the President as a preme Court of Papua New Guinea. us all. Lae led Ron Castan's later Chevalier of the Legion d'Honneur (and Counsel for the administration was crusades for land rights and native title my Australian nationality is mentioned in Trevor Morling QC who subsequently for Aboriginal people in Australia leading the decree) I felt I had to protest. Per­ conducted the final enquiry and report to Mabo, Wik, and the Native Title Act. haps it could be corrected in the next is­ on the Azaria Chamberlain-Uluru-Ayers Ron was a gentle giant among law­ sue. Rock-dingo case. yers. His untimely death is mourned as a Ron Castan was accompanied to Lae deep loss to his family and the law and to Yours sincerely by his wife Nellie and their young chil­ the whole spectrum of the Australian dren. They were loved, provided with na­ community. P. Donovan tive foods and baby-sitters and were well John F. Kearney QC

15 -

I Obituary Master George Brett George Brett, long-term serving Master of the Supreme Court, died on 1 February 2000. The following eulogy was delivered at his funeral service.

By His Honour Leo Lazarus held at Ormond College Chapel, Saturday 5 February 2000, at 10.00 a.m.

EORGE Strafford Brett was born He was a good lawyer, but his forte was ever really hurt. In the end it was the hu­ on 17 September 1916. He came as an advocate in the days before jury mour which won through. Gfrom Williamstown and went to advocacy became confined to the crimi­ He was a resourceful, witty and suc­ Williamstown High School before going nal courts. He was a staunch fighter, but cessful barrister. on to Scotch College. His was a busy practice, but somehow He graduated in Arts at Melbourne he found time to accept lectureships University, occupied himself as a lay in law in a diversity of bodies includ­ preacher and then, after lengthy and ing Monash University and to tutor in arduous war service of which he sel­ law in this very place, Ormond Col­ dom spoke, completed the law course, lege. again at this University. It was a full and varied career in In those days, he was a handsome the law, crowned in 1967 by his ap­ man and physically an even more im­ pointment as a Master of the Supreme posing, not to say portly, figure than Court where he remained until his re­ he became, and remained, after sub­ tirement in 1988. jection to a rigorous diet. At Univer­ He was a much-respected, well­ sity, I would not have dared approach liked Master. Unfailingly courteous so formidable a figure and so it was but always serious, he exercised a only after he had served articles with firm control of proceedings. He was Chick Lander and signed the roll of scrupulously fair and impartial, per­ counsel that we really encountered haps too impartial at times. I don't re­ each other. He went to the Bar in call ever winning a case before him. January 1950 and read with the late But there were many things in Alan Mann, later Sir Alan Mann, Chief George's life other than the law. Justice of Papua New Guinea. He was a keen sportsman. He had George and I first met in the robing a good eye, a sharp ball-sense and room at the Supreme Court. George considerable all-round natural ability. approached me partly robed and, with He was a keen golfer and played a a deference inherited, I feel sure, good game of tennis. He enjoyed his from his very courteous father, said George Brett trips to the country fly-fishing. But his "Excuse me, sir, but could you tell me greatest and most enduring sporting how you fix this wretched thing?" interest was as a yachtsman. His With the advantage of my long experi­ he did not leave his great good sense and Gwen was superseded by that fine craft, ence of some two or three months at the his humanity behind when he went to The Shalomar. Family and friends de­ Bar, I was able to help him adjust his Bib. court. He was always ready to attempt rived countless hours of pleasure with There followed fifty years of friendship compromise if it could be achieved with­ George sailing the seas off Blairgowrie broken only early on Tuesday last. out damage to his client's interests. On Yacht Squadron. George was generous in The real centre of George's many­ matters between husband and wife, if acknowledging my own service as an oc­ sided life was always the family: that reconciliation was in any way open, casional crew member. "Well, sport", he from which he sprang; the one he George would pursue it with vigour. The was moved to say, "You are not entirely founded with Barbara No.1; and the one Bar was - doubtless it is still - a great useless. You are good for ballast." he acquired along with Barbara No.2. place for "characters". George Brett was He was a keen competitor - a euphe­ For them all George had a very deep af­ indeed one of them, and as colourful as mistic way of saying he detested being fection. They meant everything to him. any I remember. beaten. I remember once on holidays In a real sense they were his life. But I Despite his courteous upbringing, when Barbara No. 1 had the temerity to must stick to my brief and leave this area George could often be heard addressing beat him at quoits. George congratulated to the safe hands of the Rev. Gribben. I more or less outrageous remarks to one her, if somewhat coolly, I thought, and to shall confine myself largely to George as or other of his colleagues. Somehow or outward appearances took his defeat barrister and as friend. other, offensive as he might sound, he gracefully enough. But he spent much of George was in his element at the Bar. avoided giving offence, and no one was the ensuing fortnight practising and

16 ...,

practising until he could put all quoits on around him, but for himself an essen­ days after that, until [mally he came to the post virtually at will. tially private person who kept himself believe my assurances. And we did not In the early fifties, at George's sugges­ and his life and affairs very much to him­ live next door to one another. The round tion, he and I went to see a demonstra­ self. trip would have taken him the best part tion of oil painting by the late and great No one who knew George would of an hour. He had a gift for friendship. Ernest Buckmaster. He painted one of doubt that he had a strong and deep phi­ He is an unforgettable, irreplaceable his typical mighty river canvases, and losophy of life, whatever may have been friend. that in something under one and a half its well springs; an intensely moral man Those are a few of my recollections. hours. That was enough. It looked decep­ who well knew right from wrong and who Each of you will have your own. tively simple and George became a dedi­ regarded the rules as there to be fairly I would just say what probably each of cated oil painter. George was gifted with strictly adhered to. us would say - "I was greatly honoured. real artistic talent and went on to paint Certainly he was a fascinating mix. I was his friend" . for the greater part of his lifetime. One might have been excused for ask­ A complex man he was, but all in all it He was a foundation member of the ing - "Will the real George Brett please is fitting to say of George, as of Brutus: Myrniong Art Group, so named after the stand up?". His life was gentle, and the elements dairy whose horse and milk cart collided Stand up indeed he did: an original So mix'd in him that Nature might with the late Kevin Anderson's car. It and one of the finest, wisest, funniest, stand up was an enthusiastic band of amateurs, most lovable, most loyal and deep down, And say to all the world, "This was a mostly barristers, who had the presump­ most compassionate of men. man!". tion to hire the Athenaeum Art Gallery We nearly all go through rough pas­ for their annual exhibition. sages somewhere in the course of our George had a natural gift as a conver­ lives. At one such time I sationalist. We used to go bush on occa­ found myself alone sional painting excursions. Typically we and bereft. Un­ would land up as evening fell at some asked and with no bush pub or other. Soon George would prior arrangement, be quietly chatting with anyone in sight George walked past who looked at all interesting. By the time my kitchen window I was ready for dinner and had found out in the morning. He the way to the dining room, George blew in with a cheery, would know the basic history of the dis­ "How are you going, trict and have a fair run-down of many sport? Just thought I local identities. He did not interrogate would call around and people. At least he did not appear to do make sure you are so. He would just quietly yarn to them, okay." I gave him every encourage them a bit, and listen. possible reassurance. De­ It is not easy to form a true picture of spite that, the same thing the larger-than-life person that George happened next day and was. every morning for several Many knew or thought they knew him as an extroverted, somewhat rascally, humorous, even ribald falstaffian or

rumpolian sort of character. The King of love my Shepherd is

I may be permitted one little story of Now thank we all our God, The king of love my shepherd is, with hearts and hands and voices, a personal nature from our life at the whose goodness 'aileth never; who wondrous things hath done, I no\hlng lack if I am his In whom his world rejoices; Bar. and he is mine for ever. \!11M from oot tnOrhM.a· llll'm hath bI~l us on our way On one occasion, I was in the midst of Where slteams of living water flow with counUess gilts of love, my ransomed soul he leadeth, and stillts ours today. a case in the Collingwood Magistrate's and where the verdent pastures grow wilh food celestial feedeth. o may this bounteous God Court when the Clerk of Courts came in through all our lire be near us, Perverse and foolish oft I sLIayed, with ever Joyful hearts and spoke to the Magistrate who in turn but yet in love he sought me, and blessed peace to cheer us; and on his shoulder genUy laid, and keep us in his grace, told me I was wanted on the phone, and and home rejoicing brought me. and guide us when perplexed, urgently enough to warrant interrupting and free us from all ills In death's dark vale I fear no ill In lhlf wodd Dnd the nut! , with thee, dear lord, beside me; the case. thy rod and slaff my comfort stili, All praise and thanks La God I was excused by the Magistrate and, fhy cross before to guide me, the Father now be 9'ven, the Son, and Holy Ghost, naturally apprehensive, I went to the Thou spread'sl a lable In my sight; one Lord in highest heaven: thy uncUon grace besloweth; the one eternal God, phone. It was George: "Hey, sport, how and 0 what transport or delight whom earth and heaven adore; from thy pure chalice nowelhl for thus It was, is now, much longer are you going to be? If we and shall be evermore. And so through all the length of days don't get down to the MCG pretty soon, thy goodness fal/eth never: Marlin Rinkarl good Shepherd, may I sing thy plalse 1586·1649 the West Indies will be all out!" within thy house for ~ver.

But he was not always the hearty bluff Henry IMlflams Bsksr individual he so often appeared. Under­ 1821-1877 neath lay a reserved, contemplative, wise man, one vitally interested in those

17 Obituary Bob Vernon

HE Bar, and particularly the Vernon was in many great conflicts and, returned to Queensland where he spent Criminal Bar, is sad.dened by the years ago, his presence in such cases was so much of his time. He sent John T death of Bob Vernon. comforting to the young Phil Dunn or Champion and me (having named us The enigmatic, mysterious, private slightly older Brian Bourke. Bob could be "Jaws 1" and "Jaws 2") a photograph of and unique Bob Vernon would be relied on to fight and fight hard: murder himself aboard a handsome yacht known amused at the thought of my writing his trials, corruption enquiries, armed rob­ as The Good Ship Not Guilty cruising obituary. bery trials - including the famous MSS the coast. He would be amused that someone he trials and the murder trial known as "The Bob Vernon certainly fell into the knew as a prosecutor (see R v Smith, Battle of Hastings" with Vernon's famous "character" category - but character Ashford & Schevella - circa 1989) cricketing final address. Delivering the with content. He was the consununate would be the one to remind the Bar, in fifth and last defence address to the jury, advocate. He had exactly the turn of sununary, about the quality of the man Daryl Wraith said something to him as he phrase and style to "carry it off' and so and his ability as an advocate. I hope he rose to commence. He turned to the jury often did. Yet he was without pomposity. would be gratified to know that same and said, "Last man in to bat and even In the midst of a coffee table exchange prosecutor maintained an admiration for your mates are telling you to hurry up". between counsel about their great foren­ his skills and power as an advocate and, The Bar table in the fourth court then sic triumphs Bob whispered that some­ like most others, retained the memory of became the pitch - the defence was where in the car park under Owen Dixon the long leather coat. batting - the Crown was bowling. The Chambers there is a barrister who has Bob Vernon seems to have always Crown prosecutor was the demonic fast never won a case. This poor barrister, he been there and since he had been there bowler, "in he comes to bowl- no scien­ said, sat in a disused storeroom with a since 1960 that is not surprising. Now, tific evidence linking the accused to the naked bulb burning and, now, no briefs regrettably, he is gone. A common ex­ murder - No ball! - in he comes again on his table. He was on the losing side of change between members of the Crimi­ - no fingerprints on the weapon - 4 every one of those cases so triumphantly nal Bar agrees there are fewer runs!" and so it went --to an acquittal. featured in the self-serving stories - characters now than in earlier years. He appeared for the accused in one everyone at the Bar had defeated him. "Character" in this sense means someone particular murder trial before Mr Justice That barrister could never drink coffee who made a mark on our profession by Starke. When the trial was over, the on the 13th floor of Owen Dixon Cham­ force of his or her unique character and judge wrote him a brief note. The note bers. power as an advocate. Bob Vernon was a recorded Starke's view that Vernon's fi­ Philip Dunn QC describes the Bob character. Andrew Kirkham QC de­ nal address in that case was the best Vernon he knew and we would recog­ scribed Vernon's chambers as "... a Starke had seen since the legendary nise: broom cupboard on the fifth floor of Eugene Gorman. He was a mysterious and enigmatic figure. He Owen Dixon Chambers regularly visited Bob Vernon and the Crimes (Criminal by a cavalcade of painters and dockers". Trials) Act would have been incompat­ was robust looking with dark black hair and a The young Kirkham (one of Vernon's two ible. Trying (in a caring sharing way!) to pencil-thin moustache. He was very fond of readers) was jammed in a corner. establish what the real issues in the case long leather overcoats and he was always very neat in his appearance. He had a reputation Some years ago, Felicity Hampel QC were before I opened in Smith & Ors, as a ferocious cross-examiner and had an in­ apparently suggested to some students Bob told me "Open at your peril - I will or young readers that they would benefit spoke your wheel every inch of the way". credible gift of giving a passionate and mov­ ing final address. by watching a capable advocate making a And he did, on behalf of a client he re­ good plea. Reluctantly (because barris­ ferred to throughout as the "the boy In Paris on his first overseas trip with ters are not usually inherently entertain­ from Brunswick". George Hampel QC (as he then was), in­ ing) they accepted the advice. They Most criminal advocates recall great terviewing witnesses for a forgery case, found themselves watching Vernon and final addresses they have heard (as op­ Bob was admiring the uniform of the they were apparently quite spellbound posed to all the great ones they like to gendarmes, particularly the cloaks they by what they saw. Jack Cullity once think they delivered themselves). The wore. Bob loved uniforms but "they'd warned Brian Bourke: "Never imitate an­ first 20 minutes or so of his final address still verbal you", he told Hampel. In order other barrister". As Brian observed, Bob in that case, on why the jury should re­ to record the moment, the uniform and Vernon never imitated anyone. gard their jury service as a privilege the international trend of police verbals, On the occasions I saw him in action, rather than a duty, was spectacular. It Vernon asked Hampel to take a photo­ from the Crown end of the Bar table, it was the Bob Vernon style that grabbed graph of him speaking in broken English was impossible to ignore the passion he the attention of the listener and forced and French to the officers. Hampel did developed for his cause. The surgical ap­ even the reluctant to listen because that so. The photo was later framed and given proach to criminal trials of the 1990s, style was compelling, entertaining and a title "Verballed"! It was on that trip that necessary as it no doubt is, deprives us demanded to be noticed and thought the insular lifestyle of being a barrister in of some of the great conflicts. Bob about. When the case was over he Melbourne struck them both. As they sat

18 admiring the ambience, the people and to the interstate list on 1 December 1996 Those who admire style, passion, col­ the internationalism of Paris, not one Pa­ and practised in Queensland until 23 our, courage and commitment in criminal risian, they concluded, would know who March 1997 when he left the Bar. His advocates will miss Bob Vernon. the most recent appointment to the Vic­ readers were Andrew Kirkham QC and torian County Court was! Kerry Milte. Lex Lasry QC Vernon loved anything military. He had a fascination with the Battle of Wa­ terloo. Living as he did in the gatekeep­ er's cottage at Ripponlea, he used to go possum shooting with Oliver Frost, the gardener at Ripponlea, with a military precision that would put professional sol­ John D. Daly diers to shame. He was obsessive about his other interests. His interest in China meant he had to consume the works of, HE Bar notes the passing of John Daly, barrister, also deceased. At the and about, Mao Tse Tung. When he took Daly who signed the Bar Roll on time of death John was on the retired di­ up tennis it was not one racket but three T 13 February 1969 and was number vision of the Roll. He served in the Royal with similar multiples of all the other an­ 864 on the Roll of Counsel. He read in Navy from 1942-46. He went to live in cillary equipment. the chambers of Nettlefold QC. His prac­ Ireland following the death of his wife Bob Vernon was admitted to practice tice was largely criminal law. He was in but returned to Australia and thereafter on 2 December 1957. He signed the Bar the Victorian Police Force before coming lived in Wonthaggi, Gippsland. He died Roll on 29 February 1960. He transferred to the Bar. John was married to Fay on 22 February 2000.

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19 The Supreme Court in the New Millennium

Changes are taking place in the Supreme Court of Victoria. Physical changes include the creation of the new Court 13 with advanced computer technology reported in our Summer 1999 issue. Management changes include the creation of three Divisions of the Court, the Commercial & Equity Division, the Common Law Division and the Criminal Division. In this interview Paul Elliott QC discusses these changes with the Chief Justice His Honour John Harber Philips AC and his views on the future of the Court in the year 2000.

NLIKE in other State Courts, civil business in the Supreme Court Uhas increased. The Productivity Commission conducted a survey of the business of the superior State Courts. In Victoria it reported an increase of over 10% in civil listings. Criminal business has grown by 25%, unfortunately reflect­ ing an increase in homicides in Victoria from 1997. The Commission found that the Court was the most efficient State Supreme Court in Australia.

Elliott: The refurbishments of Courts 13 and 1a represent a revolution in court technology and computer use. How did the changes come about? Chief Justice: It's very much part of our ethos at the Supreme Court to pre­ serve traditions which we think are worthwhile at the same time combining them with advances in technology. Prior Paul Elliott QC interviews Chief Justice Phillips. to the installation of the system in the 13th Court, the Supreme Court had his­ torically been involved in bits and pieces had experience in those cases being have electronic assistance what does of civil litigation where computer use Smith, Byrne and Hansen JJ. All were this mean? was involved. During a number of well versed in computers, and their Chief Justice: Complete multimedia ar­ lengthy trials - the Estate Mortgage knowledge was of great assistance in set­ rangements which essentially mean real case and the litigation concerning the so­ ting up the technology in the 13th Court. time transcript, the capacity to video any licitor Max Green - members of the pro­ Elliott: When did the Court open? aspect of the courtroom proceedings, fession saw the potential for a broader Chief Justice: The Court was officially imaging for the documents. In particular use of technology. The different judges opened on 11 October last year and is technology to enable juries and others in who presided over those trials said to the presently operational. A lengthy civil the Court to have a close-up view of profession: you construct a modern trial will be commencing in March 2000. what's happening in the witness box. model of computer use. That's how those Elliott: What about the 1 ath Court? Each member of the jury can have their trials were structured. Those models as­ Chief Justice: The 10th Court, which is own console in the witness box. sisted in the overall scheme. the Practice Court, is operational at We've also purchased a very large Elliott: Was a committee set up with present. Nearly all the courts are wired screen which sits on the opposite wall in those particular judges; how was it up to use the technology in the courts. the Court. The screens can be split into done? Now that the Court has acquired the old sections. I've seen in our new cyber Chief Justice: Well no, it was really High Court building, that will also be up­ court book, which is installed in the 13th driven by the larger body, the council of graded in this respect. Court, that you can have a piece of the judges including those judges who Elliott: When it is said that the courts pleadings in one of the top quarters, run-

20 ning transcript coming continuously in principal Judge of the Criminal Division cases. Enquiries with American judges, one of the bottom quarters, and refer­ and Ashley J. principal Judge of the who do nothing else but the one variety ence to the previous day's transcript as Corrunon Law Division. of work, have shown that it would be an well. Overall our experience from the mas­ impossible workload for these cases to Elliott: The 13th Court is the largest of sive exercises we conducted through the be divided up in this way. the courts. Will it be reserved for big Spring and Autumn offensives showed Elliott: If we look over the last cases only? the value of judges working in teams, al­ five years, do the statistics show Chief Justice: Well yes, what is inter­ though that was for a limited period. an improvement in, for instance, get­ esting is that there is room for up to 30 I'd like to stress that divisions in the ting a common law jury action on for plus counsel at the Bar tables. Court is not something that has been trial? Elliott: How did you decide which pressed upon us. The Productivity Com­ Chief Justice: If you start with our was the best system to be installed in mission undertook a survey of the State printed list the answer is yes. That cer­ the courts? Courts. The fIgures arising from the re­ tainly has decreased in size, The break­ Chief Justice: The Court has entered port showed that the trial division of this through was the creation of the into a relationship contractually with a Court is the most efficient Supreme Litigation Support Group under Mr Jus­ small Victorian company called Ringtail Court in Australia. So we're not coming tice Teague. He made sure that every Solutions. The judges involved in previ­ to it as a last resort. We're saying all case in the Court was put on computer. ous massive litigation together with the right, things are going well, but we can This removed what could be described as staff of the Court have combined with do better. the black hole of the printed list which Ringtail Solutions to create a laboratory Elliott: And so we're more productive never seemed to decrease. Now that for future development of the cyber than New South Wales? we've ascertained where the cases are court book. It is important to note that Chief Justice: Yes, we are more pro­ we are able to get a handle on things. It for a comparatively small outlay the ductive than any Supreme Court but in turned out that many of the cases that Court has been able to take on this col­ fairness to New South Wales they have were still there had been settled and the laboration, which is the first of a techni­ an awful lot more work than Victoria. Court had not been notifled. cal nature sponsored by a court. Elliott: What's the present number of I believe the effect of the Litigation Elliott: What are the plans for the de­ judges in the Supreme Court? Support Group is mirrored in the Pro­ velopment of the old High Court build­ Chief Justice: Essentially 30. ductivity Commission Report which com­ ing, which has recently been taken Elliott: Are there any plans for that to pared the various jurisdictions. over by the Supreme Court? be increased or is to going to stay the Elliott: In relation to criminal list­ Chief Justice: It provides three excel­ same? ings, has there been a marked im­ lent historic courtrooms, and also a very Chief Justice: Well I would hope that provement there? large meeting room which was the we could persuade the government that Chief Justice: Unfortunately homicides original High Court library. It contains at some time in the near future some in Victoria have increased by something a number of administrative areas of new judges could be appointed. like 25% which has increased the busi­ some size. There are 11 judges' cham­ Elliott: Are there sufficient facilitles ness in the Court. However the Court is bers. We are contemplating erecting a in the courts to cope with new ap­ looking at taking on other matters apart bridge over the laneway between the two pointments? from murder. In particular the Court will courts. There have been discussions for Chief Justice: Yes, well that has been be hearing large fraud criminal matters. part of the Court to be used for interna­ our problem over the last few years. Our norm is that we give a trial date to tional arbitrations and there have been We've had no room for judges chambers the accused within six months of com­ discussions with the Institute of Arbitra­ and we've always been three courts short mittal. That is not always achieved but tors over this matter. Of course the on the trial division. This has necessi­ they are told of a trial date within six bridge between the two buildings would tated several long trials being housed in months. be in the nature of an arch and would King Street. These problems have now Elliott: As to the outside structure of have to be approved by Historic Build­ been solved by the acquisition of the the building, a lot of work has gone on ings. High Court building. over the years; is it still continuing? Elliott: Apart from these physical Elliott: Along with the creation of the Chief Justice: Yes. We've just let out a changes to the courts there has been a Divisions, are the judges going to contract for the roof in the building profound change in the management adopt the docket type system, as the which will include reslating and alu­ of cases? Federal Court has done, where the minium walk-ways to avoid further dam­ Chief Justice: Yes, years ago the judges judge handles the case from its listing age to the roof. were expected to be all rounders. How­ to trial? Elliott: Has the cleaning to the outside ever, with specialisation, especially in Chief Justice: Of course all our special­ walls been finished? crime, it seemed preferable that the ist lists and our criminal lists are in a Chief Justice: Yes. business of the Court be divided into docket form to some extent. However, Elliott: How long did that take? three divisions. The three divisions are the answer is no. We believe that the Chief Justice: Italian stonemasons Corrunercial and Equity, Common Law Federal Court judges have some sixty were brought out to do the work. Many and Criminal. Judges have been allocated cases each and the docket system ap­ of them have married Australian girls to those divisions and corrunenced this pears to be working well in that Court. and have had children and the children year. Principal judges appointed are However, on our calculations if we were reached University by the time their fa­ McDonald J., principal Judge of the Com­ to go the same way it would be that each thers have finished the work on the mercial and Equity Division, Vincent J. judge would have something over 100 stone.

