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THE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2017

BAR NEWS EDITORIAL 2 EDITOR’S NOTE COMMITTEE 3 PRESIDENT’S COLUMN Ingmar Taylor SC (chair) Anthony Cheshire SC Dominic Villa 8 NEWS Christopher Withers IBA Sydney 2017 Open Chambers Evening Nicolas Kirby Bar Practice Course 02/2017 Daniel Klineberg Catherine Gleeson Bench and Bar Lunches Victoria Brigden Distinguished Gentlemen’s Ride Caroline Dobraszczyk Talitha Fishburn 13 OPINION Juliet Curtin Three ministers and a court Radhika Withana David Robertson Kevin Tang 15 RECENT DEVELOPMENTS Alexander Edwards Charles Gregory 25 ADDRESSES Bar Association staff member: 2017 Maurice Byers Lecture Chris Winslow

ISSN 0817-0002 33 FEATURES Whistleblower protection Views expressed by contributors to Bar News are not necessarily Vicarious trauma those of the Bar Association. 37 COMMITTEE ROUNDUP New Barristers Committee Contributions are welcome and should be addressed to the editor: Ingmar Taylor SC 38 PRACTICE Greenway Chambers Crossing the line: behaviour that gets barristers into trouble L10 99 Elizabeth Street Cancellation fees Sydney 2000 DX 165 Sydney Equitable briefing Contributions may be subject to 47 TECHNOLOGY editing prior to publication, at the Innovation and technology and the New South Wales Bar discretion of the editor. The paperless barrister: no longer an oxymoron Cover: Portrait of Ann Bernard, by Mary Edwards. Photo: New South 49 LEGAL HISTORY Wales Bar Association. Sir Frederick Jordan’s brushes with ‘degenerate art’ The strange resignation of a chief justice - Lord Trevethin The Star Chamber

61 BOOKS

Bar News is published under a 75 APPOINTMENTS Creative Commons ‘free advertising’ license. You are free to share, copy 78 BAR SPORTS and redistribute the material in any Sports Law Conference and the Tri-state series medium or format. You must give appropriate credit, provide a link to the license and indicate if changes 81 ADVOCATUS were made. You may do so in any reasonable manner, but not in any 82 BULLFRY way that suggests the licensor Bullfry and the onus of proof endorses you or your use. You may not use the material for commercial purposes. If you remix, transform or 83 THE FURIES build upon the material, you may not distribute the modified material. 84 PERSONALIA

