VICTORIANVICTORIAN BARBAR NEWSNEWS No. 119 ISSN 0150-3285 SUMMER 2001

Welcomes: Justice Pagone and Judge Nicholson Farewell: Justice Hedigan Obituaries: The Honourable Kenneth Joseph Jenkinson QC and Douglas Salek QC Launch of New Bar Website The Future of the Defence Force Discipline Act Welcome to the New Kids on the Block Former Bar Leaders Recalled BCL Appoints New CEO The Objectives of the Legislative Council Constitution Commission Dinner of the Tenth Anniversary of McNaught List The Goodness of the Paperworkers The Dred Scott Case The Essoign Club: The Kitsch Is Back!

PORTRAIT OF A FOUNDER OF THE MODERN BAR OLIVER JAMES GILLARD 1906–1984 2 3

VICTORIAN BAR NEWS No. 119 SUMMER 2001

Contents EDITORS’ BACKSHEET 7 Looking Back on 2001 CHAIRMAN’S CUPBOARD 9 Launch of Bar’s New Website: First Point of Contact for Many People ATTORNEY-GENERAL’S COLUMN 11 Taking Stock LEGAL PRACTICE NOTES Welcome: Justice Welcome: Judge Farewell: Justice 13 Practitioner Remuneration Order Pagone Nicholson Hedigan 20 Legal Profession Tribunal: Publication of Orders 20 Amendment to Rule 197 of the Rules of Conduct CORRESPONDENCE 21 Letter to the Editors WELCOMES 24 Justice Pagone 24 Judge Nicholson FAREWELL 26 Justice Hedigan OBITUARIES 27 The Honourable Kenneth Joseph Jenkinson QC Obituary: The Hon. Obituary: Douglas 28 Douglas Michaelis Salek QC Jenkinson QC Salek QC ARTICLES 30 Portrait of a Founder of the Modern Bar 36 Launch of New Bar Website 41 Lessons from the Rear-View Mirror 46 Judicial Overservicing: Bringing Home the Bacon 53 The Future of the Defence Force Discipline Act NEWS AND VIEWS 58 Former Bar Leaders Recalled 60 Verbatim 62 Welcome to the New Kids on the Block 64 The Objectives of the Legislative Council Constitution Commission 66 BLC Appoints New CEO 67 Dinner for Tenth Anniversary of McNaught List 68 A Bit About Words/Holy Wars 70 The Goodness of the Paperworkers 72 The Dred Scott Case Launch of New Bar Website The Kitsch Is Back! 74 The Essoign Club: The Kitsch Is Back! 76 Bar Cricket/Invitation to Join the Bar’s Cricket Fraternity 76 Bar Cricket/ Cricket Fans Write LAWYER’S BOOKSHELF 77 Books Reviewed 78 CONFERENCE UPDATE

Cover: Unveiling of a portrait of Sir Oliver Gillard on 16 October 2001 — see pages 30–34 for a report on the ceremony, and of Sir Oliver’s leading role in helping establish Owen Dixon Chambers. Dinner of the Tenth Anniversary The Goodness of the Papersellers of McNaught List

5 Victorian Bar Council

VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2001/2002 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee R *Redlich QC, R.F. (Chairman) W Brett QC, R.A. H *Rush QC, J.T. (Senior Vice-Chairman) Child Care Facilities Committee W *Brett QC, R.A. (Junior Vice-Chairman) D McLeod Ms F.M. B *Zichy-Woinarski QC, W.B. Conciliators for Sexual Harassment and Vilifi cation G *Howard QC, A.J. F Rozenes QC, M. F *Dunn QC, P.A. B *Ray QC, W.R. Counsel Committee A *Shand QC, M.W. H Rush QC, J.T. F *Dreyfus QC, M.A. Equality Before the Law Committee B *McMillan S.C., Ms C.F. W Brett QC, R.A. A *Delany C.J. Ethics Committee G *O’Bryan J. B McMillan S.C., Ms C.F. H *McGarvie R.W. (Assistant Honorary Treasurer) A *Richards Ms J.E. Human Rights Committee H *Bourke Ms K.L. D Fajgenbaum QC, J.I. D *Riordan P.J. Legal Assistance Committee W *Neal D.J. G Howard QC, Anthony J. S *Duggan P.T. Legal Education and Training Committee D *Gorton J.P. B Ray QC, W.R. D *Gronow M.G.R. Past Practising Chairmen’s Committee S *Clarke P.A. D Francis QC, C.H. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee A Shand QC, M.W. Ethics Committee Victorian Bar Dispute Resolution Committee B McMillan S.C., Ms C.F. (Chair) S Martin QC, W.J. S Willee QC, P.A. Victorian Bar Theatre Company Steering Committee S Lally QC, W.F. A Derham QC, D.M.B. H Young QC, P.C. B Hill QC, I.D. P Bartfeld QC, M. F Dreyfus QC, M.A. G Lacava S.C., P.G. H Lewis G.A. A Macaulay C.C. A Delany C.J. (Secretary) F Quigley, Ms M.L. G Judd, Ms K.E. D Riordan P.J. F Johns Ms S.L.

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), Richard Brear (Assistant to Brunswick Vic. 3056 the Editors), Carolyn Sparke, Peter This publication may be cited as Editorial Board Nugent, William Gillies, Nicola Gobbo (2001) 119 Vic B.N. David Bennett QC David Johns (Photography) Advertising Julian Burnside QC Published by The Victorian Bar Inc. Publications Management Pty Ltd Graeme Thompson 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]

6 Editors’ Backsheet Looking Back on 2001

t’s that time of the year again. That time of the year seems to be getting Iearlier and earlier each year. Christmas brochures are now getting stuffed into letter-boxes in mid October. November television blares that Santa can bring a Nintendo or Play Station at bargain base- ment prices. The radio intones that fairy lit tinsel trees should be installed as quickly as possible. And so it seems that that time of the year is getting earlier for the law and the Bar. Each year the courts seem to close earlier and earlier. Judges want “iron clad guarantees” around about the middle of November. An adjourned case won’t be seen again until the second half of 2002. Socially the yuletide spumante emerges just as the corks of Cup week are being swept away. Just as Easter, Anzac Day, the Queen’s Birthday, the July vacation, Show Day, (even though not an offi cial the highs, lows and important events. release issued in August 2000 highlighted holiday anymore), and Cup week cut great The majority of barristers will look back the wide-ranging attacks on the Bar as chunks into the court’s sittings, both offi - over years to see whether the highs and being self-interested and against public cially and unoffi cially, so too sitting days in lows have crystallised into an increase in interest. The fi nal review will be issued December seem to shrink. income. Have there been too many no-win on the 20th of December this year and But have things really changed, or is no-pay cases that did not win? Have there it is hoped that a balanced review of this this just imagination brought on by the been too many clients and solicitors who complex and unwieldy legislation has been mental fatigue of a long and rigorous year? have promised much and delivered noth- made and will be carried out not to the Perhaps it’s just old age. Does a close scru- ing? Is there more work about and will Bar’s detriment. tiny of the legal year show that the courts there be more work about next year. These Ever since the days of the Hilmer are sitting any less? Indeed in reality are are the more mundane concerns of every- Report the Bar has been accused of increased sitting days feasible? Could the day life at the Bar. It is usually only being a “guild”, only interested in its self- courts sit longer in January or would wit- when the larger picture impinges upon protection and self-promotion. The con- nesses, juries and experts be available this smaller picture that there is a reaction cept was that guilds, alias professions, when the great January sojourn to the and thoughts of what the Government is should be abolished and reorganised as beach is in full swing. Is the closure of doing to the profession. industries being deregulated, but regu- courts for most of January simply a refl ec- The recurring theme throughout the lated by the government. It is interesting to tion on what happens across industry and year has been the proposed review of the note that the teaching profession doesn’t business throughout Australia? Legal Practice Act 1996. Reviewers of seem to be heading in this direction. The Again, is it just imagination or does it the Act were appointed in June 2000 and State Government has announced that a seem that the schools are closing earlier have put out issue and discussion papers, professional organisation will be set up for than usual. By the fi rst or second week and submissions have been made by the the teaching profession. of December most of them seem to have Bar Council and Law Institute in response. Many teachers have said that this will shut up shop. Perhaps two more weeks in The parameters of the review are con- elevate teaching into a true profession and December would make the school fees a tained at page 11 of the Winter 2000 edi- will gain it respect, and an ability to pro- little bit more realistic, perhaps two more tion of the Bar News. Of concern are the mote itself and its members. Dare we say weeks in court in December would make many groups who are vehemently critical that this is the creation of a new guild? them easier to pay. of the Bar and seek to take the Bar’s pow- The year was also marked by the It’s traditional at this time of the year ers of making rules and of discipline away. after effects of the forced resignation to look back over the year and to analyse The National Competition Council’s press of the Chief Magistrate, Michael Adams

7 QC. Allegations were raised concerning the Queen’s name and change to Senior is still under debate and the Criminal the handling of the affair and whether Counsel should do so. Considering the Bar Association is battling manfully for it indeed the Chief Magistrate did receive number of true believers swelling the members. fair treatment. However, it appears that ranks of Queen’s Counsel, it is surprising So that Christmas feeling descends. the Magistracy has settled down to an that only three of these have decided to That feeling that the last few weeks must extent. It is hoped that there will be no change to Senior Counsel. Perhaps we can be got through. That functions must be further repercussions. It is interesting to look forward to further announcements in attended which would have been appreci- note that the overwhelming majority of the new year. ated scattered throughout the year. That appointments to State Courts have come One problem that will never go away when Christmas Day is reached it is with a from the Victorian Bar. is that of Legal Aid. A review of fees has sense of relief, as well as enjoyment. Wigs were to go but have stayed. The been promised and is in train. No one is A bright light in the year is the Victorian government has decided that, indeed, the holding their breath but it is hoped that Bar Children’s Christmas party. This has wearing of wigs is a matter for the courts some reality will come into the fees continued to prosper. Parents and chil- and the courts in Victoria have decided being paid to criminal counsel. The stark dren alike fi nd it to be a relaxing and that the wearing of wigs is appropriate. reality is that many counsel simply can- enjoyable day in the Botanical Gardens. Therefore it is good to see that the major- not afford to accept legal aid fees and con- There has been much relief among the ity wishes of the Victorian Bar have pre- centrate solely on private work in order organisers this year, as Santa’s script to be vailed. to survive. If fees were increased then the presented to the children has been passed Queen’s Counsel have gone and the standard of representation would increase by the Bar’s Censorship Committee. But second batch of Senior Counsel is fea- and perhaps the number of appeals would just by a whisker! tured in this edition. The Attorney-General decrease. The question of the extension stated that those who wished to give up of legal aid to cover wider ranges of cases The Editors

NOTICE OF RACE WIGS & GOWNS SQUADRON

The annual race for the NEIL R. McPHEE QC TROPHY will be held on the waters of Hobson Bay on Thursday, 20 December 2001. The race will be conducted by the Royal Yacht Club of Victoria. The starting line will be an imaginary line between the race control tower at the eastern end of the marina at RYCV and a buoy moored approximately 150 yards generally to the east thereof. The race is to be a stern chaser around fi xed marks and over approximately fi ve nautical miles. Invitations are extended to yachts of all types. Yachts will meet at the NE end of the Royal Yacht Club of Victoria marina from 1100 hours onwards. The start will be at 1200 hours. The race will be followed by a luncheon and drinks at the Royal Yacht Club of Victoria. Visitors and non-sailors are welcome. It would be appreciated if those sailing and/or attending the after-race celebrations could contact RATTRAY QC (7240) or MIGHELL (8334).

8 Chairman’s Cupboard Launch of Bar’s New Website: First Point of Contact for Many People Same location — www.vicbar.com.au — but now with far more information to assist practitioners and people wanting to use the services of the Bar. Launched 25 October 2001.

NEW BAR WEBSITE LAUNCHED bers of the Gillard family, including Lady HE Attorney-General recently Gillard, and many distinguished members launched the Bar’s new website. of the legal profession. The portrait was TWhile the site is located at the same unveiled by the Honourable William Kaye address www.vicbar.com.au, the site has QC, who was a colleague of Sir Oliver at been completely revamped. The site now the Bar and a fellow judge of the Supreme contains a large amount of information Court of Victoria. Mr Kaye recalled the about the Bar and the wider legal system times during which Owen Dixon Chambers that will be of great use to practitioners, was planned and built. He also paid tribute people who wish to use the services of the to the exceptional contribution that Sir Bar and also people who are seeking infor- Oliver made to the development of Owen mation about the Bar. Dixon Chambers, the Victorian Bar and Details of the improved website are the administration of the law. contained in a separate article in this issue, The building of Owen Dixon Chambers but there are some aspects of the new site has left a permanent legacy at the Victorian that I should mention. First, the website Bar because it drew almost the entire will provide the fi rst point of contact that Victorian Bar together in a single building. many people may have with the Bar. For By housing the great majority of Victorian this reason, the website will serve to pro- Barristers in close proximity to each other, mote awareness of the Bar. Secondly, the Owen Dixon Chambers served to reinforce new site contains a very large amount of the collegiate spirit that underpins the information about the Bar as a whole, indi- ethical standards of the Bar. When newer vidual practitioners, the Clerks and activ- members of the Bar work in close proxim- ities related to the Bar. I encourage all ity to each other they learn more than the members of the Bar to explore the new site By housing the great rules of conduct, they learn the principles and acquaint themselves with the great majority of Victorian that underpin those rules and the reasons variety of information which is conven- barristers in close why they provide the cornerstone of life at iently placed in a single location. Finally, I the Bar. This experience begins an experi- should thank the people who have played proximity to each other, ence that lasts for the whole of a person’s a role in the development of the new site Owen Dixon Chambers time at the Bar. — Michael Shand QC who supervised the served to reinforce the The building of Owen Dixon Chambers project on behalf of the Bar Council; David came at an important time for the Victorian Bremner, the Executive Director of the collegiate spirit that Bar. It provided the Bar with an important Bar; Wendy McPhee of the Bar’s adminis- underpins the ethical single base and served as the main loca- trative staff; and the many members and standards of the Bar. tion for barristers well into the late 1970s, staff of the Bar who also contributed their when the Bar began to expand in size sig- time and effort. The website design was nifi cantly. While the Victorian Bar has long performed by Icon Art, a specialist website PORTRAIT OF SIR OLIVER GILLARD since become too large to be housed in development fi rm, and Imago Computer The Bar Council recently held a function a single building, the important cohesive Solutions, the Bar’s computer database to unveil a portrait of Sir Oliver Gillard. effect played by Owen Dixon Chambers consultant. The function was attended by many mem- still prevails today. While the Bar may

9 have outgrown the original building, it debtor’s petition against a barrister, pur- vision of specialist assistance with tax mat- will never outgrow the reasons for which suant to the Bankruptcy Act 1966 (Cth). ters. it was built. The unveiling of Sir Oliver The second amendment is an addition The ATO will work with the Bar’s CLE Gillard’s portrait in Owen Dixon Chambers to rule 197(a)(ii). This amendment adds Committee in presenting seminars. Some provides a fi tting reminder of these princi- a “composition” pursuant to Part X of of these seminars will be presented as part ples. the Bankruptcy Act, to the range of debt of the Bar’s CLE and Readers’ programs agreements that are “disclosable events” and will covers topics such as ATO poli- INQUIRY INTO POWERS OF ENTRY, for the purposes of rule 197. That part of cies and procedures. The objective is to SEARCH, SEIZURE AND QUESTIONING the sub-rule previously extended only to inform members of the Bar of the ATO’s The Law Reform Committee of the agreements or arrangements. policies and procedures in order that they Victorian Parliament recently released a The amendments will take effect from may comply with and obtain the greatest discussion paper as part of its wide-rang- 1 February 2002. A copy of the amend- benefi t from them. The ATO has agreed to ing inquiry into powers of entry, search, ments will be posted on the Bar’s website provide the Bar with a list of topics that seizure and questioning by authorised per- shortly. will form the basis of the seminars. It is sons. anticipated that the seminar seminars will The discussion paper reviews investiga- AUSTRALIAN LEGAL CONVENTION commence in early 2002. tory powers across all of Victorian law. The In October the Law Council of Australia The Bar and the ATO will also estab- main issues raised are: whether Victoria conducted the 32nd Australian Legal lish a contact database that will enable should adopt a set of “stand alone” princi- Convention in Canberra. I attended on members of the Bar to have direct contact ples for legislative powers of entry, search, behalf of the Bar Council, and was accom- with specialists in the ATO who can assist seizure and questioning; the principles panied by members of the Bar Council with problems or provide guidance on tax applicable to judicial offi cers in the issue and Bar staff. The convention was opened issues. of search warrants (as set out in Tillet’s with an address by the Honourable Justice case); principles for the exercise of pow- Kirby, who delivered a speech on the state RICHARD FULLAGER QC ers to enter and search, including powers of Australian law in the times after the Richard Fullagar QC died on suddenly to execute search warrants; the parame- events of 11 September 2001. The con- 18 November 2001. Mr Fullagar signed ters of the privilege against self-incrimina- vention was attended by members from the Bar Roll on 4 November 1949 and tion; and powers to arrest and detain. The all Bar Associations and Law Societies took silk on 26 May 1964. He served on discussion paper examines statutory pow- in Australia, as well as members from the Bar Council during 1972–4 and was ers to produce documents, which includes other legal bodies, representatives of gov- Deputy Chairman in 1974. Mr Fullagar a consideration of legal professional privi- ernment and many distinguished interna- was appointed to the Supreme Court of lege and the principles governing duties of tional guests. The convention was closed Victoria on 29 January 1975. He served confi dentiality. at a function in which the Chief Justice of with distinction on the Court until his The areas addressed by the discussion Australia delivered his speech on the state retirement in 1994. paper, and the proposal to consider the of the judicature in Australia. In 1997 Mr Fullagar was appointed adoption of a set of “stand alone” prin- The convention also marked the fi nal Chairman of the Legal Profession Tribunal. ciples to govern intrusive powers, could appearance by Ms Anne Trimmer in the He was due to retire from that position on have a signifi cant effect on the admin- capacity of President of the Law Council. 19 November 2001. The Bar Council was istration of justice. The consideration of The following day Mr Tony Abbott assumed preparing to hold a function to farewell Mr the execution of search warrants and role the role of President. On behalf of the Fullagar on the occasion of his retirement. of legal professional privilege raise issues Bar, I would like to thank Anne for her The function was intended to pay tribute of particular concern to the legal pro- fi ne work during her time as President, to the great service that Mr Fullagar pro- fession. The Bar Council is preparing a and also to welcome Tony to the role of vided to the legal profession, the commu- detailed submission to the inquiry, and will President. nity and the administration of justice as keep members of the Bar informed of the Chairman of the Tribunal. The role of the progress of this important review. AUSTRALIAN TAXATION OFFICE Tribunal is both important and demanding. I recently met with representatives of the Mr Fullagar discharged the responsibili- AMENDMENT TO “DISCLOSURE” Australian Taxation Offi ce to discuss mat- ties of Chairman in an admirable manner. RULES OF CONDUCT ters of mutual interest. At the time of his death, Mr Fullagar The Bar Council recently resolved to adopt The ATO has established a department had completed over fi fty years service to some minor amendments to rule 197 of to deal with tax collection issues relating the Victorian Bar and the administration of the Rules of Conduct, which governs to the professions, including the legal pro- the law in Victoria. This period of service disclosure requirements for barristers. fession. A sub-group within that depart- was remarkable not simply for its length, Members of the Bar may recall that a new ment is the Complex Legal Recovery Unit but also the quality of the contribution rule 197 came into effect on 1 July 2001. which focuses on the legal profession and that he made to the Bar and those people During the time that the rule has oper- whose role is to liaise with professional with whom he worked. On behalf of the ated, it has become apparent that some associations such as the Bar in dealing Bar I extend our thanks for his long serv- small changes would assist the objective with matters of specifi c concern to the ice, and our sincere condolences to his of the rule. ATO and the profession. family and friends. Two amendments have been made to As a result of the meeting, it has been rule 197. The fi rst is an addition to agreed that the ATO and the Bar will co- Robert Redlich rule 197(a)(i), which adds to the defi ni- operate in two areas — education about Chairman tion of “disclosable event” the fi ling of a ATO procedures and policies and the pro-

10 Attorney-General’s Column Taking Stock

HE culmination of 2001 offers a good A signifi cant pro bono initiative has opportunity to take stock of the evolved through the Attorney-General’s Tachievements of the Bracks Labor Pro Bono Working Group, chaired by Chief Government, as well as to consider the for- Justice John Phillips. This initiative will ward agenda for the immediate and long- see the collaboration of private fi rms with term future. the legal aid and community legal sector This year has seen the achievement of in the secondment of solicitors and other a legislative and policy agenda which has forms of assistance to Victoria Legal Aid turned this State around from the legacy of and CLCs. I believe that all those involved the previous Kennett government. will benefi t from the experience, as will the This year, we have seen the passage of Victorian community. legislation to provide the same rights to Next year will see the establishment of same sex and de facto couples, by amend- the Judicial College of Victoria, which will ment to 57 Acts, which were previously perform the task of providing ongoing edu- seen as only giving rights to married cou- cation to members of our judiciary. The ples. This was achieved despite strident College is a fi rst for Australia and will opposition from the Liberal Party. ensure that Victoria’s judicial offi cers con- We have engaged the broader commu- tinue to lead in the provision of access to nity in widespread consultation on issues justice. of law and order in this State, through to re-establish the Victorian Law Reform In 2001, the Aboriginal Justice the independent reports by Professor Arie Commission, which was warmly received. Agreement continued to bring indigenous Freiberg on a review of sentencing in The Commission has already released two Victorians and the Bracks Government Victoria and on drug courts. This has discussion papers: one on community own- together to introduce initiatives to ensure resulted in the introduction of legislation, ership of property and one on reforms for access to and representation within the jus- this session of Parliament, to establish a victims of sexual offences. The establish- tice system. These initiatives include con- pilot drug court in Victoria. This initiative ment of the Privacy Commissioner also her- sultation with communities about setting heralds a new approach to drug and alcohol alds a new approach in Victoria to meeting up a Koori Court in Victoria; swearing in 13 offending, by establishing a model of ther- the important challenges of privacy com- Koori Bail Justices and 12 Koori Mediators; apeutic jurisprudence, which will inten- plaints and systemic reform. as well as the appointment of an Aboriginal sively manage drug and alcohol offenders. Major reform has been opened up for Liaison Offi cer to provide support for indig- By this means, it is intended to treat the extensive consultation in relation to the enous defendants and improve cultural causes of crime, while offering a means regulation of the legal profession in Victoria. awareness in the Magistrates’ Court. of breaking the cycle of drug and alcohol The fi nal report of Professor Peter Sallmann For the immediate future, the Govern- offending. This will build on the already and Richard Wright puts forward a model ment has introduced into Parliament a successful CREDIT and Diversion pro- which would provide a single-entry com- Bill to introduce the new offence of indus- grams which operate around Victorian plaints system, in turn providing for a com- trial manslaughter. Again, Victoria leads Magistrates’ Courts. prehensible and accessible model. I look the way in addressing corporate liability Similarly, consultation around the sen- forward to receiving the views of the legal for loss of life in the workplace and ensur- tencing review has opened up the oppor- and broader community on this model. ing accountability for workplace safety. tunity for public eduction and input about My commitment to diversifying judicial Where do we go in the future? We how sentencing takes place; whether there appointments has been further progressed continue to build an infrastructure which is a need for reform and, importantly, how this year with a total of 14 appointments ensures an accessible and accountable community views can be better taken into to the courts. This includes seven female legal system. We are engaged with all account in that process. appointments. I remain committed to iden- jurisdictions of the justice system in build- This year also saw the injection of funds tifying and remedying impediments to ing a plan for our future. The events of into Community Legal Centres (CLCs), progress for women in the legal profes- September 11 have shaken our reality, but which provide a primary avenue for access sion. Signifi cant in this regard is the Bar with consultation, debate and listening, we to justice for Victorians. Coupled with this Council’s equal opportunity briefi ng policy, can work together to build a community was the fi nalisation of the Commonwealth which was immediately implemented by which is robust, diverse and harmonious. and former State Government’s review into the Victorian Government Solicitor. It will I extend my thanks to all those mem- the operation of CLCs. The hard-fought be further promoted through the new proc- bers of the judicial, legal and broader com- battle to keep CLCs alive within their com- ess of tendering out government legal serv- munity who have engaged in this process munities was successful. The funding pro- ices. Successful fi rms will be required to to date and look forward to a future of vided will assist CLCs to keep operating demonstrate a commitment to both equal rebuilding this community together. and to provide more outreach work. opportunity briefi ng and work allocation Another highlight this year was the real- practices, as well as to the provision of pro Rob Hulls isation of our pre-election commitment bono services. Attorney-General

11 Legal Practice Notes Practitioner Remuneration Order

N 12 November 2001, the Legal Order comes into operation; and tion comprising land and per- Costs Committee met and, pursu- (b) in the case of any other business sonal property, to the sum of Oant to s.111 of the Legal Practice to which this Order applies — to the consideration for the land Act 1996 (Vic) (“the Act”), made a all business transacted on or after and the personal property; Practitioner Remuneration Order (“PRO”) the day on which this Order comes (c) where the consideration or which sets out the fees that a practitioner into operation. part of the consideration for a may charge for non-litigious legal serv- 3. (1) The Practitioner Remuneration matter or transaction is mar- ices. The Order revokes the Practitioner Order commenced 1 January 2001 riage or any other considera- Remuneration Order which commenced is hereby revoked. tion which is not monetary, or on 1 January 2001 and will come into oper- (2) Notwithstanding the revocation where there is no considera- ation on 1 January 2002. The Order is sub- of the Practitioner Remuneration tion for a matter or transac- ject to disallowance by the Parliament. Order commenced 1 January 2001, tion, to the value of the subject Practitioners are informed that the provisions of that Order shall matter of the transaction; although the PRO has been previously continue to apply to and in rela- (d) where the consideration increased to take GST into account, this tion to business, other than busi- relates to a mortgage, bill of PRO has been entitled as “includes GST” ness referred to in Clause 2, in all sale or stock mortgage by in order to avoid any doubt that PRO respects as if that Order had not which a specifi ed or ascertain- charges are GST inclusive. been revoked. able sum is secured, to the 4. (1) In this Order and in the Schedules, sum of the amount secured Legal Practice Act 1996 unless inconsistent with the con- and the amount of any other text or subject-matter — specifi ed or ascertainable sum PRACTITIONER REMUNERATION “Folio” means 100 words or fi g- agreed to be advanced and ORDER ures or words and fi gures. secured; and (includes GST) “In print” means in print on a (e) where the consideration We the Honourable Geoffrey Michael form readily available for sale to relates to the sale of an equity Eames a Judge of the Supreme Court of the public. of redemption — Victoria nominated by the Chief Justice “Document” has the same mean- (i) where the purchaser is thereof, Peter Arnold Shattock and Philip ing as under Section 3(1) of the the mortgagee and the Laurence Williams being two persons nom- Evidence Act 1958. purchaser employs the inated by the Attorney-General, Ariel “Typewriting” means the produc- legal practitioner who Weingart and Peter Bardsley Murdoch tion and presentation of words prepared the mortgage — QC being two members nominated by fi gures and symbols on pages or to the sale price; and the Legal Practice Board, Marija Terese otherwise by means of hand writ- (ii) in any other case, to the Johnson being a person nominated by ing typewriting or the use of word sum of the consideration Victorian Lawyers RPA Ltd, and Nicholas processing equipment or any other and the amount of any Joseph Damian Green QC being a person form of mechanical or electronic principal sum owing nominated by Victorian Bar Inc. and being production other than photocopy- under the mortgage at the the seven persons authorized in that behalf ing. time of sale. by the Legal Practice Act 1996 do hereby (2) A reference in this Order and the (3) Where the consideration relates to in pursuance and exercise of the powers Schedules to the consideration is a a matter or transaction comprising thereby conferred upon us order and reference — land under the provisions of the direct in manner following: (a) where the consideration Transfer of Land Act 1958 and 1. This Order may be cited as the relates to a matter or trans- other land, the remuneration of the Practitioner Remuneration Order and action and is not wholly mon- legal practitioner shall be appor- shall come into operation on the 1st etary, to the sum of the tioned according to the respective day of January 2002. monetary consideration and values of the properties in question 2. This Order applies — the value of the real or per- and remuneration may be charged (a) in the case of business to which sonal property included in the in respect of each document nec- the Second, Third and Fourth consideration that is not mon- essarily prepared. Schedule applies — to all business etary; 5. (1) The remuneration of legal prac- for which instructions are received (b) where the consideration titioners in respect of business on or after the day on which this relates to a matter or transac- connected with sales, purchases,

12 leases, mortgages, wills, settle- (4) In all cases where matters or trans- of business necessarily transacted ments, formation and registration actions for which charges are pre- at the request of the client outside of companies, deeds of arrange- scribed by the Second or Third the normal business hours of the ment and other matters of convey- Schedules — legal practitioner; ancing, including negotiating for or (a) involve work which in normal (d) expenses reasonably incurred in procuring an agreement for a loan, circumstances is not usual and microfi lming of fi les and the stor- and in respect of other business necessary to complete such age and retrieval of fi les so micro- not being business in any action matter or transaction on behalf fi lmed. or transacted in any court or in of a client, or require the con- 8. (1) In all cases to which the remuner- the chambers of any Judge or in sent of any Government, pub- ation prescribed by the Second the offi ces of the Master of the lic authority or third party or Third Schedules applies a legal Supreme Court Prothonotary or in respect of business trans- practitioner may, within fourteen other offi cer of any court and not acted and performed, a fur- days from the time of undertak- being otherwise litigious business, ther charge in respect thereof ing any business, by notice in shall, subject to this Order — may be made in accordance writing to his or her client and (a) where the Second, Third or with the First Schedule; or when any third party is obliged by Fourth Schedule applies, be (b) are of unusual diffi culty or contract or otherwise to pay that in accordance with that complexity, or involve skill or client’s costs, by notice in writ- Schedule; and responsibility which in nor- ing to such third party elect to (b) in any other case, be in accord- mal circumstances is not usual charge under the First Schedule. ance with the First Schedule. and necessary to complete (2) Upon such election, the client (2) Where the business undertaken is the matter or transaction on may terminate the retainer and the whole of the work for which behalf of a client, a further the First Schedule shall apply some charge or charges is or are charge in respect thereof may in respect of services rendered prescribed by the Second or Third be made which is fair and prior to the termination of the Schedules but is not substantially reasonable having regard to retainer. completed but this occurs at the all the circumstances of the (3) (a) A third party obliged to request of or with the concurrence case. pay a legal practitioner’s cli- of the client or the client chooses 6. The charges in the First Schedule relate ent’s costs may pay either to make use of any of the work to ordinary cases, but in extraordinary the amount charged under done, the charges which may be cases the Taxing Master may increase the First Schedule or the made shall be a rateable part of or diminish such charges if, for any spe- amount which, but for the the relevant charges prescribed by cial reason, he thinks fi t. legal practitioner’s election, those Schedules proportionate to 7. In addition to the remuneration pre- would have been payable the extent of the work done or the scribed by clause 5, there may be under the Second or Third work so made use of, as the case charged — Schedule, whichever is less, may be. (a) disbursements for duties or fees in full satisfaction of his obli- (3) Where the business undertaken is payable at public offi ces or fees gation. a portion of the work for which payable to municipalities or public (b) The client shall pay the dif- some charge or charges is or are authorities, surveyors, valuers, auc- ference between the amount prescribed by the Second or Third tioneers or counsel, or for travel- charged by the legal practi- Schedules — ling and accommodation expenses, tioner and the amount pay- (a) if it is completed or substan- duty stamps, postage stamps, cou- able by the third party. tially completed, the charge rier or delivery charges, electronic 9. Where a matter or transaction to which may be made shall systems of communication and which the Second Schedule applies be a rateable part of the rel- other disbursements reasonably comprises land the title to which is evant charges prescribed by and properly incurred and paid; a right to occupy the land as a res- those Schedules proportion- (b) in accordance with the First idence area pursuant to Division 11 ate to the extent of the work Schedule — of Part I of the Land Act 1958 or a so undertaken; and (i) payments necessarily made licence pursuant to Section 138(1)(g) (b) if it is not completed or sub- for correspondence between of the Land Act 1958, the appropri- stantially completed, and this legal practitioners where one ate charge shall be the charge spec- occurs at the request of or legal practitioner is employed ifi ed in that Schedule for a similar with the concurrence of the as agent; and transaction comprising land under the client, or if the client chooses (ii) charges by an agent against provisions of the Transfer of Land to make use of any of the work his or her principal or such Act 1958. done, the charges which may lesser amount as is reasonable 10. (1) Where a legal practitioner — be made shall be a rateable having regard to the charge (a) is authorised by the First part of the relevant charges that the principal legal practi- Schedule to make any charge prescribed by those Schedules tioner may be entitled to make in connection with the sale, proportionate to the extent of to his or her client; and purchase, transfer or con- the work done or the work so (c) charges at the rate of $9.80 to veyance of land and is also made use of. $14.20 per quarter hour in respect authorised by the Second