21 The Divisions of the Supreme Court

HE Chief Justice has allocated the 7. Other matters arising principally out 5. Land law matters. T following Judges the Divisions re­ of ordinary commercial transactions 6. Property disputes between de facto ferred to below for an initial period of and including: partners. three years from 15 January 2000. • the construction of commercial, 7. Matters under Part V of the Crimes shipping or transport documents (Mental Impairment and Unfitness to COMMERCIAL AND EQUITY • the export or import of merchan­ be Tried) Act other than those rel­ McDonald, J. Hansen, J. dise evant to the trial of an accused per­ Byrne, J. Mandie, J. • the carriage of goods for the pur­ son. Harper, J. Warren, J. pose of trade and commerce 8. Administrative law proceedings (in­ - insurance cluding proceedings brought under COMMON LAW DMSION - banking Order 56 of Chapter 1 of the Rules; Beach, J. Eames, J. - finance and proceedings brought under the Smith, J. Balmford, J. - commercial agency Administrative Law Act). Ashley, J. Gillard, J. - commercial chattel leases 9. Appeals from orders of the Magis­ Hedigan, J. Kellam, J. - priority of securities trates' Court. - claims by financial institutions 10. Appeals to the Trial Division from de­ CRIMINAL DMSION for debt or enforcement of se­ cisions of the Victorian Civil and Ad­ Hampel, J. Cummins, J. curities. ministrative Tribunal. Vincent, J Coldrey, J. 11. Appeals to the Trial DivisIon from de­ Teague, J. COMMON LAW DMSION cisions of other inferior tribunals. The principal Judges are McDonald, J, 1. Proceedings brought in the: 12. Appeals from orders of the County Commercial and Equity, Vincent, J, (a) Major Torts List Court Master. Criminal Law, Ashley, J, Common Law. (b) Valuation, Compensation and The allocation of work will be as fol­ Planning List CRIMINAL DMSION lows. 2. Any other proceeding founded in 1. Criminal trials. tort, or concurrently in tort and in 2. Interlocutory applications, including: COMMERCIAL AND EQUITY breach of contract and/or upon statu­ • Determination whether the trial DIVISION tory breach; and matters ancillary should be heard in this Court or 1. ProceedIngs brought in the: thereto (for example, disputes as to the County Court (a) Admiralty List liability of insurers to indemnify or to • Pegasus hearings (b) Building Cases List make contribution). • Applications to sever the present­ (c) Commercial List 3. Contract matters not falling within ment or for an order for separate (d) Intellectual Property List the Commercial and Equity Division trials (e) Taxation List. and miscellaneous matters (for ex­ • Arraignments. 2. Corporations matters. ample, claims by individuals to en­ 3. Wills, probate and deceased estate force securities, claims in debt, PRACTICE COURT matters. partnership disputes, professional The jurisdiction of the Practice Court 4. Trust matters. disciplinary matters). will remain as it is at present. 5. Charities Act matters. 4. Industrial and employment law mat­ 6. Commercial Arbitration Act matters. ters.

Elliott: What about funding f rom ern building. This is the last functioning Chief Justice: I believe that there's the government. Do the repairs and unit. What is interesting is that there is got to be an increase in Legal Aid, par­ renovations come from a separate room in the old High Court building for ticularly in civil cases. We have one end fund? the easy creation of a 4th Court. of the spectrum with two massive corpo­ Chief Justice: Yes, that's independent Elliott: Well just generally where do rations locked in a dispute, and at the of the Court's operating budget. I must you see the Court going in thefuture? other end individuals who are unable to say that successive governments have Chief Justice: I would like to see the afford legal representation. I have been been very good about renovations. It has Court established as the premier Court looking at events in the UK carefUlly been realised that this is the only historic in Australia in both procedure and tech­ where there has been developments· of complex in Australia that functions inde­ nology. Along with the increase of the community legal centres. The question pendently as a Supreme Court. use of technology the other important of legal aid in general will be looked at at Elliott: The other States have moved to aspect in our court system is the use of a Legal Aid Conference some time next high rise housing? alternative dispute resolution proce­ year. It can only be hoped that there is Chief Justice: Well yes, most of them. dures. This is now an affirmed process. an increase aid to individuals to enable Adelaide still has an original part pre­ Elliott: As for the cost of justice, how them to access three Divisions of this served but it has a separate more mod- do you see it in the future? Court.

22 Article Owen Dixon Chambers East Renovation Update By Maurice Phipps QC

The first stage of renovation of Owen Dixon Chambers East, basement and ground floor, is planned to commence in June this year. The construction period is estimated at three months.

HE major part of the work is to The design for the whole building has convert the vacant area on the been completed. One aspect of interest T north side of the building (next to is the heating and cooling designed by the County Court) into a new entrance, the services engineer. Chambers and re­ lobby and reception area and to close off ception areas will have individual fan coil the existing entrance from the street, so units. Fresh air ventilation for each unit that there is then a lift lobby separate will come through ducts in corridor ceil­ from the entrance. From the reception ings, so that each chamber and each area area separate doors and corridors will will be separately ventilated as well as lead to Owen Dixon Chambers East and separately heated or cooled. Card oper­ Owen Dixon Chambers West. ated locks on doors can be linked to The whole floor is to be brought to the fan coil unit and the lights, so that current standards. There will be properly when a door is unlocked, lights and graded ramps from William Street and airconditioning will turn on and when the between East and West. Any hazardous door is locked they will turn off. For materials will be removed and there will those who forget to lock doors, a detec­ be a new ceiling, lights, airconditioning tor can be fitted which will turn off lights and fire sprinklers throughout. Some and the fan coil unit after a predeter­ work will be done which will be used for mined time with no movement. Heating the rest of the building once renovation and cooling will be provided by multiple is completed. The main examples are a Maurice Phipps QC units on the roof automatically control­ new electrical switchboard, fire pump led so that only the number needed to room and pumps (all in the basement), meet the load at any given time are fire control panel and some of the air­ operating. Given that most barristers conditioning equipment. maintained. Obviously there will be some hope to spend their days in court rather Agreement has been reached with the inconvenience. than in chambers, the energy saved in Commonwealth Bank to relocate tempo­ Current planning is for work on the not heating or cooling empty rooms rarily to the north side of the ground rest of the building, floors 1-13, to com­ will be enormous. It will save money and floor (the former State Bank) while the mence in about two years time. Advice to is a very green solution, and there is necessary work is carried out in its BCL is that it can be done two floors at a another benefit. The issue of after hours premises. The bank intends to re-fit, and time, which makes the task of providing airconditioning, often a problem in the lease between the bank and Barris­ accommodation for the tenants from some of our leased buildings, becomes ters' Chambers Limited is to be renewed each floor as the work is done manage­ irrelevant. The system can operate auto­ for a further term. able. The time at which the work is done matically all the time, so it will switch Arrangements are being made for ac­ will depend on finances. BCL's plan is to on and off as needed, for one room, commodation for clerks Foley, Dever and payoff the company's existing debt and for the whole building or anything in Hyland, while the work is done. In the then re-finance to carry out the balance between. clerks' area the work is at ceiling height of the renovations. By the end of the year the ground and above so the fitout is not being al­ The planned work includes rebuilding floor of Owen Dixon Chambers East tered, although one will take the oppor­ the lifts including equipping them with will be transformed. It will literally look tunity to do some alterations. modern electronic controls and so im­ like new, and the plan envisaged at the A timber tunnel will be constructed so proving the service. It is hoped this can time West was built of having a single en­ that access to the Owen Dixon Chambers be done soon after the ground floor is trance, lobby and reception on William East lifts and through the ground floor to finished, although a decision has not yet Street for both Owen Dixon Chambers Owen Dixon Chambers West will be been made. buildings will have been brought about.

23 Article

Fifthfloor entry and common area; subtlejinishes, materials and details combined to present a visually exciting sense oj arrival.

Joan Rosanove Chambers is now he position of Joan Rosanove, op­ well reviewed by tenants and visitors. up and running, with four of the posite Owcn Djxon Wes , makes it Each floor comfortably accommodates T easy for Lenants Lo keep in contact about 12-15 chambers, and the position six floors fully occupied by with barristers in Owen Dixon and of the lifts creates an open common area tenants of BCL. The sixth floor Isaacs. The chambers have been very with chambers around the perimeter of is due for handover to BCL in April next year and BCL has an option to take over the first floor from 1 November 2002. The chambers are due to be officially opened by His Excellency the Governor of Victoria Sir James Gobbo, on 14 April 2000. In naming the chambers after Joan Rosanove QC, BCL intended that the building should recognise a pioneering woman of the Victorian Bar and be an enduring recognition that men and women live and work within the buildings that house our ~ college. Library withinjifthfloor common areajurther enhances the visual excitement.

24 two walls. Tenants who drive in are able to park in the car park contiguous to the rear of the building, on the same level as their chambers. As was the case when Owen Dixon West was opened and more recently Douglas Menzies Chambers, BCL invited group applications for Joan Rosanove Chambers. The opening of new chambers enables BCL to meet demand for group organised chambers. Naturally, over time the composition of the original groups will change. BCL's Chambers Allocation Policy applies to Joan Rosanove Cham­ bers as it does to all other BCL cham- bers. Fourthfloor entry and common area; vistas of clearly definedforms and spaces Paul Anastassiou present an efficient and dynamic corporate image.

Full height bookcases provide texture and interest withinfourthfloor common area. ----

Chambers which may be fitted to suit the needs of Small chambers making efficient use of space may also meet individual barristers. the needs of many barristers.

25 First Woman to Sign the Roll of Counsel in Victoria

Joan Rosanove was the first woman to sign the Roll of Counsel in Victoria. She did so on 10 September 1923. Her number on the Roll was 207. She was, for whatever reason, unable to obtain chambers in Selbourne Chambers and she rented a backroom office in another (dilapidated) building in Chancery Lane. For two years she persisted as a barrister but she received few briefs. In Australian Women oj Achievement, Susanna DeVries says "Male solicitors flatly refused to send her work. They rationalised their prejudices by claiming clients did not want 'women to defend them"'.

N 23 April 1925 she decided to which resulted in the Oleave the Bar and at her request Commonwealth authori­ her name was removed from the Roll of ties administering the Counsel. Accordingly to DeVries, when notorious dictation test Phillip Jacobs, who was then on the point in Gaelic: see R. v. of departing to spend a year in England, Carter; Ex parte Kisch heard that she was going to leave the (1934) 52 CLR 22l. Bar, he offered her the temporary use of She applied for silk his room in Selboume "to get the fellows in 1954 which would I used to having a woman there". But a have made her Austral­ I protest meeting was called and the di­ ia's fIrst ever female rectors of Selboume Chambers told Queen's Counsel. Her Phillip Jacobs that if he allowed Mrs application was unsuc­ j Rosanove to use his room, they would cessful. Sir Edmund have no option but to cancel his lease. Herring wrote: "I have Joan Rosanove. Joan left the Bar and set up practice very reluctantly come as an "amalgam" from home. to the conclusion that it would be wrong would send a note to anyone senior to Her practice as an amalgam blos­ for me to grant your application. I am them stating their intention to apply, the somed. Initially her work appears to have very sorry to have to disappoint you but purpose being to ensure that the more been mainly in the criminal courts. She personal considerations cannot be al­ senior barrister could also apply and specialised in defending women and lowed to weigh with me in the exercise thereby retain his (or her) relative sen­ twice appeared for women accused of of such an important function as the iority. Joan continued for many years to murder. granting of silk." apply for silk whenever she received Gradually she developed a very sig­ An enquiry from the then Premier such a note. nificant divorce practice. At one stage John Cain (Sm) as to why she had been In 1964 Sir Edmund Herring retired she was handling one-eighth of the di­ passed over drew the reply that her as Chief Justice and Sir Henry Winneke vorce list. practice was "too specialised". was appointed. On 16 November 1965 During Word War II Joan practised It would seem that only prejudice pre­ Joan Rosanove was appointed the first from rooms in Chancery House and her vented her from being the first woman woman silk in Victoria. practice became even busier with the ab­ silk in Australia. Roma Mitchell was ap­ Joan transferred to the non-practising sence of many male barristers overseas. pointed Australia's first female Queen's list on 9 September 1969. On 8 Decem­ She resigned the Roll on 7 October 1949 Counsel in 1962. At the time of her ap­ ber 1971 her name was removed from (Roll No. 428) and ultimately moved into pointment Roma Mitchell was younger the Roll of Counsel at her own request, chambers in Selboume. than Joan Rosanove and less senior in She died of "a fatal heart attack while It is not generally known that it was the law. talking animatedly to an admiring audi­ she who initiated the habeas corpus In those days there was a practice un­ ence" on 8 April 1974. proceedings on behalf of Egon Kisch der which barristers applying for silk

26 Article Internet and E-mail: vicbar.com.au

Fast internet access, and e-mail usingtheaddressvicbar.com.au. the internet domain name owned by the Victorian Bar Incorporated, is now being offered in the Victorian Bar's Chambers.

T the time of writing 168 barris­ hosts the domain name and provides the ters are either connected or about e-mail boxes. Optus has one customer­ A to be connected. The connection Barristers' Chambers Limited. The to the internet is by cable and is perma­ agreement is for a monthly fee (depend­ nent - there are no modems or tel­ ent upon the size or capacity of the con­ ephone lines and no time limits - and nection) and 18 cents per megabyte the speed is fast. E-mail is received al­ downloaded. In addition, there was a most immediately it is sent provided the once-only establishment fee of $6000. computer is switched on and the e-mail A uniform fee per month is being software appropriately configured. E­ charged because, given the normal pat­ mail address is [name]@vicbar.com.au. tern of barrister use, a system to bill for Connections so far are in Owen Dixon individual use is not worth the cost. Chambers West, Joan Rosanove Cham­ Again, a degree of estimation had to be bers and Latham Chambers. The Victo­ used, but use to date shows that $25 per rian BarlBarristers' Chambers Limited month is about right. Given the standard Communications Committee has estab­ of service the charge is modest and there lished a cost of $300 for connection in is not the additional cost of a separate Owen Dixon Chambers West and Joan telephone line. Rosanove Chambers, a monthly fee of For the non-technically minded, all Joan Rosanove Chambers switch and hub, providing speedy internet access. $25 for internet access plus $25 per year you need to know is that the service is for e-mail, the aim being cost recovery fast, permanent and reliable. There is and no more. The connection to Latham not the frustration of having to dial up other, in the PABX room. The speed of Chambers is via the BCL P ABX micro­ via a modem and perhaps get an engaged this link is 128 kbps. The microwave link wave link, the cost being higher because signal and there are no time limits on has sufficient capacity to enable the of the need for additional equipment. connection. Latham Chambers connection to be du­ The system is being expanded gradu­ For the technically minded, the fol­ plicated as more connections are made. ally so that any problems which occur lowing is a brief description (from a non­ The Owen Dixon Chambers East are easier to find. There were some technical person). In ODCW and Joan switch is then connected to a router glitches with the first connections, but Rosanove Chambers, each floor has a which connects the signal to the Optus since then the work has gone smoothly. patch panel and hub. Each computer is frame relay and fibre optic cable. The The system can be expanded to build­ connected to the hub by category 5 cable connection with Optus is 1064 kbps. The ings with a microwave link to Owen (100 mbps up to a distance of 100 me­ speed of the connection will be increased Dixon Chambers East. Cabling will be in­ tres). Each hub is then connected to a as traffic requires. In the PABX room is a stalled in Owen Dixon Chambers East as switch on the first floor in ODCW and the server for management of the system. part of the renovations and it may be fifth floor in Joan Rosanove Chambers. Security from outside interference is possible to provide temporary cabling in Again, connection is by category 5 cable. provided by a firewall in the router. the meantime, cost of course being a ma­ These switches are then connected to The system is a local area network so jor consideration given the limited time another switch in the P ABX room in the that with appropriate software and suit­ it will be in use. basement of Owen Dixon Chambers able security, groups of computers can As each floor is connected there must East. From Owen Dixon Chambers West be linked together. For instance, secre­ be cabling to each room, cabling to the connection is by category 5 cable and tary and barrister or group of barristers P ABX room in the basement of Owen from Joan Rosanove Chambers by fibre can be linked, or a group of barristers Dixon Chambers East and various pieces optic cable in a conduit under Lonsdale can combine to use a single printer. of equipment added. The initial fixing of Street. The system has been designed by the $300 required some estimation, but Connection from Latham Chambers to Michael Feramez of Radcom Consultants costs to date show that the estimation Owen Dixon Chambers East is through Pty Ltd. He has been reporting to and was about right. ISDN lines and the P ABX microwave link advising the combined Victorian BarlBar­ The connection is with Optus which via a router in Latham Chambers and an- risters' Chambers Limited Communica-

27 Article tions Committee: Mark Derham QC, David Levin QC, Maurice Phipps QC, David Bremner, Executive Director of The County Court: the Victorian Bar, and Geoff Bartlett, Secretary, Barristers' Chambers Limited. It has taken some time. The difficulty has been to devise at reasonable cost a sys­ Time for tem to be used by individuals which could be started with a small number and then expanded. Commercial providers have proposed complete systems for the Specialisation Bar, but at prohibitive expense in both initial cost and operating fees. Michael By Tony Radford Feramez and the committee are very pleased that what has been developed is a high quality internet service available at modest cost to the individual user. THE PRECEDENTS HE judicial system in Victoria has in the last decade seen welcome ... what has been T changes in mechanisms to in­ developed is a high quality crease the level of expertise available internet service available from the Bench in the judicial process. Thus it has seen the establishment of at modest cost to the the Court of Appeal in 1994, and 1999 individual user. has seen the establishment of separate divisions of the Supreme Court (Crime, Common Law, Commercial Law). Barristers' Chambers Limited pro­ Appointments to the Supreme Court vides the service to the plug on the wall. have, (with two exceptions), come from Computers then need an ethernet card the ranks of either Senior Counselor the and configuration. The card costs about County Court Bench. $80 and installation and configuration about $40 each if several are done at the ASPECTS AND IMPLICATIONS same time. To maintain the integrity of the system (such as security of pass­ OF TRIALS IN THE COUNTY words), configuration can only be done COURT by a technician approved for that pur­ The author contends that it is time for It is trite to say that it is clearly a field pose. Details are contained in the Victo­ the State to recognise and deal with im­ for specialists. rian BarlBarristers' Chambers Limited portant facts and aspects of the County Fifthly, the County Court has a civil internet policy. Court system. jurisdiction in many areas, including Currently the service is only available Firstly, that Court is the principal areas where jurisdiction is unlimited. to those directly connected by cable. E­ Court in the State for criminal trials: 70- Sixthly, in the civil area, there is an mail can be collected from anywhere us­ 80 per cent of Court time is in criminal unacceptable delay in obtaining trial ing a separate e-mail address but you matters and 70-80 per cent of judges sit dates because of an unmet need for more have to remember your password as well in criminal matters. courts than are available. as your address. It is hoped that shortly Secondly, appeals against conviction Seventhly, there are problems in a BCL will have its own e-mail server and sentence at trial, from that Court are system that demands specialist skills, equipped so that e-mail can be collected almost, automatic. particularly in criminal law, a demand on any computer with modem connec­ Thirdly, many criminal trials are re­ that is not always met in practice. This tion to the telephone service. You will trials following (successful) Court of Ap­ has repercussions for the County Court still have to remember your password peal decisions. Fourthly, the Court of as a whole, given its role in criminal tri­ unless it is your own computer with the Appeal is a constant "overseer" of all als. password stored in it. Connection to the criminal trials. Particularly with the ad­ Eighthly, an "apprenticeship" in internet service from outside Chambers vent of the institution of the Court of Ap­ Chambers and Appeals is often the intro­ is under consideration by the committee. peal, far more is now printed (including duction to judicial experience for new The Victorian Bar web site is the Victorian Law Reports) about the appointees to that Court, before sitting www.vicbar.com.au.Don·tforgetthe.au. evidence, procedure and the law in in trials. otherwise you will find yourself at the criminal matters, than was hitherto the For some the "apprenticeship" may web site of the Victoria Bar Association, case. well be the first experience in criminal Victoria, BC, Canada and so will your e­ It is an understatement to say that law. For a few, prior experience in trial mail. what is now far better exposed - in matters is also a wholly new experience. print alone - is that the criminal law is This is appalling and creates undue Maurice Phipps QC highly complex. pressures for the profession apart from

28 that on the new appointee. It is not just should specialise in that area on the Criminal Division comprise only those the problem of finding the "patter" of the Bench. of prior knowledge and practice as jurisdiction. counsel in the criminal trial area or SYSTEMIC PROBLEMS IN those who, without experience as THE PROBLEM WILL NOT CONTINUING THIS SYSTEM counsel, have established credibility GO AWAY as sound trial judges on the Bench. The immense disadvantages that flow The problems with the current system 3. I recommend also that appointments from the continuation of the problem do not lie in recent events but in a failure to be made to the Civil Division be of are: to acknowledge the implications of the persons of recognised competence as (a) Longer trials occur than should be above aspects of the County Court sys­ trial lawyers or judges in this area. necessary. tem. 4. In each case I recommend that the (b) Detectable errors in direction occur Criminal trial work, particularly, has legislation provide that any appoint­ in the course of proceedings. become far more specialised and de­ ment to a particular division, be made (c) Longer delays occur in Court of Ap­ manding. with the approval of the Chief Judge. peal hearings - as more appeals are A perusal of the Victorian Law Re­ This mechanism could cover both ap­ listed for hearing. ports and unreported judgments, over pointments from the Bar and the (d) Longer judgments are provided than the past five years alone, reveals the de­ other division of the Court. Also, a should be needed if proper attention manding roles placed upon the Bench permanent or a temporary transfer was paid to the adoption of best and the profession (both on the DPP and of a member from one division to an­ practice, in the appointment of the defence counsel) in the proper conduct other, should require (published) di­ Bench. of criminal trials. rection by the Chief Judge of that (e) Re-trials occur with monotonous Failure by counsel to take points of Court, so as to marry specialist skills, regularity. significance or points sufficiently earlier with efficiencies. (f) Greater uncertainty is caused for cli­ in a trial may be undetected at trial. 5. I recommend, further and separately, ents and their advisers and counsel. Failure by the Bench to make rulings, that the salary of the County Court (g) There are greater costs to the com­ with or without a submission by counsel, Bench be increased to a level more munity - in longer trials, appeal can give rise to later complications. commensurate with the greater levels hearings and re-trials - by provid­ There is no other court hierarchy in of responsibility now exercised by ing courts and in the provision of le­ the State where in one area - crime - members of the Court. gal practitioners both for the State an appeal against conviction or sentence 6. I recommend that this structure be and for Defence through Legal Aid is almost automatic. set up now and not merely await the and through private funding. However, this State continues, by de­ advent of a new building. fault and without good reason, to suffer a Addendum: This is a submission by an system that does not attract or receive THE SOLUTION independent member of the Bar. It is be­ the most skilled practitioners. 1. I advocate the setting up of the ing provoked by none and is not seen or Further, it does not, therefore, County Court into a Criminal Division authorized by the Bar Council. allow the most skilled practitioners, and a Civil Division. This should be particularly in criminal law, to specialise formalised by legislation. in it. Skilled practitioners in civil law 2. I recommend that the Bench of the