The Journal of the NSW Bar Association [2017] (Summer) Bar News 1 EDITOR’S NOTE

We are pleased to publish the full text of who, unlike us, had made the brave decision Chief Justice James Allsop’s brilliant 2017 Sir to go straight to the bar. It was a Friday af- Maurice Byers Lecture. In thoughtful and ternoon, and as we gathered in her tiny room beautiful prose, Justice Allsop examines the to celebrate her new career we were unex- concept of what it means for the law to reflect pectedly joined by a much older member of human values, by reference to a wide variety her new floor. He had heard some noise and of areas of law. wandered to the doorway. He looked around Arthur Moses has written an excellent pres- and announced to no-one in particular in ident’s column examining the importance a booming and slurred voice ‘Geez, you’ve of adequate representation for defendants got big tits, haven’t you?’. Finding that his in criminal proceedings, and the impact of amusing repartee was not engendering the inadequate funding of legal aid in NSW. usual positive reaction, he wandered off. My Bar News was first published in the winter Other legal analysis includes an article of colleague left the bar within 18 months. of 1985, edited by Ruth McColl. Its advent great practical value by Mark Brabazon, the It is hardly Harvey Weinstein territory, but as was welcomed by then president, Murray chair of the Bar Association’s Costs Commit- the article by Kate Eastman, Sophie Callan Gleeson, in a column titled ‘What the Bar tee, which examines when cancellation fees and Aditi Rao records, conduct like that, Needs’. He commenced by noting a plan to can be charged, and replace the carpet in the Bar Common Room when perhaps they and went on: should not. Anthony Cheshire There is reason to believe that funds returns to consider for such lavish expenditure will soon again when criticism be available. However, the answer to of the judiciary all our problems does not seem to lie amounts to contempt, in interior decoration. If, however, an in a fascinating exami- appeal is directed to the mind rather nation what happened than to the senses we may achieve a when three federal result. That is the idea of this publi- government ministers cation. described the Victori- It is hoped it will provide, on a dif- an Court of Appeal as ferent level, some of the facilities of ‘divorced from reality’ the Common Room: a medium for and ‘hard-left activist scandalous information; an occasion judges’. of privilege for defamation; and a It is important to forum for ideas about the Bar. look back at how the bar has changed, for What the Bar needs is a good free worse and for better. journal. The people who have par- In this edition there ticipated in this enterprise are to be is a wonderfully enter- congratulated. Its success could be taining piece by Keith important to us all. Mason that examines the intersection of art Under Ruth McColl’s long-standing editor- and the bar, princi- ship Bar News was indeed a great success, pally between 1935 becoming the journal of record of the NSW and 1949 when Sir Bar, by the NSW Bar. Frederick Jordan was Its reputation was burnished and enhanced chief justice (nick- by its subsequent editors (in order) Justin named ‘Frigidaire Gleeson, Andrew Bell and most recently Freddie’, he was said Jeremy Stoljar. Under their leadership Bar to give his wife a cold News established itself as one of the great whenever he got into bed). The article reveals and worse, has been consistently reported at institutions of the bar. how views that are now rightly regarded as the New South Wales Bar. Their excellent As the incoming editor I intend to carry on repugnant were, at the very least, tolerated by piece, subtitled ‘… the bar cannot be the last where the previous editors left off, encourag- leading members of society. bastion where sexual harassment and assault ing legal writing and analysis of the highest Kate Eastman, Sophie Callan and Aditi Rao is countenanced in the workplace’, examines order. I also want to return Bar News to its examine another form of ugly conduct at the consequences for the bar generally, and roots, with a renewed focus on the current the bar, in their thoughtful article on sexual perpetrators in particular, of engaging in acts state of the New South Wales Bar and its harassment. of sexual harassment. increasingly diverse membership. As the Each of us can no doubt recount observing or An important aspect of Bar News is to pub- journal of record for the NSW Bar, Bar News experiencing sexual misconduct at work – for lish pieces that depict current life at the NSW should record what the bar was, what it is, many it involves witnessing conduct directed Bar, in good times and bad. In this edition and perhaps most importantly as a forum of at a woman in our presence. you will find two pieces by Kylie Nomchong ideas, what it can be. I recall my first meeting with a member of that record both ends of that spectrum. There As this is the summer edition, there is a the New South Wales Bar. It was 1989. I was is a short note that records the long-standing focus on some great reading to enjoy over the one of a number of College of Law classmates successful bench and bar lunches that Kylie holidays, including some fascinating book who had gathered at the end of the course has organised for many years. There is also reviews and excerpts from two recent books. to congratulate one of our fellow graduates a serious piece that discusses the concept