13 Schedule to make any charge hereinafter contained in this Schedule Transmitting — in respect of the same land having regard to all the circumstances First page $8.20 and the transaction is com- of the case including the following: Each subsequent page $2.80 pleted at the same time for (a) The complexity of the matter and Receiving — the same client; or the diffi culty and novelty of the First page $8.20 (b) is authorised by the Second questions raised or any of them; Each subsequent page $1.50. Schedule to make charges in (b) The importance of the matter to respect of two or more mat- the client; Perusing ters or transactions relating (c) The skill, specialised knowledge 5. When it is necessary to peruse any to the same land completed and responsibility involved; document or part of a document at the same time for the (d) The number and importance of (including correspondence), whether same client — the documents prepared or in print or not, per folio — $7.90. then each charge under Part perused, without regard to 6. When it is not necessary to peruse A or Part C of the Second length; a document or correspondence but Schedule shall be reduced (e) The place where and the circum- scanning of the document or corre- by one-third or to a sum stances in which the business or spondence is warranted, e.g. to deter- equal to the highest of those any part thereof is transacted; mine the relevance or otherwise of charges (before a reduction) (f) The labour involved and the time the document or correspondence, per together with the sum of spent on the business; folio — $4.10. $95.90 for each additional (g) The amount or value of any charge, whichever is the money or property involved; and Letters greater. (h) The nature of the title to any land 7. Formal acknowledgment or the like, (2) Where, in connection with any involved. e.g. letter enclosing documents, transaction to which the Second Notes: requesting a reply, etc. -— $20.90. Schedule or Part A, C or D of the (1) A charge shall not be made pur- 8. Circular letters — i.e. letters which Third Schedule applies, a legal suant to this item in respect of except for the particulars of address practitioner acts — the sale, purchase or transfer are identical, for each letter after the (a) for both mortgagee and mort- of land where the consideration fi rst — $10.30. gagor; or does not exceed $60,000. 9. Other letters — $30.60 or such charge (b) for both lessor and lessee; (2) The charge pursuant to this item as is fair and reasonable having regard or in respect of the sale, purchase to items 1, 2 and 3 of this Schedule. (c) for both creditor and debtor or transfer of land where the con- Attendances — sideration exceeds $60,000 shall the legal practitioner may not exceed 0.3 per centum of the 10. To fi le, lodge or deliver any docu- not, in respect of the transac- consideration. ments or other papers, to obtain an tion, charge more than he or appointment or to obtain stamping of she would have been entitled Drawing a document, to insert an advertise- to charge if he or she were 2. Any document including memoranda ment, or other attendance of a simi- acting only for the mortga- of instructions to counsel not in an lar nature capable of performance by gee, lessor or creditor as the action or a proceeding in court — a junior clerk — $38.00. case may be. (a) not in print, per folio — $12.80 to 11. Making an appointment by telephone 11. In respect of loans not exceeding $20.90 or similar telephone attendance capa- $110,000 where a legal practitioner (b) partly in print, for so much as ble of performance by a junior clerk acts for a society registered under remains in print, per folio — — $16.60. the provisions of the Co-operative $6.40 12. On counsel with case for opinion or Housing Societies Act 1958 his or (c) partly in print, for so much as is other papers or to appoint consulta- her charge under Part A or Part C of not in print, per folio — $12.80 to tion or conference — $57.80. the Second Schedule shall be reduced $20.90. 13. On consultation or conference with to 75 per cent of the charge otherwise Note: counsel — $143.00. appropriate. There are approximately three folios After the fi rst hour, per half-hour or 12. The Second and Third Schedules shall in each A4 page. part thereof — $71.10 to $111.10. not apply to matters or transactions 14. Searching title and other searches, per concerning any premises subject to Typewriting half-hour or part thereof — $47.30. a licence as defi ned in the Liquor 3. (1) Per folio — $7.90 15. On settlement of a conveyancing Control Act 1987 and, accordingly, (2) For each carbon copy, photocopy or commercial matter — $45.60 to the First Schedule shall apply to those or other machine made copy, per $71.40. matters or transactions. page — $1.50. After the fi rst half-hour, per half-hour or part thereof — $71.40 to $111.10. *********** Facsimiles FIRST SCHEDULE 16. Attendance by telephone or otherwise 4. Transmitting or receiving written requiring the personal attendance of Instructions material by means of the legal practi- a legal practitioner or his or her man- 1. A charge may be made by way of tioner’s own facsimile machine as fol- aging or senior clerk and involving the instructions in addition to the items lows: exercise of skill or legal knowledge;

14 per quarter-hour or part thereof — charges shall not exceed — 66 170 000 955 656 $32.00 to $59.30. (a) in the case of land under the pro- 67 180 000 988 677 17. All other attendances; per quarter- visions of the Transfer of Land 68 190 000 1020 700 hour or part thereof — $32.00. Act 1958, the charges prescribed 69 200 000 1053 722 by Column 1 of Table A; and 70 250 000 1133 778 Journeys (b) in the case of any other land, the 71 300 000 1214 836 18. For time spent occupied in neces- charges prescribed by Column 1 72 350 000 1297 892 sary travel to and from or necessarily of Table B. 73 400 000 1378 946 spent in any place whether in or out- 74 450 000 1460 1002 side Australia more than sixteen kil- Table A — Transfer of Land Act 1958 75 500 000 1540 1058 ometres removed from any place of Column 1 legal practitioner for mort- 76 Over 500 000 business or residence of the legal gagee. Column 2 legal practitioner for add per 100 000 82 58 practitioner the charge to be made, mortgagor. in addition and having regard to any Table B — General Law appropriate charges made under Part Ref. No. Consideration Col. 1 Col. 2 Column 1 legal practitioner for mort- A hereof, shall be — $ Not exceeding $ $ gagee. Column 2 legal practitioner for per hour or part thereof — $71.40 19 20 000 237 164 mortgagor. but not exceeding for any one day 20 22 000 255 174 — $1,002.00. 21 24 000 269 185 Ref. No. Consideration Col.1 Col. 2 *********** 22 26 000 288 197 $ Not exceeding $ $ SECOND SCHEDULE 23 28 000 305 208 77 20 000 344 208 24 30 000 319 218 78 22 000 362 222 Part A — Mortgage of Freehold or 25 32 000 337 230 79 24 000 378 235 Leasehold Land 26 34 000 351 241 80 26 000 396 251 1. Charges of “legal practitioner for mort- 27 36 000 370 252 81 28 000 414 266 gagee” in connection with mortgage 28 38 000 384 264 82 30 000 431 279 of freehold or leasehold land compris- 29 40 000 400 275 83 32 000 449 293 ing instructions, investigation of title, 30 42 000 416 288 84 34 000 467 306 necessary searches, obtaining nec- 31 44 000 433 299 85 36 000 485 322 essary certifi cates, preparation and 32 46 000 449 311 86 38 000 501 337 perusal of documents, enquiries as 33 48 000 467 322 87 40 000 519 350 to outgoings, preparation of requisi- 34 50 000 482 334 88 42 000 535 364 tions on title, preparation of accounts, 35 52 000 492 339 89 44 000 553 378 all necessary attendances and corre- 36 54 000 501 346 90 46 000 570 392 spondence, arranging and effecting 37 56 000 510 354 91 48 000 586 408 fi nal settlement of transaction, stamp- 38 58 000 520 360 92 50 000 605 422 ing and registration of mortgage shall 39 60 000 532 367 93 52 000 614 431 be — 40 62 000 542 373 94 54 000 625 440 (a) in the case of land under the pro- 41 64 000 552 378 95 56 000 638 448 visions of the Transfer of Land 42 66 000 561 387 96 58 000 646 458 Act 1958, the charges prescribed 43 68 000 570 392 97 60 000 657 464 by Column 1 of Table A; and 44 70 000 580 398 98 62 000 667 475 (b) in the case of any other land, the 45 72 000 590 405 99 64 000 677 482 charges prescribed by Column 1 46 74 000 600 411 100 66 000 689 491 of Table B. 47 76 000 608 420 101 68 000 699 499 2. Charges of “legal practitioner for mort- 48 78 000 619 426 102 70 000 709 507 gagor” in connection with mortgage of 49 80 000 629 433 103 72 000 717 518 freehold or leasehold land comprising 50 82 000 639 440 104 74 000 728 524 instructions, preparation and perusal 51 84 000 649 447 105 76 000 738 534 of documents, answers to requisitions 52 86 000 657 452 106 78 000 750 542 on title, checking accounts, all neces- 53 88 000 667 459 107 80 000 761 552 sary attendances and correspondence 54 90 000 677 464 108 82 000 771 558 and arranging and effecting settle- 55 92 000 688 471 109 84 000 783 568 ment of transaction, shall be- 56 94 000 695 479 110 86 000 792 576 (a) in the case of land under the pro- 57 96 000 705 486 111 88 000 802 585 visions of the Transfer of Land 58 98 000 716 493 112 90 000 811 594 Act 1958, the charges prescribed 59 100 000 727 499 113 92 000 823 603 by Column 2 of Table A; and 60 110 000 760 520 114 94 000 835 610 (b) in the case of any other land, the 61 120 000 792 543 115 96 000 844 619 charges prescribed by Column 2 62 130 000 825 567 116 98 000 855 628 of Table B. 63 140 000 858 590 117 100 000 864 638 3. The First Schedule shall apply to a 64 150 000 889 610 118 110 000 900 663 “transfer of mortgage” but so that the 65 160 000 922 633 119 120 000 934 693

15 120 130 000 968 722 gagee. Column 2 legal practitioner for Act 1958, the charges prescribed by 121 140 000 1002 750 mortgagor Column 1. 122 150 000 1038 778 Amount of loan 3. Charges of legal practitioner for 123 160 000 1073 808 (if unvaried) or mortgagor in connection with dis- 124 170 000 1109 836 (if varied) the charge of mortgage or discharge of 125 180 000 1142 863 amount of the part of the mortgaged freehold or 126 190 000 1176 892 Ref. No. loan as varied Col. 1 Col. 2 leasehold land or discharge of mort- 127 200 000 1212 918 gage as to part of the debt secured 128 250 000 1297 991 $ Not exceeding — $ $ comprising instructions, perusal of 129 300 000 1383 1064 135 20 000 120 60 memorandum of discharge of mort- 130 350 000 1469 1135 136 35 000 164 82 gage, registration at Land Registry, 131 400 000 1558 1206 137 50 000 196 98 attention to insurance policies and 132 450 000 1644 1275 138 Over 50 000 add all necessary attendances and corre- 133 500 000 1729 1346 per 25 000 22 11 spondence, and effecting fi nal settle- 134 Over 500 000 139 ******* ment with mortgagee, his or her legal add per 100 000 88 71 General Law Land practitioner or agent, shall be, in the case of land under the provisions of Part B — Deed of Variation or Where the land secured by a mortgage is the Transfer of Land Act 1958, the Extension of Mortgage land which is not under the provisions of charges prescribed by Column 2. 1. Charges of legal practitioner for the Transfer of Land Act 1958, the fol- mortgagee only in connection with lowing additional charge may be made — Transfer of Land Act 1958 deed of agreement for variation of $42.70. Column 1 legal practitioner for mortgagee. terms of mortgage of freehold or Column 2 legal practitioner for mortga- leasehold land including extension of Part C — Discharge of mortgage or gor. date of payment, alteration of rate of discharge of part of the mortgaged land Amount of interest or reduction or increase of or discharge of mortgage as to part of Principal Debt loan comprising instructions, neces- the debt secured Ref. No. Discharged Col.1 Col. 2 sary searches, preparation and perusal 1. Charges of legal practitioner for $ Not exceeding — $ $ of documents, investigation of title, mortgagee (where no part of the debt 140 100 000 164 142 obtaining necessary certifi cates, nec- secured is received by the legal prac- 141 200 000 245 218 essary inquiries as to other interests titioner) in connection with discharge 142 300 000 327 273 in the land, preparation of any nec- of mortgage or discharge of part of 143 Over 300 000 add essary accounts, stamping and regis- the mortgaged freehold or leasehold per 100 000 27 22 tration and all necessary attendances land or discharge of mortgage as to and correspondence in connection part of the debt secured comprising General Law Land therewith shall be, in the case of land instructions, preparation and perusal Where the land secured by a mortgage is under the provisions of the Transfer of documents (including memoran- land which is not under the provisions of of Land Act 1958, the charges pre- dum of discharge of mortgage) and the Transfer of Land Act 1958, the fol- scribed by Column 1. all necessary attendances and corre- lowing additional charge may be made — 2. Charges of legal practitioner for spondence, delivery of discharge of $42.70. mortgagor in connection with deed mortgage to the mortgagor, his or her *********** of agreement for variation of terms of legal practitioner or agent shall be, in THIRD SCHEDULE mortgage of freehold or leasehold land the case of land under the provisions including extension of date of pay- of the Transfer of Land Act 1958, Part A—Lease of land whether or ment, alteration of rate of interest or the sum of $152.40. not under the Transfer of Land reduction or increase of loan compris- 2. Charges of legal practitioner for Act 1958 but not including leases ing instructions, necessary searches, mortgagee(where the debt secured exceeding 21 years, leases not preparation and perusal of documents or part thereof is received by the capable of being reduced to an and all necessary attendances and legal practitioner) in connection with annual rental or periodic leases correspondence in connection there- discharge of mortgage or discharge determinable by notice with shall be, in the case of land of part of the mortgaged freehold or 1. Charges of “legal practitioner for under the provisions of the Transfer leasehold land or discharge of mort- lessor” in connection with lease of of Land Act 1958, the charges pre- gage as to part of the debt secured land comprising instructions for and scribed by Column 2. comprising instructions, preparation drawing lease, settling draft with les- 3. Where the consent of a prior or and delivery of the discharge of see, his or her legal practitioner subsequent mortgagee is required in mortgage, receipt of amount to be or agent, perusal of documents and order to vary or extend the mortgage, discharged, perusal of documents all necessary attendances and cor- the legal practitioner may in addition and all necessary attendances and respondence to effect completion of charge the following sum for each correspondence and effecting fi nal transaction — such consent — $123.40. settlement with mortgagor, his or (a) with material alteration (in dupli- her legal practitioner or agent shall cate) after amendment — shall Transfer of Land Act 1958 be in the case of land under the be the charges prescribed by Column 1 legal practitioner for mort- provisions of the Transfer of Land Column 1A; and

16 (b) without material alteration — 8 of the Retail Tenancies Reform 168 66 000 688 514 514 344 shall be the charges prescribed Act 1998 including instructions for 169 68 000 700 524 524 350 by Column 1B. and drawing of the disclosure state- 170 70 000 714 534 534 355 2. Charges of legal practitioner for les- ment, instructions for and drawing of 171 72 000 727 543 543 364 see in connection with lease of land the notice of objection, perusal of all 172 74 000 740 553 553 370 comprising instructions, settling draft documents and all attendances and 173 76 000 752 562 562 377 lease with lessor, his or her legal correspondence necessary in negotia- 174 78 000 765 574 574 383 practitioner or agent, preparation and tions on the disclosure statement are 175 80 000 778 584 584 388 perusal of documents and all neces- not included in Columns 1A and 1B 176 82 000 792 594 594 396 sary attendances and correspondence and the legal practitioner may charge 177 84 000 804 603 603 402 to effect completion of transaction on additional remuneration in respect 178 86 000 816 613 613 410 behalf of lessee — thereof in accordance with the First 179 88 000 831 623 623 415 (a) where lease is executed after Schedule. 180 90 000 844 633 633 421 material alteration (by lessor) Ref. No. Total Legal Legal 181 92 000 858 643 643 428 after amendment — shall be the rental for practitioner practitioner 182 94 000 870 652 652 434 charges prescribed by Column period of for Lessor for Lessee 183 96 000 884 662 662 443 lease 184 98 000 896 671 671 448 2C; and including (b) where lease is executed without premium 185 100 000 908 681 681 453 material alteration (by the lessor) (if any) 186 110 000 953 714 714 476 after amendment — shall be the Col. Co1. Col. Col. 187 120 000 996 747 747 497 charges prescribed by Column $ Not 1A 1B 2C 2D 188 130 000 1039 780 780 520 2D. exceeding — $ $ $ $ 189 140 000 1082 813 813 542 3. If the document used (irrespective of 144 15 000 191 164 164 109 190 150 000 1127 846 846 564 the number of folios) is in print, the 145 20 000 255 192 192 126 191 160 000 1171 879 879 585 charge of a legal practitioner shall be 146 22 000 275 207 207 137 192 170 000 1214 911 911 606 two-thirds of the charges prescribed 147 24 000 299 223 223 149 193 180 000 1257 944 944 629 by Columns 1B or 2D. 148 26 000 319 240 240 160 194 190 000 1300 977 977 651 4. If the document used (irrespective of 149 28 000 343 256 256 170 195 200 000 1345 1007 1007 671 the number of folios) is in a form pre- 150 30 000 364 273 273 181 196 250 000 1454 1091 1091 727 pared by a legal practitioner for a les- 151 32 000 384 289 289 193 197 Over sor for use in connection with fi ve or 152 34 000 408 306 306 203 250 000 more leases of premises forming part 153 36 000 428 322 322 214 add per of the same building or development 154 38 000 452 339 339 226 200 000 109 82 82 56 — the charge of a legal practitioner 155 40 000 472 354 354 235 198 * * * * * * for the lessor for each such lease 156 42 000 493 372 372 246 199 * * * * * * shall be two-thirds of the charges pre- 157 44 000 518 387 387 258 200 * * * * * * scribed by Column 1B. 158 46 000 537 404 404 268 5. The charges of a legal practitioner 159 48 000 561 420 420 279 Part B — Stock mortgage and lien upon the renewal of a lease pursuant 160 50 000 581 436 436 291 on wool or lien on crop to an option for renewal contained in 161 52 000 595 447 447 299 1. Charges of legal practitioner for an existing lease shall be two-thirds 162 54 000 608 455 455 305 both creditor and debtor in con- of the charge prescribed by Columns 163 56 000 622 464 464 311 nection with stock mortgage, lien 1B or 2D. 164 58 000 634 476 476 316 on wool or lien on crop comprising 6. Charges of legal practitioner for les- 165 60 000 649 486 486 323 instructions, preparation and perusal sor in connection with a disclosure 166 62 000 662 496 496 331 of documents, searches, attention statement made pursuant to section 167 64 000 674 505 505 337 to adjustment account (if any) and

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17 all necessary attendances and corre- 226 60 000 464 367 299 (including memorandum of satisfac- spondence to complete transaction 227 62 000 475 373 305 tion or discharge) and all necessary on behalf of creditor and debtor shall 228 64 000 482 378 311 attendances and correspondence and be the charges prescribed by Column 229 66 000 491 387 316 effecting fi nal settlement with debtor, 1. 230 68 000 499 392 322 his or her legal practitioner or agent 2. Charges of legal practitioner for 231 70 000 507 398 327 shall be the charges prescribed by creditor only in connection with 232 72 000 518 405 334 Column 1. stock mortgage, lien on wool or lien on 233 74 000 524 411 339 2. Charges of legal practitioner for crop comprising instructions, prep- 234 76 000 534 420 343 debtor in connection with satisfac- aration and perusal of documents, 235 78 000 542 426 349 tion or discharge of a bill of sale or searches, attention to adjustment 236 80 000 552 433 354 stock mortgage comprising instruc- account (if any) and all necessary 237 82 000 558 440 360 tions, perusal of memorandum of attendances and correspondence to 238 84 000 568 447 365 satisfaction or discharge, registration complete transaction on behalf of 239 86 000 576 452 372 and all necessary attendances creditor shall be the charges pre- 240 88 000 585 459 377 and correspondence and effecting scribed by Column 2. 241 90 000 594 464 382 fi nal settlement with creditor, his 3. Charges of legal practitioner for 242 92 000 603 471 387 or her legal practitioner or agent shall debtor only in connection with stock 243 94 000 610 479 392 be the charges prescribed by Column mortgage, lien on wool or lien on crop 244 96 000 619 486 398 2. comprising instructions, preparation 245 98 000 628 493 404 and perusal of documents, attention to 246 100 000 638 499 410 Ref. No. Consideration Col. 1 Col. 2 adjustment account (if any), searches 247 Over 100 000 — such additional charge $ Not exceeding — $ $ and all necessary attendances, and as is reasonable having regard to the 260 10 000 56 33 correspondence to complete transac- responsibility involved in and the 261 14 000 61 34 tion on behalf of debtor shall be the complexity of the transaction. 262 18 000 66 38 charges prescribed by Column 3. 263 22 000 71 43 4. The charges prescribed in Column 1 Part C — Renewal of bill of sale 264 26 000 76 46 shall only apply where Rule 10 of 1. Charges of legal practitioner for cred- 265 30 000 82 48 the Professional Conduct and Practice itor in connection with the renewal of 266 Exceeding 30 000 82 48 Rules 2000 made pursuant to the a bill of sale comprising instructions, Legal Practice Act 1996 does not preparation and perusal of documents Part E — Application by legal prohibit the legal practitioner from and all necessary attendances and cor- personal representative under the acting for both creditor and debtor. respondence shall be the charges pre- Transfer of Land Act 1958 scribed by Column 1. 267. Charges of legal practitioner in con- Ref. Col. Col. Col. 2. Charges of legal practitioner for nection with an application by a No. Consideration 1 2 3 debtor in connection with renewal of trustee, executor or administrator $ Not bill of sale comprising instructions, to be registered as proprietor of exceeding — $ $ $ perusals and all necessary attend- real estate or mortgage, including 201 10 000 136 108 88 ances and correspondence shall be instructions, checking title identity, 202 12 000 149 119 96 the charges prescribed by Column 2. preparation of application, neces- 203 14 000 165 131 105 sary attendances and correspond- 204 16 000 180 142 114 Ref. No. Consideration Col 1 Col. 2 ence and registration — $193.20. 205 18 000 193 153 124 $ Not exceeding — $ $ 268. For each additional certifi cate of 206 20 000 208 164 135 248 10 000 56 33 title or mortgage produced beyond 207 22 000 222 174 143 249 14 000 61 34 the fi rst title or mortgage referred to 208 24 000 235 185 153 250 18 000 66 38 in the application — $18.20. 209 26 000 251 197 160 251 22 000 71 43 210 28 000 266 208 170 252 26 000 76 46 Part F — Application by surviving 211 30 000 279 218 180 253 30 000 82 48 proprietor 212 32 000 293 230 190 254 34 000 88 51 269. Charges of legal practitioner in 213 34 000 306 241 197 255 38 000 94 53 connection with an application by 214 36 000 322 252 207 256 42 000 99 58 a survivor of joint proprietors to 215 38 000 337 264 217 257 46 000 104 61 be registered as proprietor of real 216 40 000 350 275 226 258 50 000 109 65 estate or mortgage, including 217 42 000 364 288 234 259 Exceeding 50 000 109 65 instructions, checking title identity, 218 44 000 378 299 242 preparation of application and dec- 219 46 000 392 311 252 Part D — Satisfaction or discharge laration, necessary attendances and 220 48 000 408 322 263 of bill of sale or stock mortgage correspondence and registration — 221 50 000 422 334 269 1. Charges of legal practitioner for $214.70. 222 52 000 431 339 275 creditor in connection with satisfac- 270. For each additional certifi cate of 223 54 000 440 346 280 tion or discharge of a bill of sale title or mortgage produced beyond 224 56 000 448 354 288 or stock mortgage comprising prep- the fi rst title or mortgage referred to 225 58 000 458 360 293 aration and perusal of documents in the application — $18.20.

18 Part G — Production fee between the legal practition- from a person for whom he or 271. For production of Crown grants, ers, two-thirds being payable to she acts and subsequently by certifi cates of title, title deeds, or the legal practitioner for the arrangement with his or her cli- other documents in the possession mortgagee and one-third to the ent lends the money and exe- of the legal practitioner of the per- legal practitioner for the mort- cutes or signs the security in his son entitled to the custody thereof gagor. or her own name or the name at such legal practitioner’s offi ce 274. The remuneration prescribed under of a nominee company of which or at the Land Registry, Offi ce of item 272 or 273 shall not include dis- he or she or his or her partner the Registrar-General or elsewhere, bursements reasonably incurred in is a director, he or she or such including, where necessary, endorse- travelling from any place of business nominee company being in fact ment of an order to register — and home respectively of such legal trustee or agent for the person for not more than two Crown practitioner and disbursements oth- aforesaid; or grants, certifi cates of title, chains erwise reasonably incurred in the (b) when the legal practitioner con- of title deeds, or other docu- inspection of the property mort- tributes portion of the money ments — $121.90. gaged or charged and in procuring in fact lent, and arranges and for each additional Crown grant, the agreement for the loan which obtains the remaining portion certifi cate of title, chain of title disbursements may be charged in from another person not being deeds, or other document beyond addition to the remuneration so pre- his or her partner as a legal the second — $18.20. scribed. practitioner, not being a co- trustee with him or her in rela- *********** Part B — for negotiating for or tion to the money lent. FOURTH SCHEDULE procuring an agreement for a loan 276. In either of the foregoing cases when the money is in fact lent and Part A — Negotiating for or a charge for negotiating or procur- the legal practitioner or the legal procuring an agreement for a loan ing an agreement for a loan may practitioner’s nominee company is when the money is in fact lent and be made at the rate prescribed in either the lender or one of the the legal practitioner is neither the Part A in respect of the amount so lenders lender nor one of the lenders obtained from such other person. 275. When the legal practitioner, or a Note: 272. In respect of money lent upon the nominee company of which the legal If a legal practitioner negotiates for security of real or leasehold estate practitioner or a partner of the legal or procures an agreement for the or personal property — 1.09 per practitioner is a director, is either renewal of a loan from such other centum upon the amount lent. the lender or one of the lenders no person he or she shall not in respect Note: remuneration shall be charged for thereof be entitled to charge remu- If a legal practitioner negotiates for negotiating or procuring the loan, neration in accordance with item or procures an agreement for the except in the following cases: 272 and his or her charge shall be renewal of a loan he or she shall (a) when the legal practitioner 0.55 per centum upon the amount not in respect thereof be entitled to arranges and obtains the loan of the renewed loan. charge remuneration in accordance with this item and his or her charge shall be 0.55 per centum upon the amount of the renewed loan. 273. (1) If a legal practitioner negotiates Thomas for or procures an agreement for a loan for his or her client Mintsenikos being the borrower or mortga- gor through the agency of any Preserving original surfaces person (other than a legal prac- Wax fi nishing titioner) to whom a procuration fee is payable then he or she French polishing shall only be entitled to remu- Cabinet repairs neration in accordance with the First Schedule in respect Locks and keys service of negotiating for or procuring Hardware repairs such agreement. (2) If a legal practitioner negoti- Marble cleaning and polishing ates for or procures an agree- ment for a loan for his or her Thomas Mintsenikos client being the borrower or ABN 33 982 537 366 RESTORATION AND CONSERVATION OF mortgagor through the agency FINE ANTIQUE FURNITURE of another legal practitioner 27 ALBERT STREET, NORTHCOTE, VICTORIA 3070 then the remuneration provided PHONE: +61 (0)3 9481 1708 by item 272 shall be divided FAX: +61 (0)3 9481 1977

19 Legal Practice Notes Legal Profession Tribunal: Publication of Orders

NDER section 166 of the Legal of the Act in that his conduct Bar Incorporated when required Practice Act 1996 (“the Act”), the in contravening Rule 74(b) of to do so. The legal practitioner UVictorian Bar Inc. as a Recognised the Rules of Conduct of the pleaded guilty to the offences. Professional Association, is required to Victorian Bar Incorporated by 4) The orders of the Tribunal were as fol- provide the following information in rela- failing to reply to a letter dated lows: tion to orders made by the Legal Profession 17 May 2001 from the Ethics a) In respect of the fi rst charge, the Tribunal (“the Tribunal”) against its regu- Committee of the Victorian Bar legal practitioner is reprimanded lated practitioner: Incorporated when required to and is to pay a fi ne of $250.00 1) Name of practitioner: Basil Stafford do so was a contravention not to the Legal Practice Board by 30 (“the legal practitioner”) amounting to misconduct; and September 2001. 2) Tribunal Findings and the Nature of iii) as defi ned by paragraph (b) b) In respect of the second charge, the the Offence of the defi nition of “unsatisfac- legal practitioner is reprimanded a) Findings tory conduct” in section 137 and is to pay a fi ne of $250.00 The Tribunal found the legal practi- of the Act in that his conduct to the Legal Practice Board by 30 tioner guilty of unsatisfactory con- in contravening Rule 74(b) of September 2001. duct: the Rules of Conduct of the c) In respect of the third charge, the i) as defi ned by paragraph (a) Victorian Bar Incorporated by legal practitioner is reprimanded of the defi nition of “unsatisfac- failing to reply to a letter dated and is to pay a fi ne of $250.00 tory conduct” in section 137 of 13 June 2001 from the Ethics to the Legal Practice Board by 31 the Act in that he engaged in Committee of the Victorian Bar October 2001. conduct in the course of engag- Incorporated when required to d) The legal practitioner is to pay to ing in legal practice that falls do so was a contravention not the Victorian Bar Incorporated its short of the standard of com- amounting to misconduct. costs of these proceedings, fi xed petence and diligence that a 3) Nature of Offence by the Tribunal at $1,000.00, by 30 member of the public is enti- a) The legal practitioner failed to November 2001. tled to expect of a reasonably return a brief to the instructing 5) As at the date of publication no notice competent legal practitioner; solicitor within a reasonable time of appeal against the orders of the ii) as defi ned by paragraph (b) of being requested to do so and Tribunal has been lodged. The time for of the defi nition of “unsatisfac- failed to reply to letters from the service of such notice has expired. tory conduct” in section 137 Ethics Committee of the Victorian

Amendment to Rule 197 of the Rules of Conduct

T its meeting on 8 November 2001, ments for barristers. The Rule has been VICTORIAN BAR COUNCIL the Bar Council resolved to adopt amended by extending the defi nition AMENDMENT TO DISCLOSURE Aan amended Rule 197 with effect of “disclosable event” by including in RULES OF CONDUCT from 1 February 2002. Pursuant to sec- 197(a)(i) the fi ling of a debtor’s petition tion 74(2) of the Legal Practice Act 1996, pursuant to the Bankruptcy Act 1966 TO BE EFFECTIVE 1 FEBRUARY 2002 the Legal Practice Board and the Legal (Cth) and, in 197(a)(ii), a composition Part X — Obligations of Disclosure Ombudsman have been given notice of pursuant to Part X of the Bankruptcy Act. Disclosure Requirements this change to the Rules of Conduct. The amended Rule is set out below. 197. (a) In this Rule, a “disclosable Rule 197 deals with disclosure require- event” in relation to a barrister

20 Correspondance

means any of the following: to engage in legal practice Commemorative Plaque (i) the making of a sequestra- as a barrister for the pur- tion order against, or the poses of paragraph (b) of Enlarged fi ling of a debtor’s peti- the defi nition of miscon- tion by, the barrister pur- duct in section 137 of the The Editors suant to the Bankruptcy Legal Practice Act. Act 1966 (Cth); (c) A barrister in relation to whom Dear Sirs (ii) the entry by the barrister a disclosable event occurs must, Members of the Victorian Bar who fell into a debt agreement within 14 days after receiving a in the Great War 1914–1918 pursuant to Part IX of written request from the Ethics the Bankruptcy Act 1966 Committee to do so, provide read with interest the article on this sub- (Cth), or an agreement, such further information con- Iject by Andrew Donald in your issue of composition or arrange- cerning the disclosable event or Spring 2001, at pp. 43–4. Members of the ment pursuant to Part X any of the circumstances giv- Bar may welcome a little more information of that Act; ing rise to it, as the Ethics about the individuals concerned which I (iii) the disqualifi cation of the Committee may require. have derived from several books of refer- barrister from managing ence which happen to be in my posses- or being involved in the Transitional Provisions sion. management of any body (d) Where a disclosable event All fi ve of the men commemorated on corporate under any law (other than a disclosable event the plaque you illustrate — F.S.F. Carse, in force in any jurisdic- of the kind referred to in para- E.W. Connelly, M.B. Higgins, E.N. Hodges tion within Australia, graph (a)(iv) of this Rule) has and M.N. Mackay — had studied at the including disqualifi cation occurred in relation to a barris- University of Melbourne. Accordingly a from managing corpora- ter at any time within a period biographical note, with photograph, is tions under Part 2D.6 of of fi ve (5) years before the date given for each of them in H.W. Allen, the Corporations Law; or of commencement of this Rule, The University of Melbourne Record of (iv) the conviction of the the barrister must within 28 Active Service . . . in the European barrister of an offence days after that date of com- War, 1914–18, the foreword of which is under any law in force in mencement: dated March 1926. All but Hodges served Australia or in any over- (i) inform the Ethics at Gallipoli, as well as in France. Carse, seas country, or a fi nding Committee in writing of Higgins and Hodges were exact contempo- that such an offence is the occurrence of the dis- raries (1899–1904) at Melbourne Grammar proved against the barris- closable event; and School and are the subjects of biograph- ter, where the maximum (ii) provide the Ethics ical notes in the centenary edition of penalty for the offence is Committee with written Liber Melburniensis, published in 1965. a term of imprisonment details of the circum- The fathers of Higgins and Hodges were of more than 12 months, stances that gave rise to themselves members of the Victorian Bar or where fraud or dishon- the disclosable event suffi - and are the subjects of entries in the esty is an element of the cient to enable the Ethics Australian Dictionary of Biography. offence. Committee to determine Carse graduated LLB in 1908. He had (b) Where, after the commence- whether the occurrence of held a commission in the Field Artillery ment of this Rule, a disclosable the disclosable event in and was a candidate at the Federal elec- event occurs in relation to a bar- relation to the barrister, or tion of 1913. Enlisting in May 1915 as a rister, the barrister must within any of the circumstances lieutenant, he arrived at Gallipoli in July. 28 days after the disclosable that gave rise to it, may Invalided to England in October, he served event occurs: affect the barrister’s suit- in France from July 1916 until his death. (i) inform the Ethics ability to engage in legal On 1 May 1917, after suppressing a fi re Committee in writing of practice as a barrister for in an ammunition dump, he was hit, while the occurrence of the dis- the purposes of paragraph walking back to his dugout, by a stray shell closable event; and (b) of the defi nition of and died the next morning. (ii) provide the Ethics misconduct in section 137 Connelly was educated at Carlton Committee with written of the Legal Practice Act. College. He began the articled clerks’ details of the circum- (e) A barrister in relation to whom course in 1905 and successfully completed stances giving rise to the paragraph (d) of this Rule it. He had served six years in the Cadets disclosable event suffi - applies must, within 14 days and three years as a 2nd Lieutenant in the cient to enable the Ethics after receiving a written request 8th Infantry Battalion, Bendigo. Enlisting Committee to determine from the Ethics Committee to in September 1914 with that rank, he was whether the occurrence of do so, provide such further at the Gallipoli landing on 25 April 1915. He the disclosable event in information concerning the dis- was wounded on that day and, after recov- relation to the barrister, or closable event or any of the ering and a period of service in Australia, any of the circumstances circumstances giving rise to it, served in France from November 1917 giving rise to it, may affect as the Ethics Committee may until his death. the barrister’s suitability require. After leaving school, Higgins went to

21 Oxford, rowing bow in the crew which He attained the rank of Captain but died the Women Barristers Association. This defeated Cambridge in 1910. He gradu- of pneumonia on 23 June 1918. memo states that on Friday 19 October ated in law in that year and was called Mackay was educated at St Andrew’s 2001 the Readers Course will be addressed to the English Bar in 1911. He returned College and Corporate High School, by the Sexual Harassment Conciliators, to Melbourne where he graduated in Arts Bendigo. He won the Supreme Court Prize God bless them (my words), and then the in 1913. Enlisting in November 1914 as with fi rst class honours, when only just Women Barristers Association (why?). a private soldier in the 8th Light Horse, 20, and graduated LLM in 1911. Early Following this momentous event “the he was commissioned in February 1915 in 1915, he appeared in his fi rst High WBA is planning lunch for this year’s and served at Gallipoli from May. He took Court case. He had been commissioned women readers in the Essoign Club which part in the charge at The Nek on 7 August in the Citizen Forces 1911–1914 and was will provide an opportunity to meet other 1915 and was one of the few offi cers not appointed Captain in the 22nd Battalion in women barristers informally, fi nd out more killed or wounded: see the list in the May 1915. He married a week before he about the work (?) of the WBA and for Offi cial History of Australia in the War sailed and served at Gallipoli from August them to get to know each other. of 1914–1918, Vol. II, p. 623. He is men- to the evacuation in December. He went As the only male member (Honorary) tioned on p. 714 of that volume in another to France in March 1916 and was killed in of the Gippsland Women’s Law Association connection. In December 1916 he was August at Pozieres, where I have visited which enabled me to join in their festivi- shot through the head by a sniper while his grave in the British Cemetery. ties, in the last millennium, husband (not advancing with the front line at Magdhaba Mackay’s father, George Mackay, pub- partner) of a female lawyer, son of a female on the Sinai Peninsula. lished — probably in 1916 — a memorial scientist (who was one of about three Higgins was the only child of Henry of his son’s life and character: Major women in her Faculty at the University of Bournes Higgins, a justice of the High Murdoch Nish Mackay, LL.M.: Scholar Melbourne) and brother of a female doc- Court of Australia 1906–1929, and fi gures and Patriot. I have a copy of this 44-page tor, may I suggest that to promote har- in some detail in John Rickard’s biography booklet which summarises Mackay’s career, mony and to avoid division on gender lines H.B. Higgins: the Rebel as Judge, pub- gives extracts from his letters and quotes between all the readers, that the WBA lished in 1984. Mr Justice Isaacs described tributes from those who served with him invite all the readers to their lunch and the grief of Mervyn’s parents as “well nigh and from various judges, barristers and not pack off the boys like unwanted chil- devastating”: the father himself wrote “My others at home. dren so that their single gender activities grief has condemned me to hard labour for can be carried out in a “veil” (is this topi- the rest of my life”. Yours sincerely cal?) of secrecy. Hodges was the son of Sir Henry Peter Balmford Yours sincerely, Edward Agincourt Hodges, a judge of the Fellow of the Faculty of Law Supreme Court of Victoria 1890–1919, Monash University A.D. (Sandy) Robertson and graduated LLB in 1908. He went to England to join the British Army and P.S. May I add my support to the editorial obtained a commission in the Army Service in the Bar News relating to censorship at Corps in July 1915. Three weeks later he Stung Into Action the Bar Dinner. No wonder no-one goes was in France, attached to an ammunition The Editors any more. Furthermore, may I assume that column, of which he became Adjutant. He if and when the Bugle sounds for the for- was subsequently Adjutant to the senior S an ordinary member of an increas- mation of the third AIF in the current hos- mechanical transport offi cer of a corps and Aingly insignifi cant minority group tilities, the WBA will be stripped bare of its at the time of his death was under orders (white, Protestant, Anglo/Celtic hetero- membership by women of “fi ghting age” to take up an appointment at GHQ. He sexual male) I have been fi nally stung desperate to embrace their emancipation served on the Somme in 1915; at Messines; into action upon perusing a memorandum and equality (superiority?) by joining the and later in operations in Flanders for dated 15 October 2001 to women readers, boys and donning the khaki and green in which he was awarded the Military Cross. March and September 2001 re lunch with service of their native land?