Construction Law COlITses

ELBOURNE University Faculty of inable briefing subjects, Introduction to members of the construction profes­ MLaw has experienced an enthusias­ Law and Introduction to Construction sions. tic response to its recently introduced apply to both courses. There are two The Co-Directors of Studies for the Graduate Program in Construction Law common compulsory subjects, Construc­ program are Ian Bailey of the New South which commenced in February 2000. tion Contracts and Construction Claims Wales and Victorian Bar and Paula Enrolments have been in approximately with additional subjects from a range of Gerber formerly of Maddock Lonie & equal numbers from legal and construc­ options, two for the Diploma Course and Chisholm in Melbourne who is a graduate tion graduates. The courses are offered four for the Masters degree. Each sub­ of Kings College London. nationally and are being conducted on an ject is dealt with in an intensive five day Further information about these intensive basis in Melbourne with initial series of tutorials with assessment by an Courses may be obtained from the enrolments including a number from examination or a dissertation. Graduate Studies Office, Faculty of Law, New South Wales. The course subject advisers include, University of Melbourne, telephone (03) The program includes a Graduate Di­ amongst many well known practitioners 9344 6190 and by email at ploma in Construction Law and a Masters John Sharkey, Geoff Masel, Doug Jones [email protected] degree in Construction Law. Non exam- and John Digby QC, along with senior

29 Article GST: A Summary of its Impact on Barristers at the Victorian Bar By David J L Brenmer, Executive Director

proach has been made to the ATO for This paper provides a summary of the impact clarification and the response will be ad­ of the GST on a barrister's practice. The paper vised through In Brief outlines the preparations that a barrister REGISTRATION should make for the GST and explains some of An enterprise, which includes a barris­ ter's practice, cannot charge GST to cli­ the terms with-which barristers will need to ents or claim a refund of GST paid on become familiar. business inputs unless it registers for GST. If an enterprise's current or pro­ jected annual turnover exceeds $50,000, s part of its tax reform package, cost you! As an example, GST applies to registration is required. If an enterprise's the Federal Government will im­ contracts which commence prior to 1 turnover is less than $50,000, it may reg­ Aplement a goods and services tax July 2000 but which extend beyond that ister in order to claim a refund of the (GST) commencing 1 July 2000. At the date e.g. annual subscriptions to publica­ GST paid on business inputs. same time, a number of other taxes will tions. Barristers may thus already be Special provisions apply to the regis­ be removed either on 1 July 2000 or pro­ paying GST on such contracts. tration of service companies including gressively over future years. An essential element in preparing for provisions to group entities so that trans­ Under the new tax system, enter­ the GST is to establish a recording sys­ actions within the group can be ignored prises will be required to pay GST at the tem which enables the tracking of the for GST purposes. Barristers who may be rate of 10% of the value of any "taxable GST included in purchases and the filing affected by these provisions should ob­ supply". As an offset to this payment, en­ of the special tax invoices that must be tain specific advice from their tax advi­ terprises will be allowed to claim back provided by enterprises who charge GST sors. the GST paid on business inputs. The and which are required in order to claim The registration process involves two theory of this indirect tax system is that a refund of the GST paid on business in­ steps - obtain an Australian Business the final cost of the tax is borne by the puts. A system as simple as writing the Number (ABN) and register for GST end consumer. amount of GST paid in red ink on the with the ATO. Registration must be com­ An important difference between GST cheque butt and filing a copy of the tax pleted by 31 May 2000 or, following that and the major tax it replaces - the invoice in a separate folder will assist in date, within twenty one days of the obli­ wholesale sales tax - is that GST is not providing the information needed when a gation to register arising. If an enterprise automatically added to the price but is refund of the GST (the input tax credit) does not register and at some time in the instead assumed to be included in the is claimed at the end of the September future the enterprise's income exceeds price. Thus when remitting GST to the 2000 quarter. the turnover threshold, the Tax Commis­ Australian Taxation Office (ATO) , lIllth One matter which the Bar is in the sioner may determine the date from of the price is paid as GST irrespective of process of researching is the manner in which the enterprise should have been whether or not the enterprise has been which GST paid or received during 19991 registered. The enterprise would then be able to increase its prices sufficiently to 2000 should be treated in tax returns for liable for GST on all taxable supplies offset the net cost to it of the new tax 1999/2000. We have been told that in Oc­ made from that date even though the en­ system. tober 1999 the Federal Government in­ terprise may not have collected GST The GST will impact on barristers and tended to legislate to exclude GST from the clients to whom the supplies the key to dealing with the requirements received or paid in 1999/2000 from tax were made of the new tax system is to be thoroughly returns for 1999/2000. However, as re­ Registrants will receive a voucher prepared. cently as 1 March 2000 the ATO tel­ entitling them to a refund of $200 on Being prepared does not mean wait­ ephone helpline has not been able to the cost of certain goods and services ing until 1 June 2000 and then thinking confirm how GST should be treated in relating to the implementation of the about the GST - if you do this, it will 1999/2000 tax returns. A formal ap- GST.

30 The ATO will send a registration kit to GST-FREE SUPPLIES riod. However, if the value of the taxable each person or business that has submit­ If a supply is GST-free, no GST is in­ supply is less than $50 (i.e. the tax-ex­ ted a business tax return in the past. The cluded in the price of the supply and no clusive price), a tax invoice is not Bar Council Administration office has ob­ GST is paid by the supplier on that sup­ needed although some form of documen­ tained a supply of registration kits for ply. If the supplier is a registered enter­ tation should be obtained in order to barristers who have recently joined the prise, it can still claim input tax credits support the claim for the input tax Bar and therefore may not have submit­ on the business inputs it purchases. Ex­ credit. Barristers will therefore require ted a business tax return last year. The amples of GST-free supplies are exports, tax invoices or other documentation for kits have been distributed through the hospital and medical care, and domestic their business purchases, and their GST­ will Clerks. air travel by non-residents. registered clients require tax in­ When registering, a barrister must de­ voices from the barrister. cide the basis on which the GST will be INPUT TAXED SUPPLIES The content of a tax invoice varies de­ accounted for. If the barrister's turnover pending on the value of the purchase is less that $1 million, either receipts If a supply is input taxed, the supplier and whether any of the items on the in­ (cash) or accrual accounting may be does not include GST in the price and voice are GST-free or input taxed. Ac­ used. If turnover exceeds $1 million, ac­ the supplier is not entitled to input cording to a draft ruling issued by the crual accounting must be used unless the tax credits on business inputs. Examples ATO, in order to cover all situations, a Tax Commissioner's permission is ob­ of input taxed supplies are financial tax invoice must contain the following el­ tained to use receipts accounting. The supplies such as fees for using or obtain­ ements: Victorian Bar Council has obtained the ing a cheque account, and residential • the Australian Business Number Commissioner's permission for its mem­ rents. (ABN) and name of the issuing enter­ bers to use the receipts method irrespec­ Barristers may therefore not be able prise; tive of the level of their turnover to claim input tax credits on all business • the words "tax invoice" stated promi­ provided they currently use receipts ac­ inputs because many financial services nently; counting for taxation purposes. The full consumed by barristers will be input • the date of issue; text of the Commissioner's decision was taxed. Examples of input taxed services • the name and the address or ABN of published in In Brief on 8 February 2000 are fees for using or obtaining a cheque the recipient; and is also available from the Bar Council account, loan or advance, superannua­ • a brief description of each thing sup­ Administration office. tion contributions, life insurance premi­ plied including the quantity or the ex­ A barrister registering for GST must ums and credit charges under a hire tent of the services supplied including also select a reporting period for the pur­ purchase agreement if the credit charge an indication of which are taxable poses of remitting the GST to the ATO. is separately identified. • the amount, excluding GST, payable Barristers will generally account for GST Input tax credits will be available on for the supply; on a quarterly basis with the first period certain fmancial services e.g. lease fi­ • the amount of GST payable; ending on 30 September 2000. The re­ nance, professional indemnity insurance, At the Victorian Bar, fee invoices are turn (Business Activity Statement) must and income and general insurance. issued by the Barrister's Clerk. The be lodged within twenty one days of the INPUT TAX CREDITS Clerks will be reviewing their accounting end of the period. systems in order to produce suitable tax Provided a supply is not GST-free or in­ invoices. TERMS put taxed, an enterprise can claim a re­ Special provisions apply to taxable fund from the ATO of the GST it pays supplies that are made for a period or on Taxable Supplies when purchasing a business input (a a progressive basis for consideration paid A registered enterprise must pay GST on creditable acquisition). The refund is on a progressive or periodic basis. An ex­ all taxable supplies it makes. Except to called an input tax credit and is obtained ample is a lease agreement for a piece of the extent that a supply is "GST-free" or by deducting the input tax credit from equipment which shows a price of $1000 "Input Taxed", for a barrister, a taxable the GST payable by the enterprise on the per month. A single document (e.g. the supply will be made if the barrister is taxable supplies it makes. lease agreement) can be the tax invoice registered or is required to be registered Business inputs include the purchase for each monthly payment provided it for GST and provides on or after 1 July of business equipment. As a result, a reg­ contains the elements required in a tax 2000 a professional service for a fee. istered enterprise will be able to include invoice. If the periodic payment changes Where a supply includes elements of tax­ in its GST return a claim for the refund in the future (e.g. because the amount able supply and GST-free or input taxed of the GST included in the cost of the has been adjusted for the Consumer supply, then the value of the taxable business equipment it purchases as well Price Index), a new tax invoice showing supply is the proportion that the taxable as the GST included in the cost of other the adjusted payment must be obtained supply is of the total supply. business inputs. in order to justify input tax credits for In order to avoid having to pay the the new payments. GST out of his/her own pocket, a barris­ TAX INVOICES A tax invoice must be issued by the ter should allow for GST in the fee To be entitled to claim an input tax supplier within 28 days of a request by rendered on the fee slip provided that credit for a creditable acquisition, an en­ the recipient of the supply. the fee agreement with the client terprise registered for GST must possess A barrister will need to be certain as (which may be the solicitor or a lay cli­ a tax invoice at the time the amount is to who is to pay the barrister's fee in or­ ent) allows for the charging of the higher claimed in the Business Activity State­ der that the tax invoice is made out to fee. ment prepared at the end of the GST pe- the correct reCipient and shows the rel-

31 evant invoicing details for the recipient. adjustments in prices reflect the net The GST a barrister includes in a pro­ If the client is responsible for the barris­ value of: fessional fee can be claimed as an input ter's fee, the barrister's tax invoice must • the additional GST to be paid on tax­ tax credit by the client if the client is an show the client's details even though the able supplies; enterprise registered for GST and if the invoice may be sent to the briefing solici­ • the savings resulting from lower busi­ barrister's fee is a business input to the tor and be paid from funds lodged in the ness input costs due to the reduction enterprise. Clients who are private indi­ solicitor's trust account by the client. If or elimination of various taxes and viduals, such as in criminal, family law or the briefing solicitor is responsible for government charges; and personal injury cases will not be able to the barrister's fee, the barrister's tax in­ • the additional cost of complying with claim the GST as an input tax credit. voice should be made out to the solicitor. the new tax system. The Bar Council will be seeking ad­ The ACCC's website (www.accc.gov. vice from fee-setting bodies such as the INCREASING FEES FOR au) provides guidance on price exploita­ Courts and Legal Aid Victoria as to the THE GST tion issues. The ACCC's concern is with adjustments they will be making to their An important issue is the extent to which changes in prices, not the actual level of fees to allow for the GST. The Bar will be a barrister should adjust his/her fees to the price. The ACCC has issued guide­ advised of the outcome of these discus­ allow for the net cost of the new tax sys­ lines on price exploitation and a key ele­ sions. tem. ment of those guidelines is the net dollar GST TREATMENT OF The Federal Government has given margin test. In summary, an enterprise DISBURSEMENTS extensive powers to the Australian Com­ should adjust the costs of its business in­ petition and Consumer Commission puts to reflect cost savings from the new Barristers sometimes incur expenses (ACCC) to monitor price movements in tax system and then increase its prices which clients agree to reimburse. The the first two years of the new tax system for the GST by only the amount required expense may be a creditable acquisition in order to eliminate price exploitation. to ensure that the dollar profit margin is (e.g. a domestic airfare) or GST-free An enterprise that engages in price ex­ the same as before. (e.g. an international airfare). In the case ploitation can be fined up to $10 million The Bar has engaged a major account­ of creditable acquisitions, the barrister if it is a corporation or $500,000 if it is an ing firm to provide advice as to how bar­ will claim the input tax credit on the ac­ individual. The government has taken risters should calculate the extent to quisition and then charge the same GST­ this action to ensure that only the net which they can adjust fees to recover the inclusive cost to the client. The barrister cost of the new tax regime flows through net cost of the new tax system. This ad­ will thus obtain an input tax credit on to consumers. Barristers and other en­ vice should be available in late March the purchase and will pay the GST re­ terprises must therefore ensure that any 2000. ceived from the client to the ATO.

SPECIALISED ACCOUNTING, BANKING AND TAXATION ADVICE FOR BARRISTERS

Bill Ingram and Ian Sheer specialise in tailoring accounting, banking CREDENTIALS and taxation advice for barristers. Bill Ingram B Com, CPA, has 20 years accounting experience. Prior They provide comprehensive financial advice, valuable solutions and to establishing his own practice, he spent three years as an investment management, covering your personal and professional finances, manager in London and later became the financial controller for investments, businesses or other financial interests: Price Waterhouse in Melbourne. Bill began advising and assisting • Bank negotiations barristers in 1992. • Tax planning and tax returns Ian Sheer B Bus, CPA, has 15 years professional and commercial accounting experience, and has advised barristers on a range of • Superannuation advice accounting, banking and taxation matters. • Your finances organised, managed and reported upon • Budgeting and cash flow projections prepared RELEVANT EXPERIENCE • Leasing and hire purchase advice We have successfully advised barristers on a wide variety of financial, banking, commercial, leasing, investment and taxation matters, both • Profit planning in Victoria and interstate. • Free initial consultation The firm is not a sales agent for any finance provider. Our • Consultations in chambers remuneration is entirely by client fee, established at our free initial • Appointments after court hours consultation. Why not call the Barristers' financial specialists, Bill Ingram or Ian Sheer, on 9670 2444 for an appointment?

INGRAM & SHEER

MAN .... GEMENT ACCOUNT .... NTS &: TAX ADVISERS Swann House, 3rd Floor, 22 William Street, Melbourne, 3000 Telephone: (03) 9620 5733, Facsimile: (03) 9620 5766 Email: [email protected]

32 In the case of a GST-free supply, such for GST on a receipts (cash) basis if that would not get an input tax credit for as an international airfare, it is antici­ is the basis the barrister now uses for ac­ their contributions. pated that the recovery of the airfare by counting for income tax. The full text of Complications may occur if the group the barrister will be viewed as being part the ATO's letter can be obtained from sells a portion of the service to barristers of the legal service provided to the client the Bar Council office. outside the group, e.g. casual users of a and therefore the barrister should add photocopier are charged for any copies TRANSITIONAL 10% GST to the airfare in order to re­ they take. This may result in the need to cover the GST from the client. The GST ARRANGEMENTS issue tax invoices to the casual users and recovered on the airfare would later be GST can only be charged on supplies to declare the provision of the supply in paid to the ATO by the barrister. made on or after 1 July 2000. If a supply a BAS. A leading accounting firm has The treatment of disbursements is be­ is made over a period of time which com­ been asked to give advice on the GST ing clarified and will be the subject of mences prior to 1 July 2000 and finishes treatment of shared services and mem­ further comment. on or after that date, GST can only be bers of the Bar will be advised of the out­ charged on the value of the supply relat­ come in the near future. GST RETURNS (BUSINESS ing to the period after 30 June. As an ex­ ACTMTY STATEMENTS) ample, if a barrister provides a service FURTHER INFORMATION The GST return will be submitted on a which commences prior to 1 July 2000 As mentioned above, a leading account­ new form known as the "Business Activ­ and finishes on or after that date, the ing firm has been asked to provide advice ity Statement" (BAS). The BAS must be barrister has two options: on the following issues: lodged with the ATO within twenty­ • Separately account for and price the • the manner in which the adjustment to one days of the end of each tax period. pre 1 July service based on file notes barristers' fees should be calculated in Barristers will normally have a quarterly etc., or order to provide for the 10% GST and tax period although an election can be • Apportion the total cost of the service the reduction in the cost of business made to account for GST on a monthly over the full period of the service. inputs because of the withdrawal of basis. In both cases, GST is only charged on wholesale sales tax and other indirect The BAS will show the total sales/re­ that value of the service which relates to taxes; ceipts of the enterprise and the GST pay­ the period after 30 June. The amounts • the GST implications for barristers able on the taxable supplies, the charged in relation to the two periods who share business input services; business-related purchases for the pe­ (Le. pre 1 July and post 30 June) must • the manner in which GST should be riod and the input tax credits claimed, be separately identified on the tax in­ accounted for in disbursements and any adjustments to prior period re­ voice and the GST relating to the post 30 charged by barristers; turns. A BAS must be lodged for each tax June service must be clearly identified. • the implications for barristers of the period even if it is a nil return, Le. there It is anticipated that Clerks will make PAYG tax system. is no GST to pay and no input tax credits the necessary arrangements with their Once the advice has been finalised, to be claimed. In order to be accurate, lists for the billing of pre and post GST further information will be distributed to the BAS must be prepared by someone services. the Bar. who is aware of all receipts and expendi­ The Clerks are each reviewing their ture relating to the enterprises's opera­ SHARED SERVICES operations in order to implement the ap­ tions. Barristers should now decide on Some barristers have formed groups to propriate procedures and systems to en­ who will prepare their returns in order share the cost of certain business inputs, able them to provide their clerking that the necessary recording and filing e.g. they share the cost of a secretary, a services in a manner appropriate to the arrangements can be put in place prior photocopier, a fax machine or a library. new tax regime. to 1 July 2000. Normally, one barrister accepts responsi­ Most barristers will account for GST bility for co-ordinating the service and OTHER TAX CHANGES - on a receipts (cash) basis. It will there­ makes the necessary payments from a THE PAY-AS-YOU-GO (PAYG) fore be necessary to examine each re­ pool of money to which each member of ceipt and determine the amount that the group contributes. The co-ordinating TAX SYSTEM relates to services rendered on or after 1 barrister effectively acts as the agent for The PAYG tax system will replace the July 2000 and on which GST must be each barrister in the group. In the case of provisional tax system as from 1 July paid. If a payment is received on or after equipment such as a photocopier, barris­ 2000 and will also consolidate arrange­ 1 July 2000 for a service performed prior ters may contribute to the pool of money ments for withholding tax and group tax. to that date, no GST is payable by the on a cost per copy basis. Under the P AYG system, barristers will barrister on that receipt. If a payment is It is likely that so long as the "agent" pay quarterly income tax instalments received on or after 1 July 2000 which is barrister holds an appropriate tax invoice based on their business income for that paying a mixture of pre and post 1 July for the business input, each member of quarter with the payments due within services, the amount received for the the group is entitled to claim that mem­ twenty one days after the end of the post 1 July services must be calculated ber's proportion of any input tax credit quarter. The first quarter ends 30 Sep­ and GST paid on it. resulting from the purchase. It is also tember 2000. likely that the periodic contributions to The income tax instalment to be paid RECEIPT OR ACCRUAL the pool of operating funds will not be will be calculated by multiplying the ac­ ACCOUNTING FOR GST accounted for as a receipt to the agent tual business income for the period by The Bar Council has received permission on which the agent must pay GST. As no the instalment rate. The business income from the ATO for its members to account tax invoice is issued, the contributors will be the normal gross taxable income

33 excluding capital gains. The instalment ing with the Clerks as they prepare for • Develop a system of recording details rate will be calculated by the ATO based the GST. of GST now being paid in order that an on the taxpayer's latest assessed income • In conjunction with other members of input tax credit can be claimed later. tax return. The instalment rate is there­ the Australian Bar Association, the • Register to pay GST and to obtain an fore equivalent to what the tax paid on Victorian Bar has made a joint submis­ Australian Business Number. Registra­ the last assessed return was as a per­ sion to the GST Start-up Office re­ tion must be made by 31 May 2000 centage of the taxable business income questing funding for the distribution of but, due to processing delays, should on that return. In certain circumstances, specific information for barristers on not be left until the last moment. the taxpayer can request a variation in the effects on their practices of the • Determine who is best placed to pre­ the instalment rate but a penalty can ap­ GST. The submission has been ac­ pare the quarterly Business Activity ply if the variation results in an under­ cepted and the details of the funding Statement. This person is most likely payment of tax. are presently being finalised. It is an­ to be the barrister or the barrister's A feature of the P AYG tax system is ticipated that the information booklet current accounting/taxation advisor. that the amount of tax payable will will be distributed in April 2000. • Consider whether current fee agree­ change each quarter in line with varia­ • The Bar will request the various gov­ ments contain provisions which enable tions in the level of business income. Due ernment agencies who brief barristers the barrister to pass on to clients the to the fact that barristers account for tax to adjust their fees for the net cost to net cost of the GST should the provi­ on a receipts (cash) basis, the amount of barristers of the new tax system. sion of the service extend beyond 30 tax to be paid will thus vary with the • The Bar Council has obtained the ap­ June 2000. level of receipts for the quarter thus ena­ proval of the Commissioner of Taxa­ • Monitor the Bar's publications for fur­ bling easier cashflow management. tion for its members to account for ther advice. GST on a receipts basis if that is the • Monitor information coming from the BAR COUNCIL ACTIVITIES basis they currently use for accounting Clerks as to the arrangements they The Bar Council has taken the following for income tax. will be making for the GST. • The Bar Council will continue to keep initiatives in relation to GST: DISCLAIMER • In March 1999, the Bar Council con­ barristers up-to-date on GST issues. ducted a seminar for members of the The information contained in this article WHAT SHOULD YOU BE DOING is of a general nature and is not meant to Bar at which the implications of the NOW? new tax system were explained. constitute professional advice. Barristers • The Executive Director of the Bar is Barristers should be making the follow­ requiring professional advice should con­ representing the Bar Council in work- ing preparations for the new tax system: tact their usual advisors.