2 [2017] (Summer) Bar News The Journal of the NSW Bar Association EDITOR’S NOTE of ‘vicarious trauma’, which occurs when tion: our servant not our master’ in which elegantly, amusingly or poignantly (or better barristers in the course of their practice are he said: ‘there is room for justifiable fears still, all three) drop me a line. At its essence exposed to trauma suffered by others. Kylie that the day-to-day administration, and even Bar News should be the home of brilliant discusses ways that barristers can deal with more importantly the development, of the writing, and while one might not discern this the feelings of hopelessness and despair that law may be crushed under too great a weight from the content of some of our submissions, can be experienced after doing such work. and proliferation of decided cases being fed I am confident there is no better place to find The Bar Association is active in many areas into the data base’. brilliant writers than at the NSW Bar – so through its committees. It is important that In the second edition of Bar News R H Mac- take a few hours off and write something Bar News record their activities. To that end ready wrote a lengthy piece titled ‘Computer- interesting. this edition starts by including reports from ised legal data bases; Something useful, or a Finally, I would like to thank a number of gimmick?’ which concluded by opining that people who have assisted me take my first computerised data bases ‘may well become a steps as editor. First, Jeremy Stoljar, who was useful tool as a different means of researching such a wonderful editor, and who was good topics’ but ‘the likelihood of them supplant- enough to spend considerable time assisting ing existing data bases is somewhat remote’. me to understand what is needed. Second, I In a more positive take on technology and its give thanks to the members of my committee effect on the bar, in this edition Ting Lim who have been a great source of ideas, a solid discusses a number of changes that the Bar sounding board and who have individually Association’s new Technology Committee is greatly contributed to this edition. Finally, working on, while I have written an article I would like to thank Chris Winslow of the on using a tablet in lieu of hardcopy briefs. Bar Association who, working all hours, has Bar News will continue to be the journal of patiently steered this edition to the printer. record of the NSW Bar. To that end it is ap- propriate to record our 46 newest members who graduated from the Bar Practice Course in February, including 21 women. It is also great to include a photo of the October 2017 silks. As noted, as this is the summer edition there is some great light reading as well. Richard Beasley and Justice Michael Pembroke were both good enough to allow us to publish extensive excerpts from their recent books. Geoffrey Watson has penned the amusing and true tale of Lord Trevethin, lord chief justice of England, who learnt about his resignation when he read the announcement in the Times. Kevin Tang gives us the history of the Star Chamber, explaining why that expression came to mean the exercise of power without regard for personal rights or liberties. The Furies continue to provide ago- ny-aunt-like advice to the worried barrister, while our new column Advocatus, questions why readers are encouraged to charge far below commercial rates. There are some interesting book reviews, including Justice Robert Beech-Jones’ review of The Trials of Justice Murphy by Stephen Walmsley, and Carolyn Dobraszczyk’s review of The Charles Manson Murders by Simon Davis, a book of particular interest perhaps as Manson died as this edition was going to print. I am keen for Bar News to be both accessible and enjoyable to read and to that end we have altered the style and started to include more illustrations, cartoons and photographs. the Young Barristers’ Committee and the Illustrators and photographers of the bar are Technology Committee. encouraged to contribute to future editions. There are few things that will have had and And while I am calling for volunteers, Bar will continue to have a more significant effect News is of course no more than the sum of on practice at the bar than the advent of tech- its contributors. Do not feel that you have to nology. It was ever so. In the first edition of be a member of the Bar News Committee or Bar News in 1985 Chief Justice Sir Laurence an invitee to be able to contribute. If there Street wrote an article titled ‘Computerisa- is an issue that you think you can express

The Journal of the NSW Bar Association [2017] (Summer) Bar News 3 PRESIDENT’S COLUMN