THE ESSOIGN CLUB Open daily for lunch See blackboards for daily specials Happy hour every Friday night: 5.00–7.00 p.m. Half price drinks

Great Food • Quick Service • Take away food and alcohol Ask about our catering: quality food and competitive prices guaranteed

22 15 November 2001

Dear Practitioner OPENING OF THE LEGAL YEAR — MONDAY 4 FEBRUARY 2002

The Services for the Opening of the Legal Year are as follows:

St Paul’s Cathedral Cnr Swanston and Flinders Streets Melbourne at 9:30 a.m.

St Patrick’s Cathedral Albert Street East Melbourne at 9:00 a.m. (Red Mass)

Melbourne Hebrew Congregation Cnr Toorak Road and Arnold Street South Yarra at 9:30 a.m.

St Eustathios Cathedral 221 Dorcas Street South Melbourne at 9:30 a.m.

I hope that many of you will fi nd time to celebrate this event with your colleagues. Family and friends are also most welcome. Members of the judiciary, Queen’s and Senior Counsel and the Bar are invited to robe for the procession in the various robing rooms in good time for the start of the procession, in which all members of the profession are invited to join. Marshals will be present at the services to indicate the order of the procession.

Yours sincerely

John Harber Phillips AC Chief Justice

23 Welcomes Supreme Court

Justice Pagone

law as well as obtaining a diploma of edu- as specialising in revenue cases, being cation. He did not immediately embark much in demand by the Commonwealth, upon a legal career, but taught for a short his practice has not been confi ned to that time at the Lilydale Secondary College. area. Aside from general commercial work, However, the law called and he com- His Honour’s keen interest in civil liberties pleted his articles at the then fi rm of F. has led him into such cases. Indeed, at one Owen & Associates and was admitted to time his Honour served on the then AAT practice in 1980. in Victoria sitting as a sessional member in As anyone associated with his Honour the Anti-Discrimination List. knows teaching has been an important His Honour’s interests are varied and part of his life. Not surprisingly, he took up had led him to being the proud proprietor a post at Monash University where for a of a restaurant in Carlton known as time he taught law. Whilst at Monash, he “Sicilian Vespers”. His Honour was also a had the privilege of spending some time keen member of a dining and discussion at Cambridge University, where he com- group known as the Eggleston Society. As pleted a Masters Degree in law with hon- befi tting a man with a professed admira- ours. tion for Machiavelli, his Honour became His Honour then decided that he should a devotee of the ancient game of Royal come to the Bar. He signed the Bar Roll Tennis. Members of his then chambers in 1985 and chose Allan Myers QC as his were treated to a running description, mentor. via fax, of his progress through the var- As would be expected, his Honour was ious royal tennis courts in England and much in demand as a junior counsel as Scotland, his opponent being Mr Justice AETONE (Tony) Pagone was continued as such until he took silk in Kellam. His Honour is married to Margaret appointed as a member of the 1996. On taking silk he had conducted Pagone and they have two children. GSupreme Court of Victoria in Octo- a successful and busy practice until his We wish His Honour success in his ber of this year. appointment. He continued to maintain appointment. His Honour was educated at De La Salle his interest in teaching through the post- and then at Monash University where he graduate courses at Monash. completed his bachelor degree in arts and Whilst His Honour will be remembered

County Court

Judge Nicholson

UDGE Nicholson’s appointment to the County Court by the Chairman of the Vic- Her Honour was raised in the inner County Court on 3 July 2001 drew torian Bar Council and the President of Melbourne suburb of Yarraville and edu- Jsupport from a wide section of the the Law Institute. cated at Catholic Ladies College. After community including the judiciary, the Such widespread support may be attrib- the completion of her secondary school- profession, and her many friends and uted to Her Honour’s extensive curriculum ing she was offered a place at law school acquaintances. It is rumoured Her Honour vitae which may be summarised by the but due to her mother’s ill health was not has set a new record for the numbers in chairman’s opening words “Your Honour able to take it up and in its stead com- attendance at her swearing in ceremony comes to the court after not one but two menced work with the Commonwealth and at her offi cial welcome on Tuesday successful careers. First in government Government whilst undertaking part-time 31 July 2001. She was welcomed to the and second at the Bar”. studies.

24 with the use of sign language interpret- not to do things by halves. Her Honour has ers. It was the fi rst trial of this kind in been known to ski the Klein Matterhorn, Australian legal history. putt the 18th at St Andrews and speed In addition to her many achievements down hills as a member of the Scooter at the Victorian Bar, in 1993 Her Honour Squadron. Her Honour has also main- was also admitted to the Bar of Ireland tained a lifetime of loyalty to the Western where she obtained the Irish degree of Bulldogs and regularly attends their Barrister at Law. matches and is an enthusiastic member of Notwithstanding the demands of a busy the “Watchdogs”. practise Her Honour has made signifi cant Modest in accepting accolades, Her contributions to the administration of the Honour attributes her achievements to her law. During her early years she worked as mother Bernadette and describes her as a volunteer in several Community Legal “the most signifi cant role model in my Centres, such as the Fitzroy and St Kilda life”. As one of nine children Bernadette Legal Services. Her Honour also taught for taught herself the skills to rise to the posi- many years at the Leo Cussen Practical tion of personal private secretary to Prime Training Institute where she was affection- Minister Harold Holt and was awarded a ately dubbed “Judge Julie”. She has also MBE for her services. At her welcome, Her served as a moot master at the University Honour paid tribute to her mother for her of Melbourne. inspiration and encouragement and for the Her Honour is well known as a keen example she set by working hard and long fan of the horses. She has followed this hours combining a career and motherhood. interest both as a spectator and a rider. Her Honour also recalled her mother’s In 1974 Her Honour graduated with She took many briefs involving cases con- encouraging advice “that women should a Diploma in Arts from what is now cerning horses. This interest and expe- pursue whatever career they choose and Swinburne University and the following rience no doubt played a part in Her to follow that dream and no matter what year commenced a Bachelor of Laws at Honour’s appointment late last year as the your background and diffi culties in life, Monash University. Over a period of twelve Deputy Chairperson of the Racing Appeals you can achieve”. years in the Commonwealth Public Service Tribunal. This appointment was especially Such is the breadth of experience Her Her Honour held many notable roles which notable because Her Honour was the fi rst Honour brings to the County Court. The included acting as a liaison offi cer to vis- member appointed to the Tribunal who community will be well served by the iting delegations of foreign dignitaries, was not a judge. appointment of Judge Nicholson and the including on one occasion escorting the A keen sportswoman Her Honour does Bar wishes her well. then Prime Minister of Singapore, Mr Lee Kuan Yew, upon his visit to Melbourne. Her Honour obtained her Bachelor of Laws in 1981 and completed her articles at the Leo Cussen Institute in 1982 and was admitted to practice later that year. She came to the Bar and fi rst read with Phillip Openings of The Legal Year Australian Society Dunn QC. When he was tempted overseas by a juicy brief, she completed her reading in the 21st Century with Brind Zichy-Woinarski QC. Her Honour quickly distinguished her- Q. Why church services? 8. A respected mark of the start self as a diligent and capable barrister, and A. 1. A display of ritual pageantry. to the commencement of the her early practice at the Bar involved a 2. An occasion of due solemnity. sittings of the courts (and tri- signifi cant amount of criminal work, but 3. An expression of the place of bunals) of Victoria, for a New it soon developed into a wide practice in the principles of the rule of law Year. many areas of law including building dis- in society. 9. A public church service — putes, franchise cases, coronial inquests, 4. An expression of the impor- including some of the active and a range of administrative law matters tance of the law as a system of offi cials court and legal practi- including disciplinary tribunal proceedings security for, if not also comfort tioners — so the public can see and racing matters. of, society. them, in public. Her Honour developed a reputation as 5. An expression of the moral and 10. A useful walk (for members of an advocate who could put her case even spiritual guidelines — as seen the Bar). in the most diffi cult of circumstances. by the church, for the practice One such case was recounted in the well of law. Tony Radford known legal drama series “Janus”. The 6. The occasion for renewed con- Victorian Bar Nominee on the case involved a complaint of sexual assault. tact with a church, by non reg- Chief Justices’ Committee for It was an unusual case because the com- ular “church-goers”. Religious Observances plainant, the defendant and several wit- 7. A forum of new ideas and lan- nesses were hearing and speech impaired. guage. The whole of the trial had to be conducted

25 Farewell Supreme Court

Justice Hedigan

At the Bar he showed a somewhat mer- a fi rst-class intellect, an understanding of curial temperament and sometimes a cer- people and a tolerance of their foibles and tain intolerance towards those whose wits weaknesses. On the Bench he sought to were less quick or who were too slow to ensure that justice and the law did not seek his point of view. In his speech on the drift too far apart. occasion of the retirement of His Honour, He presided for a long time over the the then Chairman of the Bar Council, commercial list and managed it both in Mark Derham QC, said: the interests of effi ciency and in the inter- ests of ensuring justice. He was later the At the Bar you were an all-rounder, at home driving force in the establishment of the in almost all jurisdictions and areas of law. major torts list which he managed from You developed a reputation as a fearless 1995 until his retirement this year. advocate, utterly uncompromising and com- The departure of Jack Hedigan from bative in the presentation of your client’s the Bench is a loss to the Supreme Court case. Scholarly opponents called you “vola- of Victoria and it is a loss to the law of this tile”, while the less articulate complained of State. He leaves his stamp on the court, a “short fuse”. not only in the judgments he has handed down but also in the form of the major When His Honour was appointed to the torts list which he played such a major Bench, there were many that feared the role in creating. impact of that “volatility”. But it did not That retirement, however, gives this manifest itself. “affable irregular” more time for his wife In the course of a trial he might well Helen, and his children Anna and John, OHN Joseph (“Jack”) Hedigan was interrupt to ask a pertinent, and some- for his gardening, his horse racing and for educated at De La Salle College, times deadly, question. He would not, Collingwood Football Club. JMalvern, (a school which also pro- however, browbeat counsel into accept- duced Chief Justice Phillips and Justice ing his viewpoint, but would listen to an An affable irregular Teague), the University of Melbourne answer and analyse it. Even where in an A heavily build Falstaffi an man and the University of Michigan. He was exchange with counsel he had committed Comes cracking jokes of civil war as though dux of De La Salle College, obtained an himself strongly to a particular viewpoint, to die Honours degree in Law from the University he was prepared to change that viewpoint By gunshot were the fi nest play under the of Melbourne and a scholarship to the if persuaded by the logic of counsel’s sub- sun University of Michigan where he obtained missions. Although reluctant to listen to W.B. Yeats an LLM degree. nonsense, he managed for the most part Despite the temptations of a lucrative to abide by the stricture he gave himself We wish him well in his retirement. career in the law in Michigan, he returned on his appointment: “Shut up and listen”. to do articles with Corr & Corr and signed In the Winter issue of Bar News David the Bar Roll in 1957. He read with Olaf Bennett gave the following pen portrait Moodie Heddle and took silk in 1973. He of Jack Hedigan listening to submissions was appointed to the Supreme Court in being put by Geoffrey Robertson QC. January 1991 and retired in August this year. A quick look at the judge to get a sense of As a barrister, His Honour’s huge and how he was taking things. successful practice in the common law No special occasion here — that was area and his capacity to hide a keen intel- obvious. Hedigan J’s usual unimpressiona- lect and an erudite mind behind a veneer ble manner was unchanged. He sat in the of bluff heartiness led many to underes- same seat as had Barry J and obviously timate his very broad knowledge of the had the same control over proceedings. The law and his capacity for precise legal anal- baton had passed. Jack Barry. Jack Hedigan ysis. To some who did not know him well . . . the memory of the former somewhat and who did not know his academic back- dimmed these days. ground, the manifestation of these quali- ties by His Honour on the Bench came as Jack Hedigan was a fi rst-class judge. something of a surprise. He was and is a compassionate man with

26 Obituaries

The Honourable Kenneth Joseph Jenkinson QC during his course and he was able to com- case before him and who expected coun- bine his full-time studies with work as a sel to be in a similar position. He did clerical assistant at the Commonwealth not waste time and voiced his displeasure Crown Solicitors Offi ce, where he subse- when counsel were wasting the time and quently served his articles of clerkship. He resources of both the Court and clients. did not waste the weekends. Through his His judgments were lucid and well con- father’s contacts, he was able to work at structed. He commenced his reasons for The Herald as an assistant reporter with judgment with a precise summary of the Alf Brown for football and Harry Hopman issues that were to be determined by the for tennis. Court. In use of this style, he emulated On 2 October 1953, Ken signed the Bar that of Sir Hayden Starke. Roll. His entry was no. 500. There had On 1 November 1982 Ken resigned not been an entry on the Roll for some upon being appointed a Justice of the time. S.E.K. Hulme, AM, QC holds no. 499 Federal Court of Australia. That appoint- and had signed the Roll on 17 July 1953. ment brought with it a wider variety Ken read in Equity Chambers with Bill of litigation and exposure to advocacy Fazio and thus was exposed to practice throughout Australia. On that court, he in criminal law. He succeeded in develop- joined his close friend John Keely. ing a broad practice that ranged between Although it was somewhat controversial crime, Commonwealth employees’ com- at the time for a Supreme Court judge to do pensation, equity, property law, matrimo- so, Ken’s decision to accept that appoint- nial law, common law, and revenue and ment was rewarding for him. He replaced taxation. He was able to maintain large Deane J, who was appointed to the High N 24 August 2001, the Honourable chambers when Owen Dixon Chambers Court. Whilst on the Supreme Court, Kenneth Joseph Jenkinson QC opened. From 1964 until 1970 he took Ken had been engaged in a signifi cant Odied. He was born on 14 November readers. Those who had that privilege amount of taxation work. Appointment to 1927 at Kew, the son of Harold Bentley in turn are Master Wheeler, A.W. Adams the Federal Court enabled him to con- Jenkinson, a journalist with The Herald & QC, Senior Master Mahony, Hepworth, tinue with taxation law and in addition Weekly Times. Beaumont QC, Kemelfi eld and Lally QC. be exposed to a wider variety of work in He was educated at Xavier College, To them and many other counsel who reg- administrative law, intellectual property, Kew, where he excelled as a student, mid- ularly sought his advice and assistance, trade practices, insolvency and immigra- dle distance runner and cricketer. Shortly Ken was most generous. tion. He was not totally deprived of crimi- before his seventeenth birthday, he sat for His advocacy was marked by calm- nal law because in 1983 he was appointed his Leaving Pass. His marks were the high- ness, precision in analysis of principle as a Judge of the Supreme Court of the est for the school and accorded him rec- and brevity. The characteristic pregnant Australian Capital Territory, where he was ognition as “Dux Elect”. However, as was pause, followed by a substantive response able to indulge his interest in trying crimi- the custom in those times, to be awarded to a proposition put to him as counsel by nal cases. Dux of the school, a student needed to the Court, contrasted with the garrulous On 5 June 1997, Ken’s retirement from return and complete Leaving Honours. haranguing of the Court as displayed by the Federal Court was acknowledged by Even then the young Jenkinson displayed some others. On 4 November 1970, Ken the profession with glowing tributes as his virtue of being little concerned with took silk and, as was to be expected, fl our- to his contribution to the judicial life of personal fame or fortune and chose to ished as a leader. In particular, he enjoyed this country. Upon his retirement, he was proceed to the University of Melbourne appellate work. able to continue to be as widely read as rather than return to school. However, his initial foray into criminal ever and devote more time to basking in At the University, he studied and com- law was to have its infl uence upon his prac- Rachel’s and his enjoyment of the next pleted an honours degree in pure History, tice at that time. During 1972 and 1973 generation of their family. As counsel and at a time when such distinguished mem- he constituted the Board of Inquiry into judge, he had always been conscious of bers of staff as Max Crawford and Manning Prison Discipline. He displayed the quali- the need to balance his professional life Clark were able to mould students from ties needed for success as a member of the with his family life. He did not become vastly different backgrounds. He particu- judiciary. In 1973, he became Chairman idle. Between 1997 and 1999, he was larly enjoyed the opportunity to be a fel- of the Council of the State College of Presiding Member of the Spanner Crab low student with ex-servicemen, whose Victoria, which later became the Hawthorn Fishery Assessment Advice Committee experiences of life were obviously so much Institute of Education. Between 1973 and and of the South East Fishery Allocation broader at that stage than his own. An 1975 he served as a member of the Bar Advice Panel. From 1999, he was a lecturer added attraction of the Arts faculty was Council. In 1974 he was appointed as a in the Law Faculty Graduate Program, the opportunity afforded for him to meet member of the Prisons Advisory Council. University of Melbourne. Further, he con- with Rachel, the daughter of W.A. Fazio, On 18 February 1975, Ken was sulted and provided a number of reports then a leader of the Criminal Bar. appointed as a Justice of the Supreme for the Australian Fisheries Management Accordingly, Ken in due course stud- Court of Victoria. There he quickly estab- Authority, the last of which was completed ied and completed his law degree at the lished himself as a judge who was thor- in March 2001. University. Rachel and Ken were married oughly prepared on all issues relevant to a Ken endured his struggle with cancer

27 with his customary strength and resolve. transcription of a passage from Arthur law was the ultimate social reality, in the He was devoted to and is survived by Miller’s autobiography, Timebends: A Life. sense that physical principles are the scien- Rachel, their children Simon, Rachel Anne, Obviously Miller’s observations in that pas- tist’s ground — the fi nal appeal to order, to Sarah and Elizabeth and their respective sage, which follows, appealed to and aptly reason, and to justice. In some primal layer families. refl ected Ken’s own philosophy: Law is God’s thought. (p. 584) Amongst the personal papers carefully maintained in Ken’s study was found his I began to see that to me the idea of the W.F.L.

Douglas Michaelis Salek QC

son of Alan and Mary Salek and the grand- asking how he had found out about his son of Sir Archie Michaelis who had a pro- appointment whilst in hospital, when told found infl uence on his grandson. He was that his thespian friends had opened the educated at Melbourne Grammar where letter and telephoned him, replied, “You he fi rst revealed his abilities as a mimic mean the letter marked Strictly Private and actor. In his fi nal year at school he was and Confi dential!’’ awarded the inaugural Barry Humphries Douglas combined travels to London prize for the liberal arts for his title role (where he had spent many happy years), as Richard III. He matriculated with hon- with Paris and France whose cooking he ours, and attended Monash University loved to emulate and New York, whose obtaining Bachelor of Jurisprudence and martinis he loved to drink. Bachelor of Law Degrees in 1974. In December 1999 a few days after cel- In 1975 he went to London where he ebrating his appointment as silk, Douglas worked for two years with a commercial was informed that cancer had entered his law fi rm, Coward Chance (now Clifford remaining lung and that he was living on Chance). Douglas returned from London borrowed time. He used this borrowed in 1977 and read with His Honour Michael time to great effect. Kelly, now Judge Kelly. He became a great In January 2000 he undertook an exten- friend of Kelly’s and to the last was able to sive American and European tour before mimic that Kelly lisp so well. He became a returning for chemotherapy. He travelled signifi cant criminal trial barrister and later to the Australian Bar Association confer- successfully took up the rigorous work of ence in New York in 2000. He became practice in the Court of Criminal Appeal. a great campaigner against smoking. He OUGLAS Salek will be remembered Douglas appeared in many signifi cant joined Quit Victoria where he worked on not only as a fi ne criminal barrister, cases concerning the administration of legal research, debates and seminars and Dbut as a man of style, wit, theatri- criminal justice. In the High Court these was also a member of the Tobacco Control cality and a true friend of the Bar. included, Kesaravagh on insanity, and Committee. Douglas was too young to die at the Pavic and Swaffi eld on confessions. In Doug was an integral member of many age of 48. He had fought lung and throat the Court of Appeal Parker and Anderson of his friends’ families and much-loved cancer for four years, had survived the on expert evidence, and Lucas on DNA godfather to many of his close friends’ removal of one lung and the removal of a evidence. In his later years he appeared in children. In the year 2000 he established tumour in his throat. But over those four many appeals against conviction and sen- an annual prize at Melbourne Grammar years he was appointed silk in 1999 and tence and was well recognised for his hard to enable a student involved in theatre continued his fl ourishing and successful work, research and incisive arguments. to travel overseas to study. Douglas was criminal practice, specialising in appellate Doug had been a smoker of about 40 involved in many theatrical performances court advocacy. cigarettes a day from the time he left with his great mates Paul Elliott and Simon Doug had many friends at the Bar and school, and in 1997 he was diagnosed Wilson. Perhaps his most notable per- indeed loved the Bar itself and its way of with lung cancer at the age of 44. His formance was in the 1984 Victorian Bar life. He loved acting and was a great mimic. right lung was removed and after a period Review where his mimicry of the then Sometimes he mused about whether he of treatment he resumed his practice. In Premier John Cain and Hartog Berkeley would have been a better actor than bar- 1999 he was diagnosed with throat cancer QC (Warthog Darkley) was outstanding. rister. The eulogies at his funeral, at a which was successfully removed. Douglas Later he would join John Cain as a mem- memorial dinner at his beloved Savage resumed practice and was appointed a ber of the Tobacco Control Committee. Club and at the Criminal Bar’s gathering Queen’s Counsel late in 1999. It was whilst He performed in many productions for at the Essoign Club testifi ed to the fact recuperating in hospital from his throat the Tin Alley Players and at the Melbourne that as a barrister he led a varied, stimu- cancer that his great friends Elliott QC and Savage Club, where he performed in and lating and full life. His life was not only Wilson QC were able to break the news directed many play readings. Douglas was fi lled with the law but with his love of the to him by phone that he had obtained silk one of the founding members of the theatre, travel, food, wine, and the com- before they hurried to the hospital with Criminal Bar Association and served on pany of friends. the Chief Justice’s letter. Later, the Chief its committee as well as being the Vice- Douglas Michaelis Salek was the second Justice, on enquiring as to his health and Chairman of the Gordon and Jackson List.

28 He dealt with his terminal illness with interests in relation to a brief in which he rister, a great friend and a man of style. a resilience and good humour that will was to appear the following Wednesday. always be remembered. Even a few days He died on the Sunday. Douglas Salek is Editors: Due to an oversight in produc- before he died he was still able to lunch at survived by his mother Mary and his two tion, the full text of Douglas Salek QC’s Bamboo House with his close friends and brothers, Ian and Andrew. obituary notice, as printed above, was expressed his concern about his clients’ He will never be forgotten as a fi ne bar- not included in the Spring issue.

Appointment of Senior Counsel

The following were appointed Senior Counsel for Victoria on 27 November 2001.

Mr Ian Pitt S.C. Mr Peter N. Rose S.C. Mr Mark E. Dean S.C. C/- Best Hooper, Solicitors, C/- List B, Owen Dixon Chambers, C/- List Bs Owen Dixon Chambers, 563 Little Lonsdale Street, 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000 Melbourne 3000 Mr Brian E. Walters S.C. Mr David F.R. Beach S.C, Mr George G. McGrath S.C. C/- List F, Owen Dixon Chambers, C/- List D, Owen Dixon Chambers, C/- List F, Owen Dixon Chambers, 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000 Mr David G. Collins S.C. Mr Geoffrey G. McArthur S.C. Mr Herman Borenstein S.C. C/- List G, Owen Dixon Chambers, C/- List W, Owen Dixon Chambers, C/- List A, Owen Dixon Chambers, 205 William Street, Melbourne 3000 205 Williarn Streetl Melbourne 3000 205 William Street, Melbourne 3000 Ms Julie A. Dodds-Streeton S.C. Mr H. John Langmead S.C. Mr Colin G. Hillman S.C. C/- List A, Owen Dixon Chambers, C/- List W, Owen Dixon Chambers, Prosecutor for the Queen, 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000 Crown Prosecutor’s Chambers, Mr David H. Denton RFD, S.C. 4th Floor, 565 Lonsdale Street, C/- List A, Owen Dixon Chambers, Melbourne 3000 205 William Street, Melboume 3000 Mr David A. Parsons S.C. Mr Richard J.H. Maidment S.C. C/- List R, Owen Dixon Chambers, C/- List B, Owen Dixon Chambers, 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000 Mr Leslie Glick S.C. Mr Richard J. Manly S.C. C/- List A, Owen Dixon Charnbers, C/- List Af Owen Dixon Chambers, 205 Williarn Street, Melboume 3000 205 William Street, Melbourne 3000

Editors Note: In accordance with new editorial policy to meet the Christmas deadline, full details of the new silks will appear in the Autumn issue of Bar News.

29 Articles Portrait of a Founder of the Modern Bar Oliver James Gillard 1906–1984

By Matthew Groves Oliver James Gillard was born on 6 June 1906 about “a drop kick” from Victoria Park, Collingwood. He was the youngest of fi ve children produced by Eugene Thomas Vincent and Lucy Challis Gillard. The family led a modest life. Oliver Gillard was educated at Stawell High School. He later attended the University of Melbourne University, graduating with a Bachelor of Arts in 1927 and a Bachelor of Laws the following year. For part of his undergraduate years Oliver Gillard taught at Essendon High School, but he moved into the law with an appointment as a law clerk to a Melbourne solicitor Vincent Nolan. He worked for Nolan from 1926 to 1931.

rupted by World War II. He served in and uncomfortable that it should be aban- the AIF (Australian Imperial Force) from doned. Some proposed the bold idea of 1941 to 1943. In 1943 he was appointed constructing a new building, designed to as legal offi cer with the Commonwealth serve exclusively as barristers’ chambers. Department of Transport, and served The problem was so large, and each of the in that capacity until returning to prac- possible solutions carried such signifi cant tice at the Victorian Bar in 1944. Oliver consequences to the Bar, that every prac- Gillard’s practice fl ourished from almost titioner carried a strong opinion on the the moment that he returned. He was issue and participated avidly in each dis- appointed one of His Majesty’s counsel on cussion. 24 October 1950. As one of the leaders of the Victorian Oliver Gillard’s rise at the Victorian Bar Bar Oliver Gillard was heavily involved during the post-war years coincided with in these discussions, even more so upon a time of great prosperity for the Bar. his election to the Bar Council in 1957. During this time the Victorian Bar gained During 1957–58 the Bar Council resolved many new members, which caused the to acquire a site opposite the Supreme Bar to outgrow its existing facilities. For Court and construct a new chambers to most of its existence the Victorian Bar house the entire Bar. The proposal sparked has been housed in Selbourne Chambers. great debate. The “accommodation” mat- Those chambers were built in 1881 (three ter, as the entire debate is termed in the years before the Law Courts) and was Bar Council minutes of the time, came Matthew Groves the home of the Victorian Bar for many to a head in the special Council meeting decades. The expansion of the Bar in held on 30 May 1958. The meeting was the post-war period created a demand attended by 150 members of the Bar ILLARD was admitted as a barrister for chambers that was met by the estab- (around 95 per cent of the Bar at the time) and solicitor of the Supreme Court lishment of Equity Chambers and, very and chaired by Oliver Gillard. The min- Gof Victoria in early 1931, and was soon after, chambers in three other build- utes of that meeting record that motions called to the Bar almost immediately. He ings. Many members of the Victorian Bar to confi rm the Council’s decision to com- signed the Roll of Counsel on 16 April thought that “this migration resulted in a mission an architect to design a new build- 1931. During this period the effect of weakening of the collegiate life of the Bar ing, to authorise the Council to “continue the Great Depression was felt throughout but, nevertheless, conservatism induced its efforts to obtain premises to house the Australia, and the Bar was no exception. many to oppose a change which would whole Bar” and to approve the purchase Seven counsel signed the Victorian Bar result in leaving Selbourne Chambers.”2 of land required for the new building were Roll in 1931, but only three of whom man- The number and standard of chambers each carried overwhelmingly. A proposed aged to establish a career as a barrister.1 increasingly became the most important amendment to remove the stated aim that Oliver Gillard moved quickly to estab- affair of the Victorian Bar. Many barris- the new building should “house the whole lish himself at the Victorian Bar. He ters thought that Selbourne Chambers Bar”, which would have defeated the main developed a general practice, as was com- should be entirely renovated, while others purpose it, was not carried.3 mon at the time. His career was inter- thought it was so overcrowded, poorly lit Many barristers suggested that support

30 Articles

At the unveiling of the portrait of the late Sir Oliver Gillard: (left to right) Roger Gillard QC, Honourable William Kaye AO QC, Graeme Gillard, Honourable Justice Bill Gillard and Robert Redlich QC. (Front) Lady Jane Gillard. for the new building was due in no small persuasion and guided democracy has set rooms was a fl oor plan with a layout in the part to the manner in which the Oliver a standard which may never be equalled. form of the letter “T”. The plans were re- Gillard presided over the meeting. As each For this achievement alone — and there drawn to accommodate this design. Oliver point came for discussion, he allowed an are many others — you will always be Gillard resolved that each room should be equal discussion by the supporters and gratefully remembered by the Bar.”4 capable of being air-conditioned, and after opponents of the various proposals. This If the negotiation of the decision to conferring with Chrysler of USA at his own approach made the meeting entirely fair, construct the new building drew upon the expense, specifi ed that each room should at least so far as the rules of natural jus- skills and energy of an advocate, man- have installed beneath its window a grate tice were concerned (if they were at all agement of the project required the hard to which an air-conditioning unit could be applicable at the time). Oliver Gillard could work and attention to detail necessary to fi xed. Tenders were called to erect the take credit for that because he selected fulfi ll the plan. Much of this responsibility building and it was eventually awarded to the speakers. His selection also affected was assumed by a building sub-committee, Costains of UK. The fi rm had just entered the quality of the debate. When a bar- comprised of Oliver Gillard (Chairman), the Australian building industry and con- rister was required to speak in favour of J.B. Tait QC and R.M. Eggleston QC, with sidered it to be prestigious to erect, as new building, Oliver Gillard would select signifi cant assistance from R.L. Gilbert. its fi rst building contract, chambers to the most skilled and admired barrister at R.A. Smithers QC also provided consider- accommodate the Victorian Bar. The build- hand. When argument against the new able assistance to the project. ing was erected largely under the supervi- building was required, he selected the In 1959 the Victorian Bar purchased sion of Oliver Gillard. He was occasionally most junior, nervous and least weighty bar- from the Guest family a parcel of land at accompanied by fellow Bar Council mem- rister his eyes could fi nd. This tactic was 205–221 William Street. Oliver Gillard dis- bers, who would inspect the building site long remembered. Almost 20 years later, at missed the fi rst conceptual drawings of each Sunday with a representative of the the occasion of Oliver Gillard’s retirement the proposed building produced by the builder. from the Supreme Court of Victoria, the architect, and resolved that the only build- The capital to fund the new building Chairman of the Victorian Bar noted “Your ing which would satisfy the Bar’s specifi - was advanced to the Victorian Bar by some ability to chair general meeting of the Bar cations of providing suitably sized rooms members of counsel who had benefi ted after general meeting with tact, authority, with windows and easy access between from the sale of Selbourne Chambers and

31 the balance by Commonwealth Bank of Australia and MLC Insurance. The diffi - culty was fi nding a second lender who was prepared to rank behind the fi rst lender. A Ceremony to Unveil member of the Bar hit upon the idea that the Chairman of MLC’s Board might move his fellow directors to make this the Portrait of loan if he were made one of Her Majesty’s Counsel, for the State of Victoria. In addi- tion to being given the fi rst security over the new chambers, the Commonwealth Sir Oliver Gillard Bank was also offered offi ce space on the ground fl oor. It leased this area reluc- tantly because it considered it would N Tuesday 16 October 2001 a that was painted during his tenure as the do little business. Some years later the function was held to unveil the Chancellor the University of Melbourne. Commonwealth Bank conceded that its Oportrait of the late Sir Oliver The portrait was formally unveiled by branch at 221 William Street was the sec- Gillard. Sir Oliver was a distinguished the Honourable Mr William Kaye QC. As ond most prestigious in Australia. member of the Victorian Bar and the the Chairman noted, Mr Kaye was a most The new chambers were called “Owen Supreme Court of Victoria. He was also fi tting person to unveil Sir Oliver’s por- Dixon Chambers” (with the consent of instrumental in the planning and build- trait. He read with Sir Oliver and, like Sir the Chief Justice of High Court). The ing of Owen Dixon Chambers. Oliver, he provided a signifi cant contribu- chambers were opened in 1961, by the The function was attended by Sir tion to the Victorian Bar and the Supreme Prime Minister of the day, Robert Menzies Oliver’s widow, Lady Gillard, and his Court of Victoria during his distinguished QC. The function was attended by many sons the Honourable Justice Bill Gillard, tenure as a judge of that court. Mr Kaye other dignitaries including the Premier Sir Roger Gillard QC of the Victorian Henry Bolte, Federal and State Attorneys- Bar and Graeme Gillard, and many General and Solicitors-General, almost other members of the Gillard family. every judge of the High Court, Supreme Among the honoured guests were the Court, Commonwealth Industrial Court, Honourable Sir Richard McGarvie QC Arbitration Commission, County Court, and the Honourable Mr William Kaye General Sessions, members of the Bars of QC. all other States, and the President and The Chairman of the Bar, Robert Council members of the Law institute Redlich QC, addressed the gathering of Victoria. By this time Oliver Gillard and paid tribute to Sir Oliver’s role in had retired as Chairman of the Bar, but the building of Owen Dixon Chambers. received many thanks on the day. The He reminded guests that the building Chief Justice of the Supreme Court of of Owen Dixon Chambers marked an Victoria, Sir Edmund Herring, praised important phase in the life of the the honorary work that many individual Victorian Bar because it drew the great barristers had given in the planning, majority of the Bar within a single fi nancing and construction of the build- building. He also noted that the close ing. He then added that the entire project proximity of members of the Bar was “. . . would not have come to completion crucial to the development and main- but for the fact that the Bar had some- tenance of the ethical standards of the body who would give the lead and would Bar. The Chairman explained that Sir not be daunted. I refer to Mr Oliver Oliver’s strong support for the estab- Gillard.”5 lishment of Owen Dixon Chambers was When Sir Owen Dixon addressed the motivated by a desire to ensure that invited guests, he recalled his time at the these values could be preserved and Victorian Bar as “the happiest period of strengthened. my life”. He also applauded the standard The Chairman paid thanks to Federal of accommodation provided by the new Magistrate Maurice Phipps and Sarah chambers, which was quite comfortable Hinchey, who were instrumental in for the day. Dixon recalled the times when selecting the artist and commissioning even the smallest comfort in chambers the portrait. He also paid tribute to was thought unseemly. The sight of carpet the artist Paul McDonald-Smith, who in chambers caused one practitioner to attended the unveiling. The great like- remark “Goodness me, what are you doing ness of the portrait is testimony to with a carpet on your fl oor? You are a bar- Mr McDonald-Smith’s artistic skills. He rister, not a company promoter!”6 But Sir drew from reproduced images pro- Owen Dixon warmly welcomed the move vided to him by Sir Oliver’s son Justice of barristers’ chambers into the twentieth Gillard, and also a portrait of Sir Oliver century.