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34 Article Why Legal Aid Needs More Money Proper treatment, not just Band Aids are needed to rescue Legal Aid Victoria The following is a submission sent to the Attorney-General by Tony Radford

SYNOPSIS or Gambling Act or Franchise percentage of the funds budgeted to The Problem Revenue be derived from revenue received in The proposal is that the levy be levied one or other of the areas referred to. NREPRE 'ENTED persons and in fact either: In all cases in recent years returns under-funded litigants, particu­ (a) as an "add-on" - analogous to have been higher than budgeted. U larly those appearing before trial Commonwealth Medicare pay­ It is recommended that the legisla­ courts in the State continue to create ments of the past (and shortly to tion expressly incorporate a percent­ problems for the judicial system in Victo­ be reintroduced to certain per­ age of the revenue in one or other of ria. sons) - to charges or fees made the areas, so that one is not stuck A Financial Answer under one or other of the above with a particular figure in Year X and Ongoing problems in the scope of the legislative areas; or have that total figure (merely) re­ (b) as an appropriation (merely) on funding available in State Legal Aid mat­ peated in each of the years thereafter. ters may be attacked effectively by the the funds collected under one 4. Name adoption of a new statutory scheme Act or the other. I propose that the funds that come funded by new sources of revenue. Revenue derived from gambling from the new source, be called "LE­ acts, stamp duty and motor vehicle Funds do exist for this purpose. GAL AID FUND" or "LEGICARE". taxes contribute some of the highest 5. An evaluation oj the sources Benefits items of revenue to the State budget A snapshot of aspects of State 1. Reduction of numbers of adjourn­ sector. Revenue now in grants since finances ments seeking clarification of funding the High Court ruled the State fran­ In the past three to four years State entitlements. chise fees invalid is also significant. taxes have contributed around 50 per 2. Reduction of uncertainty over entitle­ It is the view of the author that leg­ cent of total revenue. ments. islation could be drawn directed to The last total estimated receipts 3. Reduction of burdens on courts, post anyone of those areas to achieve an (grants and revenue) for 1998/99 are Dietrich including the judge being efficient and effective levy system. $20,571 million, state tax receipts judge and advocate, fewer appeals, The preferences would lie in legis­ $8676 million. appeal points and Crimes Act s.360A lation affecting the gambling area, The budgeted figures for 1999/ applications founded on Dietrich ar­ Stamps Act, motor vehicle taxes and 2000 are $19,489 million cf. $8691 guments. franchise grant revenue, in that order. million respectively. The years 1996/ 4. Savings of time and costs at trial and Changes would have to be made 97, 1997/98 and 1998/99 showing on appeal. consequentially to the Legal Aid Act. comparative figures (total revenue/ 5. Better quality of legal outcomes. 3. An annual charge taxation revenue) were respectively, 6. Greater numbers of persons to be as­ An appropriate (monetary) figure $16,155 million cf. $8256 million; sisted. could be allocated annually. $16,254 million cf. $8643 million and This could be a figure which is a $19,655 million cf. $8935 million. A SCHEME FOR MORE STATE LEGAL AID Heads of Main Revenue Items ($ in 'OOOs) The scheme comprises several elements, which are as follows: 199611997 199711998 199811999 199912000 1. A levy Gambling 1049 1237 1338 1423 A levy should be imposed on the Vic­ Stamp duty torian public in order to raise funds 1015 1028 1326 1254 specifically for legal aid for State mat­ Motor vehicle legislation 713 822 870 883 ters, principally to be used for mem­ Safety net revenue 1470 1242 1306 1344 bers of the Victorian public. (formerly franchise fees If large enough it might be in lieu until end 1997/8) of all other State funding for Legal Payroll tax 2123 2189 2192 2231 Aid. Land tax 407 427 380 387 2. The mechanism Taxes on insurance 334 342 352 365 Stamps Act or Motor Vehicle Act Regulatory fees and fines 175 179 250 246

35 Revenue derived from gamb­ yond the size of current State fund­ lected for 1998/99 was $26,405 ling, stamp duty and motor vehicle ing, to bring about a greater spread of million. legislation and some other areas, as financial assistance to those deserving Ten per cent of gambling rev­ reflected in the budgets of the past of legal aid assistance. That in turn enues would constitute only 0.53 three years and of the current year, could significantly bring about the per cent of total consolidated re­ can be briefly stated (see table). benefits referred to in the author's ceipts. Thus gambling revenues are pre­ synopsis. Ten per cent levy in the dicted to yield $1423 million, stamp 7. The financial gain for Legal Aid stamps duty area yield is only duty $1254 million, motor vehicle reg­ particularly in allocations to pri­ 0.47 per cent of total consoli­ istration $883 million and Common­ vate practitioners dated receipts. wealth franchise grants ("safety net The actual revenue which could be The 10 per cent levy from to­ revenue") $1344 million in the 1999/ raised can be illustrated by the figures tal revenue from motor vehicle 2000 tax year. below. legislation tax, is 0.33 per cent of With the exception of payroll tax These may be contrasted with re­ total consolidated receipts. some of the other heads of revenue al­ cent payments by the LAC and the Ten per cent of total payroll though substantial, are not nearly as Board e.g. 1995/96 $51.8 million; revenue would constitute 0.84 significant. 1996/97 $44.8 million; 1997/98 $32.6 per cent of total consolidated re­ Payroll tax is the most significant million. ceipts. contributor to taxation revenue. (i) Levy as imposed on matters (b) Other facts, mainly relating to the However, it is of a singular nature charged under the Gambling Act nature of VLA funds and the na­ as it is levied only on employers and legislation. ture of applications granted are would be a lower priority by most Total revenue estimated 1999/ provided in the notes annexed to Governments, now, as a target for ei­ 2000 - $1427 million the submission. ther "add-on" charges or as the ulti­ Levy oflO% = $142.70 million 8. The holding offunds mate source of funds, in any event. (li) Levy as imposed on matters I propose that the legislative scheme It is expected that gambling rev­ charged under the Stamps Act provide that the whole of the monies enue is likely to continue its upward 1958 (As Amended) legislation. annually be diverted, from the time of surge in the State and not merely be­ Total revenue estimated 1999/ the imposition and collection of the cause the number of EGMs ap­ 2000 - $1254 million. levy, to an independent Legal Aid proaches the current ceiling of 27,000 Levy of 10% = $125.4 million Board. machines, but because of factors re­ (iii) Levy as imposed on road trans­ It is considered that the current ferred to in the "Financial Report for port registration and third party administrative structure of Victoria the State of Victoria 1998-99" re­ charges and fees. Legal Aid is adequate for this pur­ leased by the Bracks government in Total revenue motor vehicle pose. November 1999. This report claims taxes (including stamp duty) es­ 9. The reasons for these new proposals that the increasing revenue of EGMs timated 1999/2000 - $884 mil­ The reasons for the adoption of the was principally due to more intensive lion. proposed scheme are in short: use of machines, the introduction of Levy of 10% = $88.4 million • Reduction of numbers of adjourn­ bill-accepting machines, the retire­ (iv) Levy as imposed as an add-on in ments seeking clarification of fund­ ment of less popular machines and the payroll tax legislation area. ing entitlements. the extension of operating hours by a Total revenue estimated 1999/ • Reduction of uncertainty over legal number of a venues. The trend is ex­ 2000 - $2.231 million. aid entitlements. pected to continue. Levy of 10% = $223 million • Reduction of burdens on Courts, Revenue from motor vehicle taxes (v) Expenditure to "case related" post Dietrich (including the judge increases have not been as significant professional payments by the being judge and advocate, fewer ap­ as for gambling taxes. An increase as LAC and the Board from 1995/ peals, appeal points and Crimes Act an add-on to motor charges might be 1996 onwards has been as fol­ s.360A applications founded on thought to be more likely to upset the lows: Dietrich arguments). motoring public where in addition 1995/1996 - $51.8 million • Savings of time and costs at trial there is now a fixed charge ($140) for 1996/1997 - $44.5 million and on appeal, and fewer trials. registration for vehicles under three 1997/1998 - $32.6 million • Potential to avoid longer hearings tonnes. 1998/1999 - N/A where there is no legal representa­ 6. Preferred legislation Comments: tion. Amending legislation to the Gambling (a) If a levy was imposed (and rev­ • Greater certainty in the short, me­ Act or the Stamps Act, or new legisla­ enue collected) in the above dium and longer term. tion to draw on safety net revenues to ways, they would achieve effec­ • Increase in numbers of persons provide for the charge to be out of the tive use of revenue from taxpay­ granted assistance. revenue collected, is likely to be re­ ers and as a small percentage • Potential to end the inevitable fed­ garded as more politically acceptable, only of the total consolidated re­ eral feuding over responsibility for than any other mechanism. ceipts. legal aid funding in respect of mat­ The driving raison d'etre for the According to the current fi­ ters arising under Commonwealth choice of revenue resource is the nancial documents (referred to laws especially of family law mat­ need to provide a sufficient fund, be- above) the total revenue col- ters.

36 10. Other benefits - economic and po­ ANNEXURE TO SUBMISSION further Commonwealth legal aid funds, litical Notes: cannot be spent on State matters. These include: 1. The figures concerning State finances are (ii) Roughly two-thirds of all legal aid work drawn from the following papers: is handled by private practitioners, the • Avoidence of any allegation of po­ balance in house. litical bias. o 1999/2000 Victorian Government Budget Papers Nos 1, 2 and 3 and Budget A sununary of cases handled from • Attaining an appropriate level of Overview. 1993/1994 (save for the most recent acceptance in the community. o 1998/1999 Victorian Government Budget year pending publication of an Annual • Maintaining employment at current Papers Nos 1, 2 and 3, Budget Overview, Report) is thus: levels, both within the VLA and in "A Guide to the Budget Papers", 1993/ 1994/ 1995/ 1996/ 1997/ 1998/ areas of practice by independent "Improving Budget Information", 1994 1995 1996 1997 1998 1999 "Managing the Full Cost of Government practitioners (including represen­ Private Practitioners Service Provision", "Introducing tation and advice work). 24,141 28,146 27,815 23,414 21,328 NlA Conventional Financial Statements and Direct Assistance • According to economic theory, $1 Financial Report for the State of Victoria" 9,424 10,948 10,466 8,865 10,486 N/A spent on staff, rental, equipment, presented to the Parliament of Victoria, Total 33,665 39,094 38,361 32,279 31,814 NlA 10 November 1999 by the Honourable library etc. returns $5. (iii) A sununary of picture of VLA total Steve Bracks MLA, Treasurer and the • Going hand in hand with reforms in revenue, cf. total expenditure 19931 Honourable J Brurnby MA, Minister for trial processes including in the civil 1994 to 1997/1998 is thus: Finance, Assistant Treasurer and ordered area greater acceptance and adop­ to be printed November 1999. Dollars in 'ODD's tion of mediation procedures. o 1997/1998 Victorian Government Budget 1993/ 1994/ 1995/ 1996/ 1997/ 1998/ 11. Other reforms of the legal system Papers Nos 1, 2 and 3. 1994 1995 1996 1997 1998 1999 It is necessary for legal reform and o 1996/1997 Victorian Government Budget Revenue for improvements and efficiencies to Papers Nos 1, 2 and 3. 86,639 79,337 82,798 79,096 70,729 N/A 2. The facts and figures concerning Victoria Expenditure occur across the legal system. 70,976 80,041 84,631 75,800 66,727 NlA Legal Aid are drawn from the VLA Annual There are many current initiatives, Surplus/Deficit Reports 1995/1996, 1996/1997 and 19971 9,663 (704) (1,833) 3,296 4,002 NlA in these areas, some of the most sig­ 1998. nificant of which have been instituted At the time of writing the 1998/1999 (iv) Gross expenditure by VLA on legal aid by the courts themselves. Annual Report had not been published. on the five years to the end of 19951 The court system continues to re­ 3. The following facts and figures are relevant 1996 was $181M. main attractive for resolution of legal to the overall position of legal aid in Victoria: (v) The incidence of the use of Crimes Act (i) With the (notified) termination by (Vic) s.360A to seek orders to compel disputes for many thousands of peo­ the Commonwealth Attorney-General VLA to offer legal assistance has been, ple. So it should be. of Commonwealth/State legal aid in 1997/98, 37 applications, 23 orders. It does reflect a great deal of confi­ agreements, on 30 June 1997, It is regarded as a useful safety valve. It dence in the underlying legal system. Commonwealth grants to the VLA is not a panacea, however. This is not to say that improve­ are solely to be expended on (vi) In 1997-98 a little over 70% of legally ments cannot occur. Commonwealth matters post 1 July assisted clients were on social service 1997. benefits. The balance of assisted clients Mediation is appropriate in the As from 1 July 1998 VLA placed derived no income at all. civil area whilst "plea bargaining" is (unexpected) surpluses of Common­ (vii) In the five years to March 1996, 70% accepted in the criminal area. wealth aid previously granted to it, into of VLA case-related professional 12. Conclusion reserves for accrued matters payments were spent on the 20% most The early intervention of properly concerning Commonwealth aid. (This expensive cases. In 1997/1998 the has been done with the consent of the figure was 61 % spent on 20% of the qualified and funded legal repre­ Commonwealth; such aid and any sentatives in the judicial process (in­ most expensive cases. cluding VLA staff) generally, can often achieve a speedier and more ef­ A POSTSCRIPT ficient result: this would bring greater A reply to this submission (concerning levy suggested on stamp duty and gam­ satisfaction to clients also. Problems State sources of funding) was received in bling would be selective and may not be arising from Dietrich also must be early February from the State Attorney­ "equitable, progressive and conducive to overcome. Current funding arrange­ General. economic growth." ments are not inclusive. The system Coincidentally it arrived on the eve of The writer has forwarded a lengthy remains bedevilled by the problems the announcement from Canberra of the reply to the Attorney drawing attention outlined in the synopsis. The adop­ grant by the Commonwealth to the to the fact that the mechanism of the tion of the current scheme could lead States of $63 M for legal aid funding to levy was but one device suggested, that to the better running of the State. the States. sources do exist particularly in those de­ The Attorney's reply firstly drew at­ rived from electronic gaming machines ADDENDUM tention to the need for the restoration of (EGMs) (where State budgets have been 1. The author has no pecuniary interest in VLA the Commonwealth commitment to the greatly exceeded) (further references work. provision of legal aid on a co-operative are provided) further, that employment 2. The views, the text and the inspiration for basis as a matter of the highest priority. exists also in the legal sector both pri­ the article are the author's own. The text The reply suggested that the proposal to vate and public, further that the Govern­ was vetted by none. It is a copy of a letter made by him as impose a levy did not address the more ment itself does not see increases in Counsel at the Victorian Bar, to the pressing issue of the current level of WorkCover premiums as a burden upon Treasurer of Victoria, The Honourable Steve Commonwealth legal aid funding. the economy and (thus) that the writer's Bracks, in late November 1999. The Attorney put secondly that the thesis stands.

37 -

News and Views Identifying the Truly Good and Making It Truly Common Homily Preached by Bishop Denis Hart, Annual Red Mass, St Patrick's Cathedral, Melbourne 31 January 2000

Dear Friends,

s we offer Mass to seek the guid­ ance of the Holy Spirit upon the Apractice of the law, let us reflect on the service which we give. It's a truism, of course, that law exists to serve the common good. What's not so clear is what is meant by "the common good". Christians, at their best, are great defenders of human rights, basic liberties and equality - ideas the Christian Church gave to the world - but we have to ensure the values we uphold are the right ones and not just a reflection of our own wishes or current fads and fashions. So how do we work out complex notions like the common good? At a time when lawyers are under increasing pressure to commoditise their services - putting stress on the concept of legal service as has been previously understood - how do we go about identifying what is truly good for our community? The answer was provided by St Thomas Aquinas­ who invented our concept of the com­ mon good - and has recently been confirmed by Pope John Paul: by faith and by reason. The Pope chose to celebrate the 20th anniversary of his pontificate with an encyclical on faith and reason. Having tackled in the past such subjects as com­ munism and capitalism, employment and workers' rights, the defence of human life and third world poverty, the Pope now moves to the most important topic of all - appealing to Catholics to use Bishop Denis Hart their intelligence in matters of faith and morality. Sadly, young people are often solemn duty on professionals serving the without reason tends towards supersti­ advised that morality and faith are sim­ community to train themselves in mature tion, emotional self-indulgence and pri­ ply a matter of having good feelings, feel­ reflection on public affairs and wariness vate intuitions. Reason and faith are ing "at one" with oneself, doing what of easy and popular options. inseparable. We believe that human rea­ comes naturally and so on. In the face of Of course, the Pope does not counsel son is wounded and weakened by origi­ this anti-intellectualism the Pope replies that we should use intelligence as an al­ nal sin: part of the meaning of the 'Fall of that nothing except hard, cold truth can ternative to faith . The position of the man' is that we cannot rely on our own satisfy something as noble as the human Catholic Church has always been that intelligence for all the answers but must spirit: a big heart and good will are not reason without faith tends towards unre­ humbly turn to the Scriptures and the enough. Morality is not acting out of kind strained self-interest, current fashions tradition of Church teaching from the feelings, for these can mislead: there is a and private satisfactions - just as faith early Fathers to the recent Magisterium.

38 Critics sometimes describe this as "giv­ They then call themselves "agnostic" or area? And finally there is prayer, in par­ ing up on" our intelligence; in fact, it is "atheist" and fill the void with one of the ticular prayer for guidance from the Holy just the reverse. We turn to our faith be­ other counterfeit truths available on the Spirit. The traditional gifts of the Spirit cause it gives intelligent answers which marketplace of lifestyles on offer in con­ include wisdom, counsel, understanding intelligence by itself could not provide; temporary Australia. This is an absolute and knowledge as well as courage, piety we do not abandon intelligence when we tragedy when it occurs - for the indi­ and fear of the Lord. Thus the Holy Spirit pay attention to God's voice we extend vidual and for the Church. The Pope uplifts and supports the mind, as well as its scope. hopes that in the Church of the new mil­ strengthening the character. It is these You might ask: but is it not possible to lennium professional Catholics will work gifts of clear mind and righteous charac­ leave faith for Sunday Mass and private at faith development and build an adult ter which will keep Christian profession­ life and just get on with our everyday faith which will grow as they grow and so als committed to the service of their work? Some try to do this: we all know feed all areas of their lives. brothers and sisters amidst the demands Of course, this idea of marrying intel­ of their daily work. ligence to faith is not new. From its When confronted with a beginnings Christianity was never a fun­ notion like the common damentalist, closed-minded cult but a public religion offering rational accounts good, the Church of creation, salvation and morality - recommends that we first accounts which can hold their own think deeply about what against all other theories and traditions. Catholic professionals should take ad­ Specialising in: is truly good and how it vantage of the full riches of the Church: • Corporate can be made truly after all, the clear and rational account of • Weddings common. human life she promotes is at the basis of much of our law, politics and general • Engagements people who are at the pinnacle of their ethics. • Spe .al Events particular profession but who on the So when confronted with a notion like • All as ects pf level of faith development are like chil­ the common good, the Church recom­ dren. Very senior public figures in poli­ mends that we first think deeply about tics, science, art, business etc. may never what is truly good and how it can be read a theological book, take a course, or made truly common, available to all; think about the religious implications of then, once we have thought for ourselves their lives. The result is that their reli­ and perhaps consulted expert writers in gious development can remain stunted, philosophy, jurisprudence, politics and at the Santa Claus level, even as their so on, we should ask: "and what does the Phone orders credit cards are professional responsibilities and honours faith hold about the common good?" welcome. increase. These people tend eventually What view of law and human happiness Shop 9/121 William Street, to abandon what has remained for them is revealed in the Scriptures, especially Melbourne Vic. 3000. a childish religion: it has not kept up with in the Gospels. What has the Church tra­ Phone: (03) 9629 4263, developments in other areas of their ditionally taught here? What recent (03) 9629 3861 lives, so it is immature and embarrassing. Church documents have appeared in this Conference Update

1-6 April 2000: Hong Kong. Section on cific Association 2000, British Columbia: 633 131 , Fax: (02) 4232 4962, E-mail: Energy and Resources Law Conference. Tel: 604 681 5226, Fax: 604 681 2503. [email protected], Website: www. Contact IBA. 30 April-4 May 2000: Vancouver. In­ uncon-conv.com. 10-14 April 2000: Nicosia, Cyprus. In­ ter-Pacific Bar Association Annual Con­ July 2000: New York. Australian Bar ternational Law Conference. Contact: ference. Contact: Jim Fitzsimmons: Tel: Association Conference. Contact: Dan Options Congresses Ltd: Tel: 3572 31 (02) 9353 4199, Fax: (02) 9251 7832. O'Connor, Australian Bar: Tel: (07) 3236 8688, Fax: 357231 8680. 11-12 May 2000: Potts Points, Sydney. 2477, Fax: (07) 3236 1180. 22-28 April 2000: Venice, Italy. Pacific Third National Gambling Conference. 14-16 July 2000: Darwin. Eighteenth Legal Conference. Contact: Rosana Contact: Conference Co-ordinators: Tel: Australian Institute of Judicial Adminis­ Farfaglia: Tel: (07) 3236 2601, Fax: (07) (02) 6292 9000, Fax: (02) 6292 9002. tration Annual Conference. Contact; 33584196. 25 June-l July 2000: Juneau, Alaska. Complete Conferences: Tel: (08) 8985 28 April-2 May 2000: Vancouver. Legal Conference for Australian practi­ 1909, Fax: (08) 89483566. Tenth Annual Meeting of the Inter-Pa­ tioners in association with the Alaska cific Bar Association. Contact: Inter-Pa- Bar. Contact Margot Cunich: Tel: 1800

39 News and Views 1999 Women Barristers' Association Annual Dinner

Welcome Speech by the Convenor, Ms Pamela Tate

On 2 December 1999 the OUR Honours, Attorney-General, greater concern that she will not be a Shadow Attorney-General, hon­ "safe" choice. Women Barristers' Association Youred guests, colleagues and The report suggested that while so­ held a well-attended and very friends - on behalf of the Women Bar­ licitors may be willing to brief a man on risters' Association of the Victorian Bar, the basis of a small amount of informa­ successful annual dinner. The welcome to our annual dinner for 1999. tion (where he did his articles and whom newly appointed Attorney­ The focus of the efforts of WBA over he read with) they require much greater General, The Hon. Rob Hulls the last year has been the implementa­ assurance in the case of a woman to tion of the recommendations in the re­ overcome this greater sense of risk. Es­ MLA, spoke briefly, declaring port, Equality oj Opportunity Jor pecially in areas of the law in which that he and his Government are Women at the Victorian Bar. There are women have not traditionally practised, two particular objectives which WBA has solicitors require special assurance about committed to ensuring that pursued. a woman before they brief her because women have greater The first objective is to eliminate they, or their clients, make stereotypical gender-bias in briefing practices - one assumptions about the unwillingness or representation in judicial of the many concrete and positive ways incapacity of women to cross-examine or appointments at all levels. in which we are seeking to achieve this is to run trials before a jury. He said that the Government by assisting the Bar Council to establish Ultimately, of course, the assurance an internet-based directory of women the solicitors need can only be met by would seek to achieve this barristers. demonstrated performance. But the objective by providing women The second objective is to increase need to obtain greater assurance before the representation of women at the cen­ briefing a woman stands as a barrier to with better access to tral level of decision-making within the equality of opportunity. government-generated work Bar - we want the Bar as an institution The establishment of the directory is to include women as part of the main­ one, albeit small, way in which the exten­ and by encouraging more stream - not to leave women barristers, sive information the solicitors tell us they women barristers to apply for in the words of our guest speaker, "run­ need can be provided. The directory will silk and for judicial positions. ning on the edge". contain not only the usual contact details The directory is a measure which car­ and nominated areas of practice but a The dinner guests were then ries the support of the solicitor side of more substantial description of the wom­ the profession. When asked why women an's proven fields of practice including welcomed by WBA's Convenor, do not get briefed for appearance work cases in which the woman has appeared, Ms. Pamela Tate, and addressed in proportion to their numbers at the Bar whom she has worked with, her relevant or briefed in non-traditional areas, the history before the Bar, and those areas of by the guest speaker, The solicitors respond in two ways - either law in which she would like to practise Honourable Justice Catherine they say that they do not know any but has not yet done so. The aim is to women who practise in their area or, just provide a reliable and informative direc­ Branson. An edited text of the as importantly, they do not know enough tory for solicitors - one which gives welcome speech and the full about the women to assess their suitabil­ them the equivalent information they text of her Honour's speech are ity. Some solicitors also concede that, more readily obtain in other ways about when they brief a barrister for the first male barristers. It is intended that the di­ set out following. time, while they hope the barrister will rectory will be launched jointly by the be good they are also concerned that the Bar Council and the Law Institute in barrister will be at least "safe". Some of about March or April 2000. them admit that briefing a woman is seen WBA has also made efforts towards as carrying with it a · greater risk, a the second objective - that of increas-

40 ing the representation of women in deci­ essary for WBA to promote the introduc­ real problem lay in the form of participa­ sion-making roles at the Bar. While two tion of special measures for women, or tion currently experienced by women at women have now been appointed to Bar­ targets, as part of the voting process for the Bar. It suggested that the experience risters' Chambers Limited, no woman Bar Council - to ensure that women are of women at the Bar was, in general was returned in the recent elections to properly represented - and their inter­ terms, quite different from the form of the senior category of Bar Council. Only ests respected and reflected in the insti­ participation enjoyed by male barristers. one woman has ever been elected to the tution. Women were briefed to appear princi­ senior category of the Bar Council in the The report showed that it was a fal­ pally in very short matters - half a day history of the Victorian Bar despite the lacy to assume that equality of opportu­ to a day being not uncommon; they were fact that over the years almost all of the nity would be brought about as an not regularly briefed to appear in trials, leading women counsel at the Bar have inevitable consequence of the lapse of especially common law or criminal jury stood for election in that category. In time. It concluded that it would be wrong trials, and in order to argue an appeal those circumstances it is reasonable to to believe that as time wore on more they had to have considerably more sen­ infer that there may be a perception women would arrive at the Bar in greater iority than their male opponents. within the community of barristers at numbers and be seamlessly assimilated The report also suggested that there large, that, in general, women are not into its ways until women no longer was much greater social inclusion for suitable for leadership positions. If that formed a minority. men at the Bar - and junior male barris­ prejudice does exist then it may be nec- What the report indicated was that a ters had in general a greater sense of

Directory of Women Barristers Pamela Tate, Convenor, Women Barristers' Association

HE principal focus of they are willing to brief men on the basis election of women to the Bar Council Women Barristers' Association of information provided by traditional and was able to congratulate four T ("WBA") over the last twelve male networks or by reason of the women on their electoral success. Un­ months has been the implementation recommendation of a more senior male fortunately, no woman was elected to of the recommendations made in the barrister. The directory is aimed at rem­ the Senior Category of Bar Council report, Equality oj Opportunity jor edying this problem. despite three women standing who Women at the Victorian Bar. A criti­ The information to be provided by clearly deserved support. Only one cal recommendation of that report those women who choose to participate woman has ever been elected to the was the establishment of a directory in the directory will include not only the Senior Category in the history of the of women barristers. The Bar Council usual contact details and areas of prac­ Victorian Bar. Women continue to be has agreed to fund an internet-based tice but a more substantial description of unrepresented at the highest levels of directory of women barristers. The In­ the woman's proven areas of practice decision making at the Victorian Bar. ternet has been chosen because it al­ and cases in which the woman has ap­ lows for easy up-dating of information peared. This information will be sharply COURT PRACTICE and because links can be made to the distinguished from the "wish-list" areas WBA has also secured the endorse­ website for the Victorian Bar and to in which an individual woman may seek ment of the Bar Council in principle each of the clerks' respective to practise. The aim is to provide a direc­ for two proposals relating to court websites. tory upon which solicitors can rely as practice. The first proposal is that The report concluded that solici­ giving them the equivalent information court hours not be extended beyond tors lack information about women they readily obtain in other ways about 4: 15 p.m. without sufficient warning who are at the Bar and that this is one male barristers. and an opportunity given to counsel of the reasons why women tend not to The directory has the support of the to rearrange his or her child care com­ be briefed for appearance work (espe­ Law Institute of Victoria and will be mitments. The second proposal is that cially jury trial work) in proportion to launched by the Bar Council jointly with when barristers are addressed at the their numbers at the Bar. This conclu­ the Law Institute. A letter commending Bar table as a group they be referred sion has been confirmed by observa­ the directory has been sent by the Chair­ to by the gender-neutral expression tions made by solicitors either that man of the Bar Council, David Curtain "counsel". This would remove the they do not know any women in their QC, to all women at the Victorian Bar to­ awkwardness for a judge of saying area of practice or they do not know gether with a questionnaire. WBA hopes "gentleman and lady" when there is enough about their suitability and ex­ that a high degree of participation in the only one woman at the Bar table or in­ perience to brief them. Unfortunately, directory, at all levels of seniority, will appropriately using "gentlemen" to briefing women is seen as carrying a make it a useful and comprehensive re­ cover all barristers, male and female. "risk" factor and solicitors are unwill­ source. Of course, if addressed individually a ing to accept that risk unless it is barrister would still be referred to by overcome by demonstrated perform­ BAR COUNCIL ELECTIONS his or her proper name. ance. By comparison, solicitors say Earlier this year WBA promoted the

41 identification with the institution and a tices and changes to the role women play experienced by women in the profession greater sense of belonging. in the institution - the number of - will not lead to genuine equality of op­ The report concluded that unless women at the Bar will not reach the criti­ portunity. It is an aim of WBA to take there are changes to thejorm ojpartici­ cal mass necessary for women no longer steps which will have positive, real and pation women experience at the Bar - to form a minority. Time alone - with­ permanent effects upon the experience both in terms of changes to briefing prac- out a change in the form of participation of women at the Bar.

Women Lawyers - or Lawyers Who Are Women? The Honourable Justice Catherine Branson

N September 1997 when Justice Mary Gaudron spoke at the launch of Aus­ I tralian Women Lawyers (AWL) she said that she saw the association as the beginning of a new era for women and for women lawyers - "an era in which people realise that equality, equal rights and equality of opportunity are complex ideas, difficult to implement and achiev­ able only by the sustained efforts of those committed to those ideals." It is wonderful to be able to open my address tonight by acknowledging that in the two years since Her Honour spoke the sustained efforts of some of those of whom Her Honour spoke have resulted in some notable achievements. (a) The jurisdiction to which we feel most close, New Zealand, now has a Chief Justice who is a woman. Inci­ dentally it is also country which only last weekend held a national elec­ tion in which each of the major par­ ties was led by a woman. With a change of government a Prime Min­ ister who was a woman was suc­ ceeded by a Prime Minister who was a woman. (b) It has recently been announced that Madame Justice Beverley McLaughlin will become Chief Jus­ tice of Canada early next year when the present Chief Justice retires. It is noteworthy that a third of the nine judges of the Supreme Court of Canada are women. Two of the Pro­ vincial Courts of Appeal in Canada (those of Alberta and British Colum­ bia) are comprised of a (slim) major­ ity of women if supernumeraries are ignored. The number of federally ap­ pointed judges in Canada who are women is close to 33% if supernu­ meraries are disregarded. In Canada the Federal Government appoints not only the judges of the Supreme Court, the Federal Court and the Tax Court of Canada, but also the Justice Catherine Branson

42 judges of the Superior Courts of the President of the Australian Institute freedom to be an honorary man or alterna­ Provinces. of Judicial Administration. tively an outsider, is a freedom that few I recently spent a few days with Those of us whose nostalgia is the 60s women aspire to. may fairly, I think, hum the Dylan re­ the Superior Court of Justice of On­ The topics that I would like to say a frains "the times they are a-changing". tario in Toronto. It was heartening little about tonight are: But as Justice Gaudron has reminded to be shown figures that demon­ (a) practicing law and having a life as us - we should not be lured into com­ strate that although the overall gen­ well der distribution for judges of that placency. It is easy to let the achieve­ (b) the way in which merit in the law is Court in the Toronto region is 26% ments of a small number of high profile assessed women distract attention from structural female and 74% male, the gender (c) the structures of governance of legal disadvantage affecting the majority of distribution of the most recent 20 organisations. women. It is plain that such problems re­ appointments is 45% female and Before I turn to the topics individu­ main. They are revealed, for example, by 55% male. Incidentally, the figures ally, it is worth noting that none of them the small numbers of female applicants also show some interesting age and touches on an issue of exclusive interest for silk in this State and elsewhere in gender statistics. The data for the 20 to women - although for cultural and most recent appointments reveal Australia. other reasons they may, in a practical So accepting that we are starting to that the average male judge was sense, influence women's achievements see signs of improvement, what are the 53.6 years of age on appointment more than men's achievements. It was, I whereas the average age on appoint­ think, at the launch of the valuable re­ ment of a female judge was 46.8 port commissioned by the Victorian Bar years of age. However, the average Properly understood, Council Equality oj Opportunity jor age of the 20 most senior judges at Women at the Victorian Bar that the date that they were appointed feminist issues are issues of Katherine Walters described women as was 46 years of age. That is, at least the caged canaries of the workforce: if in that court, it is not that women broad and enduring social importance. Their pursuit things are bad in the workplace they will are being appointed at an unusually leave it first. young age. Rather the men ap­ does not mark us out as There is, of course, nothing new in pointed between 1995 and 1999 women pushing for changes that ulti­ were on average 13 years older than something less than full lawyers, that is, a subgroup mately prove to benefit men, as well as the (almost exclusively male) judges women. It is, it seems to me, one of the who were appointed between 1966 comprised of women abiding strengths of feminism that, as it and 1990. It would be an interesting has freed women from the constraints of exercise to work out the reason for lawyers. laws and social conventions that stereo­ this. crucial issues now facing an organisation typed them and limited their opportuni­ (c) Many of you will know that as of last such as yours? May I say first, that I hope ties, it has provided men with a similar week New South Wales has a Presi­ that you will continue to be a source of freedom to challenge traditional think­ dent of the Bar Association who is a information and advice to the Federal ing. woman (Ruth McColl SC) and a Court and to other courts. The Chief Jus­ That is, to touch on the theme of this President of the Law Society who is tice and the other judges of the Federal address, women should not be con­ a woman (Margaret Hole). Lindy Court value your input into our endeav­ cerned that they are adopting what is Powell QC has just completed her ours to promote equality within the sometimes described as the "ghetto" ap­ term as President of the Law Society Court, not only for litigants but also for proach by pursuing feminist issues. of SA (a body which represents so­ practitioners and indeed our own staff. Properly understood, feminist issues are licitors and barristers). The Presi­ But more generally, which issues de­ issues of broad and enduring social im­ dent-Elect of the Law Council of serve pursuing? I do not presume to be portance. Their pursuit does not mark us Australia is Anne Trimmer of Dea­ able to offer a comprehensive list of out as something less than full lawyers, cons, Graham and James, Canberra. things that might be deserving of your that is, a subgroup comprised of women (d) Justice Mahler Pearlman, Chief attention - but I will mention a few lawyers; they are issues that many Judge of the Land and Environment things that it seems to me might be well thoughtful lawyers, including those of us Court of New South Wales is no worth pursuing. who happen to be women, see as impor­ longer the only female head of juris­ Each of them in a way picks up Jus­ tant not only for ourselves but for our diction in this country. Justice tice Gaudron's message at the launch of profession and our increasingly diverse Margaret McMurdo is President of AWL - "Go to it - go be yourselves". society. the Queensland Court of Appeal, Her Honour was by that message touch­ Judge Patsy Wolfe is Chief Judge of ing on a similar issue to that which I PRACTISING LAW AND HAVING the District Court of Queensland, touched upon when I delivered the 1995 A LIFE AS WELL Patricia Staunton is Chief Magistrate Mitchell Oration. At the time I said: of NSW and Diane Fingleton is Chief The NSW Law Society is to be applauded Magistrate of Queensland. There is no genuine equal opportunity in al­ in having recently taken action to em­ (e) The number of women silks contin­ lowing women to enter traditionally male in­ phasise the need for lawyers to "get a ues to increase, albeit only slowly. stitutions - but only on the basis that the life". Curiously, whilst there is increasing (f) Many of you will know that I am mid­ values of such establishments, and the way community recognition of the desirability way through a two-year term as they are run, are to remain unchanged. The of judges having a life, in the sense of

43 actively participating in the activities of have just mentioned do not, of course, there appears to be between the Univer­ the corrununity which we serve, surpris­ impact only on lawyers who happen to sities' assessments of the respective ingly little has been said about the need be women. They impact on all lawyers - merits of law students, and the assess­ for lawyers to do the same. If one cannot and particularly young lawyers. But we ments made of the merits of the same in­ judge well a cause which one doesn't un­ know that disproportionately it is women dividuals as legal practitioners a few derstand, it might be thought to follow who feel the conflict between personal years later. This is the case for both men that one will not advocate well a cause and professional demands, women who and women but it is particularly remark­ one doesn't understand. assume principal responsibility for do­ able that whilst women now dominate The problem seems to be the conflict, mestic matters, women who will first Law School'S prize lists, their legal ca­ or at least the perceived conflict, be­ leave an antagonistic workplace - even pacities are apparently not being com­ tween sensible lifestyles and financial though in the long run it may be disad­ mensurately recognised by law firms. success. Whilst the making by the part­ vantageous to their careers to do so. It seems to be widely accepted these ners of legal firms and the big name bar­ It seems to me that it will be to the days that to achieve senior partner sta­ risters of large sums of money is not advantage of virtually everyone if women tus in a law firm of any size one needs necessarily a bad thing, the increasing high-level marketing skills - but not trend towards making the lives of young necessarily high-level professional skills . legal practitioners lives of almost total . . . it is particularly One needs to be willing, as the saying commitment to the workplace, and the remarkable that whilst goes, to "put one's liver on the line for generation of billable hours is, it seems the firm". I do not want to suggest that to me, a bad thing. How is time to be women now dominate Law marketing a legal firm is not important - found by these young legal practitioners School's prize lists, their in the modern world it is probably cru­ for family and other personal relation­ legal capacities are cial. But ought it to be the only, or even ships, for culture, for travel, for social the principal, measure of a lawyer's value service, for physical exercise - in short apparently not being to his or her firm? What about the capac­ for the development of healthy, well-bal­ commensurately ity to deliver in a professional way the anced lives? recognised by law firms. services that clients require from legal More than that, why would anyone firms? This might well be thought to sug­ think that young legal practitioners, iso­ within the legal profession were to take a gest that value should be being placed lated in this way from the corrununity lead in challenging the increasing and not only on intellectual capacity (al­ that they are ultimately asked to serve, excessive corrunercialisation of our pro­ though value should surely be placed on will know and understand the values and fession. Increasing recognition of the im­ intellectual capacity) but also, amongst aspirations of the many segments of that portance of maintaining the law as a other things, on diversity of experience, diverse society. liberal profession and not a mere busi­ on thoughtfulness and on the capacity to The issue also has an ethical dimen­ ness, and the concomitant desirability of empathise with clients. Ought not a first­ sion. Chief Justice Gleeson in an address lawyers having a life outside the law, all, rate legal firm seek to achieve a mix of to the NSW Women Lawyers recently is­ of course, assist lawyers who are women. skills amongst its most senior members sued a reminder that lawyers have im­ But as the Chief Justice of Australia has so that, whilst some may achieve great­ portant ethical obligations derived from reminded us, such recognition also has a ness through a capacity to market the the role that they play in the administra­ more general social value. firm, others may achieve equal status tion of justice. His Honour said: through their capacity to service the THE ASSESSMENT OF MERIT IN needs of clients once they have been at­ These obligations, in a variety of ways, are THE LAW supposed to temper their selfish pursuit of tracted to the firm? Again this is not a purely women's is­ economic success. Current developments in I have on another occasion, in a talk will sue. It is an issue of profound signifi­ relation to professional behaviour, discipline which I think a number of you have and organisation, driven to a large extent by read, addressed the issue of the assess­ cance to the law generally. But while the decision making among the major clients the demands of competition policy, present ment of merit for judicial appointment. of legal firms continues to be dominated some challenges to this theory. The real problem with the assessment of merit in the law is not, it seems to me, by men, and while lawyers who are It might, I think, fairly be said that one of how you measure merit but rather women, disproportionately to lawyers ever-increasing pressures of a materialis­ one of how you define it; that is, of work­ who are men, carry responsibilities tic kind are adding to the ethical chal­ ing out what it is that you really want to which make it unrealistic for them to lenges facing the legal profession. assess. "put their livers on the line", women as a Challenges such as not encouraging un­ Tonight I would like to say a little group will not compete equally with men necessary or merely tactical litigation, about the assessment of merit in the as marketers of legal services. It is, it not running up unwarranted billable practising profession. It is a topic which seems to me, a legitimate and valuable hours and not charging the client in a is closely connected with the trend to issue for women to pursue. way which generates profit from ineffi­ corrunercialise the legal profession. Al­ ciency or inexperience. The decision of though I will talk about merit assessment GOVERNANCE OF LEGAL the NSW Court of Appeal in Law Society in firms of solicitors, as that is the area ORGANISATIONS oj NSW v. Foreman (1994) 34 NSWLR where I think that the problem can be This is, I know, an issue of irrunediate 408 at 435-8 makes most interesting seen most starkly, there are, no doubt, concern to this group. reading in this regard. parallel problems at the Bar. Women are increasingly assuming The problems and challenges that I It is striking how little correlation leadership roles in legal organisations

44 but the numbers overall are still not high. organisations, a fair proportion of whom sentation of women in important areas of Also my impression is that a significant will be women, simply cannot devote legal practice and the judiciary - not number of these women are either single that much time to a commitment outside because women should have a larger or, if they are not, they do not have their day jobs. They will be responsibly share of the spoils of legal practice, but school age or younger children. seeking to maintain a life! because they have the potential to im­ As President of the AlJA, I have re­ I expect the Board of Management of prove the law and the administration of cently had occasion to consider the the AIJA to recommend a change to the justice. structure of governance of that organisa­ rules of the Institute which will have the I agree with everything that her Hon­ tion and, because I wanted to consider effect of allowing a person to assume our said in this regard. Few would now options for change, other legal organisa­ leadership of the Institute without nec­ debate that the capacity of the law to en­ tions. What that consideration revealed essarily devoting nearly a decade to the sure equal justice to all has been en­ was that those who aspire to leadership work of the organisation. It would, I hanced by the increasing involvement of roles in legal organisations require a high think, be very desirable for other legal women in its teaching, its practice and degree of staying power. Within the AlJA organisations to give consideration to its administration. Experience shows, it as its governance is presently structured, whether their governance structures do seems to me, that, generally speaking, it is unrealistic to aspire to be President not make it unnecessarily difficult for this is best achieved not by establishing unless you are willing to devote at least many lawyers, including a good number special rules for women lawyers but by eight years to service on the AlJA Coun­ of women lawyers, to aspire to leader­ questioning in a more general way prac­ cil. For an umbrella organisation like the ship positions within those organisations. tices and organisational rules which tend Law Council of Australia, the position is to discourage diversity of all kinds by probably worse. To achieve a leadership CLOSE giving unwarranted legitimacy in the law position in that body you need first to In closing I wish to return to Justice to a particular style of person, a particu­ climb the leadership ladder of a constitu­ Gaudron's address to the Australian lar choice of lifestyle and a particular at­ ent body such as a State Law Society or Women Lawyers. She welcomed the for­ titude to professionalism. Bar Council (and this, of itself, may take mation of AWL as an acknowledgment by Lawyers who happen to be women, I a good number of years) and then move women lawyers of their difference and suggest, may well be the lawyers who to a junior position on the Executive of their right to be so. She saw it further as can provide leadership in the profession the Law Council before you can com­ an implicit demand that the legal profes­ by raising these questions - and hope­ mence the climb to President. Many law­ sion take stock of itself and the practices fully in helping in the identification of yers with much to contribute to legal which have resulted in the under-repre- the right answers.

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45 News and Views Debt Collection 403

The following strategems are offered to my brothers and sisters in these hard economic times. They have a 100% strike rate and are less "messy" than litigating against solicitors. I am not troubled about litigating against solicitors. My problem is I feel the lay public should be required to pay to enjoy the spectacle of one lawyer suing another. Such enjoyable entertainment should be handsomely rewarding to the author of the amusement - the counsel forced to sue for fees owing. Another potential difficulty is the comparison of the litigious barrister with the domestic canine which attacks livestock. On the basis that such dogs develop a taste for blood they are ''put down" lest they freely indulge their newly acquired taste. While the idea of the reduced competitionjlowingfrom the ''putting down" of barristers has some appeal it is not a practice I wish to promote.

1. What sort of dumb solicitor purports jury necessary to mulct his bank of upon enquiry by him of your firm he to pay fees with a trust account enormous damages. In my co-opera­ was informed that $1000 of this out­ cheque that is subsequently dishon­ tive helpfulness I even offered to be a standing fee had been paid. I hold oured? witness in the court case to tell the your firm responsible for falsely mis­ This was quite some time ago (dur­ sympathetic jury of the low regard in informing my clerk that any moneys ing my reading period) and my pupil­ which drawers of dishonoured trust in respect of this outstanding fee had master deserves the credit for account cheques are held by me and been paid or had been received by advising me how to deal with this one. other members of my profession. me. Using a script devised by him I tel­ Strangely enough, the prospect of re­ I am sure that as a practising legal ephoned the solicitor and purported ceiving a large windfall from his bank professional you will appreciate the to give him some advice on suing his did not seem to excite him at all. Not defamatory nature of any suggestion banle The gist of the conversation was so strangely, my clerk reported to me that I have received professional fees that as defendants go, banks have bot­ that the cheque was honoured upon without accounting to my clerk for tomless pockets and the dishonour of its presentation the following day. such fees. As a practising legal profes­ a cheque is a representation to the ef­ 2. I am not sure that I deserve the credit sional you will further appreciate that fect that the drawer has insufficient for this one given that the opportunity the misinformation relates directly to funds to meet the demand upon pres­ was provided by an evasive solicitor my profession of a practising barrister entation. The representation also car­ seeking to run a variation on the tat­ and as a consequence is actionable ries with it the dishonesty of the tered and threadbare "cheque's in the per se without proof of special dam­ drawer in passing such a cheque mail" routine. The background is evi­ age. Further, such misinformation knowing full well that it will be dis­ dent from the content of the letter may well carry with it the connotation honoured. Such a representation by a following: that I have also failed to account to bank is, if untrue, actionable in the or­ the Deputy Commissioner of Taxation dinary course of events. The purpose Brien Briefless for the receipt of such fees. of my telephone call was to draw to c/- Clerk "X" At this stage I am prepared to his attention the very damaging na­ 205 William Street, forgo an apology and compensation ture of such a representation regard­ MELBOURNE 3000 for injury to my reputation provided ing a solicitor's trust account. The DX 17372 the outstanding fee is paid in full on damages awarded would be beyond September 9, 1999 or before October 15, 1999. I also re­ the ordinary course of events because quire you to inform my clerk that the of the possible inference that the Messrs k'foops, fforde, & Co previous communication (to the ef­ Mount Thomass drawer was playing hard and fast with fect that $1000 of the outstanding fee moneys not belonging to him. In order DX 17373 had been paid) was erroneous and to inflate his damages it was essential Attention: Mr fforde any imputation that I have received to aggravate the injury suffered. What Dear Sir, fees for which I have failed to account better way than to suffer a thorough to my clerk is not founded upon fact. audit by the professional standards RE: Magillicuddy ats Brickhouse - people from the Law Institute? In my 4 September 1997 (your rej: Sincerely, spirit of sympathetic assistance I vol­ ff.·abc 456) Brien Briefless unteered to be the one who dobbed It is now more than two years that him in to the Law Institute to ensure this fee (of $4500) has been outstand­ that he suffered the aggravating in- ing. I am informed by my clerk that

46 ...