32 recalled Sir Oliver with great fondness and reminded those present of the sig- nifi cant personal and professional con- tribution that Sir Oliver had made to the Victorian Bar and the administra- tion of the law of Victoria. Mr Kaye also recounted some memories of the times during which the Victorian Bar resolved to support the building of Owen Dixon Chambers and also the grand ceremony held to mark the opening of the new building. Sir Oliver’s portrait is now hung on the ground fl oor of Owen Dixon East, just outside the offi ces of Foley’s List. It sits opposite the smaller portraits of the more recent former chairmen of the Victorian Bar. Sir Oliver would no Left to right: Mark Derham QC, Robert Redlich QC, Honourable William Kaye doubt be pleased that his portrait takes AO QC, Honourable Richard McGarvie AO QC, Honourable Justice Bill Gillard this pride of place in our Bar. and Honourable Leo Lazarus QC. The Honourable Mr William Kaye AO, QC unveils the portrait of Sir Although many of the barristers housed etors of a well known Melbourne restau- Oliver Gillard. in Equity Chambers opposed the push for rant to run the new dining room. But he a new set of chambers, almost all members and his fellow Bar Councillors were unable of the Victorian Bar came to agree that the to obtain a liquor licence for the new din- facilities of Owen Dixon Chambers met ing room because of opposition mounted every requirement of Victorian barristers. by adjoining hotels. Indeed, those hotels The building itself created an environment were probably represented by members of which promoted camaraderie and com- the Bar in opposing its application for a munality among its occupants. The new liquor licence. This speaks volumes about building had nine levels, but the founda- the Bar. tions were constructed with the capacity In 1962 Oliver Gillard was appointed a to support the addition of at least four Judge of the Supreme Court of Victoria. new fl oors if required. Almost immediately Despite the extraordinary amount of time after the new building was opened it was that Oliver Gillard had given to Bar Council accepted that new fl oors should be added. matters, committees and the like, it was The need was so vital that the Bar Council widely accepted that he maintained the resolved that “there should be no objec- largest practice at the Victorian Bar. Oliver tions to acceptance of solicitors as tenants Gillard’s appointment to the Supreme in Owen Dixon Chambers if the implemen- Court of Victoria was notable also because, tation of the building scheme could not at that time, he was only the second grad- otherwise be achieved”.7 uate of a government high school to be During the period of establishing the elevated to that Court.8 new chambers the Victorian Bar Council During his time on the Bench Oliver through the efforts of Oliver Gillard, Gillard continued the commitment of Reginald Smithers and Robert Gilbert service that he had maintained at the also appointed new clerks and estab- Bar. He fi lled a number of public and lished the superannuation scheme. The private offi ces including Chairman of trust deed for the superannuation scheme Churchill Trust, Chairman of Youth was drafted by Gillard and Smithers one Advisory Council, President of Boy Scouts’ evening, after other members of counsel, Bayside Association, Grand Master of initially requested to undertake the task, United Grand Lodge of Victoria, Chairman did not seem to be able to fi nd the time of the Chief Justice’s Law Reform to do it. The object of the scheme was Committee, Member of the Diocesan that the superannuation trust would end Council of the Anglican Church and Canon up owning Owen Dixon Chambers Each of St Paul’s Cathedral and Chancellor of counsel would pay “an infl ated rent” and Melbourne University. retire at the age of 60 with a “nest egg” In 1975 he was knighted for his service of £100,000. A number of other measures to the community and the law. were put in place. In this day and age Oliver Gillard retired from the Supreme you would describe them as “progressive Court of Victoria on 12 May 1978. At moves”. Oliver Gillard enticed the propri- the ceremony to mark the occasion Daryl

33 Dawson QC, then Solicitor-General of Gillard imparted to two of his sons that also provides the Bar’s greatest benefi t — Victoria, stated: he thought he had worked too hard dur- the constant presence of other barristers ing his professional life and had devoted to provide their advice, experience, sup- We shall miss Your Honour’s deep knowledge too much of his time to public life. He port and friendship. of and instinct for the law. We shall miss regretted he had not spent more time The establishment of Owen Dixon the vigour with which Your Honour presses with his family. This regret did not dimin- Chambers was probably the single most an argument to its conclusion, unperturbed, ish the exceptional affection in which he signifi cant event to secure the foundation indeed, delighted, to meet with equal vigour was held by his family. Oliver Gillard is of these features of the Bar. It is these fea- from the Bar table.9 survived by his wife Jane Mary Gillard tures, and the collegiate spirit they foster, and three children, two of whom chose which serve to distinguish the Bar from In his reply, His Honour acknowledged to enter the law. One of his sons was the community of solicitors. that life on the bench had not diminished appointed a Judge of the Supreme Court For these reasons, the legacy Oliver his love of advocacy. He stated: of Victoria in 1997. Gillard left to the Victorian Bar is the foun- Nothing gives me greater joy than to see a The Bar has a strong tradition of dation of the modern Bar as we know it really good barrister pertinaciously putting remembering those who have provided today. The actions of Oliver Gillard and his submissions to the Bench and attempt- great service, but the recent unveiling of his colleagues during the late 1950s did ing to remove the pre-conceptions that the Sir Oliver Gillard’s portrait in Owen Dixon so much to shape the Bar. It is easy for judge might possess. In order that there be Chambers occurs at a particularly appro- current members of the Bar to take the no misapprehension as to what I am refer- priate time. The renovations for Owen efforts and contribution of their colleagues ring to, I do not mean discourtesy, I do not Dixon Chambers will be fi nalised shortly. for granted. It is appropriate to stop and mean abrasive insolence. What I mean is The renovations will revitalise the entire remind ourselves what they have done and a mastery of the facts and a retrieval of continue to do. The Bar is, and always the law, and, armed with confi dence based will be, the sum total of the work, the upon that knowledge, counsel gets up and At his retirement from commitment and the spirit of each and all with pertinacity presses his submissions, the Bench, Oliver Gillard of its members. The work of past mem- and even when I overrule them I still admire bers of the Bar has a particular importance his efforts.10 acknowledged that many because it is bequeathed to subsequent qualities such as hard members with only the condition that they He also devoted much of his farewell work were required for enjoy that contribution in the same spirit speech to his frustration with the volume in which it was given. For all of us, Oliver and complexity of statutes being passed success in the law, but Gillard made an enormous contribution by Parliament. He asked rhetorically: honesty remained the most and we each owe him a great debt. Are you prepared to accept all this legis- important quality. NOTES lation brought down binding your clientele original building, including the Essoign 1. The other two were H.A. Winneke (later Chief in terms that you will not understand — I Club and the Bar’s administrative offi ces. Justice of the Supreme Court of Victoria and certainly do not — and be unable to advise While the building clearly requires renova- then Governor of Victoria) and K.W. Bailey your clients precisely what they can or can- tions, it should not be forgotten how well (later Solicitor-General of Australia). not do? This, I believe, is the unfortunate it has served the Bar. For many years it 2. “Owen Dixon Chambers” (1961) 63 ALJ 301 trend in our community today, and I look provided the main physical location of the at 301–2. forward to the year 2000 AD, by which time, Victorian Bar, and it still houses a very sub- 3. Victorian Bar Council, Minutes dated 30 May thank God, I will not be here, the individual stantial number of barristers. More impor- 1958. will be so encased and enmeshed by legisla- tantly, the building has and continues to 4. Farewell to Sir Oliver Gillard (13 May 1978), tion he will like a little lava inside a cocoon, provide a place where barristers meet and Transcript of Proceedings, p. 3. unable to do anything.11 mix, sometimes by design and sometimes 5. C. Brennan, “Opening of Owen Dixon Have these sentiments turned out to by choice. In all cases the constant social Chambers” (1961) 35 LIJ 394 at 395. be true? The creation of ombudsmen and and professional interaction of barristers 6. “Owen Dixon Chambers” (1961) 35 LIJ 399 at administrative appeal tribunals and the in the building forges the strong bonds 400–1. massive increases in the volume of admin- that underpin their professional ethics, 7. Victorian Bar Council, Minutes dated 28 July istrative law cases and talk-back radio pro- upon which the Bar, and the law itself, 1963. grams may give some clue to the answer are founded. At his retirement from the 8. The fi rst was Justice Edward Hudson. The his- that Oliver Gillard would have given to his Bench, Oliver Gillard acknowledged that tory of the Judges of the Supreme Court are own question. many qualities such as hard work were discussed in fi ne detail by Charles Gunst QC in Oliver Gillard died on 7 September required for success in the law, but hon- “The Supreme Court of Victoria 1852–1980: A 1984. He had suffered ill health after esty remained the most important qual- Statistical Analysis”(Thesis submitted in par- being immobilised by a stroke in 1979. At ity.12 The physical structures used by the tial fulfi llment of the requirements for the his funeral the Dean of Melbourne eulo- Bar naturally encourage honesty among degree of Masters of Law, Monash University, gized that he would take up too much barristers. The constant face to face con- August 1981). time if he were to speak of everything tact between barristers, by which bar- 9. Farewell to Sir Oliver Gillard (12 May 1978), “Sir Oliver” had done in devoting himself risters constantly encounter their fellow Transcript of Proceedings, p. 1. to the affairs of the community and to colleagues, means that they are constantly 10. Ibid, pp. 7–8. public life. Only nine months before his subject to the harshest possible judgment 11. Ibid, pp. 11–12 death, whilst seated in a wheelchair, Oliver — that of their peers. This close contact 12. Ibid, p. 8.

34 International Institute of Forensic Law Studies Inaugural Conference Expert Evidence: Causation, Proof & Presentation 2 – 5 July, 2002, Prato, Tuscany Keynote Speaker: Professor Johannes Nijboer, Professor of Law, Leiden University Judge of the Court of Appeal, Amsterdam Opening address by Patron: The Honourable Justice Michael Kirby AC CMG, High Court of Australia Exploring the multi-disciplinary approaches to forensic issues that are of importance to the effective functions of courts and tribunals, the conference will cover: • Comparative international approaches to evidence and procedure • The collation and presentation of expert evidence • The role of witnesses in courts and tribunals • The ethical obligations of expert witnesses and advocates • Important new developments for the courts in forensic expertise Held in the Palazzo Vaj, in the historic centre of Prato, Tuscany. President, IIFS: Professor The Hon George Hampel QC Conference Convenor: Associate Professor Bernadette McSherry

The Law School for a Changing World

For further information: [email protected] (03) 9429 3210 or 9429 2140 www.law.monash.edu.au/iifs

D&A CRS1850

35 Articles Launch of New Bar Website

HE Victorian Bar has signifi cantly revamped its on-line presence by launching a user- Tdriven website, www.vicbar.com.au, that demystifi es the Bar and makes the best use of available technology. The website is targeted at the public and members of the legal profession alike. The website was launched by the Victorian Attorney-General, Mr Rob Hulls MP, on 24 October. Mr Hulls stressed the site’s importance and its role in making the public more comfortable with the workings of the law. “What many in the profession value, the tradition and trappings of such an old profession are what distance lawyers from the community . . . We can break down this perception by embracing a modern approach and embracing reform,” Mr Hulls said. “The website is a very commendable initiative Above left: Attorney- in that it improves access to the Bar and its range General, Mr Rob Hulls MP of services. I congratulate all those involved in its launching the website. development. This is a very important website.” Above: Bar Council The Chairman of the Bar’s website project team, Chairman, Robert Redlich Michael Shand QC, said: “The website seeks to QC. take a lot of the mystery out of the Bar. Our prime objective has been to enable people readily to obtain information about the Bar and its members — information not only for members of the legal Left: Executive Director, profession but also for the public who have an David Bremner; Michael interest in the services barristers provide.” Shand QC and Attorney- The website gives unparalleled access to the General, Rob Hulls Bar’s members and its services. It comprises examining a close-up of a more than 250 web pages with more than 60 projected page. documents attached that can be read on-line using Acrobat Reader. It provides the latest legal news from day to day. It discusses what barristers do and why an independent Bar is important. Below: Michael Shand It explains legal terms and answers frequently presenting the new asked questions about the law. It also has website at the launch. information on how to take advantage of the Bar’s legal assistance scheme and about complaints against barristers. “The design of the website incorporates a menu structure intended to effi ciently guide users of the website to the information they require,” Michael Shand QC said. The site features details of all the clerks and interesting images of the life and history of the Bar. Melbourne-based Icon Art undertook the design and construction of the website. Icon Art is a marketing and communications fi rm with expertise in web design, content, desktop publishing and public relations. The integration of the website and the Bar Council databases was carried out by Imago Computer Solutions Pty Ltd (Bruce Gilligan).

36 The About the Bar channel of the site is primarily directed to the public. There is general information about the Bar including details of its size and composition generated live from the Bar’s database. The history page also features an explanation of the Silks’ Tapestries on the walls of the Lonsdale Street entrance to Owen Dixon Chambers West. The FAQs and Glossary pages give answers to common queries about the law and its practitioners; the chambers page lists the address of each set of chambers at the Bar.

The Legal Assistance section explains the Bar’s scheme and its eligibility requirements. It includes useful links to other legal assistance schemes that may be of assistance. The drop-down menu shown in the image is available on every page of the site providing a shortcut to the particular pages listed. The Complaints section explains to both the public and members of the Bar the process by which the Bar Council through the Ethics Committee discharges its statutory function in relation to complaints about the conduct of members and disputes about pecuniary loss and costs.

The Members’ section has a wealth of information about the Bar of interest to members. The Governance section contains details of all the Bar’s committees and its constitution, rules and regulations. Bar Council and other committee members are listed and each name is hyperlinked to that member’s profi le. The membership section has details on subscriptions, practising certifi cates, professional indemnity insurance, practising interstate, taking silk, parental leave, the Bar library and the Essoign Club. There are pages on each of the associations within the Bar — Children’s Court, Commercial, Common law, Criminal, Family and Women Barristers. The pages on “Coming to the Bar” answer many questions students and prospective members may have about applying to become a member of the Bar and undertaking the Bar Readers’ Course. Barristers’ Chambers Limited has its own section on the site providing information about the company, its history and services, its board of directors and staff. Of particular interest are the pages on current news, BCL chambers and current vacancies, the phone directory giving phone numbers of barristers and Bar staff and the internet network.

The section on the Victorian Bar Superannuation Fund contains extensive information including news and developments in superannuation. There are details of the directors of Barfund Pty Ltd, the Administrator, Aon Consulting, the Fund’s asset consultant and the investment managers retained by the Fund. A feature of the site, soon to be introduced, will be on-line password access for a member via the E-Benefi ts page to the Administrator’s database containing details of the member’s contributions and account balance. It is expected that members will also be able to change on-line their choice of investment funds. A seminar was held on 6 December 2001 to explain to members the options available under Member Investment Choice.

38 The main directory has details of every practising member of the Bar, generated live from the Bar’s database. The search form (pictured) gives a range of choices to fi nd the barrister desired for the case in question, for example, all barristers under two years call who practise in criminal law or any other fi eld of law selected. The search then produces a list of names, each of which is hyperlinked to the profi le of the barrister. It is hoped in the near future to have in place on-line access for members to their profi les so they can change them from time to time as they see fi t.

39 The Women Barristers’ Directory pages incorporate the material that existed on the Bar’s previous site and seek to further the Bar Council’s equality of opportunity policies. The new site for women barristers has the same search mechanism and options as those in the main directory for all barristers but also links to the Women Barristers’ Association pages.

There is comprehensive information on the Bar’s alternative dispute resolution scheme including a list of accredited mediators, each of whose names are hyperlinked to their profi le. Again, the list is generated live from the Bar’s database. The Bar’s mediation centre is also featured.

Many people — barristers, clerks and staff — helped with the development of the new website. The Bar’s gratitude is expressed in the Acknowledgments page on the website, a link to which can be found on the home page. The organising committee comprised Michael Shand QC (Chair), Mark Derham QC, David Levin QC, David Bremner, Executive Director, Geoff Bartlett, Secretary of Barristers’ Chambers Limited, and Ian Green, Network Administrator. A signifi cant contribution in support and assistance was made by Miriam Potts, assistant to Michael Shand QC, and Wendy McPhee, secretary to the Executive Director and the Executive Offi cer, pictured.

40 Articles Lessons from the Rear-View Mirror Leo Cussen Lecture by Justice Hayne, Melbourne, 31 October 2001

It was inevitable that, during the years 2000 and 2001, a lot of time would be spent looking at what had happened over the previous 100 years. That examination was useful in many ways. It reminded us all of what has changed and it gave us a chance to think about whether particular changes were good or bad and about whether they had gone too far or not far enough. But, unless we seek to apply the results of what we saw when we were gazing in that rear-view mirror to what we are to do now and in the future, the exercise has been little more than a wallow in the warm bath of nostalgia. The challenge that now must be faced is what are the lessons to draw from the past for the future development of the legal system.

HE last 100 years produced many Over the century just passed, two changes affecting the legal system things happened that I think it is impor- Tin Australia. Most fundamental of tant to observe and understand. First, all was federation under the Constitution society either became, or was seen to which, with very little amendment, remains be, more complex. Some of that complex- our basic law. The importance of that ity came about because of technological change was profound. Recently we have development and change. But probably had to consider whether some changes more importantly than that, society was should be made to our constitutional no longer seen as monochromatically arrangements and, no doubt, those issues homogeneous. Difference was recognised, will have to be examined again. But I do accepted, celebrated. The accommodation not wish to spend time, now, on those of difference thus became an important questions of constitutional change, impor- social issue which found its refl ection in the tant as they are. There are other changes law. Much more consideration was given that have happened during the last cen- to the position of indigenous Australians. tury to which I want to draw attention. Reference need to be made only to Mabo First, there have been changes in the v Queensland [No 2]1 and to other cases way in which norms of behaviour are about native title to make that point. Equal defi ned. Second, the way in which both opportunity and anti-discrimination legis- criminal and civil litigation is conducted lation became commonplace. Even such has changed radically. Third, there have areas of the common law as the law relat- been great changes to the way in which Justice Hayne of the High Court of ing to provocation in homicide came to the profession goes about its work. Last, Australia acknowledge that the subjective qualities there are two phenomena that we must all of an accused, including age, sex and eth- grapple with, sooner rather than later, the beliefs which, according to one’s point of nicity, had a part to play in the proper law as panacea and change itself. view could be seen as generally held by application of principle.2 a largely homogeneous society or gener- Secondly, much more attention came to NORMS OF BEHAVIOUR ally held by that part of the society in be directed to the relationship between the Once was the time when identifying legal which power resided. The law of homi- individual and government. Government norms of behaviour, which is to say the cide, the law of theft, the law of contract did more, and more was expected of gov- rights and duties of members of society, could all be traced to such roots. Whatever ernment. What government did, or did was relatively straightforward. Much more may have been the diffi culties at the edges not do, had direct and immediate con- often than not the content of these norms (and there were many) the core of the rel- sequences for many citizens. The regula- was to be found in, or could readily be evant law was reasonably straightforward. tion of the relationship between individual traced to foundations in, judge-made law. Thus, the rights and duties of persons, and government took on far greater sig- And behind that judge-made law there both natural and juridical, were generally nifi cance to the way in which individuals lay moral precepts founded in a set of capable of relatively simple expression. lived their lives. It became more important

41 to examine the decisions that were taken The central problem that is presented often criticised but the criticisms made in government and that affected individ- by the statutory deluge is logically ante- may not always reveal a sound basis for uals, and to consider how and why they rior to the problem of drafting. It is to criticism. So mesmerised have we become were made. identify what is to be the overall legislative with the action in negligence, and the The consequence of the two changes scheme and where the particular legisla- right to bring such an action, that not I have mentioned that was most obvious tion is to fi t into the fabric of the law as only are actions which should properly to lawyers was the growth of the statute a whole. Unless the drafter knows what is be founded in some other tort wrongly the intended shape of the whole scheme forced into the negligence mould, insuffi - to which the legislation is to give effect, it cient attention is given to whether there Plain English drafting is is inevitable that there will be doubts and are discernible foundations for the action diffi culties about how it all fi ts together. In of negligence that lie beneath Lord Atkin’s now the norm. For my turn, as the volume of legislation in force biblical allusion. Lawyers must give atten- own part, I applaud that increases, those who direct and effect tion to understanding and articulating the fact but I regret that its preparation must know where in that foundations of and underlying purposes of general legislative scheme the particular the cause of action which is propounded it has brought with it proposals will fi t and equally must know so often. a seemingly irrepressible where it will fi t in the entire legal system. If the purpose which underpins the tort desire to defi ne every If that is not done, there will inevitably of negligence is to compensate the injured, be considerable diffi culty in understand- why is the cause of action fault based? word used in an Act. ing what the legislation means and how it Why is it only the careless who must com- is to operate. The consequences of that pensate? If the purpose is to deter care- book. Legislatures, both federal and State, are obvious — doubt, uncertainty, litiga- passed more and more statutes. In 1901, tion, cost, time, trouble. in the fi rst year of the new federal Those who work with legislation, how- Lawyers must give Parliament, it passed 17 Acts occupying ever, cannot attribute responsibility for 228 pages. In the same year, the Victorian all diffi culties to those who prepare or attention to understanding Parliament passed 59 Acts occupying 546 instruct the preparation of legislation. and articulating the pages. The comparable fi gures for 2000 It should go without saying that careful foundations of and were Federal Parliament: 174 Acts, 5382 attention must be directed fi rst and last pages; Victorian Parliament: 101 Acts, to what it is that the statute says. All too underlying purposes of the 3787 pages. There is no reason to think often, however, it is apparent that those cause of action which is that this trend will abate. The legal sys- who use legislation have not done so. It propounded so often. tem must recognise this fact and consider cannot be emphasised too strongly that it carefully what follows from it. is a fundamental failure for a lawyer who is Some, but by no means all, of the issues confronted with a problem to which a stat- less behaviour, what role does a duty of that are presented concern the way in ute is relevant not to read the relevant Act care play? Why is the remedy not availa- which statutes are prepared. Criticism is and apply it. And necessarily that involves, ble in any and every case in which a per- often levelled at those who draft legis- these days, being certain that the form son suffers damage as a result of another’s lation. Usually, the critic complains that of the legislation that is being considered failure to take reasonable care? If the pur- the drafting is obscure. Often, however, is the form relevant at the time which pose is to foster better loss distribution, criticism of that kind may be unfair. In is in question. All too often, even in the why do we shut our eyes to whether par- truth, the criticism should be directed at High Court, it emerges that attention has ties are insured? I am not to be taken the instructions given to the person who not been given to identifying the relevant as saying that there are no answers to drafted the particular legislation. form of the Act and that insuffi cient time these questions. I think that there are, Plain English drafting is now the norm. has been spent reading and understand- but much of the debate that has taken For my own part, I applaud that fact but I ing what is written in it. place in recent years would suggest that regret that it has brought with it a seem- To return more directly to my prin- there may be no common agreement about ingly irrepressible desire to defi ne every cipal inquiry about what challenges for what those answers are. If that is so, the word used in an Act. Wary of allowing the the future emerge from the lessons of the debate should be brought to the surface language to speak for itself, the drafter past, two other features emerge from con- and argued out. Only then can the law of imposes on words meanings which are sideration of the change in the way in negligence develop in a principled way. either blindingly obvious or are remarka- which norms of behaviour are identifi ed. Some of these issues are now matters bly far removed from the ordinary meaning The imperial march of negligence contin- of lively debate in the United States of of the word being “defi ned”. The inevi- ues. Whether that is good or bad is not America in connection with the prepara- table consequence of succumbing to the to the point that I now seek to make. It tion of the Restatement Third on Torts. desire to defi ne is that the reader must has meant that lawyers now tend to see all An early draft of that revision of the hunt through the Act pursuing an appar- forms of damage as potentially compen- Restatement discarded reference to duty ently endless chain of defi nitions which sable and compensable only through an of care in formulating the rules about one day will, no doubt, include a state- action for negligence. This has led, in some negligence. The American Law Institute ment that “the indefi nite article includes jurisdictions, to the modifi cation or abo- rejected the draft and returned it for revi- the defi nite article and (were it not an lition of common law rights to make cer- sion. There is, therefore, a rich source impermissible Latinism) vice versa”. In the tain kinds of claims or to make claims in of material directing attention to issues end, that is by the by. certain circumstances. Such changes are which all too often in this country appear

42 to have passed without explicit consid- than restate the problem in other words. It LITIGATION eration in debates about the place that does not solve it. If a discretionary rule is No review of the law in the past century is actions for negligence have in the legal adopted and no proper attention is paid to complete without reference to “access to system. It is time that they became mat- giving the decision-maker suffi cient guid- justice” and “the cost of litigation”. I have ters for debate here. ance about what is meant by “just” in the no doubt that it is well recognised, both in The last feature of developments in circumstances, all that has been done is to the legal community and in other circles, connection with identifi cation of norms of defer the problem. The inevitable conse- that these are two of the most pressing conduct to which I want to draw atten- quence of deferring a decision in this way challenges for the legal system. I do not tion concerns the way in which norms of is to provoke litigation designed to articu- propose to enter upon the details of the conduct now fi nd expression. It is conven- late the principles that the decision-maker debates that swirl around these subjects. ient to do that by reference to statute, but should bring to bear upon the problem. Rather, I want to invite attention to what examples in judge-made law can readily be The ineffi ciency of that approach is self- I think are a few of the more immediately found. In pursuit of what Gleeson CJ some evident. pressing issues that are presented in this years ago referred to as the Holy Grail of area. “individualised justice”3 we fi nd increasing Technology is seen as offering the use in statutes of provisions which confer means of solving at least some of the discretions upon decision-makers. There The identifi cation of the problems of cost of and access to justice are many examples. Income taxation leg- real point of difference that we now face. That may very well islation contains many provisions in which between parties must take prove to be right but technology is no pan- the Commissioner is required to make dis- acea. There is one fundamental danger to cretionary judgments. The Evidence Act place out of court. which far too little attention is being given. 1995 (Cth) gives many discretions to trial Developments in technology enable the judges about the admission or rejection of assembly and ordering of large amounts evidence. These examples could be mul- Nor is the problem solved by removing of information. An unsophisticated user tiplied. The problems presented by this discretion from the process of judgment. of the equipment can readily gain rapid form of legislative provision are not widely It is not so long ago that there was little access to individual pieces of the informa- understood. So, it is said, all too often, or no discretion to be exercised in fi xing tion that is stored and, with a little more that a judge asked to exercise a discretion sentence for a criminal offence. The sen- skill, can assemble sets and subsets of under the Evidence Act must do so “judi- tence was prescribed by law and sentenc- the data according to chosen organising cially” as if that provided complete guid- ing was more a ritual than an exercise of principles. What technology will not do, or ance to the judge and parties about how judgment. Now, of course, sentencing leg- at least will not do yet, is order infor- to go about the task. It does not. It tells islation provides for the exercise of discre- mation according to its forensic signif- the judge absolutely nothing about how to tion by judges according to principles that icance. Technology may tell you every make the decision. If the inquiry stops at are stated in the legislation5 and are well document that contains a reference to a that point, it suggests only that the judge developed in the case law. Those princi- particular subject matter but it will not is to act like Plato’s philosopher king and ples start from the premise that a sen- rank those documents according to their that the judge can safely be guided by his tence should be fi xed by reference to more legal or forensic signifi cance. The con- or her own intuitive sense of justice. That than a broad description of the offence sequence is that lawyers, all too readily, is not a suffi cient criterion to ensure jus- (as “theft” or “assault”) and whether the agree to the creation of a massive data- tice according to law. More defi nite cri- offender has committed other offences. base concerning a particular issue but fail teria must be identifi ed in and from the The legislatively determined premise is to apply any discrimination to its creation legislation, and, I hasten to add, they can that sentencing must take many more fac- or use until long after it has been assem- be. tors into account. The way in which that bled. For the barrister, this process fi rst The example I give may, perhaps, is to be done is far from easy, but there began with ready access to photocopying appear to be trivial, but it is an example is a great deal of discussion and develop- equipment. Soon, solicitors were sending which I hope serves to illustrate the exist- ment of the relevant principles to be found all the available documents to counsel for ence of a much deeper problem with which in the decided cases. Now we see in the their consideration rather than, as had the law must grapple. Inevitably, there is United States, and elsewhere, the emerg- previously been the case, reading the doc- tension between prescription of a single ing of a view that individual circumstances uments for themselves and identifying all-embracing rule and the achievement of of the offender or the offending do not those few which were central to the dis- what may be thought to be a “just result” matter in fi xing a sentence. All that needs pute between the parties. Now, instead of in an individual case. Human behaviour, to be taken into account can be identifi ed photocopied documents, we have entered and human circumstances, are so infi nitely in a two-dimensional graph or chart, one the era of the CD Rom with images of various that the prescription of a single axis of which represents the nature of the every document. But still no discrimina- rule may not, in every case, produce what offence and the other the criminal history tion occurs until far too late in the piece. would generally be seen to be a just result. of the offender. Whether that is a desirable Often enough, it occurs at the point of That problem is not solved by deferring path to pursue is a choice for legislators, fi nal address and then only at the insist- it. Thus it is not solved by saying to a not judges. It is important to recognise, ence of the judge. decision-maker, do whatever you think is however, that it is a choice which repre- Litigation is expensive and time-con- just. In the fi eld of negligence, it is not sents a fundamental departure in the fi eld suming. It is expensive because lawyers solved by saying that a duty of care is to of criminal law from the general trend of are skilled professionals. The amount of be imposed whenever it is “just and rea- the law towards the very particular and time consumed should, however, refl ect sonable” to do so.4 That does no more individualised treatment of cases. the amount of thought that goes into decid-

43 ing the real point of contention between become too complex. Too often, driven by are the challenges that have come from a the parties, not the amount of time that is the fear of the exceptional case, directions change in the balance between pursuit consumed by identifying what that point to juries are made longer and more com- of the law as a profession and the con- is, or considering peripheral points. plex than once was the case. It was, after ducting of a business. Both elements have The identifi cation of the real point of all, Sir Leo Cussen to whom reference was always been present in the practice of the difference between parties must take place made in the joint judgment of the High law — the self-abnegating pursuit of some out of court. All too often it now occurs in Court in Alford v Magee7 when it was said higher ideal and the pursuit of commercial court. Whether it is to be done orally or that the function of the trial judge is to success. We cannot for a moment delude in writing, it is plain that the statement of instruct the jury on so much of the law as ourselves into thinking that the commer- issues between parties in a civil matter will they need to know to guide them to a deci- cial element of practising law has emerged have to be reduced to writing. If pleadings sion on the real issue or issues in the case. only recently. It has always been there. are thought not to achieve that result then Juries do not require a general disquisi- But the balance appears to have changed. let us do so in some other way, but it sim- tion on the criminal law. Yet often enough Glossy promotional brochures, time cost- ply must be done and done out of court. that is what is given to them. ing, the apparently ruthless disposal of Although the oral tradition of the common partners above about age 55, the panel law court is one which I consider to be THE PROFESSION system and competitive tendering for work of inestimable benefi t, and therefore to be The way in which the legal profession has from clients, the pyramidal work struc- preserved, more and more litigation will gone about its work has changed mark- ture of one partner plus two associates depend upon written work for the use of edly since I was admitted to practise. In plus four solicitors plus twelve articled the parties out of court and written work 1969, when I was admitted, the practising clerks and paralegals are all signs or symp- for use by the judge in or out of court. No profession was very largely male but, even toms of what has changed. What we need doubt, the skills of Australian lawyers in then, was no longer of uniform ethnic ori- to do, however, is not simply to observe this area must be improved. Whether, as gin. The Bar that I joined in 1971 was, still, the changes or even, if this is thought one author suggests,6 the issue in a case almost entirely male and of Anglo-Celtic appropriate, complain about them. What can always be captured in 75 words or background. Its civil work was based in we must do is understand whether these less, it is an aim to which all should aspire. motor vehicle accident work in the same changes present diffi culties or opportuni- The writing of all lawyers at all levels of way as, some years earlier, it had been ties, changes or advantages and we must the system must be examined. Does it do largely based in landlord and tenant work. deal at once with the diffi culties and dan- the job it must? Does it communicate the Taking silk was a very perilous step for it gers. Of those, there are, I think, two that point quickly and accurately? If it does brought with it an obligation not to appear require consideration. not, what are we to do about that? without a junior who would receive a fee The graduates emerging from our law Hitherto, I have said virtually nothing fi xed at two-thirds of the silk’s fee. Self- schools are the best and brightest we have about the criminal law. In that area there promotion of any kind, either at the Bar seen. Or at least the diffi culties of obtain- are some deep-seated issues of principle or among solicitors, was not only frowned ing law school admission suggest that they which I would suggest the experience of upon, it was regarded as a serious ethical should be. Yet all too often we fi nd that offence. Solicitors’ fi rms had, at their head, many of this generation are turning away senior partners in their very late 50s or from the law in the years immediately 60s. All practices at the Bar and on the after admission to practice. Why? Is this More specifi c to the legal solicitors’ side were almost always based telling us anything about the way in which profession are the entirely within the State. Interstate admis- the law is being practised today? Do we challenges that have come sion was very rare and then was usually a have a proper balance between the profes- relic of some long past move by the prac- sional ideal and the commercial desire or, from a change in the titioner concerned. as some would have it, commercial imper- balance between pursuit Much has changed over the last 30 or ative? Are our young graduates being used of the law as a profession so years. Of those changes I single out only in the practice of the law or are they being some. I choose those I do because they used as highly paid clerks? Are principals and the conducting of a may serve to identify some challenges not and associates (to whom the young grad- business. Both elements all of which may be as well recognised as uate looks as role model or awful exam- have always been present they should be. The most obvious is that ple of what lies ahead) practising law or the face of the profession has changed and are they administering large commercial in the practice of the law. it is continuing to change. No longer are enterprises in which legal decision-making graduates from the law schools predom- is relegated to others to generate the draft the last 100 years does not call into ques- inantly male and of Anglo-Celtic origin. which they will sign? Sir James Gobbo tion. An accusatorial system leading, in How we deal with that fact not only will considered these issues in last year’s Leo the more serious crimes, to trial by jury, reveal much about the profession, it will Cussen Lecture and I need do little more is not without its diffi culties, but for my shape the way in which the profession is than refer to what is said there about the own part I see no reason yet to challenge organised and does its work. Are we doing topic. those premises of the criminal law sys- enough to recognise these changes and The second of the diffi culties and dan- tem. Rather, the pressing challenge for deal with them appropriately? The chal- gers is closely related. No client likes lawyers and judges is to make the accu- lenge is one that confronts society as a being told “no”. No client likes being told satorial system of trial by jury work bet- whole, but what are lawyers doing about it “you will lose”. Very often, however, law- ter than it does now. Trials have become in the law? yers should give the client such bleak too complex. Directions to the jury have More specifi c to the legal profession but steely-eyed advice. Are we seeing the

44 commercial urge to placate the client, lest Fairness, justice and reason should organised, all participants in the legal sys- the client go elsewhere, dull that resolve? all be terms that can be applied to par- tem must understand what they mean and Does the client shop around until congen- ticular legal principles. In the High Court why they are important. Only then can the ial advice is given, presumably in the hope, there will often be cases in which diffi cult debate be conducted on a sound basis. Micawber-like, that something will turn choices must be made and those choices Just as it is important to identify and up? If that is happening, why is it happen- must be informed by considerations sub- understand fundamental principles, it is ing? Is the law just another commodity to sumed in the rubric “policy”. But judges equally important to understand what is be bought by the metre or the tonne, or do are not free to roam as they please in not important and what is not fundamen- its practitioners owe obligations beyond search of what seems to the individual to tal. No doubt that is why what used to be a themselves and their clients? be a good or desirable outcome. Judges sharp distinction between civil law inquis- I would hope that you would fi nd, on are bound to do justice according to law, itorial systems and common law adversar- careful analysis, that the diffi culties and not as if each were a philosopher king in ial systems of litigation can be seen to be dangers I mention do not exist. But I fear whom all knowledge and wisdom resides. becoming blurred. The civil law systems we all must ask the questions. If we do That is why the law cannot be seen as a are increasingly taking on aspects of the not, we risk serious damage. panacea. Society must deal with its vari- common law adversarial system. Common ous diffi culties in various ways. The law law adversarial systems are learning from THE LAW AS PANACEA cannot solve them all and no one, least the civilian traditions. The variety of issues that come before the of all those who are in the legal system, courts is now greater than ever before. should think it can. There are many reasons why that is so but in many cases it will be found that CHANGE Unless we know not only the rights that are claimed are said to be Finally, there is the phenomenon of change based either in particular statutory provi- itself. It is rightly said that the law is a con- what we do but why we sions or in some over-arching statement servative force in society. Litigation almost do it, we will learn nothing of individual rights. I am not concerned to always concerns events that are past, to from what has passed. say whether the making of such claims is which, with very few exceptions, the law good or bad any more than I am concerned that is applied is the law that was in force to say whether the time of the courts is at the time of the events. Courts and litiga- If we are right to think that the pace of well spent dealing with such claims. Those tion lawyers are, therefore, generally look- change in society will continue unabated, are matters for others to consider. What ing backwards. Even those who prepare or even increase, the legal system must I do want to draw to attention, however, agreements designed to govern the future be prepared to deal with change. It is not is a pressing need for us all to consider relations of parties or give advice about enough to say that what has been done in whether the law can or should be regarded how future conduct should be ordered, do the past is best unless we know why that is as a universal solution for an individual so with their eyes in the rear view mirror so and can articulate those reasons. That, citizen’s hurts or all of society’s problems. of what has been found in the past to be we can do, only if we have examined the The legal system is a human system the applicable law. fundamental underpinnings of our legal administered by fallible individuals. While The rate of change in society now system. it is to be hoped that those who participate appears greater than once it was. Whether Of all the lessons that we may learn in its activities will act justly and wisely, history will identify the changes of the from looking in the rear view mirror, it is wisdom, fairness and experience are not late 20th and early 21st century as being that which stands out. Unless we know the exclusive province of the legal system. as dramatic as, for example, the changes not only what we do but why we do it, we Not every social problem, not every hurt brought about by the industrial revolution, will learn nothing from what has passed. suffered by an individual, requires or even may not matter. What does matter is that And I need hardly remind you that unless admits of a legal solution and it would be business, community and social relations we learn from it, we will be condemned to quite wrong to think that they did. are changing. The legal system must be repeat it. Sometimes, however, it seems that a able to consider whether those changes contrary view may inform what is sug- require it to change. And it must under- NOTES gested that the law can do. Because some take that task much more often than once 1. (1992) 175 CLR 1. legal principles can be stated at a high was thought necessary. 2. Masciantonio v The Queen (1995) 183 CLR level of abstraction and some statements In order to do that, it is essential to 58 at 67. of individual rights are phrased in aspira- identify the elements of the system that 3. Gleeson CJ, “Individualised Justice — The tional rather than normative terms, it is are properly regarded as fundamental. It Holy Grail”, (1995) 69 Australian Law suggested that judges have an ability to is, therefore, necessary to have a clearly Journal 421. decide some cases according to no princi- developed understanding of what is meant 4. Caparo Industries Plc v Dickman [1990] 2 ple other than an intuitive and individual by the rule of law, of what is meant by judi- AC 605 at 618 per Lord Bridge of Harwich. sense of what is fair, just or reasonable. cial independence, of why judicial inde- See now Sullivan v Moody; Thompson v Furthermore, for like reasons it is sug- pendence is important. Especially is that Connon [2001] HCA 59. gested that judges may, in the name of so when debate on even the most complex 5. See, for example, Sentencing Act 1991 “policy” decide cases in a way that will issues is all too often conducted through (Vict), s. 5. further some end seen by the speaker as the medium of seven-second sound bites. 6. Bryan A. Garner, A Dictionary of Modern socially desirable. Thus resort to law is If the principles I have mentioned are Legal Usage, 2nd ed. (1995), “Issue- seen as a panacea. “Sue, that will provide important, and I think they are funda- Framing”. a solution.” mental to the way in which our society is 7. (1952) 85 CLR 437 at 466.

45 Articles Judicial Overservicing: Bringing Home the Bacon

By Geoffrey Gibson, Partner, Blake Dawson Waldron

Thou hast most traitorously corrupted the youth of the realm in erecting a grammar school; and, whereas before, our forefathers had no other books but the score and the tally, thou has caused printing to be used, and contrary to the King, his crown and dignity, thou hast built a paper mill. Part of the indictment of Lord Saye by Jack Cade in 2 Henry VI, 4.7.30 to 35. Il dover mio farò. Ma voi? (I shall do my duty. But you?) The question of the King to the Grand Inquisitor in Don Carlos, Act V.

NE of the worst charges laid in the sense of being worth it? Or against lawyers is that they to use the revolting phrase of the Ooverservice. They do more managers, are the litigants getting work than they need to so that value for the management pro- they can charge more. Overserv- vided by the judges? ice therefore equals overcharge. You see many cases where the Nearly all commercial lawyers — parties have to keep going back both solicitors and barristers — to court for directions for one rea- now charge by the hour. The more son or another. Some judges do time they clock up, the more they not appear to understand that this charge. Lawyers therefore have a exercise can be very expensive — vested interest in doing more work. each time you have to go back, it They certainly get no incentive costs more money, and each time to be short. Stockbrokers charge there is an order made, there is commission on transactions and more money to be spent in comply- when they increase their turnover ing with it. The size of the problem just to increase their commission, became apparent to me on seeing they are guilty of “churning”. The thirty or so lawyers turn up about word has entered their ethical lex- once a month in a class action icon. Deliberate overservicing is (the Longford case) where orders a serious ethical offence. Even if were made that started to resem- there is no offence, the tendency ble a chapter of the Australian to do more work than might rea- Constitution. You can talk about sonably be required can give rise case management being supervi- to huge bills, and huge profi ts. sory, collaborative, or a team effort, Are the judges now complicit Geoffrey Gibson but the parties are there to win, in overservicing by continuing to and you do not usually have to increase the demands they are making on in the responsibility for management of go far before you fi nd at least one party litigants and their lawyers? Is the judi- civil litigation from litigants and their legal who is prepared to put a spanner in the ciary part of the problem by supplying advisers to Courts” (ALRC 89 Managing works no matter what the cost — the kind the platform that gives rise to so much Justice par. 6.16). of litigant that takes John McEnroe as its more work for which the lawyers can send The result is an increase in the man- model. bigger bills? The trend is toward Court agement of the process and an increase Then I heard of a commercial matter managed lists everywhere. The Australian in the work to be done in the process; that could have settled apart from the Law Reform Commission endorsed the this leads to the parties and their lawyers issue of costs. It was in a court-managed docket system of the Federal Court, and being required to put in more hours; the list of a superior court elsewhere. The the recent overhaul of the English rules ineluctable result is higher bills; is this plaintiff was asked how much had been was based on the express premise “that process playing into the hand of the law- spent to get to mediation. The answer was there should be a fundamental transfer yers? Is it warranted — is it warranted north, as they say, of $150,000 — about

46 twice what I paid for my fi rst house north. or commerce, who have the resources to Together with the monarchy we have This is an unbelievable amount of money incur the additional expenses caused by the retained that basic model in Australia. Our for a party in what was a simple enough procedures necessarily devised for a judge- present combination of the ancient and not case to spend before the trial starts — controlled list intended to provide relatively so ancient recalls the remark made about before the trial preparation starts, before speedy trials. Merovingian society as being an “alliance a real punch is thrown — before in fact The Commercial List has not been of decrepitude and barbarism” (Ferdinand the clock really starts ticking over. Well, devised for government or charitable bod- Lot, La fi n du monde antique et le début perhaps we can no longer think that way; ies or for individuals not engaged in busi- du moyen âge (Paris, 1927) 496). perhaps we now have to see the clock as ness, but if parties of that kind have genuine The system has two fatal fl aws. ticking over in a big way from the day commercial disputes suitable for resolution Appropriately for a venerable English insti- the writ issues. That is when the whole in the List they can issue proceedings in the tution, it is a product of the class system. “team” cranks into action. This litigant had List so long as they are willing to carry out It contemplates two classes of allegation, expended more to get to mediation than the comparatively rigorous directions cus- pleadings and particulars, like First Class a judge of that court would have made tomarily given. (Guide to Commercial List railway compartments and Second Class in one year after tax. It was something Civil Practice, Supreme Court of Victoria, railway compartments, or Gentlemen and of the order of the cost of the average 1992, revised 1996.) Players. Commonly the real case only fi rst home for Australian homebuyers. It appears in particulars. But the judges was more than four years of full-time adult Some day someone of a different ideo- ruled that you do not plead to particulars ordinary time earnings for an Australian logical caste may wonder whether these (Pinson v. Lloyds and National male. Do we really think the system is are the right cosmetics for the face of Provincial Foreign Bank Ltd [1941] 2 healthy, much less effi cient, if it can toler- justice in Australia in the year 2001. It KB 72). The result is that you do not get a ate this kind of aberration? certainly does not have the egalitarian joinder of issue on the real case. It simply Some judges seem to delight in fl exing air that the Offi ce of Chancery professed fl oats around in the documents and is left their muscles to test the output of modern more than a century before the white man to be uncovered during the trial. law fi rms, organisations the workings of arrived here: You know you have a problem when you which are almost entirely foreign to most read in the Rules (such as the Victorian of the judges. Some judges are keen to It is the refuge of the poor and affl icted; RSC Rule 13.10(2)) “that particulars shall say that a national fi rm, or an international it is the altar and sanctuary for such as be given if they are necessary to enable fi rm, should be able to turn documents against the might of rich men, and the coun- the opposite party to plead or to defi ne the over faster than was previously thought tenance of great men, cannot maintain the questions for trial” even though it is still possible. They should be assured that it goodness of their cause. (Holdsworth, His- the rule that you do not plead to particu- is not the proprietors of the fi rms that tory of the Laws of England, Volume 5, lars. [O12 R5(1)(b) of the Federal Court get tested or worried by these exercises 286, describing Chancery in 1651. This, says Rules allows the Court to make an order — they just count the profi ts, large prof- Holdsworth, was “the traditional view”. The for particulars of a statement of the nature its, while young lawyers wonder why they functions of the Old Bailey in London are of the case on which he (the party) relies.] went to university for fi ve years to study still said on its face to be “to punish the Day in, day out, courts continue to allow law, and their clients mutter the same wrongdoer and protect the children of the particulars to be given in an attempt to complaints against the lawyers that have poor”.) make clear what is unclear — whether been uttered for centuries. the pleading discloses a cause of action or This time, though, the lawyers have got The purpose of this note is to look at defence, or whether it might be character- the judges behind them. Sometimes law- some of the problems with Court managed ised as embarrassing. If it is not good as a yers can be called back for ten or even cases and some possible solutions. The matter of law, the particulars cannot save twenty hearings for directions. As a result, ALRC (above par. 6.31) said the jury was it. If it is not good as a matter of pleading, cases which you could have got to trial still out on the impact of case manage- the particulars will not improve it. for $10,000 can now cost a lot more than ment on legal costs. These observations Why, an observer may ask, do we bother $50,000, sometimes more than $100,000, may be anecdotal but they come sorely going through the ritual in the fi rst place? before the trial itself commences. Cases felt. Why bother with a mating dance if the par- used to be fought by individuals; now lit- ties rarely achieve satisfaction? Why not igation is conducted by “teams”. Call it PROBLEMS have a rule that says each party must set grist for the mill, call it blood to a tiger, The traditional problems with our civil out each proposition of fact and law that but this prolongation of the agony is right procedure can develop new magnitude in that party will put and let nature take its up the alley of the big fi rms and the Bar. court-managed cases. course as it does now? These sagas remind you of those long run- A major premise of court management ning television series, like “Bonanza”. Pleadings — sometimes articulated, sometimes not At least the Supreme Court of Victoria A signifi cant part of Court management of — is that the court knows better how was candid in describing the Rolls Royce a case is taken up with directions about the parties should present their case than nature of its Commercial List as a facility pleadings and particulars. Pleadings were do the parties and their lawyers. That not created for the needy, but for those devised in the early middle ages when tri- is an absolute contradiction of the basic with resources: als were by ordeal or battle. Pleadings premise of our adversarial procedure as it were designed to crystallise issues of developed over a millennium. But the dis- . . . it should be remembered that the List is fact for the jury. They turned into cruel pute is, as they say in ADR circles, the dis- primarily intended for the resolution of real exercises of gamesmanship. The relevant pute of the parties, and you would think disputes between parties engaged in trade rules were reformed in Victorian England. that sensible lawyers would realise the

47 value in presenting that case to the best excellence. On the other hand, the causes harder to bear. No one has ever devised a advantage, rather than indulging in games of the fi re had been examined, at a cost test to measure the value that parties get about how far the skirts can be lifted up as of millions of dollars of public money, by from discovery, but it is very easy to meas- the case drags on. Experience of forensic a Royal Commission, and the legal issue ure the cost. It is relatively precise and contests does suggest that the real issue of the right of consumers to recover for eco- certainly prodigious. only emerges well into the trial and the nomic loss on the failure of an essential process is not then assisted by pleadings. service might be diffi cult, and perhaps ripe Witness Statements On the other hand experience equally sug- for appellate review, but it does not take The evidence of a witness will fall into gests that most cases eventually come long to state. Nevertheless, the main pro- one of two categories: statements that are down to something like “he hit me on tagonists and, apparently, even some of contentious, and statements that are non- the nose; no I did not; or, he welched the lesser third parties, have managed to contentious. A witness statement is not on the deal; no the deal was never made spend millions of dollars each on comply- good for the fi rst; it is not needed for the in the fi rst place”. Pleadings, in the for- ing with directions about discovery, and in second. Those courts that run on witness mal sense, can assist to sterilise allega- attending numerous directions hearings, statements traditionally allow that where tions of criminality or dishonesty, and they both by the court and the registrar, on issues of credit will be paramount, the wit- may be required to ensure jurisdictional how the process should be effected. A ness statement should be silent and the compliance in representative proceedings, witness should give the evidence in the but even in these cases the question is witness box. But if witness statements are whether the benefi t warrants the cost. at best unnecessary and at worst undesir- No one has ever devised able, why do we retain them? Discovery a test to measure the Witness statements do in truth give the Until recent times — at least until recent system a bad name. The ordinary litigant times in legal terms — discovery was value that parties get from has a bit of trouble in understanding the alien to the common law. It only came discovery, but it is very distinction between a pleading, a proof of into the common law in any substantive easy to measure the cost. evidence, a witness statement, an affi da- way when the practice of equity and com- vit, and evidence in the witness box. A mon law was merged in England. The lead- It is relatively precise and lot of litigants think that just as it is in ing textbook published shortly after that certainly prodigious. order for them to take a tactical position (Bray, The Principles and Practice of in a pleading, so it is in order to take a Discovery, London, 1885, page 1) charac- major fi rm had to be spoken to fi rmly by tactical position in their evidence, on their terised discovery as an exercise in extor- its professional body because too many of oath. A Florentine notary made some droll tion. The right was described as a right of its articled clerks were having their arti- remarks on the role of the advocate in the a party to proceedings, before the deter- cles prostituted doing discovery. thirteenth century: mination of any matter in question: Discovery has always been an invasive procedure, and one that puts many busi- . . . an advocate’s function is to . . . to extort on oath from another party to ness people off going to law on that count palliate lies, veil falsity under the image of those proceedings — (1) all his knowledge, alone, just as the risks of invasive pro- truth, instruct his party in his positions and remembrance, information and belief . . .; cedures put people off surgery (and the answers, and induce witnesses to corrobo- (2) the production of all documents in his judges are very emphatic in ruling that rate whatever he wants proved or confuted. possession or power relating to such mat- people must be expressly warned of those (Boncompagno of Signa, Rhetorica Novis- ter. risks). But the reach of discovery is now sima, 3, 2 in Bibliotheca iuridica medii destructive. While millions of dollars of aevi, ed. Augusto Gaudenzi et al (Bologna Three years before that defi nition was shareholders’ funds can be drained in com- 1888–1901) 11, 259.) given, the process had already gone off plying with orders on discovery, in a court the rails when two English judges said which says it has abolished general dis- An Australian lawyer assembling wit- people were entitled to go after not just covery, the clear inference is that the peo- ness statements in 2001 can come uncom- those documents that related to matters in ple of lesser means, those for example fortably close to this model. issue, but those that might lead fairly to a who could not afford the rigours of a When lawyers are involved in compil- train of inquiry (Compagnie Financiere Commercial List action, can simply go ing witness statements, they are seen by et Commerciale du Pacifi que v The under when exposed to the demands of some to be fulfi lling the role of a script- Peruvian Guano Co. (1882) 11 QBD 55, contemporary discovery. writer. It is notorious that a huge amount 63). Train of inquiry is a polite term for The main difference between getting of work of what might otherwise be called paper chase which is a polite term for discovery over a period of time in response high intellectual calibre goes into distort- witch-hunt. to an accumulation of orders, and in ing instructions from witnesses so as to The problems with the resulting witch- the expedited fashion in operation in a present the best veneer on what might be hunts are well known. These are some Commercial List, is that in the former case, called the case (as opposed, perhaps, to of the worst paper mills in litigation. The to use the language of a former Australian the truth). The courts apparently expect two activities most dreaded by young law- Prime Minister, they just do you slowly. the exercise to be one of gamesmanship. yers — due process and discovery — are Where the directions are spread out over The Victorian Commercial List direction, regrettably as profi table for the partners a period of time, the tendency to diver- above, says (par. E.2.04.3): as they are banal for the staff solicitors. At sify the reach of discovery, and increase fi rst blush, the Longford fi re class action its extent, becomes harder to resist, and The same date is fi xed for the provision, might seem to be complex litigation par the corresponding burden on the litigant by exchange of each party’s statements to

48 the other. The object is to avoid revision do have this effect — an assumption that at it, the position of a dispassionate judge and editing of statements to answer the evi- may remain forever unverifi ed by meas- who only intervenes when necessary has dence of the opposing party. ured empirical observation — are they gone well and truly west. The era of the worth the effort? inquisitor has arrived. Any court procedure which is expressly You could divide the attitude of judges There is a further problem. Judges tend predicated on the possibility of the doc- in giving directions in these lists into three to allow themselves to be more idiosyn- toring of the records of evidence that it categories (or a combination of those cat- cratic and proprietorial during manage- creates is bad and should be scrapped on egories): the democratic; the didactic; and ment sessions (directions hearings) than that count alone. It is the kind of problem, the dictatorial. If dictatorial is just a pejo- at trial. This attitude can then spill over including the perceived complicity of the rative epithet for decisive, and the judge into the trial, where the audience does not lawyers, that led to the demise of unsworn knows what he or she is doing, then consist mainly of lawyers, and where the statements in the criminal jurisdiction. At plainly the last is the preferable model. consequences are more fi nal. When the least in that jurisdiction there was a juris- Combinations of the didactic and demo- judge starts to behave like an inquisitor for tic reason why litigants should have been cratic are likely to lead to a spread of the trial, both litigants and lawyers get wor- able to make a statement assisted by their directions less defi ned but probably more ried. There are very good policy reasons lawyer and not on oath. This has never pervasive and suppositious, and taking why sensible superior courts forbid their been the case in the civil jurisdiction. longer to fulfi l, than others. On the other judges to act as Royal Commissioners, and hand, the radically decisive judge — the when judges start to act that way they are Court Books imperative judge that the Americans refer behaving more like members of the exec- If you speak to young lawyers who have to as Rambo style — frequently leads to utive branch than the judicial branch of left the litigation department of a big fi rm, problems at the other end by directing government. If you like your metaphors if you speak to them say in an exit inter- that too much be done by too many too mixed, it is hard to stay above the dust view, and ask them why they have left, the soon. of the arena if you come in as part of the answer will very frequently refer to Court But when did we acquire the need to assembly line. Books. They are seen as an exercise in have the judges direct the lawyers on how One of the reasons why costs are blow- inanity that served no useful purpose but they should present their case? Our sys- ing out is the unnecessary use of counsel which consumed hours of work, frequently tem of trial grew up with the judge just sit- for directions hearings. Occasionally it will through the night or over weekends, to the ting there watching counsel for each side be more economical to have junior coun- grateful pleasure of their employers. Just present their case to the best of their abil- sel attend, possibly all day, for one short how many pages of these massive books of ity and the judge then deciding which was matter rather than have a partner stand documents are ever necessary? Assuming the better case. It was based on the sur- around for the same period. But increas- that these great collocations can be of vival of the fi ttest at the independent Bar; ingly there is a tendency to retain coun- some assistance to the court, does that the quintessential example, if you like, of sel to appear at a directions hearing when assistance in any way warrant the enor- capitalism in action. When did we feel the there is no call for counsel. There is even mous expense and drudgery involved in need to map out all this framework with a worrying tendency in some lists for sen- producing it? Judges who feel the need a view to eliminating as far as possible ior counsel to appear, sometimes appar- for the comfort of a Court Book should any element of surprise or even drama in ently out of habit rather than anything be invited to visit the war-room of one of a trial? Why should we not proceed on else. When we are talking about manage- the big fi rms when one of these produc- the footing that trials are conducted by ment of cases, we are ex hypothesi talking tion lines is in process and consider the members of a learned profession, who are about management. We are not normally wall-eyed desolation of the young lawyers trained for that purpose, who know how talking about penetrating the highest alti- engaged. The solicitors’ side of the profes- to run a trial, and who should be left to run tudes of juristic science, or what Sir Owen sion is losing a lot of bright young lawyers it as best they can in the interests of their Dixon, who probably never attended a to the Bar, or merchant banks, because of client? If the new dispensation is proceed- directions hearing in his life, would have institutions like Court Books, and increas- ing on the footing that it is there to pro- called the basal concepts of our jurispru- ingly, it must be said, barristers are being tect the weak against the strong — if you dence. If there has to be a serious pleading recruited back into the discovery process like, to maintain a level playing fi eld — point argued, it may be a matter appropri- to make up for a shortage of manpower then it is obviously open to the most seri- ate for counsel. On the rarest of occasions, back at base. ous question. it might be appropriate even for two coun- Bench and Bar have proceeded on the sel. But this will be very very rare, and cer- Directions Hearings footing that the judges should not be seen tainly much more rare than appears to be The problems with the procedures of to be running the show like the headmas- the case at the moment. court-controlled lists do not seem to get ter of some grammar-school, but should It is not unknown for Senior Counsel to less the more often they are considered by preside over the contest like an independ- attend at directions hearings, sometimes the judge in charge of a case. Each time an ent umpire, certainly not someone who for a number of matters, charge $5000 order is made, someone has to do some- gets involved in the contest itself. One for saying nothing or next to nothing — thing to comply with it. This increases of the diffi culties with these long pro- and certainly nothing that could not have the costs of getting ready for trial, and gressions of directions hearings, and the been said just as well by junior counsel, or the delay of getting to trial. It is all done increasing familiarity of a judge with a even on a good day by the solicitor — and on the footing that all of these steps will case, is that they do lead to a different then wander off for a spot of lunch at the increase the prospect of a fair and orderly relationship between the judge and the club. It is therefore convenient that these trial. Assuming pleadings and discovery parties and their lawyers at the start of a sessions generally take place on Fridays and witness statements and Court Books trial than before. Whichever way you look — in the morning. This kind of abuse is

49 demeaning for the institution of Senior ently have some diffi culty in understand- you are now worried about whether you Counsel; it is demeaning for the Bar as ing the concept that trial lawyers make followed the case of the applicant. It does a whole. It is not what the institution of the best trial judges. indeed bespeak an unfortunate breakdown silk was created for. The cult of modern between the Bench and the Bar if judges management does not require that its aco- The Requirements of the Court think they are better placed to get on top lytes parade in court in silk gowns (much Just who does benefi t from the massive of a case by going at it alone rather than less with horse-hair perukes). There was build up that we now require of parties — having it explained to them by counsel one memorable day when three of Her pleadings, discovery, witness statements, whose job it is to present the case. Majesty’s counsel turned up at a morning Court Books, position statements, lists of Indeed, does the judge under our laws directions hearing for one corporation contentions, draft submissions, and so on? of procedure have to get on top of the (which was not directly in the line of Do judges need all this preparation? Has fi re) where it was inevitable that none of the judiciary become a pampered if not them would be called on to say anything; protected species? Is it a good idea for judges $15,000, or so, worth of silence worthy of Is it a good idea for judges to read so Carmelite nuns. much before the start a trial? If they do, to read so much before For the most part directions hearings they are likely to start to form ideas, and they start a trial? If they involve essentially ministerial matters. then they are on the verge of pre-judg- do, they are likely to start Judges are of course entitled to have ment (in other words, prejudice) before proper assistance in running the court, but hearing a word from either party. One of to form ideas, and then one would hope that in most cases solici- the most able and fair judges we have they are on the verge tors practising in the relevant areas would known thought the judge should not read of pre-judgment (in other be able to provide the requisite level of too much. Lord Denning said that he did managerial know-how. It may be said again not believe in the United States system words, prejudice) before that the Crown did not create counsel in of written briefs. He thought the Socratic hearing a word from either its own image to participate in manage- method was to be preferred. party. ment exercises. (Well, perhaps, the Crown did in Tudor and Stuart times, but the rel- But in the Court of Appeal a judge should case before it starts? Or is the judge just evant ministerial exercises were then a not ask questions too soon: nor too many. there to decide which party has presented little more consequential, not to say ter- He should let the advocate open the case the better case? The question shows how minal.) For that matter, there can be few in his own way. Not interrupting him until silly it may be now to be invoking the old cases nowadays that require two counsel a convenient moment arrives. For myself I dichotomy between the adversarial and to settle, if that is the word, the pleadings. do not read the papers beforehand. Only a inquisitorial modus of trial. But the dis- If you strip away the mystique, pleadings glance at them to see what the case is about. cussion does show the risk of the appear- are forms. If litigation lawyers cannot fi ll Lord Atkin used to read them in detail. ance of prejudice. And as Lord Denning those in properly, what else can they do? With the result that he made up his mind observed, this can lead to the ultimate dis- Sure, there is some skill in pleading — before counsel had opened his mouth, and aster for the administration of justice — some have it and a lot do not — but it asked devastating questions from the out- the litigants can see it, and think that their takes two or three hours to learn the rules set. The litigants thought that the case was case has been prejudiced. and a year or two to understand them. prejudged before their counsel was heard. So, one of the consequences of our They seem to some signifi cantly less com- (The Family Story, 1981, 205.) over-preparation for trials is that the judge plicated than Form II Algebra and people may be too personally involved in its do not compile large fortunes doing those It is important to understand that one conduct, and the image of an impartial kinds of sums. of the most admired English judges of the observer of a contest has been replaced There is another consequence of spend- last century is here accusing another of by that of a determined participant in the ing as much, if not more, time and money the most admired English judges of the process, and a central part of our notion in preparing a case than in fi ghting it. last century of the worst sin a judge can of due process in a civil trial, at least as We are developing a class of counsel commit — prejudice — and the accu- we understood it until a generation ago, is who in truth practise like solicitors doing sation is that the judge knew too much being eroded. paperwork almost exclusively, with the before entering the court. Of course, these occasional hardly threatening outing for things were said and done in another hem- SOLUTIONS? directions. There are many barristers who isphere and in another century when life On the grounds that I have assigned, I have nearly forgotten how to fi ght a case, was very different, but if those distinc- would abolish, at least for most cases, or who at least show a marked disin- tions are determinative, I should not have pleadings, discovery, witness statements clination to do so when invited. In the to worry further about pleadings or dis- and Court Books. The parties would get US apparently, the class actions have got covery. a trial date when the proceedings com- so unwieldy that very few ever get to The trouble with going deeply into the mence, and in the interim each side would trial with the result that almost none at material beforehand is that you do form be required to state its case and both the class action Bar knows how to run a impressions. In the way of things, those would be required to submit the dispute trial. We are facing the same problem in impressions may be as unfounded as they to mediation. There may be some loss of Australia across the board of commercial are diffi cult to shift later on; half way preparedness for trial, but just think of the litigation. In time, this may affect the qual- through the submissions of the respond- savings. For $150,000 you could, with two ity of the fi eld from which the judiciary is ent, you understand what the case is about counsel, spend fi fteen days at trial, and drawn. As it is some governments appar- — or at least you think you do, because you can get to learn quite a lot about a