News and Views Commercial Bar Association Cocktail Party and Art Exhibition At the Melbourne Fine Art Gallery, 25 October 1999

N the evening of 25 October 1999 Allan Fels of the Australian Competition tuting the Commercial and Equity Divi­ the Commercial Bar Association and Consumer Commission. The function sion of the Supreme Court. The evening Ohosted a cocktail party at the was well attended by over 80 members of was an outstanding success on a number Melbourne Fine Art Gallery at which the the Commercial Bar. The Association of fronts. The venue chosen was apposite principal guest speaker was Professor also invited judges and masters consti- given the closeness to the Spring Racing

John Dixon, Master Evans and Joseph Tsalanidis.

Professor Alan Fels speaking at the Commercial Bar Association cocktail party and art exhibition.

David Denton RFD thanks Professor AlanFels, Chairman of the ACCCfor his speech.

AlexandraRichards QC, Caroline Kirton, Samantha Marks, David Shavin QC Graham Smith, Danielle Galvin, and Jenny Richards. Rachelle Lewitan QC and Peter Willis.

47 News and Views

Carnival and the Melbourne Cup. The drawings and paintings on display were all of an equine nature and were brilliant Verbatim in colour and a spectacle to view. An unexpected highlight of the evening was the introduction of our Court 8C: Justice Finkelstein guest speaker by Dr John Emmerson QC. Making a Date 10.30 am (Hearing, Interlocutory) Indeed, the general consensus of those County Court, Melbourne Moonlighting International Pty Ltd attending the function, after the intro­ (ACN 087 724 614) & Anor v. Interna­ duction, was that perhaps Dr Emmerson 9 December 1999 tional Lighting Pty Ltd (ACN 089 432 QC should be called upon more fre­ Coram: Judge Lewis 842) & Ors quently at Bar functions to deliver a dry Sala for the plaintiff and yet a poignant introduction contain­ WorkCover Mentions and Directions ing both wit and comment. Hearings An Experienced Driver Professor Fels provided a general overview of the activities of the ACCC Following an earlier discussion about the Supreme Court of Victoria and lightly noted that as far as his own origin of names. investigations had determined that there Sala: I would like a date fixed for hear­ 20 December 1999 Stayvale Pty Ltd v. Rinieri Pty Ltd was indeed competition amongst barris­ ing, Your Honour. Coram: Beach J ters at the Victorian Bar and at the New His Honour: Mr Sala, is your name of Berglund QC for Plaintiff South Wales Bar. (It always seems to this Italian origin? Shatin QC and M. Robbins for Defendant commentator that the general public it­ Sala: Your Honour, I am as far from Ital­ self does not level criticism at the Bar of ian as the Straits of Messina. I am Sicil­ Berglund: My learned friend has put a lack of competition but a few persons ian. horse before the cart. with less than well informed positions His Honour: Heavens! Is there any par­ Robbins (satta voce): Any better sug­ tend to make the suggestion.) In any ticular time of day you'd like your case gestions? event leaving aside these observation heard? those attending the function welcomed the input of Professor Fels. Research Encouraged The function was also addressed by Plus La Meme Chose Mr Justice McDonald, the nominated Supreme Court of Victoria Federal Court of Australia Principal Judge of the Commercial and 28 July 1999 Equity Division. McDonald J addressed 25 January 2000 Jeffrey v. Honig the perceived changes and the frame­ Coram: Hedigan J work that the Commercial and Equity Di­ The internet Federal Court list indicates that, so far as some former members of Uren QC and Donald for Plaintiff vision judges and masters hope to put in Nash QC and Lombardi for Defendant place from January 2000. the Bar are concerned, old habits die With the conclusion of the formal part hard. His Honour: You virtually said yester­ of the evening members of the Commer­ Court 8C: Justice Beaumont, Justice day that that part of the case was weak. cial Bar continued for some time to enjoy Merkel, Justice Finkelstein Nash: In relation to the past. Since then, the artwork, camaraderie and fine wine 10.30 am (Mention) Your Honour, I have had the advantage and food provided by the Commercial Australian Competition & Consumer of reading some law. Bar Association. Commission v. Boral Limited (ACN His Honour: It's always helpful to do The function was notable for another 000051696) &AnorV625/99 that, I think. reason, that being that the cross-section of members of the Bar attending the meeting appeared to be truly representa­ tive of all levels of the Bar. It gave a great opportunity for senior members and jun­ ior members to meet and introduce themselves to each other. This is one of the main reasons for the existence of the Commercial Bar Association. The Commercial Bar Association has otherwise undertaken to continue to pro­ vide to the Victorian Bar continuing Commercial Legal Eduction of a first rate quality. On this occasion the evening was THE ESSOIGN CLUB a tremendous success thanks to the work of Jenny Richards and Andrew Kirby. Open daily for lunch David Denton See blackboards for daily specials Senior Vice-President

48 ...

People v. Leopold and Loeb Julian Burnside

N 1924, the depravities of the 20th themselves set apart by their gifts. They might be needed. They devised an ingen­ century had not yet desensitized the both believed that they were Nietzsche's ious method of collecting the ransom, I world to random killings. Even a Supermen, unrestrained by the moral which was virtually foolproof. tough city like Chicago was horrified at strictures which bound ordinary mortals. On 21 May 1924, they collected the the crime committed by Nathan Leopold They had engaged in all manner of petty rented Willys-Knight motor car, and and Richard Loeb. criminal activity, but they wanted to drove to Harvard Preparatory school, "Babe" Leopold was the son of a rich commit the perfect crime. They were which both had attended as children. Chicago family. His father was vice-presi­ lovers, with a relationship in which Babe They spoke to Bobbie Franks, who was dent of Sears Roebuck. He was the Leopold adopted the role of Loeb's slave. Dickie Loeb's young cousin. They told youngest ever honours student at the The crime they fastened on was a kid­ him they wanted his advice about choos­ University of Chicago. Aged 19, he was a napping murder. They planned every de­ ing a tennis racquet, so he got in the car gifted linguist and a noted ornithologist. tail meticulously. Each owned his own with them. Dickie Loeb was 18. He had graduated car, but for obvious reasons they decided Whilst Babe Leopold drove the car from the University of Michigan at 17, to hire a car. In order to be able to hire a along a suburban street, Dickie Loeb the youngest graduate of that university. car, they opened a bank account in the beat Bobbie Franks to death with a His family was among the richest in Chi­ name of "Morton B Ballard", and hired a chisel. They drove around until dusk, cago. He and Babe Leopold had been hotel room in that name. They used the then took the body to some vacant friends for years, as had their families. bank-book and hotel receipt as proof of swampy land south of Chicago. They Both were convinced of their own in­ identity at the car-hire firm. They bought stopped on the way to get some sand­ tellectual superiority; both considered for cash all the equipment they thought wiches. VICTORIAN BAR NEWS Advertising Rates

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49 ..

When they got to the swamp, they Across America and around the James Day. Day was charged with mur­ stripped the body, and poured acid on it world, the public and the press were in der. His defence was that Loeb had made to make identification harder. They put uproar at the thought of two young, in­ a homosexual advance, ' and that he was the body in a culvert and drove home for telligent and privileged boys committing defending himself. With more wit than dinner with their families. such an appalling crime. The overwhelm­ taste, a journalist wrote: "Richard Loeb, Babe Leopold rang Bobbie Franks' fa­ ing call was to see the boys hanged. despite his erudition, today ended his ther and announced himself as George sentence with a proposition." Johnson. He said Bobbie Franks had Whilst in prison, Babe Leopold re­ been kidnapped, but would be returned formed the education system in the unharmed if the ransom was paid. A ran­ The families of Leopold prison; he studied radiology and psychia­ som demand had been posted, which and Loeb reneged on try, and he published a book Life Plus gave the first of a sequence of instruc­ Ninety-Nine Years. tions. their fee agreement with In 1958, Babe Leopold was released Next morning, Jacob Franks was wait­ Clarence Darrow. He finally on probation. He spent the rest of his life ing beside the phone, as instructed. The received less than half the in Puerto Rico, where he lectured in phone rang: it was "George Johnson" mathematics at the university, worked as with instructions to get in a cab which agreed amount, shortly an x-ray technician and continued his had been called. Jacob Franks was about before he died. study of ornithology. He died in 1971. to leave when the police rang: Bobbie Franks' body had been discovered by a ******* Darrow delicately started a rumour group of railway workmen who used the that he was going to plead the two not The families of Leopold and Loeb re­ swamp as a shortcut to the nearby rail­ guilty by reason of insanity. The trial, be­ neged on their fee agreement with way yards. fore Judge Robert Caverly, began on 21 Clarence Darrow. He finally received less Leopold and Loeb discovered the July Gust eight weeks after the murder). than half the agreed amount, shortly be­ same fact soon after: newspaper placards 3000 spectators jostled for one of the 300 fore he died. said "Unidentified Boy Found in Swamp". seats in the courtroom. Leopold and They returned the rented car, and Loeb entered the court, looking com­ disposed of the chisel and the type­ posed and relaxed. They seemed pleased writer which they had used to type the to be the centre of attention. ransom note. They were quite relaxed, Darrow announced that he was because there was no reason to think changing the plea to Guilty, and said he anyone would connect them with the wished to call psychiatric evidence to crime. show diminished responsibility. This Monash University Law They did not learn for another few meant that the sentence would be de­ days that police had found a vital clue Faculty Seeks Property cided by the judge: under the criminal beside the culvert: a pair of glasses made procedure in Illinois at the time, where Law Placements to an unusual prescription. Nine days a jury found a defendant guilty of mur­ later, enquiries showed that only three HE aim of the placements is to en­ der, the jury would fix the sentence. Psy­ pairs of glasses had been made in Chi­ hance the student's vocational and chiatric evidence was called by Darrow T cago to that prescription. One for a man skill development and to enable them to and by the State. The District Attorney who was in Europe at the time; one for experience workforce learning. The accused Darrow of defending the boys an elderly lady, and one for Babe project team is excited by this opportu­ only for money, and insisted that a death Leopold. nity to promote practical interaction be­ sentence was the only appropriate Leopold and Loeb were questioned. tween law students and members of the result. Initial denials turned into mutual accusa­ profession and to foster the relationship Finally Darrow rose to make his plea. tions and ultimately confessions. Both between the Monash Law Faculty and He spoke, without a note, for three days. were charged with kidnapping and mur­ the profession. Every word of his plea was reprinted in der. The project team has written to a the press. He used the case to develop ******* number of members of the profession, the arguments against capital punish­ Although the Scopes "Monkey" trial was both solicitors and barristers, who prac­ ment generally. It is a justly famous not to take place until the following year, tise in the area of Property Law, seeking speech, which has been republished sev­ Clarence Darrow was already America's their involvement by placing students as eral times. When he sat down, the court best known advocate. He was the great described. The response from the pro­ was completely silent for several min­ defender of the underdog, the champion fession has been very positive. utes. The judge was openly weeping. of great causes. The boys' families Members of the Bar who have not yet Judge Caverly adjourned until 10 Sep­ begged Darrow to take the defence. He returned their response forms are en­ tember, when Leopold and Loeb were demurred: they had confessed their couraged to do so as soon as possible to each sentenced to life in prison for mur­ crime, they were sane in the eyes of the assist with planning of placements. The der, and 99 years for kidnapping. law; what could he do? The families project's Professional Affiliation Co­ asked him to do one thing only: save ******* ordinator, Ms Elspeth McNeil, is happy them from the gallows. For an agreed fee to provide information or answer queries of $100,000 Darrow agreed to take the After 12 years in prison, Dickie Loeb was about the program: 9905 5319 or case. stabbed to death by another prisoner, [email protected].

50 '.

News and Views Spring Racing Carnival Art Exhibition Artist Fred Collar at the Essoign Club

RED Collar has exhibited consist­ ently and successfully in Mel­ Fbourne's imler city galleries, and private and regional galleries throughout Victoria since 1978. His works are placed in private collections in Italy, Germany, Malaysia and recently Palm Springs, Cali­ fornia and throughout Australia. Paintings depicting athletes in motion were of dominant interest to Fred Collar since the early 1980s. The combination of expressive movement of the figure with a painterly technique led to a large series of "sports paintings". Combining his enthusiasm for horse racing and an­ cient history as a synthesis of horse im­ ages with mythology of the Trojan wars led to the "Trojan Horse Series". The Es­ soign Club exhibiting Fred Collar's horse racing series during the horse racing car­ nival was very timely. The opening Garth Grisbrook and Patrick Tehan QG. evening was well attended and several of Collar's works now adorn the walls in barristers' chambers. The committee of the Essoign club wants to remind the members that they are most welcome to invite friends and instructing solicitors to the opening nights. Gunilla Hedberg

Barbara Walsh and Christine Rafferty. Gunilla Hedberg, Katherine Bourke, artist Fred Collar and Sara Hinchey.

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51 III'

Beastly Words

HE lexicography of animals is rich young salmon can also be sprag, but in ing device al quadus. The Arabs name and fascinating. I have elsewhere addition they are (in chronological se­ the pelican by a related metaphor: al T written about the various collec­ quence) parr, then smalt then grisle, sagga: the water-carrier. tive expressions used with reference to and at all relevant times, alevin. To The notorious US prison in San Fran­ groups of animals (a murder of crows, a complete the picture, the spawn of oys­ cisco Bay was named after the island on skein of geese, etc.). These words are ters and other bivalves is called spat, but which it stands. The island was named more or less well known, and have a sur­ this can also be used in reference to by a Spanish Lieutenant, Juan Manuel de prisingly long history. They are properly bees' eggs - doubtless a frequent Ayala, who explored it in 1755; and referred to as terms of venery. Despite source of confusion. named it Isla de los Alcatraces, after the its appearance, venery has nothing to do Everyone knows what bovine, feline large pelican population there. with the planet of love. It comes from the and canine mean. Less familiar are the Thomas Hobbes popularized Levia­ Latin venari - to hunt. adjectives associated with some other than in his book of the same name, pub­ Because venery is the practice or animals: dasypodid (pertaining to arma­ lished in 165l. In chapter 28 he said: sport of hunting, it is no surprise that dillos) ; vespertilian (bats) ; vituline Hitherto I have set forth the nature of man, venison was (originally) any animal nor­ (calves); pithecoid and simian (mon­ whose pride and other passions have com­ mally hunted for meat, or the meat of keys) and pongid (gorillas and orang­ pelled him to submit himself to government; any animal so caught. So, Thoreau in utans). together with the great power of his gover­ 1884 referred to a hare as a venison; and The albatross holds an honoured nor, whom I compared to LEVIATHAN, tak­ in 1852, a haunch of kangaroo meat was place in the folklore of the sea. It pro­ ing that comparison out of the two last verses described as venison without any sense duced grief and guilt for the sailor who of the one-and-fortieth of Job; where God, of irony. Hunting is now considered a shot one and lived to tell the tale to the having set forth the great power of Leviathan, sport by those who practice it, and deer wedding guests in Coleridge's Rime of calleth him king of the proud. "There is noth­ are much prized by hunters. Hunters ex­ the Ancient Mariner: ing," saith he, "on earth to be compared with press their admiration for the deer by And the good south wind still blew him. He is made so as not to be afraid." trying to kill it, so most venison nowa­ behind, days is deer, and the word has narrowed There is great conjecture about what But no sweet bird did follow, its meaning accordingly. this beast was, on which Hobbes' meta­ Nor any day for food or play The young of many species of animals phor was built. The Leviathan is men­ Came to the mariners' hallo! have names which are radically different tioned four times in the King James from the predictable diminutive. Ogden version of the Bible. The references in And I had done a hellish thing, Nash famously wrote: And it would work 'em woe: Whales have calves, For all averred, I had killed the bird Cats have kittens, That made the breeze to blow. Bears have cubs, Ah wretch! said they, the bird to TAILORING Bats have bittens, slay, Swans have cygnets, That made the breeze to blow! • Suits tailored to measure Seals have puppies, The Rime of the Ancient Mariner was • Alterations and invisible But guppies just have little written in 1798. Less than 100 years ear­ guppies. mending lier, William Dampier had written of a The only surprise in his list is bitten, bird called the algatross, and not long • Qyality off-the-rack suits which is made up. The list could be sup­ before that, sailors called it the alcatras. • Formal wear plemented with heifer, poddy, fawn, That was at a time when English sailors foal, and joey. But how many people rarely saw them. They had the word • Repairs to legal robes would inunediately remember that a lev­ from Dutch and Portuguese sailors who, eret is a young hare; or that a baby hog is as it happens, were talking about a dif­ • a grice (if still sucking) or a shoat (if ferent bird altogether. LES LEES TAILORS weaned)? Pup is familiar as referring to The albatross is a petrel, a member of young dogs and seals, but equally it re­ the order Diomedea, which is seen in Shop 8,121 William Street, fers to a young rat or a baby dragon. the southem oceans, and so was beyond Melbourne, Vic 3000 While cygnet and gosling and squab the range of most English sailors before Tel: 96292249 are familiar enough, much less so are the 17th century. The alcatras is what eyas (young hawk) and poult (young we now know as the pelican (genus Frankston turkey or domestic chicken). Stranger Pelecanus). The pelican's original Portu­ Tel: 9783 5372 still are some of the words for young fish guese name - al-catras - is the scoop of various breeds: young cod are codling or bucket (catras) on a water-wheel. It or sprag or scrod; baby eels are elver; comes originally from the Arab water lift-

52 News and Views

Job 41:1, in Psalms 74:14, in Psalms A water animal mentioned in the book of Job. accounts rearrange the body-parts, 104:26 are consistent with Leviathan be­ By some imagined the crocodile, but in po­ which is legitimate and painless in imagi­ ing a whale. etry generally taken for the whale. nary beasts. Chimera now is used al­ All references to the Leviathan give most exclusively to refer to a "wild fancy Only a poet could confuse the whale the sense that this was a huge beast. The or unfounded conception". with a serpent, or with a reptile of any reference in Psalms 104 suggests a Since Hobbes dressed Leviathan in sort. The passage from Isaiah cannot be whale. Milton, in Paradise Lost (vii, the raiment of government and Freud referring to a whale: the reference to "a 412) calls it the "hugest of living crea­ lured dragons to the analyst's couch, crooked serpent" and "that dragon ... in tures" - which the whale is. Herman such beasts have faded from popular im­ the sea" suggests a crocodile, or a else Melville, at the start of Moby Dick, takes agination. They are all chimeras now. wholly mythical creature. pains to claim the credit for whales as The platypus should be chimerical: its The possibility that Leviathan is a the Leviathan: but his agenda was clear. oddities are nicely captured by Ogden creature of imagination gains support Anatole France was equally confident: in Nash: from Babylonian literature, which Penguin Island (1908) he says: records a battle between the god Marduk I like the duck-billed platypus And Leviathan passed by hurling a column of and the multi-headed serpent-dragon Because it is anomalous water up to the clouds. Tiamat. This story prefigures St George I like the way it raises its family - However in Isaiah 27:1 the following and the dragon. A parallel story in Partly birdly, partly mammaly appears: Canaanite writing has Baal fighting Le­ I like its independent attitude: In that day the Lord with his sore and great viathan at Ugarit in Northern Syria: a Let no-one call it a duck-billed and strong sword shall punish leviathan the story more consistent with Leviathan be­ platitude. piercing serpent, even leviathan that crooked ing a huge crocodile, or a dragon. Julian Burnside serpent; and he shall slay the dragon that [is] A creature which is, by definition, im­ in the sea. aginary is the chimera. Its name comes from the Greek for he-goat. It is a fire­ Johnson was apparently aware of the breathing monster with a lion's head, a uncertainty and defined Leviathan as: goat's body, and a serpent's tail. Other Near-Death Experience

,'I was in a state of shock," said years. "I never heard of call-waiting," she acter she'd seen at the gas station, and Ellen Reasonover. "I was terri­ said. "And I had to learn what a cell the next thing she knew they had turned fied." phone is and a pager." her into their suspect." In December 1983 a jury in St Louis She was 24 and the mother of a 2- The case against Ms Reasonover was deadlocked over whether to impose the year-old girl when she was arrested. based almost entirely on the testimony death sentence on Ms Reasonover, who She's 41 now and her daughter is 18. of two jailhouse snitches she encoun­ had been convicted of murdering a gas "I didn't think I would be convicted," tered after she was arrested. The station attendant. It is believed the vote Ms Reasonover said. "I thought that snitches, Rose Jolliff and Mary Ellen was 11 to 1 in favour of the death pen­ when I finally got to trial I was going to Lyner, were both heroin junkies with alty. A unanimous vote was required for explain to the judge that I was innocent, long arrest records. They hit the criminal a death sentence to be imposed, so Ms just tell him everything that had hap­ justice jackpot by testifying that Ms Reasonover's life was spared by a fright­ pened, and then he was going to let me Reasonover had told them in a jail cell eningly thin margin. go home." that she had committed the crime. Jolliff It's a good thing because we now Ms Reasonover was convicted of mur­ got cash and Lyner, who admitted she learn that she wasn't guilty. And that's dering James Buckley, a 6-foot-8inch gas was "looking for a deal," was spared a the biggest problem with the death pen­ station employee who was severely lengthy term in the state penitentiary. alty. Sometimes you get the wrong beaten and shot seven times with a rifle. "When I first went to prison I was de­ person. One more vote and Ellen Ms Reasonover became a suspect when, pressed," said Ms Reasonover. "I cried a Reasonover would have been shoved un­ after viewing a television report about lot and I couldn't sleep. Then I got a job fairly and ignominiously into eternity. the murder, she voluntarily contacted working at night, cleaning the bath­ Instead she was sentenced to 50 years the police to offer information that she rooms, sweeping and mopping the floors, in prison without parole, and she served thought might be helpful. She said she pulling the trash. So that was a little bet­ more than 16 grim years of that sentence had stopped by the gas station to get ter." before a Federal judge ruled this month some change to use at a nearby She said guards constantly proposi­ that she had been improperly convicted laundromat. tioned her for sex and when she refused and ordered her released. As her latest lawyer, Cheryl Pilate, sometimes beat her. Fellow inmates I talked to Ms Reasonover last week. put it: "There was nothing to tie Ellen to taunted her. She was struggling with some of the this. She came forward originally as a She read whatever she could get her technological marvels of the last few good citizen to report a suspicious char- hands on and wrote endless letters pro-

53 News and Views claiming her innocence to people she felt ilton ruled that the case brought against whose testimony was corroborated" by might help - the Pope, Nelson Mandela, Ms. Reasonover was "fundamentally un­ the tapes. Presidents Reagan, Bush and Clinton and fair". Two conversations that were se­ Ms Reasonover, who is black, said she their wives. "I even thought about writ­ cretly recorded by the police and that understands that the lone holdout ing to Chelsea," she said. were favourable to Ms Reasonover's de­ against the death sentence was a white Years passed. She contacted the fence were withheld by the prosecution. woman. "I always wondered who that Centurion Ministries, an organization in They came to light at a Federal Court white lady was that didn't vote to put me Princeton, NJ, that seeks justice for the hearing just two months ago. to death," she said. "I'd like to meet her innocent, and they eventually took up Had those conversations been dis­ so I can thank her." her cause. closed, Judge Hamilton said, the jury In a decision handed down three "would have been entitled to find" that Bob Herbert In America weeks ago, US District Judge Jean Ham- Ms Reasonover was "a credible witness Readers' 10th Anniversary Dinner Held on 30 November 1999, at the Neil Forysth Room

F my memory serves me correctly, ers". Friendly battle lines were drawn. the evening of 30 November 1989 was Ten years later, it was pleasing to see the I a typical hot and sultry Melbourne rivalries formed earlier on stand the test evening. That night 45 Readers signed of time, the shouters and the whisperers the Bar Roll. Emma Williamson was the quickly forming their own tables so that first called and signed on at number good-natured slanging could continue 2393. James Kewley was the last call for afresh. I am afraid to say, as with many the evening at number 2437. For those an event with barristers present, no sem­ interested, the last Bar Roll number allo­ blance of order was maintained over the cated in December 1999 was 3353. night. Ten years later our Call met for din­ As the evening wore on most of the ner to celebrate and reflect on our first gathering rose to their feet to say a few decade at the Bar. At best estimate, 29 words. Suffice to say some speeches are remain in active practice at the Bar. Of best left unreported! James Kewley, the those who have left, some have returned most junior of our call, attempted a mov­ to life on the other side of the Bar table, ing salute to the camaraderie of the Bar. some practice interstate, others have Serious sledging put a quick stop to such found the combination of parenthood emotional nonsense. How much better Tony Rodbard-Bean addresses the and the Bar too difficult to juggle. Two of gathering. was the speech when the maker resorted our Call, Murray Carn and Steve Winter, to a personal commentary on the tragically, have passed away. adversarial skills of his peers. The Neil Forysth Room provides a The highlight of the evening was a re­ perfect venue for such gatherings. Small playing of a video taken ten years earlier and intimate with an impressive array of of the traditional post dinner Readers law reports lining the walls, the same Review. What an edifying experience it is also soundproofs the room to prevent the to see one's self captured in time. Thank escape of egregious slander. Whilst the heavens for qualified privilege and thick­ weather this time on was a constant, skinned pupil masters. many things had changed. Foremost the For some the night ended relatively ability to wine and dine at a price far in early, for others the night ended in the excess of the amounts many of us earnt wee hours at an establishment on the (more so were paid) from our first briefs southern side of the river. Hopefully, so long ago. some of us will still be around to cel­ When our readers group first met it ebrate another decade at the Bar. That was soon apparent who were the was the pledge; I suspect it will be kept. Once we were young. "shouters" and who were the "whisper- ARB

54 News and Views/Competition Pen City Winner Rohan Hamilton wins Pen City's Pelikan M800 pen competition in the Summer issue

barrister is cosseted, steeped in, controlled and ruled by judicial A.pronoun.cements and statutes from the past. Precedent decided hun­ dreds of years ago in circumstances alien to the present is treated as holy writ. Tomes like the Magna Carta are revered, their status enhanced the more for most not knowing its origins let alone mean­ ing. Melburnians as a people were thought to have been particularly tradition con­ scious, reserving special veneration for the obscure, the inexplicable and espe­ cially the incomprehensible. Could this explain why, in late in the 21st century, following accelerated and exponential growth in artificial intelli­ gence, DNA cloning and general dumbing-up of the world's scientists, hu­ man beings departed toxic planet Earth in Suzuki star ships and Melbourne chose for its time capsule the Supreme and Federal court buildings. And what if any significance can be given to the philoso­ phy behind design and technological im­ provements to these courts, circa 1999. The thrice yearly e-journal of the Uni­ Rohan Hamilton, right, tries out his new Pen City pen after receiving itjrom versity of Wollongong grandly titled John DiBlasi. Journal oj Social Change & Critical Inquiry (JOSCC) may hold the answer. porate" and designs which are "clean, of the Federal Court of Australia. JOSCC Its November 1999 issue references an minimal, light, reductive, with a surface quotes the Chief Justice as stating that article in the Australian Financial Re­ gloss often attempting to mimic Zen the vision for the Federal Court building view that states "The Victorian Supreme tranquillity". He states: "Caught between was "to create a court building that had a Court will on Monday launch a these narrow binaries, modernism as symbolism reflecting the importance of world-first computer system for manag­ genre is left to oscillate in irrelevance as the law but also reflecting the accessibil­ ing trials. The Cyber Court Book com­ an exhausted paradigm from a lost age or ity of the law. We wanted to create a prises an intranet-based electronic filing a sparse interlude bathed in chic medita­ courthouse that reflected the place of cabinet of the court case and a presenta­ tion." law in a free society. The Courthouse tion shell that integrates other electronic If this description was not sufficiently had to be functionally efficient, but it services and applications for access by a bewildering to Melburnians of the 20th also had to have an ambience reflecting browser interface". Apart from informing and 21st centuries the utility of the trac­ an openness and friendliness of use." the reader that Chief Justice JH Phillips ery words printed onto the glazed por­ Such ideals, when Melbourne was rife will launch the technology in Courtroom tions of the facade is impressively with economic rationalism, corporate 13, the article remains impressively in­ baffling. Describing the phenomenon downsizing, job out-sourcing, youth sui­ comprehensible. Hassell states: "When sunlight strikes the cide, street begging and kerosene bath­ On the Commonwealth Law Courts city, and as one walks within the building ing of the elderly, were not only Building JOSCC quotes design architect close to the perimeter, the shadows of incongruous with the times and thus ap­ Hassell. Hassell defends the genre of the words that form Chapter Three of pealing, to Melburnians, but reflected modernism inherent in the court's design the Constitution fall across one's body." Melbourne and the law at its finest and holding it is unfairly placed between Perhaps final comment should be left its two most prominent legal citadels, "mid-century (20th) and downtown cor- to The Hon. MEJ Black AC, Chief Justice worthy reminders of that long lost city.

55 Law Men & Women: Biggibilla, Australian Aboriginal Artist Visitors to the Essoign Club during December and January had the opportunity to explore the art of Biggibilla, an Aboriginal sculptor, carver and painter. The exhibitition opened on Thursday 2 December 1999.

IGGTBILLA'S artworks feature zoomorphic line work and are Bd erived from sand en,gmvings unlike the more familiar dotted style that predominates the artwork of the Central Desert and are based on sand paint­ ings. The songs and stories come from north-western New South Wales and have been passed down to Biggibilla by his uncle - his mother's brother and his spiritual father. The songs were passed down to his spiritual father by his uncle and so on, throughout Time (Mahabala) . Gummaroi culture is matrilineal and in this tradition, the brother is the custo­ dian of the songs for and on behalf of his sister. Biggibilla, which means Echidna in Gummaroi language, is the initiated to­ tem-holder whose "job description", to use a contemporary analogy, is custodian or caretaker of daytime, fauna and flora for his language group - a Law man. As the custodian, all Biggibilla's paint­ ings are songs passed down from ances­ tors in an unbroken lineage; a sacred, oral transmission of culture and belong­ ing. Exoteric songs acknowledge indi­ vidual languages, culture and territory Biggibilla at his studio. The painting has been acquired by the Russian Space association whereas esoteric songs are Museum and depicts the Mir space station passing through Biggibilla's land. limited to rites of passage (initiations) and no songman should ever sing an­ fauna and flora within each particular the totality of Nature and its Laws. Abo­ other totem's songs as this would be map. This system ensured environmental riginal art depicts a way of life that has breaking the Law. and spiritual harmony within the existed since creation time, when ances­ The songlines are also the story and microcosm and macrocosm and began at tral beings travelled across Australia, the map of an area of land, water or as­ the age of five with the first song. To in­ moulding the land, forming rivers, trological belonging and is sung into ex­ terpret Aboriginal art is highly complex billabongs, establishing Law and rituals istence via the visual representation, and a challenge for the uninitiated. How­ and groups of people related through which in this exhibition is acrylic on ever, once a little knowledge is shared language and dialect. linen. Every colour, totem, sacred instru­ and an insight gained, the layers can be The artwork of Biggibilla carries ment, sand engraving (map/song) and peeled away to reveal an intelligent and on this tradition and this particular related information has relevance. Asso­ structured way of life based on a strict exhibition fo cuses on the "Law Men ciated to each song is a vocabulary of adherence to the Law. A life in which all and Women" whose responsibility was 3000 words or more depending on the things were equal and the responsibility to ensure this harmony was upheld age and development of the initiate and to community produced an harmonious and that any person who chose to tells of totemic family responsibilities to existence and intuitive understanding of defy the ancestors would pay the price

57 ..

- these decisions were made by a group of elders, not an individual. These men and women are depicted in the paintings by the totemic icon which carries this responsibility. As mentioned earlier, the paintings feature zoomorphic lines which are based on sand engravings. These sand engravings are carved out of the sand and are the map/song, similar to a laby­ rinth. The sand engraving/labyrinth took four initiated men approximately ten days to prepare and engrave the Bora site which was the place to initiate lan­ guage group responsibilities. In Biggibilla's paintings, these engrav­ ings are transported to the canvas and The BiggibiUa painted Porsche Carrera 911. BiggibiUa at the official "handover" are overlaid with sacred totems, icons to Porsche CEO Dr Wendelin Wiedeking at Porsche's new Melbourne and instruments and shows divisions and headquarters. The painted Carrera 911 has been acquiredjor the Porsche markings which are symbols of associa­ Museum, Stuttgart, Germany. tion to family, totem, skin group and ter­ ritory responsibilities. Each one of his paintings is a spiritual vibration sung to life in multidimensional form. This is of­ ten referred to as the Dreaming and ac­ cording to Biggibilla those who live in the Dreaming must know their initiated song. Biggibilla's paintings are direct links to this Dreaming and his ancestral past. Biggibilla has exhibited around the world including Japan, Hong Kong, Swit­ zerland, Germany, Venice, Slovenia, Florida, Santa Fe, Sicily and of course Australia. His artworks have been ac­ quired by the Australian Museum in Syd­ ney; the Australian National Museum in Canberra; Australia's Embassy in the Hague; the Japanese National Gallery in Osaka; the University of Melbourne's Howard Florey Institute; the Ludwig Judge Frank Walsh and his wife, Mary and GunillaHedberg. The painting has been donated to the club by Biggibilla. Museum in Cologne, Germany; the Queensland University of Technology; Ca Pesaro, the Museum of Modern Art in Venice; Castle Bled and the Australian Consulate in Slovenia; the Australian Embassy, Angola; the Art Centre, St Petersburg, Florida, USA; the Russian Space Agency Museum, Russia; the Menzies Foundation, Melbourne; and the Porsche Museum, Stuttgart, Ger­ many. His paintings and carvings are also held in many private and commercial col­ lections. The title of this particular exhibition "Law Men and Women" was very appro­ priate for the Essoign Club and its mem­ bers and surely intrigued and stimulated Michael Colbran QC; Wendy Taylor, Executive Director oj Court Network; many of the contemporary Law Men and Projessor ConcettaBenn, President oj Court Network; Graham Peters; Clarice Women visiting the club in December Breese and Ian Davidson. The artist will donate 20% ojproceeds ojsales to Court and January Network. Ooboon

58 Cricket Bar's Cricketers Win Holy Grail 1st XI v. Law Institute Victoria

FTER enduring sustained defeats at the hands of the Law Institute Afor most of the last decade, the Bar now holds the cricketing lawyer's Holy Grail (a.k.a. the Sir Henry Winneke Trophy) for only the sixth time since its inception in 1965. Before that year the memory of the present cricketers runneth not. The 1st XI triumphed for the first time since 1992, when the match was also played at Cordner Oval, Fawkner Park. This, of course, is no mere coinci­ dence since all the available evidence now clearly establishes that the solicitors cannot handle a cricket pitch unless it compares favourably with the "road" at the Albert Ground. The exhilarating win on 20 December 1999 fulfilled the dream of the impa­ tiently awaiting captain, Chris Connor, to Front row: Neville Kenyon, Tony Klotz, Chris Connor, Mordy Bromberg lead a winning Bar side against the Law (wearing the cup's lid), and Joe Forrest. Institute and enable him to join the small Back row: Lachlan Wraith, DavidNeal, Tony Phillips, Shane Lethlean, Rowan band of his successful predecessors in Skinner, Justin Hannebery. Barry Dove, Daryl Wraith and Bill Gillard. Although the pitch looked as if it might have little bounce and not "come on" to the batsmen, the opposing and macho (read foolish) skippers decided that the playing arena should be the en­ tire oval and to ignore the marked inner boundary. Batting first, as is de rigueur, the so­ licitors stumbled early on in their innings and struggled to 7 for 42 in the 25th over, before a late rally allowed them to finish with a competitive, but attainable, 9 for 93 at the compulsory closure. The Bar's team was considerably in the batsmen who had been dismissed edly Mordy Bromberg whose inspiring strengthened by the addition of Tony cheaply. Another loss seemed imminent. unbeaten 39 runs was a solo batting per­ Klotz and Justin Hannebery as our first At this stage only David Neal, Joe formance made in front of his cheering and second change bowlers, ideally com­ Forrest and Justin Hannebery had made children. The highlight of his innings was plementing the opening "dynamic duo" double figures. Fortunately, there was no the hard hit boundaries which were ex­ of Rowan Skinner and Tony Phillips. Be­ sense of de}a vu for Mordy Bromberg quisitely placed on an oval that has a tween them these four players collec­ who in partnership with Shane Lethlean playing area equivalent to the MCG. tively bowled 32 of the 40 overs, took the score to 9 fo r 78, tantalisingly The selectors' policy in looking to capturing 6 wickets for 65 with 7 maid­ close to the solicitors' tally, but still per­ youth (of a sort) had been thoroughly ens. haps considered out of reach when our proved correct. As a result, the Sir Henry The bowlers were aided and abetted number 11 Tony Phillips sauntered to Winneke Trophy is on permanent view in by crisp fielding, including two runouts the crease. With typical insouciance the display cabinet of the Bar Library on and some sharp catching. Tony helped Mordy fashion a match-win­ the 13th Floor of Owen Dixon Chambers When the Bar's turn came to bat, our ning last-wicket partnership which gave East. players found just as much devil in the us victory with 2.2 overs to spare. Annus Scores: Victorian Bar 9/94 (Bromberg two-paced wicket, and after scrambling mirabilis. 39 n.o.) d. Law Institute 9/93 (Skinner 2/ to 8 for 54, dark despair began to well up The Man of the Match was undoubt- 15, Klotz 2/17)

59 •

Bar Bowled Over Opposite Trauma Centre 2nd XI v. Law Institute Victoria

THE BATTLE Act 2 Then attempts were made to lift the rate of scoring but with mixed success. Act 1, Scene 1 This was lunch courtesy of the Bird and Bottle, comprising a healthy salad with Shortly, the introduction of an orthodox left arm spinner (the current captain of HE day dawned - the forecast rolls, fresh fruit and iced drinks. Al­ mild, no rain, 20 degrees. though it was sunny, it was pleasant Northcote 2nd XI), caused some small T The wicket was the new turf enough to relax on the boundary. The problems. A slight slump occurred, ar­ ground in Fawkner Park opposite the Al­ grounds in the Park, generally, were in rested briefly by some good endeavour fred Hospital Trauma Centre, replacing mint condition, close cut and pleasant and lusty hitting. Michael Sasse and the MPV site in Swan Street. under foot. Chris Winneke contributed with some The team 12 picked - with nine fresh good shots. faces. Ten persons arrived. Nick Frenkel held up one end during The toss - wrong call. However, the the chaos at the other as the Bar lost Bar was invited to choose to bat or bowl. seven for 45. On the return of the early The team's sole answer was "Bowl" and retiree to the wicket at the fall of the they did, in agreed terms of 40 overs, re­ ninth wicket, Frenkel then blossomed, to tired at 40. later finish with a graceful 28 n.o. Whilst the captain returning to the crease fin­ Scene 2 ished with 40, the side was out for 129. It The trusty arms of Jonathan Davis and was less than 100 runs short of its target. Dino Currao flayed in circular (or semi­ THE AFTERMATH AND circular) motion at each end, with steadying effect on watchful, competent DIAGNOSIS but lethal looking openers. It was a pleasant day. The weather was Based on last year's belting, fielders superb. The umpiring was impeccable. were thus, set well back - nearer the There was some blazing batting against boundary in some cases. Hopes were the Bar, which held its head and the high also to avoid last year's record nine leather. There were some useful innings dropped catches. by the Bar. A further real quick and The first catch was taken at 1129; the some experienced (practising) batsmen, second wicket, at 2/93, was bowled. The who could provide some middle order last wicket fell at 225 all out, the first 10 stability, would be useful additions - wicket haul the Bar 2nd Xl has achieved. providing they can catch as well as the Amongst those wickets were some ex­ Sir Henry Winneke Trophy and the 1999/2000 side. Congratulations go to District 1sts and 2nds players. Nine Grafter'S Goblet. the LN. The LN were gracious and also, catches were taken in all by the Bar! highly complimentary of the Bar's field­ Of the nine catches, two were gems, The break enabled all to fully appreci­ ing. The cup was at the ground again and one one-handed by Philip Simpson, the ate the charm of Fawkner Park with its on view all day, providing the right in­ other like a back pocket ruckman - spaciousness, lines of Elms and diagonal centive. The catches were grand. The from Chris Winneke - and both over­ pathways and the absence of traffic. bats need oiling. head, way in the deep. The others were not straightforward either. Act 3 ******* Apart from the catches, the fielding The Bar took up a challenge. The scoring As a postscript, the rule of retiring at 40 otherwise, was exemplary, including the was careful but not carefree, early on. runs and no return may be enforced. performance of Michael Sasse behind the After 40 or so runs (with none out), Further, as the 1st XI on its win, stumps. Four bowlers took two wickets the clock was running down after one of claims the Holy Grail ("the H.M. Winneke each. the openers retired with cramp. Prior to Trophy"), quo vadis the 2nd XI Trophy Of the LN batsmen, two retired, only this Chris Maxwell, the other opener, The Grafter's Goblet? to return - an odd construction of a lit­ was scoring singles without a more agile eral rule - one getting 59 and the other running partner. (Maxwell later com­ 50 n.o. plained of having to run at all.) Tony Radford

60 Sport/Bar Hockey Gifted Youthful Players Wanted

ANY will recall the apocryphal Accordingly, it was with some sur­ Brear, Burke, Burchardt, Collinson, Pravda annOlll1Cement of the car prise that the Bar found itself on top in Dreyfus, R. Gordon, Luxton, Niall, Sex­ Mrace between Kruschev and the first quarter of an hour or 20 minutes ton, S. Sharpley, A. Tinney, M. Tinney Kennedy under the banner headline of the game, and could easily have been and S. Wood. Tony Melville exercised the "Kruschev finishes second in major inter­ a couple of goals up. Thereafter, how­ inalienable right of all barristers and so­ national car race. Kennedy won from ever, age played its part. The Solicitors licitors who are in fact solicitors to have last." proceeded to score two short corner a run with us under s.l of the Old Pals A headline of roughly this sort seems goals to be 2-Nil up at half time, and Act (Vic) 2000, as we were short when wholly appropriate in announcing the re­ thoughts of disaster were plainly in the the game started. sults of the annual game between our minds of all the Bar team as we moved, The hunt for new and youthful play­ team and the Law Institute side. Unfor­ gasping, to the sideline. ers continues. Please pass any rumours tunately, however, such duplicity would In fact the game proceeded to go of lurking and gifted hockey players on be rendered shortlived by the fact that fairly well in the second half and al­ to the writer. the Law Institute Journal will apparently though the solicitors managed to score Philip Burchardt :3hortly carry a more complete and truth­ two more goals, being thwarted on nu­ ful version of events. merous occasions by Sharpley's bril­ Endeavours to solicit new players liance, the Bar team pulled back a late, were partly successful in that Tim and as it happened outstanding, goal by '.uxton emerged as a Bar player of rela­ Wood. tive youthfulness, but hopes that Nick His Honour Judge Campbell had very 'Tweedie would provide a star recruit kindly agreed to attend to hand over the from Western Australia were sabotaged cup and the Rupert Balfe trophy, and did by an untimely visit of a girlfriend's so in his own inimitable and fluent style. mother (always an event to be paid due His surmise that the Bar team was losing homage). on purpose as a touting exercise was In the event, Stephen Sharpley got his wholly refuted by the evident superiority first run in goal, following Lynch's gra­ of the Solicitors' team. cious abdication, and proceeded to win Absentees this year included Coldrey the J.R. Rupert Balfe trophy for best and Goldberg, both of whom had judicial player on ground. commitments, and Trish Riddell and Given that the Solicitors had taken Lachlan Wraith. All would have been well steps to ensure a full report in the Law used had they been able to attend. Sharpley (with Rupert Balje trophy) Institute Journal, they had recruited av­ Other than that, it was a matter of the Campbell J (with Law Institute idly and produced a young and skilful usual suspects, all of whom did their best acquaintance) and Venn (Captain of team. in trojan if unavailing style, namely, the LW team.).

The LW team - spruce and generally youthfuL. The Bar team - not spruce - not youthfuL.