50 case during fi fteen days of trial. Assuming hide it; if, in response, you want to play — the subpoena is nowadays an instru- that such a total abolition program does cat and mouse with the Court, you may ment of discovery de facto although not not presently have the numbers, I will con- have to pay the price. As Sir Owen Dixon de iure — and they ought to be reason- sider some alternatives. remarked on the obligations of counsel: ably assured that if the mediation proc- In my view, and again at least for most ess has worked, they will have been told cases, witness statements and Court Books He must also keep steadily before him the by the other side of the documents they should at least be scrapped, the fi rst on the necessity of justly gaining and retaining the have which they say work in their favour. grounds of moral and intellectual honesty, confi dence of the Court. That means that If you look at the residual benefi t of the the second on the grounds of economic he should feel that the Court knows that it process of discovery and then measure rationalism. At the very least the time can rely upon him without misgiving as one that against the costs, including the costs has arrived when the evidentiary onus has who will competently ascertain and present in terms of invasion of privacy, then this passed to those who would seek to retain for judicial examination his client’s real or is another instance where in my view the these procedures to justify them. strongest case and will do so intelligibly, def- evidentiary onus, to put it at its lowest, The choice for pleadings is either to initely and with candour. The obligation of has passed to those who say the institu- scrap them or to revise them by abol- candour rests on simple moral grounds. But tion should be retained. ishing the distinction between pleadings at the same time it is a paradoxical if cyni- The courts need to monitor the number and particulars, requiring all allegations of cal truth which needs no elaboration that of times they are requiring parties to come fact to be pleaded, and trying to enforce in advocacy candour is a weapon. (“Lecture back before them, and the number of rules against evasive responses (ALRC on Professional Conduct” (1953) in Jesting directions they are imposing on parties. Report, above, Recommendation 87). Pilate, Law Book Company, 1965, 134.) It may be possible to get some empirical Notwithstanding a statutory endeavour I evidence of the value of these procedures will come to, there is something odd about The obligation of candour now rests on by having one stream of cases where none enforcing frankness, and it is diffi cult to more than moral grounds. All lawyers in of them apply and one where all of them break the habits of a lifetime. I myself, and Victoria are obliged by Act of Parliament apply. Perhaps the views of the parties again at least for most of the cases, would to act with candour in all dealings with might be consulted. The courts need also prefer to see pleadings scrapped. Instead, courts and tribunals (Legal Practice Act to check the sources of their feedback there would be a standing direction or rule 1996, s. 64(f)). This statutory duty of can- about what is happening out there. If the that each party is to set out the conten- dour is over and above the legal obligation people they are talking to are content with tions of fact and law on which it relies of honesty. the process, the judges might be asking in a summary way. You could then if you There may well be a similar choice what is the source of that contentment — wanted to require the parties to crystallise in respect of discovery. Experience with forensic, or fi scal. The judges need to be the issues between them after the media- limited discovery suggests that it can checking those who pay for the system, tion and before the trial. In terms of the wind up worse than general discovery. In not just those who get paid by it. In litiga- parties’ knowing where they stand when the Longford class action, Justice Merkel tion, as in most things, you get what you the trial starts, it is important to under- made it clear on a number of occasions pay for, but if the judges are going to be stand that in most cases they will have that the Federal Court had abolished responsible for telling litigants how much fully explored the extent of their dispute general discovery, but then had to face litigation they should have, the judges will and tried to resolve it in the course of phalanxes of consenting adult attorneys need to be very well informed on how a mediation where, experience suggests, submitting to orders which wound up cast- much litigation the litigants want or can you frequently learn much more about ing a far wider net than an order for gen- afford. They will not get a balanced view what is exercising the other side than eral discovery, and which cost the parties if they are talking mainly to lawyers, gov- many millions of dollars, notwithstanding ernment, and corporations. that the fi re that started the action had If judges are to accept responsibility been the subject of a Royal Commission for the way in which cases are managed, The choice for pleadings is and was the subject of a prosecution in the they will need to have more responsibil- either to scrap them or to Supreme Court. It looks to be a fact that ity for the costs of the exercise. One way revise them by abolishing although a government has conducted an to do this would be to bring back the inquisition, this will not stop the lawyers requirement of a certifi cate for counsel the distinction between for parties to an apparently adversarial in non-trial matters, and the requirement pleadings and particulars. contest embarking on any equally expen- that there be a certifi cate for two counsel sive number of inquisitions of their own. whenever two counsel are briefed, with you ever do from their pleadings. Lawyers My preference would be to abolish dis- an indication that such a certifi cate would who go into a mediation and behave as if covery entirely, but if not police a lot be given only in the rarest cases for non- they are conducting some sort of trial by more rigorously the efforts to get general trial matters. The courts should be vigi- ambush are not doing their job. discovery where none is being formally lant to ensure that the costs of pre-trial Triers of fact are used to waiting for allowed by the Court. I recognise that law- procedures do not outweigh the costs of hours, days, or weeks for the real issue yers who principally act for plaintiffs may the trial, or put the trial beyond the means that they have to try to emerge from have a different perspective. The medi- of the parties. the foliage of pleadings and particulars. ation process will not of course require The courts need to have more power Why not let the fi rst laws of advocacy a party to disclose a document that is to manage themselves. The Chief Justice operate on the presentation of a case from against its interests, but the parties would or judge of each court needs to be able to its inception? If you have a good point, still be able to subpoena limited classes deal with problems of judges who sit too make it clearly and do not degrade it or of documents for production at the trial long on judgments, or, apparently, who

51 refuse to sit at all. It is plainly undesirable against the lawyers is delay — it is what them earn their money as advocates rather that this kind of problem be left until it Clause 39 of Magna Carta was mainly than as paper-hangers, script-writers or gets to the stage of a public scandal and about — and some judges are guilty of barrow-boys. The object of the exercise is can then only be dealt with, if at all, by excessive delay. not to pamper the lawyers — either the the Parliament. One way to avoid this is Bench or the Bar — but to provide a fair to give the chief of a court the powers CONCLUSION and affordable way of resolving disputes. of the CEO of a corporation, possibly on It was historically inevitable that the judges We are not now achieving that object and advice from a number of the other judges, would think that the laissez-faire atti- the profession as a whole is failing in its to take appropriate action to ensure that tude to litigation inherited from Victorian duty. It would be a very bad result for eve- the members of the court are doing what England had to change and that they had ryone involved if court-managed lists for they properly can for the proper adminis- to take more responsibility for managing litigants came to be seen, no matter how tration of justice. There is an element of litigation, but the paternalism — if you unfairly, as cash-managed trusts for law- rough justice — “physician heal thyself” must, maternalism — has become more yers — or just another way for the rich — about this. Judges can hardly expect than some parties can decently be asked to get rich and the poor to get poorer. to be taken seriously for berating lawyers to bear, and it is time now to shift at Everyone knows the fi nal murderous pre- for not performing on time, or just not least some of that responsibility back to scription for the lawyers that Jack Cade coming up to scratch, if they are tolerat- those whose profession it is to carry it. Let accepted from Dick the Butcher (2 Henry ing members of their own number who the Bar do what its members are trained VI 4.2.78) but, paradoxically perhaps, are repeat offenders against one or other for — representing people in Court and Cade had fi rst declared he would make it judicial duty. One of the oldest complaints presenting their case as best they can; let a felony to drink small beer.

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52 Articles The Future of the Defence Force Discipline Act Speech by Air Commodore Andrew Kirkham RFD, QC to the RAAF Staff College Course.

HE Commonwealth Parliament’s DFDA with dishonestly appropriating the power to legislate in respect of mili- sum of $24,761.40 being the property of Ttary justice derives from s.51(VI) of the Commonwealth with the intention of the Commonwealth Constitution, viz.: depriving the Commonwealth thereof. In each instance offences of the same The Parliament shall, subject to this Con- or a substantially similar nature existed in stitution, have power to make laws for the the criminal law applicable to the civilian peace, order and good government of the population. Commonwealth with respect to: The nature of the challenge to the juris- (VI) The naval and military defence of diction in each instance involved the asser- the Commonwealth and of the several tions that: States and the control of the forces to (a) the respective charges were not laws execute and maintain the laws of the appropriate to the discipline of the Commonwealth. defence forces; (b) there was an infringement of the appli- The defence power has been described cant’s civil and constitutional rights to as a “purposive” power, which means that a trial in the ordinary courts for an whether a particular Commonwealth Act offence against the general law of the falls within s.51(VI) depends on whether land; the Act is for the purpose of the defence (c) for a service tribunal to hear the of the Commonwealth and is, in some charges involved the exercise of the real way, connected with that purpose — judicial power of the Commonwealth Stenhouse v Coleman (1945) 69 CLR 457 Air Commodore Andrew Kirkham RFD, which the tribunal was not qualifi ed to at 471. QC exercise, not having been appointed a The scope of the power may vary judicial offi cer pursuant to Chapter III according to prevailing facts and cir- tive authority for the maintenance of dis- of the Constitution. cumstances. Hence as technology has cipline in the armed forces. Chapter III of the Constitution deals advanced, air defence has come to be Between 1989 and 1994 the High Court with the judicature and defi nes with pre- accepted as within the intended reach of of Australia considered three challenges cision how the judicial power of the the provision as well as naval and military to the jurisdiction of a service tribunal to Commonwealth shall be exercised. In par- defence. hear charges bought under the Act — Re ticular it requires that judges have assured Acting pursuant to s.51(VI) and on Tracey Ex Parte Ryan (1989) 166 CLR tenure to ensure their independence from the basis that the power to legislate 518; Re Nolan & Anor Ex Parte Young the government of the day. with respect to the naval and military (1991) 172 CLR 460; and Re Tyler & Ors The majority of the judges in each of defence of the Commonwealth includes a Ex Parte Foley (1994) 181 CLR l R. the three cases have held, inter alia: power to provide for the discipline of the In the fi rst case a staff sergeant was (a) no relevant distinction can be drawn defence force because defence demands charged pursuant to s.55(1)(b) of the between the power exercised by a the provision of disciplined forces, the DFDA with making an entry in a service service tribunal and the judicial power Commonwealth legislature passed the document with intent to deceive that was exercised by a court. Defence Force Discipline Act 1982 (“the false in a material particular. Rather the question was whether DFDA”) which set up a system of service In the second case a staff sergeant such a tribunal was exercising the Tribunals and conferred upon them a was charged pursuant to s.55(i)(a) of the judicial power of the Commonwealth comprehensive system of criminal law DFDA with falsifi cation of service doc- under Chapter III of the Constitution. that signifi cantly refl ected the criminal uments and pursuant to s.61(1) of the (b) The powers bestowed by s.51 are sub- law applicable to the civilian population. DFDA of using a false instrument. ject to the Constitution and thus sub- Ever since federation, as in the colonies In the third case a Wing Commander ject to Chapter III. before federation, there has been legisla- was charged pursuant to s.47(1) of the The presence of Chapter III means

53 that unless, as with the defence power, (a) That service offences created by the Though the meaning of s.51 a contrary intention may be discerned, Act are essentially different from (VI) does not change its application jurisdiction of a judicial nature must offences created or recognised by the depends upon fact, and as those facts be created under Chapter III and that ordinary criminal law and that the change so may its actual operation it must be given to one or other of the jurisdiction to punish for the commis- as a power enabling the legislature to courts mentioned in s.71 namely the sion of service offences and the juris- make a particular law. High Court, and such other courts as diction to punish for the commission In some circumstances conduct the Parliament creates or such other of criminal offences are created for amounting to a service offence calls courts as it invests with Federal juris- different purposes. for proceedings to be taken before a diction. Further service offences are cre- service tribunal in order to maintain (c) The defence power is different ated by a law which in accordance or enforce service discipline in other because the proper organization of with the traditional and constitutional circumstances it does not. a defence force requires a system view is supplementary to the ordinary The minority judgments considered of discipline which is administered criminal law. that the legislation involved an unjusti- judicially, not as part of the judicature fi able denial of the applicability of the erected under Chapter III but as part Constitution’s fundamental and overriding of the organisation of the force itself. The exception which guarantee of judicial independence and Thus the power to make laws due process to laws of the Parliament with respect to the defence of the permits the vesting in providing for the trial and punishment of Commonwealth contains within it the military tribunals of members of the armed forces for ordinary power to enact a disciplinary code jurisdiction to hear and (in the sense of not exclusively discipli- standing outside Chapter III and to nary) offences committed within the juris- impose upon those administering that determine charges of diction of the ordinary courts in times of code the duty to act judicially. service offences is peace and general civil order. (d) As a matter of history and of con- explicable only on the Essentially the minority would allow temporary practice, it has commonly service tribunals to hear only exclusively been considered appropriate for the footing that service disciplinary offences, e.g. the offences proper discipline of a defence force offences are not of the in Part III Division 1 of the DFDA, to subject its members to penalties same character as i.e. offences relating to operations against under service law for the commission the enemy and some in Part III Div 3, of offences punishable under civil offences against laws of i.e. offences relating to insubordination law even where the only connection the Commonwealth. and the like, but considered that they between the offences and the defence lacked the jurisdiction to hear offences force is the service membership of the (b) If service offences created by the of the type charged in each of the three offender. Act were to be characterised as ordi- cases. Such legislation is based upon the nary offences against the law of Of course the military’s point of view premise that as a matter of disci- the Commonwealth, the purported is that the prosecution of a CO on base pline, the proper administration of vesting in service tribunals of jurisdic- for frauds committed on base and in the a defence force requires the observ- tion to hear and determine charges context of his engagement as an offi cer ance by its members of the standards of those offences would be invalid in the RAAF substantially served the pur- of behaviour demanded of ordinary because the jurisdiction to hear and pose of maintaining and enforcing service citizens and the enforcement of those determine charges of offences against discipline. standards by military tribunals, i.e. laws of the Commonwealth can be This was the case with Wing Parliament can take the view that vested only as prescribed by Chapter Commander Foley in the third of the cases what is good for society is good for III of the Constitution. I have mentioned to you. the regulation of the defence forces The exception which permits the Subsequent to coming into force of the and give effect to that view by creat- vesting in military tribunals of jurisdic- DFDA, cases in the UK and in Canada ing service offences which are cumu- tion to hear and determine charges of raised issues concerning the independ- lative upon rather than in substitution service offences is explicable only on ence of court martial proceedings. for civil offences. the footing that service offences are In the case of Re Tyler reference was The above represents the views of not of the same character as offences made to R v Genereux (1992) 88 DLR Mason CJ and Dawson J who took the against laws of the Commonwealth. (4th) 110 in which case a member of the widest and most supportive view of the (c) Proceedings may be brought against Canadian forces was charged with narcot- military tribunal’s jurisdiction in all of the a defence member or a defence civil- ics offences and desertion. decisions. ian for a service offence if, but only He was convicted before a general court The second joint judgment of the major- if, those proceedings can reason- martial but on appeal contended that his ity was delivered by Brennan and Toohey ably be regarded as substantially right to trial by an independent tribunal as JJ who, expanding their initial views in the serving the purpose of maintain- guaranteed by s.11(d) of the Canadian later cases, were concerned more with the ing or enforcing service discipline. Charter of Rights and Freedoms had limits of the jurisdiction to try offences The support available from s.51 been infringed. rather than the content of the offences (VI) for a particular prosecution for The Supreme Court of Canada by major- themselves. a service offence varies with the cir- ity held that the statutory provisions gov- They considered: cumstances. erning courts martial were insuffi cient to

54 guarantee their independence from the ers appointed by a Chief of Staff on xiv. the Defence Force Discipline executive. a nomination of the Judge Advocate Appeals Act (1955) (Common- The decision was based on s.11(d) of General; (s. 196(2) DFDA) wealth) provides a right of appeal to the Canadian Charter of Rights and iv. an offi cer is not eligible for appoint- the Defence Force Discipline Tribunal Freedoms which guarantees a person ment unless enrolled as a legal prac- against conviction though only by charged with an offence the right “to titioner for not less than fi ve years; leave of the Tribunal on a ground that be presumed innocent until proven guilty (s. 196(3) DFDA) is not a question of law. (s. 20) according to law in a fair and public hear- v. the JA fulfi ls the function performed It should be noted that the same Act ing by an independent and impartial tribu- by a Judge in a trial by jury; (s. 134 allows an appellant or a Chief of Staff to nal”. DFDA) appeal to the Federal Court of Australia In the view of the majority of the court vi. the position of the Judge Advocate on a question of law involved in a decision the essential conditions for independence, General (“JAG”) is dealt with in Part of the Tribunal. In turn there may be an namely security of tenure, fi nancial secu- XI of the Act. His appointment is appeal from the Federal Court to the High rity and institutional independence, were made by the Governor General on a Court. lacking in the tribunal. full or part-time basis for a term not The majority in Re Tyler held that the Particular emphasis was placed on the exceeding seven years; (s. 179(1) and provisions of the DFDA established an possibility of perceived infl uence by the s. 183(1) DFDA) independence on the parts of CM com- executive on the exercise of the tribunal’s mensurate with the system of service tri- judicial function. bunals for the discipline of the defence When considering R v Genereux in the force. context of Re Tyler Mason CJ and Dawson It should be noted that Following this case and in a growing cli- J noted that s. 11(d) has no counterpart in the same Act allows an mate of intense public scrutiny of military Australia and expressed their agreement appellant or a Chief of justice procedures culminating in a Senate with the conclusion reached by Brennan Inquiry by the Joint Standing on Foreign and Toohey JJ that if there is to be found Staff to appeal to the Affairs Defence and Trade into Military outside Chapter II a requirement of suf- Federal Court of Australia Justice Procedures, Australian Defence fi cient independence on the part of serv- on a question of law Force (“ADF”) had on 17 November 1995 ice tribunals exercising disciplinary power, asked Brigadier Abadee, one of the Deputy that requirement was met by a general involved in a decision of Judge Advocates General (DJAG) of the court martial constituted in accordance the Tribunal. In turn there ADF and a Justice of the Supreme Court with the Act. may be an appeal from the of New South Wales, to undertake a study Brennan and Toohey JJ noted that into arrangements for the conduct of tri- s. 11(d) of the Canadian Charter of Federal Court to the High als under the DFDA. The primary focus of Rights and Freedoms had no express Court. his study was to determine whether trial analogy in the Australian Constitution. arrangements under the DFDA satisfi ed They considered that if there were any vii. an appointee to the JAG’s position current tests of judicial independence and analogy, it would be found in Chapter III must be or have been a Justice or impartiality. governing the courts in which the judicial Judge of a Federal Court of a Supreme Brigadier Abadee’s report (“the Abadee power of the Commonwealth is or can be Court or a State or a Territory; (s. Report”) concluded that, whilst the exist- vested. 180(1) DFDA) ing arrangements for the conduct of trials They noted that a court martial under viii. a CM is convened by a Convening under the DFDA satisfi ed existing legal the Act does not exercise the judicial Authority who is an offi cer or an requirements of independence and impar- power of the Commonwealth, and Chapter offi cer included in a class of offi cers, tiality, there were legitimate concerns III has no application to a law creating or appointed by a Chief of Staff to be a about appearances and perceptions of the conferring the jurisdiction of a court mar- Convening Authority; (s. 102 DFDA) ADF’s system of military justice which pre- tial. ix. a Convening Authority shall not sented compelling arguments for change, They concluded that in any event, the appoint as a member or as the JA of a and he detailed 48 recommendations for constitution of a general court martial pur- CM an offi cer whom he believes to be change. suant to the DFDA answers the require- biased, likely to be biased or likely to Since its delivery to Chief of the Defence ment of independence of a service tribunal be thought on reasonable grounds to Force (“CDF”) the Abadee Report has exercising disciplinary power. be biased; (s. 118 DFDA) been under detailed consideration by the The matters which they took into x. the accused may object to a member Chiefs of Staff Committee and CDF, and account in coming to that conclusion were of the CM to the JA on similar grounds; as a result of that consideration the ADF that: (s. 121 DFDA) has agreed (or agreed in principle) with i. eligibility for membership of a Court xi. the JAG has security of tenure within 39 of Justice Abadee’s recommendations, Martial (“CM”) under the DFDA is the period of his appointment; partially agreed with one recommenda- in effect confi ned to offi cers; (s. 116 xii. historically members of a CM have tion, and disagreed with eight recommen- DFDA) always been chosen on an ad hoc dations. ii. a person is eligible to be the Judge basis, necessarily so given the exigen- Implementation of the recommenda- Advocate (“JA”) of a Court Martial if cies of war; tions that have been accepted by the ADF and only if, he is a member of the JA’s xiii. Part IX of the DFDA contains has recently commenced. Panel; (s. 117 DFDA) provisions for the review of a decision The Abadee Report was reviewed dur- iii. the JA’s Panel is constituted by offi c- of a CM; ing the recent Senate Inquiry by the

55 Joint Standing Committee on Foreign s. 154(1)(a) reviewing offi cer be allo- Having regard to that fact and the fact Affairs, Defence and Trade into Military cated by the JAA. that the whole of the military justice sys- Procedures. That Committee’s report was 9. The JAA should be under command of tem has been exhaustively reviewed by tabled in Parliament on 21 June 1999. and be reported upon by the JAG and the recent Senate Inquiry and substan- In his foreword to the Senate the Director General Defence Legal tially withstood that scrutiny, I think it Committee’s report Senator MacGibbon Offi ce (DGDLO). is unlikely that there will be any signifi - acknowledged that “the Committee ac- 10. Consideration should be given to the cant changes made to the military justice cepted that the post-Abadee arrangements establishment of a Court’s administra- system in the foreseeable future unless will signifi cantly improve the impartiality tion unit independent of the Convening and independence of the military justice Authority and outside the chain of system”. command and reporting chains. During a press conference Senator 11. There should be a prohibition upon Having regard to the fact MacGibbon stated that overall the an offi cer’s performance as a member that the whole of the Committee found that the system of mili- of a CM being used to determine his military justice system has tary justice “works very, very well indeed”. qualifi cations for pay or appointment. He stated further: “It’s a very good system 12. Similarly the performance of CM mem- been exhaustively and about 98 per cent of it . . . works very bers and Presidents should not be con- reviewed by the recent well”. sidered as part of effi ciency reporting. Senate Inquiry and The Senate Committee itself made a There is currently being produced an total of 59 recommendations, 45 of which ADF Prosecuting Policy in respect of substantially withstood relate to inquiries, seven of which relate which the JAG and each of the DJAG’s that scrutiny, I think it to discipline (the Act) and seven of which have had input. is unlikely that there will relate to administrative action. The proposed policy requires consider- These are presently being considered. ation of alternatives to charging, and sets be any signifi cant changes It is not necessary to set out all of the out factors to be considered in the deci- made to the military Abadee Report’s recommendations in this sion to prosecute. justice system in the paper. A non-exhaustive list of factors consid- However, among the more important ered to be relevant in deciding in a given foreseeable future. of his recommendations that have been case whether charges under the DFDA accepted are the following: should be preferred or proceeded with forced upon the ADF and Parliament by a 1. The multiple role of convening author- have been set out and include: reversal of the High Court decisions. ities in both convening and reviewing 1. consistency and fairness; In the most recent High Court decision, CM and Defence Force Magistrate 2. operational requirements; i.e. Re Tyler, Justice McHugh changed his (“DFM”) proceedings should be elimi- 3. deterrence; position (if not his views) to support the nated. 4. seriousness of the offence; validity of the DFDA. Reviewing the cases 2. Prosecution Guidelines similar to those 5. interests of the victim; of Re Tracey and Re Nolan he noted that in operation in various States or the 6. nature of the offender; in Re Tracey: Commonwealth with suitable modifi - 7. prior conduct; Mason CJ, Wilson and Dawson JJ held that cations should be introduced. 8. degree of culpability; a service Tribunal need not be constituted 3. The present system of the JAG 9. effect upon morale; in accordance with Chapter III of the Consti- nominating offi cers to the JA’s 10. delay in dealing with matters. tution to hear and determine charges under panel, appointing DFM’s and rec- Factors that are not to infl uence the military law if the charge is suffi ciently ommending the appointment of decision to prosecute are : connected with the regulation of the defence s. 154(1)(a) reporting offi cers should 1. The race; religion; sex; sexual prefer- forces and their good order and discipline. be retained. ence; natural origin; political associa- If the offence is so connected, it is for 4. No command or control (other than tions, activities or beliefs or service of the Parliament to say whether the offence administrative should be exercised the alleged offender or any other per- is necessary for the regularity and discipline over JAs, DFMs and s. 154(1)(a) son involved. of the defence forces. Brennan and Toohey reporting offi cers in respect of their 2. Personal feelings concerning the JJ took a more limited view of the power judicial duties. offender or any other person involved. of the Parliament. Their Honours held that 5. There should be no reporting on JAs, 3. Possible personal advantage or disad- a service Tribunal not appointed in accord- DFMs and s. 154(1)(a) reporting offi c- vantage that may result from the pros- ance with Chapter III of the Constitution ers in respect of their judicial or legal ecution of a person. had jurisdiction to hear a service offence duties. 4. The possible effect of any decision only if the proceedings could reasonably be 6. Fixed term tenure for JAs/DFMs and upon the service career of the person regarded as substantially serving the pur- s.154(1)(a) reporting offi cers should exercising the discretion to prosecute. pose of maintaining or enforcing service dis- be further considered. 5. Improper direction from higher author- cipline. 7. The Judge Advocate Administrator ity in respect of a specifi c case. In determining whether the proceed- (JAA) should be under command of The implementation of the recom- ings could be so regarded, the accessibility the JAG. mendations contained in the Abadee and appropriateness of hearing the charge 8. Duties of a judicial nature including Report will undoubtedly have the effect of in a civil court was a variable factor to the appointment of a JA/DFM for a increasing the impartiality and independ- be weighed according to the circum- particular trial or the nomination of a ence of the military justice system. stances.

56 He noted that in Re Nolan the High to refuse to give effect to the decisions on and give effect to a tradition that has existed Court by a majority again rejected a chal- those cases. in this country from its earliest days. lenge to the power of the Parliament They are recent decisions of the Court The decisions have no authority outside to invest a DFM who had not been where after full argument on each occasion the situation of the defence forces. appointed in accordance with Chapter III the Court upheld the validity of the Act (the Accordingly in my opinion the Court of the Constitution with jurisdiction to DFDA) in circumstances where the facts are should continue to follow Re Tracey and hear charges under the Act, and noted not readily distinguishable from the present Re Nolan in any case whose circumstances that Mason CJ and Dawson, Brennan and case . . . are not readily distinguishable from the cir- Toohey JJ had followed the views that they I am unable to see any legally relevant cumstances of those two decisions notwith- expressed in Re Tracey. distinction between the three cases. Like standing that they contain no binding ratio He noted that although the divergent cases should be decided alike. decidendi. reasoning of the majority judges in Re Uniformity of judicial decision is a mat- Tracey and Re Nolan meant that neither ter of great importance. I would expect McHugh J’s position of those cases has a ratio decidendi that Without it, confi dence in the administra- would guide a majority of High Court did not mean that the doctrine of stare tion of justice would soon dissolve . . . judges in the future. decisis had not relevance or the decisions Furthermore, for the Court now to hold As a consequence of the decisions of in those cases had no authority as prece- that a service Tribunal had no jurisdiction the majority of the justices in the three dents. to try this case after reaching the opposite cases and McHugh J’s disinclination to He stated: conclusion twice in the past fi ve and a half re-litigate the issues raised in the three years would defeat the expectations of the cases and further the signifi cant refi ne- A Court bound by a previous decision whose Parliament and those concerned with the ment of the independence of service tri- ratio decidendi is not discernible is bound administration of discipline in the defence bunals following implementation of the to apply that decision when the circum- forces. Abadee Report recommendations I con- stances of the instant case “are not reason- Both the Parliament and those respon- sider that there is no immediately fore- ably distinguishable from those which gave sible for the administration of service dis- seeable challenge to the constitutional rise to the decision” . . . cipline could be fairly excused for thinking validity of service tribunals. This means Although l remain convinced that the that the constitutional question had been that the basic rules that govern your reasoning of the majority justices in settled. involvement with the DFDA are not likely Re Nolan and Re Tracey is erroneous, I Moreover, the two decisions are confi ned to undergo any fundamental change in the do not regard that as a suffi cient reason to the special position of the defence forces near future.

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57 News and Views Former Bar Leaders Recalled

The following is the text of the address given by Justice Stephen Charles to the Annual Dinner of the Building Dispute Practitioners’ Society at the Hilton Hotel on 27 June 2001, reprinted from the Society’s

quarterly BDPS News by kind permission. Justice Stephen Charles

HOSE of you who travel into the city Murray, Sir Oliver Gillard, Daryl Dawson, the welders to preheat the steel. Sir Esler from the south-east may use Kings- John Young, Ninian Stephen, Noel Burbank Barber was an unusual choice for an engi- Tway. You will know the King’s Bridge. and Sid Frost — taking the witnesses to neering inquiry. His forte was divorce. In It was completed in 1961 at considerable pieces. those days if persons petitioning for divorce expense to the community. In 1962 a man Conditions were somewhat cramped at had committed adultery, they had to ask called Noble drove over it with a very the Bar table, there were so many counsel the Court to exercise discretion in their large vehicle. The bridge broke. In the ensu- present. The only available location large favour. So a sealed and confi dential discre- ing uproar, the Premier, Sir Henry Bolte, enough to accommodate the Commission tion statement would be fi led by the peti- decided there would be a Royal Commis- and counsel was the Hawthorn Town Hall, tioner naming the person co-operating in sion. John Starke was then the leader of the which had a recording and sound magni- adultery. On one such occasion the dis- Victorian Bar and probably of the Austral- fying system which enlivened proceedings cretion statement was handed up to Sir ian Common Law Bar. He regularly acted by frequently broadcasting radio transmis- Esler Barber who opened it with his usual interstate in major matters. Starke was sions of passing taxis. The system would panache and extracted a current list of briefed for the principal contractor Utah suddenly broadcast “there’s no-one here” members of the Australia Club. Construction Co. During the course of the followed by the taxi driver’s expletives non- Early in the proceedings in 1962 1 had Royal Commission, Starke also defended deleted. Starke himself was a huge man, the fi rst of the eye problems, cysts in my Robert Peter Tait, a man of unsound mind a dominating and very intimidating cross- eyelid, which have plagued me for 40 years. who murdered the unfortunate Mrs Hall, an examiner. I sat at the Bar table between I was sent off late one morning to the 80-year-old, in Hawthorn. Sir Henry Bolte Starke and Dawson. On occasions it was like eye specialist, who proceeded to cut out decided to hang Tait. A devoted supporter being beside a rhinoceros of uncertain but the cyst. I returned to the Commission of capital punishment, Bolte said that every potentially very hostile disposition. Starke shortly after lunch with an enormous band- time he proposed hanging someone, his par- had gout. If any tomato had passed his age around my head leaving only one eye ty’s electoral vote increased 10 per cent. lips in the preceding 24 hours, his left foot showing. A witness was just fi nishing his I had arrived at the Bar late in 1961, ached frightfully. If you so much as touched evidence and, as the next witness moved to supporting myself by living as a resident his leg or shoe the result was a bellow of take the box, I attempted to sneak in incon- tutor in Trinity College. When briefs for the pain mixed with rage followed by many spicuously beside Starke. Starke took one inquiry were delivered, I had the enormous expletives. look at me and then said loudly across the good fortune to be asked to act as Starke’s The President of the Commission was silent courtroom, “Your Honour, you’ve got second junior, his real junior being S.E.K. Judge Esler Barber, then of the County to treat ’em rough. It’s the only way to keep Hulme. My function was to index the tran- Court, who conducted proceedings with gay juniors in line these days.” script, in other words to do all the hard camaraderie and easy informality. He was Starke of course went on to become a work. The dogs’ bodies of the Commission assisted by two engineers, Professor Louis judge of the Supreme Court and a knight were John Winneke, now President of the Matheson (later the fi rst Vice-Chancellor of the realm. Years later I had to speak as Court of Appeal, junior to B.L. Murray, and of Monash University) and Professor Neil junior silk at the Bar dinner and went to him Xavier Connor for the Country Roads Board, Greenwood. The central issue of the Com- for assistance. He had appointed as associ- and myself. For us the Commission was mission’s enquiries, and the root cause of ate a man somewhat deaf. I asked to speak untrammelled bliss, watching some of the the bridge’s failure, was transverse welding to Starke. The associate said he was sure best cross-examiners of the Bar — Starke, of high tensile steel, and the failure of he would see me. I said, “Would you care to

58 check?” There was a pause. “I suppose his disputes, depending upon whether you can Freeman and Sir Gilbert Roberts were early Honour would cash a cheque for you.” persuade him to undertake work as an arbi- witnesses in this second inquiry. Another In 1968 another building dispute arose trator. There could be no-one better quali- Freeman Fox partner to give evidence was between the Gas & Fuel Corporation and fi ed. After all this, I can only say that the Dr Oleg Kerensky, whose father, Alexander Snam Progetti, the constructor of a steel brief in the Snam Progetti matter, involving Kerensky, was one of the leaders of the pipeline which was to carry natural gas more than three months of arbitration on Russian Revolution and Premier briefl y in from Longford to Dandenong. Snam Pro- the part of Ninian Stephen and myself, was 1917. Sir Esler Barber’s fi rst report on the getti later became part of Transfi eld. The completely mastered by Justice Brooking in King’s Bridge inquiry had been very well dispute related to the increased and hidden four days. He was ready to recommence the received as having made a substantial con- costs of construction, in particular due to arbitration by the next Monday. tribution to engineering knowledge, and he the steel welds of the pipeline. I was junior The Westgate Bridge collapsed during was asked to act again as President of the to Ninian Stephen for the Gas & Fuel Cor- construction on 3 November 1970. The next Westgate Bridge Commission. By then he poration. Daryl Dawson, whose name had day I was on the still standing southern had been elevated to the Supreme Court been made in the King’s Bridge Commis- span with David Walsh of Mallesons, briefed and was shortly to be knighted. The inquiry sion and who was a brilliant cross-exam- for the Lower Yarra Crossing Authority, nei- principally involved issues concerning the iner, with a tongue like a whiplash, was ther of us realising in how much danger design of box girder bridges and the highly acting for the contractor. It was an immense we had placed ourselves by climbing onto complex engineering techniques and arcane pleasure being led by Stephen. He always the uncompleted span. Keith Aickin was mathematical calculations involved. Again, exhibited perfect unruffl ed Scottish calm. my leader and we worked together for ten an enormous cast of barristers was present. Diffi culties only occasionally arose in con- months on the case. Aickin was a man of the B.L. Murray, now Solicitor-General, led Jim ferences with clients because of the unfor- Gorman and John Mornane for the State of tunate conjunction of our names. Whenever Victoria, the other silks including William Stephen addressed me, as he often did in Kaye, S.E.K. Hulme and Richard Searby for conference, others present were frequently John Holland Constructions, Barry Beach left with the impression that he spent a The Westgate Bridge leading John Barnard for Freeman Fox great deal of time talking to himself — and collapsed during & Partners, John Young leading Clive Tadg- naturally assumed that a person of such dis- ell for Maunsell & Partners, and Peter tinction would address himself formally. construction on Murphy leading Allan Goldberg for World After the matter had proceeded for some 3 November 1970. Services (the Dutch contractor). It was not three months, on 29 June 1970, Ninian rang The next day I was on so long after this Commission that Young me one evening and invited me to his cham- was appointed Chief Justice of the Supreme bers. I went expecting a pre-short vacation the still standing southern Court. He then received a letter from John drink. Ninian said, “I’ve been under a lot span with David Walsh Mornane, comparing him to a sea captain of pressure recently and I’m going across of Mallesons, briefed for taking command of a quinquereme of Nin- the road.” Freely translated that meant “I’ve eveh on the ground that his cargo con- been offered a position on the Supreme the Lower Yarra Crossing sisted of ivory, apes and peacocks. Keith Court and I am leaving you in the lurch.” Authority. Aickin, until then much underestimated as It was a Tuesday and our arbitration was a cross-examiner by the common lawyers, to resume in a week. Most fortunately for showed himself to be a brilliant and deadly me a new silk was briefed, Robert Brook- greatest intellectual distinction, a classics cross-examiner, with the intellectual ability ing. Justice Brooking had not yet become scholar, very quiet and measured, appear- to match and defeat engineering experts the author of Brooking on Building Con- ing often in the Privy Council and in the in their own fi eld. Westgate lasted many tracts, the fi rst edition of which was not High Court, dealing with the law lords and months, and the witness whose evidence published until 1974, the foreword of course judges on equal terms and himself later a was most important in relation to our client by Sir Ninian Stephen. The second edition High Court judge. He was an extraordinarily did not enter the box until near the end. of this excellent work emerged in 1980 thoughtful and kind leader. I had previously It so happened at that time that my leader with the added authorship of David Ben- acted as his junior in a number of constitu- was ill. I had prepared several days worth of nett and a third edition is now available. tional cases involving interstate trade. On good material and my turn to cross-exam- It was not for nothing that the editor of one occasion we had worked up the argu- ine arrived shortly before lunch. Until then Hudson, Ian Duncan Wallace QC, in the 1998 ment at his house the night before the High I had remained silent as the grave through- International Construction Law Review Court appeal, fi nishing very late. Our argu- out the inquiry, just as I had remained described Justice Brooking as surely the ment was due to start the next morning mute throughout the King’s Bridge Com- pre-eminent judge in construction law mat- at 10.15. At 9.30 in Chambers I received a mission. I had asked two questions when ters in the Commonwealth, in the same arti- phone call from Aickin telling me that he the lunch break came. During lunch Sir cle singling out Justice David Byrne for his had been asked to meet the Chief Justice, Esler approached me. “Look here, young outstanding work in the trial of construc- Sir Garfi eld Barwick, in his chambers that Charles,” he said, “We are going to fi nish tion cases. Justice Brooking retires next morning, and might not arrive until pre- this witness today. We’ve been wasting time March, and will, I fear, be quite irreplace- cisely 10.15. Absent the warning I would by in this inquiry for eight months and I am not able. He has been a great judge of the then have been a nervous wreck. Not many going to have you starting now.” Supreme Court, pre-eminent in many fi elds leaders would have been so sensitive. In 1974 the Hobart Bridge collapsed, as well as construction. However, the Court The engineering designer of the West- having been struck by the Lake Illawarra, a of Appeal’s loss, which will be irreparable, gate Bridge had been Freeman Fox, an Eng- cargo ship carrying a load of zinc. I had pre- may be the gain of practitioners in building lish fi rm whose senior partners Sir Ralph viously done some work for the Port Phillip 59 News and Views

Sea pilots and was offered a brief, as Woods Lloyd’s junior, for the pilot who had been bringing the ship into port. I was at that time labouring with Neil McPhee for Monier, Verbatim which was attempting to protect the intel- lectual property in its automatic roof tile- making plant at Springvale against various predators who were attempting to improve on Monier’s confi dential and very effective machinery, and set up other competing In the course of delivering reasons by plants, principally in Queensland. We were On Pinter and Anxiety reason of which his Honour would delay nowhere near trial and were engaged in Federal Court of Australia the delivery of judgment in the proceed- the long slow process of interviewing and ing, His Honour observed — (in what 3 April 2001 taking statements from witnesses. McPhee could be described as a fi rm voice) — as Aristocrat Leisure Industries Pty Ltd v was a barrister of quite exceptional ability. follows: Bally Gaming International Inc. He had passed fi rst through Duntroon and Coram: Sackville J. had served in the Korean War rising to the Normally as counsel are aware, I would Applicant: A. Franklin and R. Cobden rank of Major. On his return to Australia defer the making of a decision and the Respondent: Dr J. Emmerson QC and G. he left the army and, turning to the law, delivery of reasons until tomorrow morn- McGowan. gained a fi rst class honours degree and the ing but it is not possible to do that this time Supreme Court prize, beating Cliff Pannam During cross-examination of a witness around because I will have other respon- in the process. At a time when most of by Dr Emmerson, and following a signifi - sibilities including preparing to attend a the defamation work in Australia was han- cant pause by Dr Emmerson during which conference of judicial offi cers commencing dled in Sydney and the leading practitioners silence reigned (whilst instructions were tomorrow afternoon in Adelaide. I disclaim were Murray Gleeson and Michael McHugh, being obtained): the notion that part of those preparations McPhee was in great demand in Sydney, his Dr Emmerson: I’m sorry, Your Honour. is delivering a paper to the assembled standing being at least the equal of any of His Honour: Here, I am, Dr Emmerson. Judges concerning s. 135A. No such offer the Sydney Bar. I have never known anyone It’s really like a Pinter play, there’s long was made by the Victorian Court because to match his lateral thinking and I was fre- periods of silence punctuated by the occa- we frankly do not think that the rest of quently quite unable to follow the convo- sional question. them would believe us. luted paths of his mind. You had to listen Dr Emmerson: In a Pinter play, the long very carefully to anything he said. On the periods of silence produced a sense of morning I was offered the junior brief for extreme anxiety in the audience, as I Submissions Adopted the pilot of the Lake Illawarra, I went to understood. McPhee, told him I had been offered the His Honour: Yes, Dr Emmerson. Victorian Civil and brief and that I wanted very much to take it Dr Emmerson: I would like to be as Administrative Tribunal and asked his advice. McPhee thought care- un-Pinteresque as I can, but just one fur- 28 September 2001 fully, and then said that he thought that if ther point I want to check, if I may, Your Coram: Deputy President Cremean he were in my position he would have to Honour. refuse it, that our solicitor would be most His Honour: Anything to alleviate my Ms Wong (Solicitor): I adopt Mr Aghion’s upset if I took the brief. With a very heavy anxiety. submissions. heart I rang the solicitor and told him I Mr. Aghion: It’s not often that others could not take the brief for Hobart. The adopt my submissions. next day I learned that the same afternoon Alice in Serious Injury Deputy President: It’s not often the tri- McPhee had been offered the brief for the Land bunal adopts them, Mr Aghion. ANL, the owners of the Lake Illawarra and had accepted it. When, outraged, I com- County Court of Victoria plained to Neil he said, “Oh yes, I said if I 26 June 2001 The Thick of It was in your position! The solicitors would McLaren v Atlas Steels (Australia) Pty have been most upset if both of us had gone Ltd County Court of Victoria to Hobart for three months!” J. Richards for the Plaintiff 5 September 2001 Which may stand as a lesson to any jun- J. Ruskin QC with P. Jewell for the Coram: Judge Pilgrim iors or solicitors present, contemplating the Defendant Victorian Workcover Authority v briefi ng of silk. Karingal 2 Holdings Pty Ltd My invitation from Lance Guymer said Before the commencement of this serious G. Colquhoun for Plaintiff that each year your Society holds an injury application pursuant to s. 135A of B. Griffi n for Defendant (a slipping case) Annual Dinner featuring a topical guest the Accident Compensation Act, one of speaker. He added that my speech should the counsel in the proceeding helpfully Griffi n (cross-examining): The chip itself, be connected to building disputation. I asked His Honour’s Associate whether His you’ve identifi ed it as a chip. Was it one of have spoken of former leaders of the Honour was going to deliver a paper at those thin French-fry type chips or was it Bar for whom I have unqualifi ed admira- the Judges Conference in Adelaide. This one of the thicker type chips? tion. I hope that can be called suffi ciently question was delicately transmitted to the Witness: Are you serious? topical . . . ! Judge by the Associate. Griffi n: I am asking you this, yes, Mrs

60 Keepance? Deputy President: I am always intrigued, assessment made by Mr Leitl should now Witness: . . . It was a squashed chip then, Mr Klemens, by the use of the word “for- be completely out of the picture? the size of something like a fi ve or ten cent mally”. I don’t know whether that means Munro: Yes, and I’ve got stronger over piece. you have got it there but it is not wearing lunch, because I have now read the let- Griffi n: I see. That was all you could fi nd its dinner suit. What you really mean is ters. on the fl oor? you haven’t done it at all. His Honour: I thought you said you’d had Witness: That’s correct. Klemens: Well, I haven’t done it in terms a red. Griffi n: When you say it was squashed, of the written form, sir, no. Munro: I don’t drink these days, Your how thick was it? . . . Deputy President: It’s up there. Honour, which is most unfortunate. Klemens: It is indeed. Deputy President: Or a gleam in your eye. Judicial Ignorance What’s in a Name? Klemens: It is hopefully more than a Supreme Court of Victoria gleam. Supreme Court of Victoria 15 October 2001 Practice Court Bolden v Ian Bolden Contracting Pty 15 October 2001 Ltd The Thai Test Coram: Ashley J. R. Meldrum QC and T. Tobin for the County Court of Victoria Strachan QC: (when the list was being Plaintiff 16 August 2001 called) I wish to mention a matter about D. Curtain QC and R. Middleton for the Simkin v Williams which Your Honour knows nothing. Defendant G. Hardy for Appellant Ashley J: I am sure there are those who The transcript of Meldrum’s address reads P. Reynolds for the Respondent would like to say that about me. in part as follows: Appeal against conviction of drink driving Later reading from a letter tendered as His Honour: Mr Melodrama, what do you offence. evidence: say about the jury deciding the question of Dr Byron Collins was giving evidence of a Strachan QC: “I apologise for my fraud, negligence and not the question of dam- reconstruction by him of the eating and I am an uncontrolled gambler and a thief ages; it is in the area of the damages that drinking by the appellant on the evening . . .” the question arises, it may well be that the in question. Ashley J: I’ll bet the police would like to jury could be asked to make a factual fi nd- Reynolds: You say do you, Dr Collins, that get hold of that! ing as to whether the 1998 injury or, the before commencing the test you gave the sequelae of the 1998 injury was in part appellant food to replicate the effect of the a result of the 1998 incident — but it is food which he consumed on the evening. possible, it seems to me, to separate the Appealing is Fun Dr Collins: That is correct. question of negligence and the question of Reynolds: The evidence is that on the High Court of Australia damages and it’s only when one gets into evening in question he had a chilli Thai 14 November 2001. the question of damages that any question dinner. Is that your understanding? Gerlach v Clifton Bricks Pty Ltd of complication arises at all. Dr Collins: Yes that’s correct. s43/2001 Mr Melodrama: Except that it’s only in Reynolds: What do you say you gave him damages that there are complicated ques- as part of the replication? Application for special leave to appeal. tions Your Honour . . . Dr Collins: I gave him a pastie. Mr Ireland: That third matter was the Reynolds: A pastie? (laughing). fi rst matter debated this morning when Dr Collins: That’s right. Your Honours came onto the Bench. It’s the Thought that Reynolds: He says that he had a chilli Kirby J: Yes. Are you embracing that or Thai dish on the night in question. not? Counts Dr Collins: We don’t run to Thai break- Mr Ireland: Yes. fasts at “Chez Byron”. Kirby J: You take every straw in the Victorian Civil and wind. Administrative Tribunal Mr Ireland: Well, but I am worried about 28 May 2001 Taken as Red my notice of appeal, I am worried about Temptres Nominees Pty Ltd v my special — I am sorry. Constantinou County Court of Victoria McHugh J: It is not a straw, you would Coram: Deputy President MacNamara 9 October 2001 say it is a solid brick, it is almost an edi- M. Klemens for the Applicant Willmott v Friway One Pty Ltd fi ce. M. Lapirow for the Respondents Coram: Judge G.D. Lewis Mr Ireland: It certainly has been put very D. Munro and J. Bell for Plaintiff forcefully. I was not sure whether it was Deputy President: If you are going J. Noonan for Defendants for or against me at fi rst. to seek to amend your pleading, Mr Hayne J: That is half the fun of appearing Klemens, are you in a position to provide Munro: Your Honour would have to fi nd here, is it not? me and Mr Lapirow with a copy of the unreasonable delay for the penalty to pleadings . . . apply. Klemens: Yes, I haven’t formally done that His Honour: I am aware of what is but I will be able to do that. required there. You would say that the

61 News and Views Welcome to the New Kids on the Block Speech by Justice Pagone at the dinner on Tuesday, 22 November 2001, to mark the occasion of the completion of the Readers’ Course by the new members of the Bar, and the signing of the Roll of Counsel.

ADIES and gentlemen, distinguished ever, is a very real personal freedom that guests. Thank you to Ross Ray for you should savour and enjoy as long as you Lhis unusually kind remarks in intro- can. I used to complain that the freedom ducing me. My presence here is the prod- was illusory because I was tied to a desk uct of Jack Rush’s sense of humour: he and was constantly trying to keep up with must have thought it amusing that me, as the work, but the fact is that I enjoyed the new kid on the judicial block, might be as a barrister a freedom that is enjoyed an appropriate speaker to the new read- in few other professions. You may be sur- ers who are the new kids on the barris- prised by the daily number of decisions ters’ block. My protestations that I would that you make as a barrister that depend have nothing meaningful to say were dis- upon no one but yourself. That is not true missed in Jack Rush’s style with a “just say in other occupations whatever other ben- nice things about Barb Walsh”; he omit- efi ts they may bring. An ability to come ted to tell me that two people would speak and go whenever you like is a great ben- before me on the same topic. efi t in itself even though you rarely, if ever, It is hard for me to know what I should choose to exercise it. The pleasure of the say to the newest group of barristers to benefi t, whether you exercised it or not, come to the Bar. You have had three will be very sorely missed by you (as it months of instruction and many “old tim- now is by me) if you ever lose it. ers” have probably already come to tell At the professional level, barristers also you “war stories” of their times in court. have a freedom of immense signifi cance. My practice as a tax counsel had its occa- You are independent from your client and sional amusing moment but is not the stuff Justice Pagone with some (I hope only few) exceptions, of rip-roaring humour or moral insights. you are bound by the cab rank rule that The stories I would tell you are more likely you forever. Many of the most successful compels you to take whatever brief you to put you to sleep. And then there was barristers I know, and who have an appar- are offered. the fact that I have just left the Bar, and it ently inexhaustible supply of work, still The duty to accept those briefs is an seemed a little odd to have the latest refu- fret about whether there will be another institutional guarantee of your independ- gee tell you what a great place you have brief once they fi nish the one (or the ence. I can tell you that it was a rule that I just come to. many) they are currently holding. observed even though I found myself act- In thinking about my time at the Bar, I The insecurity of not having constant ing for some who I found entirely objec- began to realise how much I already miss employment is a major cause in barristers tionable. some aspects of the life that you have just being overworked or jammed as barristers One important aspect of the independ- embarked upon. The thing I miss most, try to overcome the insecurity by taking ence of the Bar, at least in this country, already, is the thing that makes the Bar on more than they can do. Both (being and certainly in Victoria, is the relation- most unsettling and which I did not fully overworked and being jammed) cause a ship of trust and reliance between the Bar appreciate until I left the Bar: personal range of problems that you should at all and the Bench. One of the most striking freedom. The personal freedom that you costs avoid. You should also avoid not look- things I have discovered in the short time have as barristers comes at the very great ing after your fi nances. Despite the fear that I have been sitting on the Bench, cost of lack of certainty and of insecurity. that work may disappear, one thing which is how much the judge does and must You are no one’s employee and may either I have noticed amongst many barristers is depend upon counsel: it is a dependence not get work (as happens to some), or you a total inability to look after and to deal about the accuracy of what is said, about may develop a practice which suddenly with their fi nances. It is sadly surprising to things not having been left out, about the disappears (as I have seen happen to oth- discover how many barristers are unable research that has been undertaken, about ers). The insecurity that many of you may as a group to manage fees and income. the accuracy and reliability of submissions, be feeling at this moment may stay with The upside of this uncertainty, how- and so on. It may not seem like it from

62 where you sit, or stand, but the judge does Americans: This is the Captain of a US navy than Bob Kent for the benefi t of others. rely upon you enormously, and that reli- ship. I say again, divert YOUR Both Castan and Kent passed away in ance is essential to the smooth conduct of course. their prime. However, I am pleased to proceedings which are at the heart of the Canadians: No. I say again, you divert YOUR report that pro bono work is not a health administration of justice. course. hazard. On the contrary, it is a healthy Things do seem quite different from Americans: THIS IS THE AIRCRAFT CAR- activity and brings feelings of wellbeing. I different perspectives. Let me tell you that RIER USS LINCOLN, THE commend it to you. my own view of judges has changed dra- SECOND LARGEST SHIP IN Although I have not really been asked matically since I have become one myself. THE U.S. ATLANTIC FLEET. to do so, I would like to thank on your Until recently I was convinced that all WE ARE ACCOMPANIED BY behalf Barbara Walsh and her team for were grumpy and diffi cult individuals who THREE DESTROYERS, THREE their work in putting together the course. had assumed a personal and collective CRUISERS AND NUMEROUS I know that they are paid, but it is not campaign to ensure that I should not suc- SUPPORT VESSELS. I enough for what they do. The Bar has been ceed on behalf of my client no matter DEMAND THAT YOU CHANGE lucky in having a dedicated, and exploita- what. There was a time when I was con- YOUR COURSE 15 DEGREES ble, staff who do more than could perhaps vinced that judges were always wrong and NORTH, THAT IS ONE FIVE be asked of them. Thank you for that. that if they ever got it right, it was by DEGREES NORTH, OR COUN- Finally, I do want to thank the Bar for sheer accident. Some of you may think TER MEASURES WILL BE this free dinner. It is the fi rst truly free that the answer to the question: “What do UNDERTAKEN TO ENSURE dinner I have ever had here. Indeed, it is you call a lawyer with an IQ of 25?” is: THE SAFETY OF THIS SHIP. only now as I look around at the new “art” “Your Honour!” Canadians: This is a lighthouse. Your call. work and compare what I see here with In my case, as a barrister, the sense Perhaps the moral of the story is that my new conditions at the Court, that I see of judges as less than entirely rational judges are always right. It is a nice meta- how well off the Bar truly is. Those of you was given some concrete reality early one phor to think of judges as beaming light in who are starting off a career at the Bar Friday morning when I appeared against the darkened waters of counsel’s submis- may look fondly at this wealth as some- Mark Derham QC in the fi rst application for sions. In any event, you may as well treat thing to aspire to. That reminds me of the special leave to appeal to the High Court them as the lighthouse and deliver your story of the two Catholic priests who had before Justices McHugh and Gummow. killer points with caution. dedicated their life’s work to the relief of I appeared for the applicant which had poverty. There they were in their little par- failed in the Full Federal Court and I was ish just out of Dublin ministering to the endeavouring to persuade the High Court needs of the poor as best they were able in that they should grant special leave to My own view of judges their modest and unassuming way. After appeal. My matter was listed fi rst. It was has changed dramatically many years their hard work had achieved a very busy day in court: the room was since I have become one some degree of general fame, and they fi lled with leading counsel, solicitors and were asked to speak at a world conference many hopeful litigants coming to the high- myself. on poverty in New York. They were picked est court of law in this country seeking up from their parish just out of Dublin in justice, clarity and certainty. I argued that There is one aspect of my time at the a new turbo-charged Bentley and taken to the decision of the Full Federal Court Bar that I would like to mention in particu- the airport where they travelled fi rst class was wrong and that it had not provided lar and which, I suppose, has some con- all the way to New York sipping cham- to others affected by the same legislation nection with navy ships (if only because of pagnes and cognacs. At the airport in New “suffi cient certainty” of its meaning and the recent litigation involving the Tampa York they were collected in a stretch lim- application. To that McHugh, J. said: vessel). This Bar has an enviable reputa- ousine and taken to the fi nest hotel with tion for pro bono work. We may not all views overlooking Manhattan. The confer- Common experience would indicate that agree about the causes taken up, but the ence proceeded for a number of days dur- you are unlikely to get certainty out of this commitment that many barristers have ing which the delegates ate fi ne food and Court. made to pro bono work has been fantastic drank the best wine. Eventually it came and, sadly, too easily forgotten or over- their turn to deliver a paper on poverty That pretty much concluded my sub- shadowed. Sometimes that work has had which they did with much applause and missions. Recounting that experience enormous consequences. The Mabo and effect. Eventually it came time for the con- reminds me of a particular radio exchange Wik litigation was, I think, all done pro ference to end. The two were collected said to have occurred off the coast of bono. Lead counsel was the late Ron from the conference centre in an even Newfoundland, Canada, between a US Castan QC who, with Bryan Keon-Cohen bigger stretch limousine and taken to the naval ship and Canadian authorities. The (now also a QC), worked long hours and airport from which they travelled, again exchange is said to have gone something tirelessly on cases which many thought fi rst class, all the way back to Dublin. like this: were hopeless at the time. Sometimes the Again they were sipping fi ne wine and work is forgotten because it is done by cognacs, although in silence and in refl ec- Americans: Please divert your course 15 people not in the limelight at the time of tive thought. The silence was fi nally bro- degrees to the north to avoid the performance, or because subsequent ken minutes before touchdown when one collision. events make us forgot their good works. said to the other “Well, Father Patrick, if Canadians: Recommend you divert YOUR The debt that this Bar owes to the late that was a conference on poverty, the one course 15 degrees to the south Judge Kent cannot be repaid. I personally on chastity is bound to be a corker”. to avoid a collision. know of no one who gave up more time To the most recent readers, welcome.

63 News and Views The Objectives of the Legislative Council Constitution Commission Professor The Honourable George Hampel QC

Any progressive modern democratic society must, from time to time, examine its institutions and if necessary look for ways to improve their operation in the interests of the community. For some years now there have been questions asked about the operation and effectiveness of the upper house in Victoria. I have been appointed with my fellow Commissioners The Honourable Ian Macphee AO and The Honourable Alan Hunt AM as the Constitution Commission Victoria to consider the structure, powers, and practices of the Legislative Council, as well as the number of members and the way they are elected.

HE Commission began its work • Stimulate interest in and understand- • Identifying points of concern and requir- by publishing a discussion paper ing of Victoria’s parliamentary and gov- ing the Government to justify or recon- Tdesigned to raise, in as simple a ernment system, and its Constitution. sider its policy intentions. way as possible, many of the issues which • Consider suggestions for change to • Allowing more time and opportunity are raised by our terms of reference. We improve the effectiveness of some for consideration of legislation. established a website designed to inform aspects of the parliamentary system • Amending and improving legislation or, and receive comments and questions dur- through: in some cases, disallowing it. ing the whole process. The Commission is — responsiveness to the community’s • Representing strong regional interests. committed to having a broad consultation needs, aspirations and views; Delaying the passage of legislation may process that will provide the foundation — respect for the rights of the major- allow more time and opportunity for scru- for our report. This we believe is the fi rst ity, minorities and individuals; tiny by members and by interested or Commission that will review the govern- — balancing economic, social and envi- affected parties. The issue also arises ance of Victoria and the operation of the ronmental objectives; as to what processes should be adopted upper house on the basis of consultation — strengthening the accountability of to improve legislation and the criteria and public opinion. the Parliament to the community; against which legislative proposals should Our next step was to hold public semi- — maximising openness and transpar- be reviewed. These criteria may include nars at which papers were presented by ency; issues such those covered currently by sec- leading academics with different points of — the application of fair and demo- tion 4D of the Victorian Parliamentary view and discussion encouraged. We then cratic principles; Committees Act 1968, such as the impact undertook a serious of public consultations — fostering a capacity to meet the on rights, freedoms or personal privacy or in regional Victoria at which members of challenges of a changing social, eco- other considerations. the public, local council members, and nomic and technological environ- However, in considering the role of politicians both present and retired, made ment. the Council, the Commission will also comments and submission. We also met One of the key issues the Commission have to consider its relationship with the with a number of councils, who expressed has to address is whether the Legislative Legislative Assembly and what some may interest in the review of the upper house. Council acts and should act as an effective see as the possibility of it interfering with This was followed by a number of public house of review. Some of the features of a the Government’s “mandate”. consultations in metropolitan Melbourne house of review have been identifi ed as: The Victorian Legislative Council has and some of the metropolitan councils. We • Bringing a range of different perspec- made comparatively little use of com- then held a further seminar with individu- tives to bear on public policy. mittees of its own members, favouring als with special interests and knowledge • Scrutinising Government activities, pol- committees established jointly with the of the operation of Parliament. icies and legislation, together with Legislative Assembly. The Commission will To aid it in carrying out its work the an ongoing oversight of human rights be looking at whether the Legislative Commission has formulated a number of issues raised by Courts, administrative Council could use committees more effec- objectives which are: tribunals and ombudsmen. tively.

64 The Honourable Ian Macphee AO, the Honourable Alan Hunt AM, and Professor the Honourable George Hampel QC.

The relationship between an effective distilling the issues and options that have aged to contribute to the work of the committee system and the voting system arisen during the course of the consulta- Commission. used to elect members of the Legislative tive process. The Commission will be seek- Our work has the side benefi t of assist- Council will also be looked at. The ing further comment and feedback on that ing further education. Our discussion Australian Senate committee system did paper to aid it in the formulation of its fi nal paper and hopefully our report will be not reach its full potential until a broader report, which is due by 30 June 2002. used at schools and universities and other range of members began to be elected to Further information about the work educational centres in the future. that House. of the Commission can be found on our Barristers as individuals may well be In Victoria, elections to both Houses website at www.constitution.vic.gov.au. interested in having some input into this use the preferential voting system used The Commission can also be contacted at process. It is after all an area in which for House of Representative elections. The its offi ce at Level 5, Shell House, 1 Spring lawyers can make a signifi cant contribu- Senate is elected using the proportional Street, Melbourne 3001 or by telephone tion, particularly when it comes to the role representation system. The Commission on (03) 9666 5401. of the upper house and the way it may will look at most appropriate voting sys- The Commission’s aim is to contribute be possible to improve its operation. An tem for the Council and will examine the to the good governance of Victoria in the upper house that acts a genuine House of differences between the preferential vot- interests of its community within its terms review, perhaps with more independence ing system and the proportional represen- of reference. Recommendations will be from party political pressures, will give the tation system. based on wide consultation. All members public confi dence in its role and its value. We will publish shortly a second paper of the Victorian community are encour-

Publications Management Pty Ltd Advertising 38 Essex Road, Surrey Hills,Vic. 3127. enquiries: Telephone: (03) 9888 5977. Facsimile: (03) 9888 5919. E-mail: [email protected]

65 News and Views BCL Appoints New CEO

ARRISTERS’ Chambers Limited has fessional practice. The appointment also appointed Mr Daryl Collins as the enables the Board to have independent Bcompany’s Chief Executive Offi cer. business expertise and input available to it Daryl was also invited onto the Board in relation to the ongoing business activi- of BCL and has accepted a position as a ties of BCL. director. Second, BCL is intending to embark Daryl comes to BCL after having exten- upon a major project, being the complete sive senior management experience with refurbishment of fl oors 1–13 of Owen BHP (now BHP Billiton) including overseas Dixon Chambers East. It is expected that and international experience in market- this project will require substantial input ing, accounting and operational manage- from the directors, and the appointment ment of aspects of BHP’s businesses. of a full-time CEO will ensure continuity The purpose of creating the new posi- in BCL’s management of this substantial tion of chief executive offi cer was three- project. fold. First, the directors of BCL believe that Third, the appointment of an independ- the task of managing BCL was becoming ent CEO enhances the Board’s ability to increasingly complex and time consuming. concentrate on the strategic development The appointment of a CEO ensures that of BCL. many of the necessary activities of BCL, Daryl will work closely with BCL’s sec- such as renegotiating leases and dealing retary, Mr Geoff Bartlett, whose chief with the company’s bankers, can now be functions will remain in the fi nancial and performed by the chief executive offi cer company secretarial areas. who has substantial practical experience Members of the Bar are of course wel- and expertise in this area. A full-time come to approach the existing directors CEO will have the time to attend to these or Daryl or Geoff in relation to any BCL Daryl Collins matters without the “distraction” of pro- issues that they may have.

Competition Did a well-known silk have a gig at the Evelyn Hotel, Brunswick Street, Fitzroy, on 18 August? Has he given up his daytime job? A decent bottle of champagne for the best caption. Entries to Hartog Berkeley QC.

66 News and Views Dinner for Tenth Anniversary of McNaught List N the gothic grandeur of the Chapter House, St Paul’s Cathedral, List G cel- Iebrated its 10th anniversary earlier this year. Almost 100 guests comprising members, former members, partners and honoured guests gathered for the dinner marking the establishment of the List. Notably it was the late Ron Castan AM, QC’s support of the establishment of the List that gave it instant credibility. The List Committee saw this celebration as an appropriate opportunity to recog- nise his contribution to the Bar, the pro- fession generally and the List in particular. At the time of his passing, Ron was assist- ing the East Timorese in writing their Constitution, having renewed acquaint- ances with Jose Ramos Horta for whom he had acted on behalf of the East Timorese people some years previously. Because of the enormous volume of pro bono work undertaken by Ron, his com- mitment to human rights issues and his interest in East Timor, the List Committee under the chairmanship of Noel Magee QC resolved that members of the List would be encouraged to contribute to a fund in his memory for the assistance of the East Dr Horta and Glenda McNaught. Timorese. We were delighted to welcome Jose pendent nation. It soon became evident Moreover, apart from fi nancial contribu- Ramos Horta as our honoured guest, along that their needs are almost overwhelming tions, several members of the List have with Mrs Nellie Castan and Melissa Castan. — ranging from the most basic means of offered to spend time in East Timor on a Mrs Susan Crennan QC introduced Dr survival to clean water, education, medi- pro bono basis. Horta who gave a moving insight into the cal care and the establishment of a stable We believe that such a project is a years of struggle for independence, the economy. “fi rst” for a List at the Victorian Bar and utter devastation suffered at the hands of The members of the List have confi rms the too often unrecognised gen- the Indonesian military following the vote responded generously by contributing at erosity of the profession. and their work in establishing an inde- this point in excess of $70,000 to the fund.

Goldberg and Merkel JJ. Sylvana Wilson, Michael Colbran QC, Gail Hubble, Melissa Castan, Nellie Beth Charles and Rachel Goldberg. Mark Settle and Chris Harrison. Castan and Kerri Judd.