61 Lawyer's Bookshelf

Retail Tenancies Reform the drafting of leases and the associated advice on drafting of disclosure docu­ documents which are required for com­ ments both from a landlord's and a A Guide to Contemporary Issues pliance with the new legislation. tenant's perspective. in Property Law: No.2 I attended the Leo Cuss en seminar 3. Landlords' liability under section 19 and recall a robust and vigorous ex­ for legal and other expenses in rela­ General Editor: Dr Clyde Croft, change among practitioners present as tion to the preparation of the lease. Leo Cussen Institute, 1999 to precisely what various elements of the It is possible that "preparation" may pp. i-xviii, 1-251 including Indexes new Act meant. There was no general be given a wide interpretation, thus by Subject, by Cases and Awards, agreement, either among speakers or capturing a great deal of the disclo­ and by Statutes and Regulations participants, as to the interpretation of sure documentation, with significant various provisions of the Act, around the financial consequences for the land­ HIS book is a collection of the sub­ time of its enactment. There appeared to lord. T sequently revised and edited papers be consensus on only one point: that the Chapter 10 provides some drafting given at two conferences in 1998 on the newly enacted legislation was bound to hints and techniques which may Retail Tenancies Reform Act 1998 (the require further and significant amend­ modify the potential effects of the Act), which repealed and replaced the ment, sooner rather than later. These cost recovery provisions. Retail Tenancies Act 1986 (the 1986 amendments have not come to pass, to 4. The consequences of failing to comply Act). One was held at Leo Cuss en Insti­ date. And in the current political uncer­ with disclosure document require­ tute (comprising chapters 1-6 in this col­ tainty, it cannot be said with any assur­ ments is serious. Chapter 8 gives sug­ lection), and the other at the Law ance when retail tenancy amendment gestions for ways of minimising Institute of Victoria (chapters 7-11). will have any priority in a government's liability, and there is a sample disclo­ Their purpose was to explain the new legislative agenda. sure statement annexed to the chap­ Act and to provide practitioners with an Here are some of the problems identi­ ter. overview of its operation, especially in fied in the new legislation: 5. The new role of VCAT, and its in­ light of the fact that the new Victorian 1. The meaning of the new rent review creased jurisdiction in the area of re­ Civil and Administrative Tribunal Act provisions: section 12 (covered in tail tenancy disputes, extending to 1998 came into force at the same time as chapters 3 and 9); misrepresentation claims, rectifica­ the Act (I July 1998). VCAT thus ac­ 2. Whether or not a lease is subject to tion claims, and those based on quired jurisdiction to hear and determine the provisions of the Act. Section 4(2) estoppel, is explained in Chapter 6. matters in its Retail Tenancies List which potentially broadens the scope of the Clearly, retail tenancy is and will con- had previously fallen to the Retail Tenan­ Act over the 1986 Act by seeming to tinue to be a dynamic area of the law. cies Tribunal. provide that if an option to renew is This collection serves as a helpful status The fact that there were papers deliv­ exercised post commencement (1 report on the Act, at the time of its en­ ered at two separate forums on the same July 1998) a lease which did not fall actment, and serves as a timely life raft broad topic at different times presents under the 1986 Act may fall under the thrown on the seas of confusion to help something of a problem with the struc­ new Act; the floundering practitioner. What will ture of the material in this collection, as 3. The "floor area" exception in the defi­ be of inunense assistance now, to practi­ a reading of the contents listing below nition of retail premises: section 3(1); tioners, is a body of interpretation and demonstrates. Most subjects are dealt 4. The nature and status of a lease decision-making from VCAT. Watch this with twice, but are not physically placed which has been assigned. space. sequentially in the compilation; nor has Some of the most significant features Contents: there been any editorial attempt to inte­ of the Act were agreed to be: 1. Application of the Act, by Dr Clyde grate like topics. However, this slight 1. The new disclosure requirements Croft nuisance factor aside, there is some con­ (covered in chapters 2 and 8). The 2. Disclosure Requirements, by Michael ceptual division between the two group­ onus falls mainly on landlords, con­ Redfern ings of chapters, which might amount to sistently with the consumer orienta­ 3. Rent Review, by Maurice Phipps QC a justification of the presentation in this tion of the legislation. The landlord's 4. Outgoings and Costs, by Derry way. The first six chapters deal with disclosure statement must set out Davine more substantive matters, including: information such as rent, detailed out­ 5. Works and Compensation, by Peter • overview, background and operation of goings, and promotional and market­ Lowenstern the Act, including its legislative history ing expenses, and be given to the 6. Dispute Resolution, by George • analysis of what types of leases the tenant at least seven days prior to en­ Golvan QC Act applies to tering the lease, along with a copy of 7. An Outline of the New Act, by • comparison of the 1986 and the new the lease and the retail tenancies in­ Michael Redfern Act formation booklet. [Additional infor­ 8. Disclosure Documents, by Michael • potential legal problems mation is to be provided to shopping Redfern • discussion of the most significant centre tenants.] The tenant, in re­ 9. Rent Review Provisions, by Dr Clyde changes - renewal of leases, assign­ sponse, is obliged to provide the land­ Croft ment, works, compensation, rent re­ lord with a business plan. 10. Drafting Aspects of Outgoings and view, disclosure, dispute resolution, 2. Specific disclosure requirements - Legal Costs, by Derry Davine outgoings and legal costs. for example, outgoings and costs 11. Due Diligence and Defensive Strate­ Chapters 7-11, on the other hand, - are dealt with in chapter 4 of the gies, by Campbell Paine deal with the more practical aspects of materials. Chapter 8 provides helpful Appendices: Comparative Tables - 1986

62 Act and new Act provisions; LN sample those that go to matters of title as well as not mind spending $80 on such a re­ lease for a commercial property. the quality of the leased premises. The source, however, that said, my copy fell discussion encompasses not only leases apart at the spine in the course of read­ Judy Benson but also agreements for lease, assign­ ing the work for the preparation of this ments, sub-leases, surrenders, renewal review. A small point, but if the produc­ Commercial Leases of leases, guarantees, mortgage of leases tion values of the title matched the con­ (including mortgagee consents) and tents, the book might even make it onto A Guide to Contemporary Issues variations of leases. the legal bestseller list. in Property Law: No.3 Chapter 3 - The Building Component of a Commercial Lease, by John Judy Benson General Editor: Dr Clyde Croft, Leo Permewan Cussen Institute, 1999 Sentencing: State and pp. i-xvi, 1-194 including Indexes by This chapter discusses the issues faced by a solicitor in preparing commercial Subject, by Cases and Awards, and lease documentation including plant and Federal Law in Victoria by Statutes and Regulations equipment and taking into account its (2nd edn) N March 1999, Leo Cussen Institute operation and state, so as to reflect and I offered a half-day seminar on the topic conform to the bargain being struck. It is By Richard Fox and Arie Frieberg of commercial leases. This is an edited necessary to identify and isolate what Oxford University Press, 1999 collection of the papers presented at that part of the leasing process involves the pp. i-cl. 1-1166 seminar. Leo Cussen Institute is of actual building. Useful checklists are course well known for the excellence of provided of the factors to take into ac­ HE first edition of this text, pub­ its continuing legal education program, count to ensure all elements of the com­ T lished in 1985, has proved to be an and the practical orientation of its semi­ mercial lease are covered. outstanding success. It has had an enor­ nars, workshops and presentation. This Chapter 4 - Leases and Professional mous influence on the development of offering is certainly another of the publi­ Negligence, by Cameron Macaulay sentencing principles, not only within cations in that vein. It is helpful to read Solicitors' duties over lease transactions Victoria, but throughout the whole of this title with No.2 in the series, on re­ are considered in the overall context of a Australia. It has been relied on as an tail tenancies, where the law has review of the authorities on the nature authoritative guide to sentencing at all changed significantly, and where there is and extent of a duty of care and to whom jurisdictional levels including the High some potential overlap of concerns. it is owed. A case study approach is used Court of Australia. Six chapters, or topics, are covered, to illustrate the common pitfalls in leas­ Given the success of the first edition, each by a different contributor, as fol­ ing transactions, and constructive sug­ the publication of this second edition has lows. gestions are offered to prevent and been eagerly awaited by the judiciary Chapter 1 - The Trade Practices Act minimise the potential for claims. and by Victorian legal practitioners. I am and Leases, by Dr Clyde Croft Chapter 5 - The Impact of GST on in no doubt that this second edition will Lease Arrangements, by Derry Davine prove to be as successful and invaluable The effect of both the Trade Practices After introducing and outlining the basic Act 1974 (Cth) and the Fair Trading as the first edition. terminology, the application of the GST Act 1985 (Vic) on commercial leases is The work contains a detailed legal to commercial leases is considered in de­ explored, with particular emphasis on analysis of sentencing principles. It also tail, step by step. There is mention of the misleading and deceptive conduct (gen­ contains a comprehensive discussion of transitional provisions, and responsibility erally, and specifically as to leases), and the policy considerations applicable to for payment. An appendix of specimen unconscionable conduct, both as it cur­ sentencing. clauses is included. rently stands as section 51 AC, and how It contains valuable practical informa­ Chapter 6 - Resolution of Leasing Dis­ the provision may be broadened and ex­ tion on procedure, such as procedure at putes, by George Golvan QC tended if certain recommendations are the sentencing hearing; the role of coun­ Using a case study technique, a struc­ accepted. The Part N Restrictive Trade sel for the prosecution and counsel for tured approach to the resolution of leas­ Practices provisions as they apply to the defence at the sentencing hearing; ing disputes is proposed and outlined, commercial leases, and in particular and the way in which the factual basis for separate checklists are provided (one for shopping centres, are also covered. Ref­ sentencing is determined. a landlord, one for a tenant) to assist erence is made to the guidelines pub­ Each of the available sanctions, both practitioners to understand the steps to lished by the ACCC in 1997, and there is custodial and non-custodial, are given be considered in achieving successful discussion of how these are useful for in­ detailed coverage. There is specific at­ resolution of a dispute. terpreting how the ACCC might view the tention given to sanctions applicable to For practitioners in the field of com­ application of the Act to commercial certain types of offenders, such as men­ mercial leases, this publication presents leases. tally ill offenders and juveniles. an up-to-date survey of the main issues, There is an extremely useful chapter Chapter 2 - Leasehold Inquiries and concerns and pitfalls, as well as the law. dealing with sentences for specific of­ Disclosures, by Michael Redfern It includes very practical information af­ fences. This chapter includes valuable The need for inquiries to be made in re­ fecting all aspects of commercial leasing, practical material relating to statistical lation to commercial leases generally, including the entering into the lease, the patterns and sentencing ranges for par­ and the consequences of not inquiring difficulties that may arise during its ticular offences. The text and tables in properly, are outlined. Practical lists of term, and the termination of the lease. this chapter are also supplemented by sample inquiries are provided, including Practitioners in this field will probably two computer disks which contain a

63 wealth of important material. The first Professor Keay has substantially re­ vency, those are rare and laudable quali­ disk contains case summaries of the Vic­ written a number of areas of the text, to ties. torian Court of Appeal between 1994 and cope with legislative changes and other Michael Gronow 1997. The second disk contains sentence alterations in the law. The result is a fo­ outcomes of the Victorian Court of Ap­ cused and up to date guide. Everything peal between 1986 and 1997. These disks one would expect to find in the book is Professional Practice were compiled to provide fuller statisti­ there, if one knows where to look. I Management cal and descriptive material so as to found the index easy to use (though assist judges, magistrates, legal practi­ readers less familiar with the area might By P.J.L. King tioners, correctional officials and re­ be assisted by more topic headings and LBC Information Services, 1995 searchers. cross-referencing between them). pp. i-xvi, 1-496 The final chapter in this book exam­ The book has chapters on various as­ including Bibliography and Index ines the appellate process and includes pects of winding up and applications to material on appeals in indictable matters, wind up companies. There are also sec­ HIS book was written to provide ad­ appeals in summary matters, prerogative tions on provisional liquidation, the com­ T vice to a variety of Australian profes­ relief and other remedies. mencement, effects and administrative sionals - be they solicitors, accountants, Since the first edition of this work, organs of liquidation, the role and func­ engineers or architects - on how to sentencing law in Victoria has undergone tions of the liquidator, creditors and con­ manage a modern, possibly "mega" prac­ significant change and development. tributories, and available assets and their tice resulting from the amalgamations of This second text reflects a detailed and distribution. In addition, the text deals the 1990s into the new millennium. The comprehensive understanding of all leg­ with investigations and associated proce­ author is well placed to offer some sig­ islative and case law development. For dures, termination of windings up and nificant insights into the subject, having example, detailed consideration is given private international law issues. been at various times a partner then to: The propositions in the text are sup­ managing partner at one of the largest • the sentencing regime applicable to ported with extensive reference to the law firms in Sydney, a councillor of the serious sexual, violent, drug and arson Corporations Law, to relevant Australian Law Society of NSW, a consultant for offenders; and (to an appropriately lesser extent) Quality in Law Inc., and most recently, • issues relating to young offenders; overseas case law. Particularly impres­ an academic. • the introduction of victim impact sive is the wealth of reference to recent The author postulates the premise statements; and topical Australian decisions. For that all professionals essentially face the • the introduction of the combined cus­ much research, the book will be both a same difficulties, which he analyses in an tody and treatment order. starting and a finishing place. Indeed, of­ extended biological, life-progressing This is a book written by two of Aus­ ten one will need to go nowhere else. metaphor. First, there is the "concep­ tralia's most talented experts in criminal About the only gripe I have with the tion" of the firm, the nucleus of an idea law, criminology and sentencing. It is a book is the setting out. Due no doubt to and the germination of some aspirations mandatory purchase for every criminal the bulk of the text, it has been consid­ which should be tested against some law practitioner and every person in­ ered necessary to print it fairly closely. hard-nosed realities. Do I really want to volved or interested in the Australian In addition, the chapter headings are do this, and am I suited to the life, or am criminal justice system. written down the side of each page I drifting into it because it seems like a rather than at the top. The combined ef­ good idea at the time? If the answers Kerri Judd fect of those two things is to make the here appear to be positive, the next text difficult to read, since the text being phase - "gestation" - kicks in. These McPherson, Law of in small print requires close attention, are the essential elements, the DNA if and the eye is distracted by the sideways you like, which have to be sorted out Company Liquidation writing down the edge of the page. from the beginning: the development of a It is all enough to give the reader a mission and goals, and the patterning of (4th edn.) headache. With a subject as complicated a corporate culture; structures; capital; By Keay and technical as this one, most readers infrastructure systems; governance; hir­ Law Book Company 1999 can get that even without poor setting ing of people; purchase of equipment; pp. cv + 743, paperback $135 out of the text. It would have been more and acquisition of outside help. user friendly to have more space in the Next follows "growth", making it all new edition of this standard text is text, and to have the chapter titles at the work and come together. Elements here Amost welcome. It remains the lead­ top of each page, even if that resulted in include managing the firm, its people ing Australian book on its subject, and is more pages having to be printed. and its clients; marketing; risk manage­ indispensable to those who practise in I would nevertheless heartily recom­ ment; quality assurance; ethics; manag­ the area. There is nowhere else one can mend the book to barristers and other ing money and profitability; strategic go for such a comprehensive and well­ practising in the insolvency field. The planning. Finally, there is the "maturity" written guide to the Australian law of text is well-written and authoritative, phase, whether to go up or out. This company liquidation and related areas. and (apart from the setting out) is acces­ deals with whether and how to expand; The previous editions of this book were sible. Considering how complex the sub­ realising the future and change; survival rightly well respected. From what I can ject can be, the pronouncements made and challenges; knowing when to go or see, the fourth edition is a worthy suc­ about it by this work are clear and easy move on, growing upwards or outwards. cessor. to understand. For a book about insol- In any size firm, whether small or

64 large, one inherent difficulty within pro­ of the modern professional practice, but legal problem solving are mentioned, fessional practice always appears to be as it is, it would be a handy reference to they are not the focus of enquiry here. how to manage groups of "talented, and any professional practice library. The text is essentially a description and sometimes unruly, individuals". This is an explanation of the processes at work Judy Benson no easy feat at the best of times, but in judicial legal reasoning. The substan­ harder in a climate of vigorous competi­ tive part of the volume is taken up with tion for clients and market share, poach­ Judicial Reasoning and an analysis of various cases in which ing of staff and clients, and the cut and precedents were either followed or thrust of professional life as it is gener­ the Doctrine of made, cases drawn substantially from the ally perceived to be and often is. There is common law and from equity, and cover­ also highlighted the inherent tension be­ Precedent in Australia ing the spectrum from contract (CarliU tween, on the one hand, efficiency and By Alastair MacAdam and v. Carbolic Smoke BaU Co.), tort business-like practices - typified by the John Pike (Donohue v. Stevenson), and the then "tyranny of the timesheet" - and on the Butterworths, 1998 emergent doctrine of unconscionability other hand, the crucial ethical and serv­ pp. i-viii, Table of Cases ix-xxii, (Baumgartner v. Baumgart-ner), con­ ice aspects of the profession which also Table of Legislation xxiii-xxvi, cluding with a discussion of the "activ­ serve to distinguish firm from firm. The 1-394 including Index ism" of the Australian High Court in conclusion is inescapable that the need Mabo. for increased efficiency and effective­ HAT immediately strikes you This is essentially a resource for stu­ ness must be balanced by maintaining W about this book is the cover, which dents (although as the law is stated to be high standards of ethics and professional is dominated and enlivened by one of as at the end of 1996 its usefulness is not service or the practice will suffer adverse Geoff Pryor's arresting cartoons. A robed in its currency), inviting them to think and perhaps irreversible consequences. and wigged male barrister, wearing in and see reasoning in two different ways This book offers sound and compre­ addition to traditional garb, a hot pink at the same time, and to see and appreci­ hensive guidance to professionals in the "Spice Girls" T-shirt, purple sunglasses ate how values and other factors come pursuit of their calling, and includes and a gold earring, is standing in a cava­ into play in the process. For practition­ many helpful models based on Australian lier attitude with his left hand on his hip ers, the scope and treatment of the topic experience, complete with charts, dia­ and his right arm as though resting on a is a reminder (if one is needed) that the grams, summaries, draft documents and lectern. But no ordinary lectern, this one law changes, that there is a continuum of checklists. is constituted by an elderly and very trends and indicators which constitute What application does this book have grumpy appellate judge, most aggrieved abundant pointers to future change, and to barristers, those sole practitioners - at being leant upon as he looks through that the law is also a system of applied not firm-based - who are "talented, and ancient cases (one volume is visible of ethics, where principles of fairness and sometimes unruly, individuals"? Plenty. English Law Reports circa 1906) equality can never be divorced from the Chapter 13, for example, covers "Manag­ through his magnifying glass. The de­ other ideas in the equation. ing Yourself'. Who more than a barrister meanour of the judge looking over the Contents: should be mindful of looking after spectacles perched precariously on the Part A Introduction to the Concepts number one, as the book puts it, so that end of his nose says, as if to the barrister 1. Introduction the show can go on? Issues covered in­ above him: "You must be joking to put 2. Fixed or changing law: two sides of clude health, finances, domestic life and that argument!" the debate, and the two sides of the time management/allocation. Sensible The illustration is an aptly chosen and coin and practical pointers are given, which telling metaphor for the central thesis of 3. Understanding precedents: of facts, are too often ignored or overlooked, usu­ this book: the tension between the judi­ decisions, ratios and dicta ally by those most in need of taking heed ciary's overwhelming predilection for fol­ Part B The FoUowing oj Precedent of the advice who continue to ignore the lowing the doctrine of precedent, and 4. The doctrine of precedent - con­ signs at their peril or until it is too late. the Bar's vigorous attempts to persuade text, overview and terminology Second, chapter 18 covers the topic of judges to see things differently and to 5. The general principle and some com- clients, and what barrister is not in­ adopt a variety of other approaches in plications tensely interested in his or her clients? their decision-making and reasoning 6. The Privy Council Under this head, matters are discussed based on deduction, induction, analogy, 7. "Persuasive" decisions such as whom do you want as clients consistency with principle, and policy 8. Previous decisions of the same court (and how do you get them); client rela­ considerations. 9. Majority decisions and equally di­ tionships, meeting client expectations, But this is no mere textbook about vided courts dealing with dissatisfaction, recognising the theory of judicial reasoning. It does 10. Practical distinctions between ratio and dealing with conflicts. These and not attempt a systematic explanation of and obiter other topics of serene reflection - the the phenomenon of judicial reasoning as 11. The doctrine of precedent - a con­ direction of one's practice, strategies to a "grand theory". Rather, it is a "theory" cluding perspective shape the practice - require time out in the Greek sense of the word (theoros, Part C The Making oj Precedent and the occasional dipping into the ideas meaning "spectator"), a series of obser­ 12. Making new precedents: leeways of contained in this book. vations, using examples, to tease out the choice A future edition would benefit from process by which judicial reasoning pro­ 13. Deduction: certainty and the appear­ an update on the greater use and role of ceeds to its conclusion. While the influ­ ance of certainty information technology in the managing ence of advocacy and the techniques of 14. Similarity and difference: distinguish-

65 ing precedents and extending them mentioned rather than being extracted are grouped not only under chapter by analogy and discussed at length. They are: Com­ headings, but there is a separate section 15. Explaining precedents (or re-inter­ monwealth v. WMC (1998) 72 ALJR 280, including general references to preting them?) Gould v. Brown (1998) 72 ALJR 375, casebooks, constitutional annotations, 16. Principles in the law: the pursuit of and Kartinyeri v. Commonwealth historical background, publications on coherence and the derivation of law (1998) 72 ALJR 722. Not surprisingly the founding era, modern scholarship, from mutuality perhaps, the first two of these fall within the High Court, books on and by various 17. "Policy" arguments: evaluating con­ the compass of the rights and freedoms justices, constitutional reform proposals, sequences chapter, an area of recently perceived ju­ and more. There is even a website ad­ 18. Grand theory raises its head: policy dicial activism by the High Court, and dress, obligatory these days. and values or something else? the last one falls under constitutional in­ The topics in the casebook are exam­ 19. Extra-legal (and some "internal") terpretation. The first case is mentioned ined in considerable depth. The purpose values in judge-made law in the context of whether, if an entitle­ is to provide some insight into judicial 20. Values of dominance and strictness. ment is provided by statute, would a reasoning, and to promote greater subsequent extinguishment of the enti­ awareness of the way courts deal with Judy Benson tlement by parliament amount to an "ac­ constitutional principle. The text notes quisition" within the terms of section the political contexts in which some de­ 51 (xxxi) of the Constitution. The second cisions were made, but otherwise es­ Australian Federal case is mentioned in the context of the chews ideological perspectives. Constitutional Law Constitution envisaging and providing for This book would be and should be a Commonwealth-State co-operation, and useful starting point for any constitu­ By George Winterton, H.P. Lee, the third in support of the development tional enquiry within its scope. Arthur Glass and James A. Thomson of a theme espoused by Kirby J in LBC information Services, 1999 Newcrest Mining (WA) Ltd v. Com­ Judy Benson pp. i-xviii, Table of Cases xix­ monwealth (1997) 190 CLR 573, 657, xxxviii, Table of Statutes xxxix­ that it can be presumed the Constitution xlviii, 1-967 including Appendices, is not intended to violate fundamental Bibliography and Index human rights. Of considerable interest and appeal is HIS ample tome is primarily in­ the inclusion of two appendices relating T tended to be a student casebook to the justices of the High Court. The covering the materials taught at univer­ first provides a table indicating lines of sity undergraduate level constitutional succession, that is, what justice was ap­ law courses. However, in its case notes pointed on the death or retirement of and commentaries, and with the addition which previous justice. It is a fascinating of comprehensive bibliographies, its read, viewed in this format. For example, scope would also be of appeal to lawyers since the establishment of the High and judges (as a first port of call) and to Court, Justice Gaudron is only the fourth legal researchers. There are ten main judge in a line stretching back to Rich J We invite single professionals to our topics covered, as follows: (1913-50), followed by Kitto J (1950- 1. Australian Constitutionalism (feder­ 70), and then Gibbs J, later CJ (1970- alism, separation of powers doctrine, 87). Is there irony in the fact that Justice MtIAJ ~~aIt the rule of law, representative and Callinan is in a line of descent including responsible government, judicial re­ Murphy J (1975-86), Toohey J occupy­ view) ing the intervening period (1987-1998)? Enjoy athree course silver service 2. Inconsistency Other connections in this fascinating ta­ 3. Commerce and corporations ble give pause for thought . . . but they dinner, fine wines and danCing! 4. External affairs and defence are worth a browse for yourself. The sec­ 5. Commonwealth financial powers ond appendix lists all justices (current 6. Freedom of interstate commerce and previous) of the High Court, with de­ 7. Excise duties tails of their dates of birth and death, pe­ 8. Rights and freedoms riod in office, age on appointment and 9. Inter-governmental inununities retirement, government at time of ap­ 10. Constitutional interpretation. pointment, prior judicial experience, An analysis of the Table of Cases re­ state of residence, and an "other com­ Thursday 18th May 2000 veals the inclusion of all the seminal ones ments" column which lists whether the (remembered from university lecture appointment had had prior experience Phone 9425 9055 (Bookings essential) days), as well as cases from more recent for example in politics, also a most inter­ times exploring implied rights in the esting survey, viewed in this format. Constitution (Lange, for example). Sur­ Perhaps the most valuable part of this prisingly there are only three cases men­ volume is the Bibliography, which at 48 tioned which have been reported in the pages is a formidable and comprehensive entrEmOUS exclUSIVe mlroduclions for profeSSIO nals last two years, and these are merely compilation of resources. The references

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