67 News and Views/A Bit About Words Holy Wars

RESIDENT George W. Bush has and derives ultimately from crux, the to Allah. Thus, it is a word which maps never displayed much sensitivity for Latin for cross. It was variously spelt almost perfectly onto the English Lord, Pthe nuances of language. Even its croisad, croissard, croisada, crusada, signifying a position of leadership territo- basic rules elude him. Consider a few of etc. Specifi cally it meant a military expedi- rial, legal or spiritual. his famous blunders whilst speaking on tion by the Christians to recover the Holy Allah comes from al ilah: where al public occasions, and try to imagine the Land from the Muslims; and, by transfer- is the Arabic defi nite article, and ilah is qualities of his less-considered private dis- ence, any military expedition blessed by the Aramaic for God. The holy book of course: the church. In short: a holy war. Islam is the Qur’an. Qur’an means “recita- The equivalent expression in Arabic tion”: it is a recitation of the various teach- More and more of our imports come from is jihad. The Western world has reacted ings of God as received by the prophet overseas. with understandable alarm when Osama Mohammed over the course of 20 years up What I’m against is quotas. I’m against hard bin Laden declared a jihad on various to his death in 767 AD. It is composed of quotas, quotas that basically delineate based nations, including Australia which man- 114 surahs (chapters), arranged accord- upon whatever. However they delineate, aged to lift itself from safe obscurity to ing to length, with the longer surahs fi rst. quotas, I think, vulcanize society. swaggering prominence in a single idiotic Since the earlier teachings were rather If you’re sick and tired of the politics of cyn- gesture. But it was President Bush who shorter, the book is arranged, roughly, in icism and polls and principles, come and fi rst invoked the language of holy wars. reverse chronological order. Incidentally, join this campaign. Our headlong rush into confl ict has Islam recognises Moses and Jesus as You teach a child to read and he or her will brought into common currency a number prophets, and the God of the Qur’an is be able to pass a literacy test. of words previously misused or unfamiliar: the same God worshipped by Jews and mufti, fatwa, sheikh, shah, and mullah Christians: the crusades were more an He speaks in semantic near-misses, among others. argument about the messenger than about and his grammar lurches from one rough A mufti is a canonical lawyer in Islam: the message. approximation to the next. he gives decisions on questions of faith. An essential feature of the teachings in During the incumbency of this linguistic The word is derived from the active parti- the Qur’an is the importance of unques- torment, the world changed permanently ciple of afta, which is the 4th conjugation tioning submission to the teachings of and catastrophically. In the immediate of fata: to give a decision. A decision so the prophet. Islam means resignation or aftermath of the terrorist attack on the given is a fatwa. A fatwa may be benign or submission. It is the 4th conjugation of USA, President Bush said that America dangerous according to the subject mat- salama: “he was or became safe, secure, and the rest of the free world would ter. Most English speakers fi rst heard of a or free”; hence salaam as a greeting of embark on a “crusade against terrorism”. fatwa in connection with Salman Rushdie: peace, which is coupled with a gesture of He soon changed his choice of words. It it had been decided that, because he had submission. Self-evidently, salaam is cog- became a “war on terrorism”. Bush may written The Satanic Verses, he should be nate with the Hebrew greeting shalom not be a master of the language, but his killed wherever he could be found. Even (peace). spin-meisters quickly saw that crusade those who are immune to the charms of Many muslim words incorporate the had connotations which might give offence Rushdie’s writings thought this was an name of Allah: beyond the intended range. unreasonable restriction on free speech. Allah’akhbar “God is great” Crusade is historically associated with This very harsh and public fatwa gave fat- Bismillah (bi’sim illah) “in the name of the series of assaults by Christian forces was in general a bad name in the West. God” against Muslim control of Jerusalem and Mufti is commonly used in the West Hezbollah (hezb = party) “party of the Christian shrine of the Holy Sepulchre. as referring to civilian clothes worn by God”: an extreme Shiite Muslim sect. There were eight main crusades, between one accustomed to wear a uniform. It is Inshallah “if Allah wills it”; God willing 1095 and 1270. The disastrous 4th cru- thought to derive from the passing simi- Mashallah “what God wills must come sade culminated in the sacking of larity between the regalia of a mufti and to pass” Constantinople in 1204, during which the English affectation of dressing gown, Like mullah, sheikh has meanings the great library there was looted and smoking cap and slippers. which vary with geography. Its original destroyed. The only extant copies of many The mullah has various meanings in meaning was “an old man”: specifi cally a classical texts were lost to mankind. It was various parts of the Muslim world. In North man of 50 years or greater. (In times past, an event of cultural destruction almost Africa, a mullah is a king, sultan or other age and wisdom were seen as functionally unparalleled in history. leader. Further east, and in the Indian sub- related. This philosophy was temporarily Etymologically, Bush’s advisors were continent, a mullah is similar to a mufti. displaced when the baby boomers gradu- wise to drop references to a crusade. He is a man learned in theology and sacred ated from university, and was rediscovered The word came to English via French law. The Qur’an uses mullah in reference when they began to collect their super-

68 annuation. The process continues, with a croissard, which is reminiscent of and increase). As a new moon grows it resistance from Generation X). A sheikh croissant. They are not etymologically is a waxing crescent moon (a tautology); is the chief of an Arab family or tribe; related, but there is a connection between after the fi rst quarter it is waxing gib- the leader of an Arabian village. It is also them. While croissade-crusade came from bous (from the Latin for hump) and then applied to heads of religious orders, heads Latin crux (French croix), croissant full. As the full moon declines, it is wan- of learned colleges, heads of towns or vil- is French for crescent. In 1683, Vienna ing gibbous, then after the last quarter lages, to learned men generally. It is also was struggling to survive a seige by the it is waning crescent (a contradiction in accorded to those who have memorized Ottoman Turks. A Pole named Kolscitzky, terms). the entire Qur’an at whatever age (a fair who was learned in Turkish, came to their Incidentally, during his perilous jour- achievement, since it is about 300 pages rescue. He escaped through enemy lines ney, Kolscitzky had learned how to make long). to reach the Duke of Lorraine, who hur- coffee. After the seige ended, he came Although closely related in sound and ried to relieve the city. The Turks were by a sack of coffee beans abandoned by meaning, the shah is etymologically unre- repelled and Vienna was saved. Kolscitzky the retreating Turks. He was the only lated to the sheikh. Shah is Persian for became very popular and famous. He per- person in Vienna who knew what coffee King. It has left one important trace in suaded a baker to produce a sweet bread beans were for. He opened a café which English. In that most civilized form of roll in celebration of Vienna’s victory over quickly became famous for the drink and warfare, chess, the game ends when one the Turks. It was shaped like the crescent popular for its croissants. He served the player places the opponent’s king in a on the Turkish fl ag. coffee with milk and honey, a precursor position from which it cannot escape. The We call them croissants because at of the style now known as Vienna coffee. King is not formally taken, but it is unable some point the French took ownership Although the French stole the croissant, to move to a position where it could avoid of this Polish-Austrian idea. The crescent they had the good sense to leave Vienna being taken. The victor announces “check- they imitate refers originally to the new coffee to the Viennese. mate”. That triumphant declaration is the moon as it grows towards the fi rst quarter: anglicised shah mat: the King dies. the word comes from the Latin crescere to Julian Burnside QC The crusade I began with was once grow (from which we also get crescendo,

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69 News and Views The Goodness of the Paperworkers Nemeer Mukhtar QC

HERE is something human, men- schlich, in buying a newspaper Tfrom a street seller. My mind’s ear has recorded childhood memories of the Herald boys near Flinders Street railway station in the late 1960s who held high the fi nal edition of the evening paper and beseeched, “Get ya Her-ald!” with a gust- ing infl exion on the second syllable. The top performers on the coveted street cor- ner positions gave their calls a mystique by making them barely coherent, like a sharp whipped bleat. There was a bloke near St Paul’s cathedral who included a shrill whistle as part of his individualised call. They earned tips for the perform- ance. The sounds were strange and city folk fl ickered to listen as if to recognise the sound of a native bird. My mates and I used to mischievously imitate them. Those sellers and their calls disap- peared with the evening newspaper. The few street vendors now around the city are anything but boyish, and those who do not depend on sales of confectionary or sirenic magazines look anything but pleased to proclaim the availability of the The paperworkers: John Senior on duty outside Owen Dixon Chambers East. Ron daily news. was at home caring for their aged mother. The two paper men who sell papers outside Owen Dixon Chambers East had, unfamiliar. I state my full name to them, else than in the milieu of Owen Dixon to my eye, an amusing pleasure with peo- not carefully. They each spontaneously Chambers. ple despite the uncomfortable conditions. said it back to me, correctly and sweetly, John and Ron are two of four living I have seen them both in the rain, in the and they do so at every purchase as if it children of Richard Albert Percival Henry cold, eating out of a bag, sometimes clasp- was their responsibility to know and to Senior deceased and Daphne Violet Isabel ing for the heat from a plastic cup of tea. remember names. And it once was. Here is Senior (nee Shaw), both Tasmanian. Their In summer, I have seen them baking in their abridged story. father was a carpenter by trade and the bituminised sun, sometimes with a wet These two paper sellers are brothers. worked around Hobart. He was also a handkerchief around their necks for relief. The oldest is Wilfred John Senior, aged yachtsman who with crew won the Hobart Black newsprint hands. Always circum- 66, known as John. His younger brother Cup four times, according to John. Their spect. On approach they look at the buyer, is Ronald Peter Senior, aged 53. They mother was married at 16, having left they fold the paper, and they hand it over. are both bachelors and live with their school at 13 to work as a chamber maid. That is the mode of personal service for 83-year-old widowed mother in a house John and his older brother Herbert were the delivery of the news of the world. But at Braybrook provided by the Ministry of born in Glenorchy and then lived in a coun- you’d reckon they could pick a mug a mile Housing. Each day they rise at 4.30 am to try town of Sandford. They did schooling off. pick up the newspapers from the supplier by correspondence. John’s memories of They gained my curiosity after I once at Banana Alley and are ready to sell by life in Tasmania are of rabbiting, fi shing gave what must have been considered to 5.30 am. They work till noon. What they and bushwalking. There were only three be a handsome tip. I was cordially asked: earn would be pocket money for many or four other families in the town. He says “What’s ya’ name mate? You a barrister?” children, yet there is nothing else they his biggest thrill was occasionally seeing I hesitated. Mine is a testing name to the wish to do, and they wish to work nowhere an American western movie.

70 The family came to Victoria and lived in Ron was not interested in any sport except rience outside Owen Dixon Chambers? their aunt’s house in South Melbourne. Dad wrestling, and spent most of his time lay- John becomes solemn and tells me that worked as an operator at the Batman tel- ing bets for others with the bookie. Ron’s someone once stole $144 from his money ephone exchange. The oldest son Herbert life at Tottenham Technical School did not tin at the stand. When I asked what was became a jump’s jockey at Warrnambool go beyond Form Three. By then, his father the happiest day in his life, he says it was for the trainer Tommy Hughes. The family was seriously ill and unable to work, mak- the day when a barrister, on learning of then moved according to where they could ing it necessary for him to leave school the theft, gave him $150 and asked for $6 fi nd housing. That was in Tylden, a small and go to work. “They were devoted par- change. town between Woodend and Kyneton, ents,” Ron says with conviction, “and it I ask about marriage. It has never where Ron was born. John did some was a happy marriage. We were never well appealed to them they tell me separately. schooling there but confesses to a total off but we were a very happy family.” Nothing to do with sexuality, they each lack of interest in studies. He says Tylden Their father died in 1964 when Ron hastily say. They did not want the respon- was a good place to grow up, and his main was aged 16. From them on, the relation- sibility and were always happy at home recreation as a boy was rabbiting. “Our ship between the two brothers and their with mum. John’s interests are the Western dogs would start barking, and then the mother has been one of total devotion. Bulldogs and the Test Cricket and going neighbour’s dogs would join in, and I knew Both Ron and John spent all their with his brother to the dogs or the trots. I just had to go rabbiting.” He adds mistily: working lives at the general post offi ce in Ron still loves the horses, dogs and trots. “Mum was a terrifi c cook. Dad was doing Bourke Street. John spent 40 years as a Their social life? It is to be found at the odd jobs around the area like potato dig- mail sorter. He stopped in 1986 after being Braybrook hotel where they can play the ging. We loved cricket. We loved football.” diagnosed with blood cancer. Mail sorting pokies, sometimes have a meal, and see is the only job he has ever done and their friends. Have you ever been lonely, I he says it explains his ready familiarity asked John. “A few times,” he says dream- with names and addresses and his pref- ily, “but not whilst I’ve got Ron and mum. Their greatest thrill was erence for working in the heart of the There is nothing we wouldn’t do for each obtaining a permit from city. Ron spent most of his working life other.” the Melbourne City as a city postman. He started out on a They have never travelled beyond see- round in Elizabeth Street, delivering mail ing their now deceased brother Herbie in Council to have the “silver on foot three times per day. His round Adelaide. John’s wish is to travel to the bullet” news stand to later expanded to wider Melbourne up to USA, he says, to see the wildlife such as replace the shanty canvas- Chinatown. He learnt to manage Chinese bears and cougars, and to see cowboy and Greek names. The restaurateurs in country — just like the westerns. Ron is covered frame. Ron Chinatown would feed him, the account- not really interested in travel because, he explains: “We got the ants did not charge for his tax return and says dutifully, he has responsibilities as barristers to sign a a well known fi rm of solicitors did his will his mother’s carer. for free, he recollects with pride. Racing petition to get the silver tips were given by the building caretakers bullet stand from the city and the lift drivers. council. It was headed by They have been selling newspapers since 1986 and speak fondly of their Dyson Hore-Lacy.” familiarity with barristers. Their greatest thrill was obtaining a permit from the TA I LO R I N G The next move was to Frankston where Melbourne City Council to have the “silver Ron and John’s parents managed a fi sh bullet” news stand to replace the shanty Suits tailored to measure and chip shop in Bay Street. They lived canvas-covered frame. Ron explains: “We Alterations and invisible on top of the shop premises. By that time, got the barristers to sign a petition to get John had left school and was working for a the silver bullet stand from the city coun- mending local newsagent before becoming an offi ce cil. It was headed by Dyson Hore-Lacy. He Quality off-rack suits boy in the valuation section of the Land did all the work, without charging us. He Tax Offi ce in the city. will be in our hearts.” I ask how other bar- Repairs to legal robes The Senior family became re-dependent risters, judges or magistrates treat them. Bar jackets made to order on the Housing Commission who sent “Many barristers have said that if we ever them west to a home in Braybrook in got into trouble, they would help us with- which they lived for 43 years. Over time, out charging. Michael Adams [scil the ex their two sisters Margaret and Beverley Chief Magistrate] once said to us that if married and left home, and their brother we ever left, he would call the police and LES LEES TAILORS Herbert moved to South Australia. Ron make them bring us back. Some of the Shop 8, 121 William Street, says that Herby’s activities as a jockey Judges come for a paper. They have chat got him interested at a very young age and then walk away laughing.” I ask if they Melbourne, Vic 3000 in gambling. Braybrook, in those days, know the barristers’ clerks. “Some of them Tel: 9629 2249 he says was a swampy area and the SP are very good to us. Foley’s offi ce, Peter Frankston bookie worked behind a scout hall across Roberts and Duncan’s let us use the phone Te l : 97 8 3 5 37 2 a paddock. There was not a lot to do in to ring home.” Braybrook and most boys played football. What was your most unpleasant expe-

71 News and Views The Dred Scott Case Julian Burnside QC

RED Scott was born a slave in Vir- “between citizens of several States” and the justly and lawfully be reduced to slavery for ginia, in 1799. He was owned by Federal jurisdiction was not attracted. his benefi t. He was bought and sold, and DPeter Blow. The Blow family moved The matter was argued in December treated as an ordinary article of merchan- to St Louis, Missouri, in 1830. Missouri 1855, and was re-argued in 1856. Powerful dise and traffi c whenever a profi t could be had been acquired in 1804 in the Loui- interests wanted to retain the institution made by it. (emphasis added) siana purchase. It had been admitted to of slavery: American plantation owners, the Union in 1820, as a slave State, as as well as English manufacturers and The ideas expressed, and the intensity part of the Missouri Compromise. The Mis- merchants. Slavery had been abolished of the language used, strike the ear souri Compromise allowed Missouri into in Britain and its Colonies by the as shocking, especially in light of the the Union as a slave State, but otherwise Emancipation Act 1834, but that did not introductory words of the Declaration of prevented the admission to the Union of prevent English commerce from benefi t- Independence (1776): slave States above 36º30' north latitude. In ting from it indirectly. Such was still the effect, it guaranteed that slavery would not position when Roger Casement undertook . . . We hold these truths to be self-evident, spread to the other States in the Louisiana his tour of investigation in the Congo Free that all men are created equal, that they are Purchase. It had been a hotly contested State (1901–04), and Brazil (1906–11). endowed by their Creator with certain unal- measure. Since Eli Whitney had invented The fi rst question in issue resolved to ienable Rights, that among these are Life, the cotton gin in 1794, cotton had been this: was a slave capable of being a citizen Liberty and the pursuit of Happiness. a great source of wealth in the southern under the Constitution, so that his action States, but its profi tability depended on against a citizen of another State would Taney J dealt with those words in this slave labour to pick the cotton. attract the Federal jurisdiction? way: In 1830, Blow sold Scott to Dr Emerson, Chief Justice Taney and Justices Wayne, an army surgeon. Emerson took Scott with Nelson, Grier, Daniel, Campbell and Catron The general words above quoted would him to his various postings. They spent said that the answer to the fi rst question seem to embrace the whole human family, the next 12 years in free States, princi- was No. Taney J said: and if they were used in a similar instrument pally Illinois. They returned to St Louis in at this day would be so understood. But it is 1842. Emerson died in 1846. His execu- The question before us is whether the class too clear for dispute that the enslaved Afri- tors were his wife, and her brother John of persons described in the plea in abate- can race were not intended to be included Sanford. ment compose a portion of this people, . . . for if the language, as understood in that In 1846, Scott sued Mrs Emerson in and are constituent members of this sover- day, would embrace them, the conduct of the St Louis Circuit Court. In form, it was eignty? We think they are not, and that the distinguished men who framed the Dec- a petition for freedom, based on the fact they are not included, and were not laration of Independence would have been that he had spent years in a free State, and intended to be included, under the word utterly and fl agrantly inconsistent with the was therefore released from slavery. “citizens” in the Constitution, and can principles they asserted . . . Judge Alexander Hamilton heard Scott’s therefore claim none of the rights and priv- case. A technicality in the evidence led to ileges which that instrument provides for McLean J (dissenting) did not agree its failing. The Judge granted leave for a and secures to citizens of the United States. in the result on this issue, but expressed new trial. He won; but the decision was On the contrary, they were at that time himself in language not much more felici- reversed by the Missouri Supreme Court considered as a subordinate and infe- tous than that of Taney J: in 1852. rior class of beings who had been subju- By this time, Mrs Emerson had remar- gated by the dominant race, and, whether In the argument, it was said that a colored ried. Her new husband was an abolitionist. emancipated or not, yet remained subject citizen would not be an agreeable member She made over Scott to her brother and to their authority, and had no rights or privi- of society. This is more a matter of taste than co-executor, John Sanford. Sanford lived leges but such as those who held the power of law. Several of the States have admitted in New York. Thus Scott was able to sue in and the Government might choose to grant persons of color to the right of suffrage, the Federal jurisdiction, since the suit was them . . . and, in this view, have recognised them as between residents of different States. The They had for more than a century before citizens, and this has been done in the slave action was for assault. been regarded as beings of an inferior as well as the free States. On the question Sanford (erroneously called Sandford order, and altogether unfi t to associate of citizenship, it must be admitted that we in the Court record) fi led a plea in abate- with the white race either in social or polit- have not been very fastidious. Under the ment on the basis that Scott was a slave ical relations, and so far inferior that they late treaty with Mexico, we have made citi- and therefore not a citizen. Accordingly, had no rights which the white man was zens of all grades, combinations, and colors. so the argument went, there was no suit bound to respect, and that the negro might The same was done in the admission of

72 Louisiana and Florida . . . (per McLean J at An application to Parliament, if the mer- Civil War (1861–65). Abolition was the 533). chants think the question of great commer- great question over which the war was cial concern, is the best, and perhaps the fought. During that war, on 19 November Curtis J (dissenting) found in the words only method of settling the point for the 1863 Abraham Lincoln famously re-stated of the Constitution ample authority for the future . . . (emphasis added) the founding proposition of the American proposition that a slave could be a citizen Union: of the United States. The majority in Dred Scott’s case held The second question was whether a that the English authorities had no applica- Four score and seven years ago our fathers slave could become a free man by enter- tion in the different constitutional frame- brought forth on this continent a new nation, ing a free State. The question had prece- work of the American Union. Specifi cally, conceived in Liberty, and dedicated to the dents in English case law. In 1678, it had the 5th Amendment prevented the slave proposition that all men are created equal been held that if a Negro slave came into being freed by passing into a free State. So . . . England and was baptised, he thereupon far as relevant it provides: became a free man. If he were not bap- In so saying, he was unequivocally tised, he remained “an infi del” and was not No person shall . . . be deprived of life, lib- advancing the cause of abolition. His freed: Butts v. Penney 2 Lev 201. This erty, or property, without due process of address at Gettysburg is regarded as a rule was later relaxed: in Smith v. Brown law; nor shall private property be taken for clarion call for the abolitionist cause. & Cooper (1705) 2 Salk 666, Holt CJ had public use without just compensation. The Dred Scott case resulted in the said: resignation of Curtis J, and blighted the To allow that a slave be freed by virtue reputation of Taney J. He was a decent As soon as a Negro comes into England, he of travelling to a free State would involve a man and a fi ne lawyer. He had voluntarily becomes free: one may be a villein in Eng- deprivation of property without due proc- freed his own slaves, at great personal land, but not a slave. ess. It is an interesting irony that the cost, and had 35 years earlier described slaves were deprived of liberty without slavery as “a blot on our national charac- In Somerset v. Stewart (1772) 98 ER due process; but they were not considered ter”. 499, Lord Mansfi eld had decided on a “people” for Constitutional purposes. The decision was an exercise in strict habeas corpus application that a Virginian For good measure, six of the seven construction which reached an unpalata- slave who had arrived in London must judges in the majority held the Missouri ble result by chaining the words of the be set free. Lord Mansfi eld’s decision is Compromise to be unconstitutional, as Constitution to their historic origins. It is famous for its declamatory fi nal sentence contravening the 5th Amendment. Thus now regarded as a stain on the record “The black must go free”. It is less well- they struck down the measure which had, of the US Supreme Court. In 1992 Scalia remembered that his Lordship had tried in effect, quarantined slavery to the south- J. — himself no bleeding-heart liberal in to avoid having to decide the matter. He ern States where the cotton industry was matters of construction — said that “. . . had said in the course of argument: the principal source of wealth, and slave the Court was covered with dishonour and labour was the principal engine of that deprived of legitimacy” by the Dred Scott . . . Contract for the sale of a slave is good industry. decision. here; the sale is a matter to which the law The Dred Scott case [sub nom Scott v On 28 July 1868, in the aftermath of the properly and readily attaches . . . The set- Sandford 60 US 393] was decided by the Civil War, the effect of the decision was ting 14,000 or 15,000 men at once free US Supreme Court on 6 March 1857. It overturned by the 14th amendment. . . . by a solemn opinion, is much dis- provoked bitter controversy. It was one of agreeable in the effects it threatens . . . the precipitating causes of the American

73 News and Views The Essoign Club: Newman was born in Paris, but that didn’t stop her. She grew up in Australia and studied at the National Gallery School The of Art, Melbourne, and the San Francisco Art Institute in the 1970s, receiving a post-graduate degree from the Victorian College of the Arts. She held her fi rst Kitsch exhibition in 1972 at Realities in South Yarra, which was to be opened by Barry Humphries as Barry Humphries, before Harry M. Miller got wind of it and kiboshed Is his appearance. I fi rst saw Newman’s work at an unforgettable exhibition at Avant Gallery, in South Yarra, in 1975 (a couple of years before a wag painted a “j” in front Back! of Avant, to make Javant — by a devotee of my poetry, no doubt). Newman brought all the detritus of contemporary pop icons into a serious artspace: gigantic Lifesavers, lollypops, icecreams, 1970s kitsch. The pièce-de-résistance (“Resistance is use- less!”) was a chandelier composed of four unbelievably vulgar female heads, “with disgusting peach-pink cheap-underwear coloured complexions, gold glitter, scarlet or striped wigs, scarlet thick lips, nasty sunglasses, gold doilies and garish plastic fl owers in their hair, sprout[ing] a light apiece from the top of each head”.* Dougie Lucas, eat your heart out!

Artist Nicole Newman with her work entitled “Guess Who’s Comming To Dinner”. Maitland Lincoln, Robyn Henderson and Justice Nathan.

UST when you thought it was safe you say, if not a piece of lettuce stuck Newman makes objects, at fi rst “cheap to get out the Pro Harts and Ken between the teeth or in a bit of horse-hair. plastic objects”: vacuum-formed and often JDones again, along comes “Kitsch to Maybe you don’t need that excuse not to painted on the inside, like neon signs, such Yiddish”, an exhibition of sculpture and appear in court, after all! Anything, not to as transparent male torsos with huge lus- prints by Nicole Newman at the Essoign confront the female fi gure head on, with cious female lips for guts, which adorned Club that’ll blow your socks off! Egad, profanities and fannies, forensic examina- the psychiatrist’s offi ce in Alvin Purple; man! There should be a law against it. tions of pubic hair, and all that post-Pop, or “brash and unrepentant females . . . and Any more female fl esh up there on the post-Warhol, postmodernist, deconstruc- buxom beauties”, “vigorous vulgarities”, 13th fl oor and you’d think it was the Men’s tion stuff you’ve been avoiding at cocktail Gallery. There’ll be wigs on the green, parties. Beware, the Kitsch is back! *Carol Parker, Vogue Australia, May 1975.

74 Mixed Metaphors on the far wall, oppo- site the bains-marie). Newman blurs the boundaries — as she pushes them — between good taste and kitsch, what is socially acceptable and obscene, feminism and sexploitation, art and craft, and lan- guage and mishmash (a Yiddish word). As art critic Robert Nelson wrote: “The dimension of language that Yiddish fore- grounds is the absurd. Newman’s images are absurd in just this way.” Newman’s “Kitsch to Yiddish” exhibi- tion is Essoign of the Times.

Javant Biarujia is the author of Afternoon of a Fawn Cardigan. Robert Kelly awarded him the Robert Duncan Poetry Prize in 1998 for his poem on Robert Mapplethorpe. Calques, a collec- tion of poems currently in preparation with Monogene, features one of Nicole Newman’s prints on the cover. Javant Biarajia, Mary Baczynski, Nichole Newman (the artist), Joan Mesiti and Judge Michael McInerney. Javant Biarujia

comic book heroines, brandname objects once explained. Newman plays with body and ready-mades. (Her mother would image, the female form as male property, complain, “Nicole, who’s going to buy this only to be subverted into wildest aban- stuff? Why don’t you make it pretty?” don men sometimes fear, and so laugh at. When feminists defaced Newman’s Bio And if you look closely, you’ll fi nd in sim- Beauty, depicting a life-size brassy broad ple kitchen objects, such as scissors or popping out of a jar of “vitamin enriched knives, slender Siegfeld showgirls legs for Bio Beauty” crème, at an exhibition in tines and long vampish fi ngers terminat- Volunteer Lawyers Sydney, she concealed the news from her ing in tapered painted nails for blades. Required mother — to avoid an “I told you so!” lec- As well as the body whole or part, ture.) Newman uses the tongue, especially in her The Footscray Community Legal After extruded or vacuum-forced plas- works on canvas and paper. Once again, Centre urgently requires the assist- tic, Newman’s sculptures began to appear she subverts male relegation of the female ance of volunteer lawyers for its in plywood and zinc fl ashing — industrial (a woman’s tongue is an object of scorn, evening drop in and referral service, or commercial materials. She began manip- out of bed). Her tongue-in-cheek is Mame- operational, Tuesday and Thursday ulating domestic forms, such as cutlery, Loshn (that’s Yiddish to you, Gloria). Now, evenings from 7–8 pm. into her work (e.g., Brazen Polish, Yiddish has for a century at least been dis- Footscray Community Legal Centre is 1989–90, with its row of 18 old silver-plate abused as a language, “the cast-off daugh- one of approximately 40 Community dinner forks set in a “suitcase” that dou- ter”, with a literature thought fi t only for Legal Centres in Victoria and one bles as a woman’s torso, which could well women and girls (it’s too long a story of seven in the western suburbs be Eve’s ribs, or a “cuntlery box”). The to tell here, but it’s fascinating and you that provide free legal advice to domestic is never too far away: the perky should read Max Weinreich’s History of disadvantaged members within the maidservant of French farce, the loyal the Yiddish Language for starters), so, community. post-Marilyn Monroe hausfrau of domes- Newman has confronted this by taking Footscray CLC relies heavily on the tic cleaning agent television commercials, Yiddish clichés, proverbs and idioms and assistance of volunteers to assist in the amoureuse with the stiletto heels, the cutting them up (gehakteh leber is beser the smooth running of the service. fétichiste, the — you get my drift. vi gehakteh mesers, “Chopped liver is Museums are full of objects, and mag- better than chopped knives”) into new If you can offer a portion of your azines are full of sex objects — and, expressions, new ways of seeing the world, time, either weekly, fortnightly or come to think of it, vice versa. Newman lust for life, funny ways, humour. I mean, monthly, please contact Marcus decided to combine the two. “The body can we talk here? — This is the language Williams or Kirsty Leighton at the is used as a compositional element in that gives for “Get serious!”, Tukhes oyfn centre on 9689 8444. a satirical and provocative manner,” she tish! (“Buttocks on the table!” — cf.,

75 News and Views/Bar Cricket Invitation to Join the Bar’s Cricket Fraternity

Q Why play cricket? • no longer — to polishing your “sledg- Q Why play for the Bar now? A • fun ing” skills. A • There are at least three games • friendship planned for 2001–2002: • skills matching and in a variety of Q Why play for the Bar — on 17/12/01 v L.l.V. (2 games — conditions A • get to know a few more counsel 2 × XI) — weathers • meet a few new solicitors — on 15/1/02 v Singapore Club — — grounds • learn how to win and lose, grace- (1 × XI) — times fully — in late March 02 v MSJ — (2 — opponents • show that you do not treat your bat- games — 2 × XI) • aesthetic qualities of many ting or bowling or fi elding lightly i.e. grounds no easy beat Q How? • circles of friends • all of the above A Please ring either Chris Connor (7685) • hand/eye co-ordination improve- • drive your friends (and those closer) or Tony Radford (7737) both with List ment silly with tales of your exploits. S. • good way to avoid mobiles Cricket Fans Write

76 Lawyer’s Bookshelf

ticular text is a welcome one as it pro- Income Tax Text Criminal Law (Text and vides a handy, portable, and compact Materials and Essential Cases) (9th edn) reference (without the need to carry a two-volume looseleaf set to court) cover- Cases (3rd edn) L. Waller and C.R. Williams ing the major piece of criminal law legis- Butterworths Australia 2001 lation in Victoria: Crimes Act 1958. This By Michael Kobetsky, Michael Kirkis legislation is reproduced with commen- and Ann O’Connell S the back jacket states, it is an tary, providing an overview/discussion on The Federation Press 2001 introductory text on the criminal law, A each section including discussion of the pp i–xxvii, 1–635, Index 636–641 with a collection of cases and commen- tary designed to explore complexities and relevant and major cases in the each area. NCOME Tax Text Materials and stimulate further thought. The text is pri- Useful are the internal cross references IEssential Cases is now in its 3rd edi- marily a teaching guide, with authoritative to paragraphs of the Act or other commen- tion. This edition has been revised to judgments and the reasoning of principles tary where same or related issues are dis- include the changes resulting from the major cases in each area, followed by a cussed in other contexts. The paragraph reforms announced in A New Tax System number of illustrations. This text on the system of square brackets provides ease (1998) and a Tax System Redesigned criminal law is divided into three parts. of use. There is an extensive index and (1999) together with a new chapter on Part one comprises an introduction and also useful are the references to particu- GST. Amendments to the book to cover general background including discussions lar cases for specifi c points such as the developments after 1 May 2001 will appar- of the theories of the law, its workings and English position as a comparison or the ently be available on the Federation web- concept of/principles of mens rea (the history of a particular section of the legis- site. intent), actus reus appeals, aims of crimi- lation. The text is primarily a teaching nal law and mercy, and jury trials. The author breaks down the elements resource, however, some knowledge of tax Part two covers substantive crimes of each provision and sets out: generally is essential for all those involved in busi- including: assaults, sexual offences, mur- the matters that the prosecution need to ness and particularly for those advising der and manslaughter, property offences prove, matters for the defence to raise or on business transactions. The ubiquitous and drug offences. consider, penalties, position at common nature and infl uence of taxation consider- Part three general doctrines including law, discussion of meanings of words and ations is highlighted by the GST require- attempts, the extent of participation, con- phrases. This is a detailed text, an invalua- ments introduced on 1 July 2000. spiracy and a range of defences such as ble reference and a readily accessible tool All the major topics of tax law are insanity, duress, intoxication and those for practitioners. covered including personal services, busi- that are not dealt with elsewhere such as R.J. Stubbs ness and property income (Chapters 3–5), provocation (as a defence reducing mur- fringe benefi ts, capital gains and GST der to manslaughter), the book selects (Chapters 7, 8 and 18), partnerships, major principles and provokes thought by Fundamentals of Trial trusts and companies (Chapters 13–15), asking readers to consider different dis- deductions (Chapters 10 and 11) and cussion papers and judgements and also Techniques other incidental matters such as residency, compares and contrasts the English with (2nd Aust. edn) timing, tax accounting and anti–avoidance Australian authorities. There are a number measures (Chapters 6, 12 and 16). of companion titles. The book also exam- Thomas A. Mauet and The text contains a signifi cant number ines proposals for change in a number of Les A. McCrimmon of summaries and extracts from relevant areas of law. LBC Information Services 2001 cases together with references to other Further reading refers readers to inter- S one who has recently answered the specifi c tax texts such as the Master Tax esting articles and reports including the call of the Bar and therefore having Guide and Australian Tax Handbook. subject of personality disorder, mental ill- A undertaken the Readers’ Course this pub- This cross-referencing enables the reader ness and preventative detention where the lication is of invaluable assistance in pro- to more fully explore issues identifi ed by well known (infamous) case of Gary David viding an overview of both the advocate’s the use of this text where appropriate. is discussed. challenge and responsibilities in present- While no-one other than the tax pro- R.J. Stubbs fessional can expect to be fully abreast of ing a case. This book does not simply the current position in taxation, this book describe the procedures but rather is a enables the user to have a clear grasp of Annotated Criminal detailed step-by-step “how to” reference general principles and concepts of tax law. with examples used for each procedure This knowledge is a necessary adjunct for Legislation Victoria undertaken in a trial. all those involved in or advising on the The authors go into great detail about myriad business and commercial transac- Gerard Nash QC the preparation necessary in conducting a tions occurring on a daily basis. This work Butterworths trial. There is no doubt that some of the will be useful to students and in addition is advice is common sense and would seem HIS text has been extracted from obvious to more experienced practition- a practical resource for those requiring an TBourke’s Criminal Law Victoria, a overview of taxation principles and con- ers. But the delight in this book is in read- two-volume looseleaf service which would ing the examples, and acknowledging the cepts. be very familiar to those practitioners P.W. Lithgow penny drop when considering a real situ- working in the criminal law area. ation, such as building cross-examination/ The decision to “extract” this par- closing the gate, or cross examining on

77 documents, tendering exhibits (always a library. into life as a Cabinet Minister under Henry tricky area fraught with diffi culties and R.J. Stubbs Bolte. tactical considerations). Geoffrey Blainey says in the foreword: The authors have, of course, drawn “This book is quietly revealing about Bolte extensively from both the State and Minister of the Crown: and his skill as a leader.” It is equally Commonwealth Evidence Acts and it is revealing of the operations of the Liberal useful to have these handy to cross ref- Vernon Wilcox Party Cabinet during the years that Vernon erence. As one would expect there is a Wilcox was a member of the Ministry. concentration on examination in chief and Published by V.F. and J.R. Wilcox Although Sir Henry Bolte opposed the cross-examination, so that a large pro- pp. 1–227, Paperback appointment of Vernon Wilcox to the portion of the book deals with witnesses his privately published “personal story Cabinet, once he was a member of the under these two conditions. Tof life, politics and people” contains Cabinet Bolte supported him. Each chapter offers signposts, and the cameos from history reaching back to the The dual role of the Attorney-General books consists of: preparation for trial days before World War II as seen from the is illustrated by Vernon Wilcox giving his (including opening address), examination point of view of a former Attorney-General fi at to enable a challenge to be mounted, in chief, selecting and persuading a jury, of the State of Victoria. even though the Cabinet was opposed to opening address, exhibits, cross-examina- Vernon Wilcox held the seat of that challenge. tion, closing arguments and objections. Camberwell for 20 years. He initiated the It is not a book to sit down and read It is easy to read, well set out, and the building of the underground rail loop and, in one session. It is a book to dip into on examples used are drawn from both crimi- as Attorney-General, it was he who gave a sunny afternoon. It will make very good nal and civil scenarios. This work is ideal his fi at to authorise D.O.G.S. to challenge holiday reading. for junior advocates but for senior practi- State aid to non-government schools. In Copies can be obtained from the Law tioners there is always need for a handy these reminiscences written with a sim- Institute Bookshop. reminder of how to do that particular plicity and economy of style which make thing. Fundamentals of Trial Techniques extremely easy reading, he gives a reader Gerard Nash QC should be a fi xture in every advocate’s an insight into pre-war Melbourne and

Conference Update

25–26 January 2002: Bangkok. 2002 Australia. Tel: (02) 6247 3788. e -mail [email protected]. and Beyond: The Asian Economies. [email protected]. 12–14 July 2002: Brisbane. 20th AIJA Contact: Catherine Toft, International Bar 27–29 June 2002: Edinburgh. Inaugural Annual Conference. Contact: Website Association, 271 Regent Street, London, World Conference of Barristers and www. AIJA .org.au/programs.htm. W1B 2AQ-UK. Tel: 44(0)20 7629 1206. Fax: Advocates. Tel: (07) 3236 2477. Fax: (07) 4–7 October 2002: Brisbane. Biennial 44(0)20 749 4460. e-mail: confs@inte- 3236 1180. e-mail: [email protected]. Conference 2002: Reconstructing “The bar.org. 2–5 July 2002: Prato, Tuscany. Public Interest” in a Globalising World: 21–23 February 2002: Adelaide. Super- International Institute of Forensic Studies Business, the Professions and the Public annuation 2002: A National Conference inaugural conference on Expert Evidence: Sector. Contact: Susan Lockwood-Lee. for Lawyers. Contact: Dianne Rooney. causation, proof and presentation. Contact: Tel: (07) 3875 3563. Fax: (07) 3875 Tel: 9602 3111. Fax: 9670 3242. e-mail: Jenny Crofts Consulting on (03) 9429 6634. e-mail: S.Lockwood-Lee@mailbox. [email protected]. 2140. gu.edu.au. 16–20 March 2002: 10th National Family 7–10 July 2002: Paris. Australian Bar 20–22 October 2002: Sydney. The AIJA’s Law Conference. Contact: Patricia Allen, Association Conference. Tel: (07) 3236 Third Technology for Justice Conference. Family Law Section, Law Council of 2477. Fax: (07) 3236 1180. e-mail: Contact: Website at www.ALTA.org.au.

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