Legal aid in crisis: a real and present danger to fair trials

By Arthur Moses SC President

The importance, or indeed necessity, of ade- listen to me — that I have no power to quate representation to achieve the objectives give you legal representation. of ensuring a fair trial to a defendant in criminal proceedings, including the smooth Accused: You have the power to ad- and cost-effective operation of the criminal journ the matter, sir. justice system, has been recognised by judges of great experience, both in and His Honour: I don’t propose to ad- abroad. Regrettably, it would seem most journ the matter. The matter is an Australian politicians show little interest in alleged offence, which occurred the this topic except when we represent them in year before last, and it is desirable that a criminal trial or they are facing corruption the matter proceed to trial. allegations. It is troubling to see how little has been done, wright, 372 U.S. 335 (1963) in the United Accused: Desire by whose side? and is being done, to provide adequate rep- States. As will be seen from a comparison of resentation to members of the community. I the two decisions, there is a significant dif- His Honour: Desirable to the com- want to address two topics in this President’s ference between the respective promises they munity. column because we are at a critical stage of offer to defendants in criminal proceedings. discussions with Legal Aid NSW and the In general terms, the principle for which Di- Accused: The community has got NSW attorney general, and if we cannot etrich stands is that there is no common law no interest in it. If the community is reach an agreement on proper rates of pay right to legal representation at public expense aware that they’re putting people in for members of the New South Wales Bar in criminal proceedings, but that courts front of court without representation, undertaking work in the criminal justice can stay proceedings where an accused is the community would be aghast. system, then we may need to consider other unrepresented if not doing so will result in options to resolve this issue. an unfair trial. His Honour: Yes. Well, I don’t pro- The facts of the case are well known and pose to engage in this type of matter; • First, the key decisions in Australia and are conveniently summarised in the recent this debate can get us nowhere. the United States, in which there has publication, Leading cases in Australian Law.1 been judicial recognition of the impor- As noted in the judgment of Mason CJ and tance of affording representation for Olaf Dietrich was charged before McHugh J, on numerous occasions, the trial defendants in criminal proceedings, are the County Court of Victoria with judge reiterated his lack of power to appoint examined and compared; and multiple charges under the Customs Act 1901 (Cth). Dietrich attempted counsel to represent the applicant, but on • Secondly, the present unsatisfactory on multiple occasions to secure legal no other occasion did he appear to give any state of underfunding in New South representation, first by applying to the consideration to exercising his discretion to Wales, and the consequences of such Legal Aid Commission of Victoria; adjourn the matter on the ground that there underfunding, are considered. then, when that was refused, seeking a was a real likelihood that the applicant would review of that refusal; then, by making not receive a fair trial. Finally, I want to note the commendable an application under s 69(3) of the Ju- After a 40-day trial, Dietrich was ultimately efforts of members of the Bar Association diciary Act 1903 (Cth) to have counsel convicted of one count of importing a traf- who provide, on a voluntary basis, assistance appointed by a judge; and finally, by ficable quantity of heroin into Australia in to defendants in the criminal justice system, applying for legal assistance from the contravention of s 233B(1)(b) of the Customs who would otherwise be unrepresented. Commonwealth Minister for Justice Act 1901 (Cth). and the attorney-general. These at- Dietrich appealed, arguing that the failure of tempts all failed. the trial judge to appoint counsel constituted Recognition of the importance a miscarriage of justice. Leave to appeal was of adequate representation: Before the trial proper commenced, the refused by the Victorian Court of Criminal Dietrich and Gideon applicant made an informal application for Appeal, and it was from that order refusing an adjournment. As the following exchange leave that Dietrich appealed to the High Judicial recognition of the importance of ad- shows, this was peremptorily refused:2 Court. equate representation finds expression in the The High Court allowed the appeal 5:2, al- seminal decisions of Dietrich v R (1992) 177 His Honour: I want you to under- though it did so on the basis of an alternative CLR 292 in Australia, and Gideon v Wain- stand this, Mr Dietrich — if you will ground advanced by Dietrich, which was

4 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRESIDENT’S COLUMN that the trial judge had a discretion to stay stole money from a cash register. Later that federal cases. Gideon v Wainwright overruled or adjourn the trial in order to give Dietrich day, a witness reported that he had seen Clar- Betts v Brady, instead holding that the assis- further opportunity to seek legal counsel, ence Earl Gideon in the poolroom at around tance of counsel, if desired by a defendant and that in the absence of exceptional 5:30am that morning, leaving with a wine who could not afford to hire counsel, was a circumstances, that discretion should have bottle and money in his pockets. Based on fundamental right under the United States been exercised in Dietrich’s favour. Diet- this accusation, the police arrested Gideon Constitution, binding on the states, and rich’s primary ground of appeal, that he was and charged him with breaking and entering essential for a fair trial and due process of law denied the right to be provided with counsel with intent to commit petty larceny. regardless of the circumstances of the case. at public expense, was held to be unfounded, Gideon appeared in court alone as he was Justice Clark’s concurring opinion stated with the court noting that the common law too poor to afford counsel. It is said that the that the Sixth Amendment to the Consti- origins from which it was said to derive re- following exchange took place in the court:4 tution does not distinguish between capital lated only to a right to retain counsel, not to and non-capital cases, so legal counsel must The COURT: Mr. Gideon, I am have counsel provided by the state. be provided for an indigent defendant in all sorry, but I cannot appoint counsel to Key statements of principle emerging from cases. Justice Harlan’s concurring opinion represent you in this case. Under the the case, and for which the case is often cited, stated that the mere existence of a serious laws of the State of Florida, the only come from a passage in the joint judgment of criminal charge in itself constituted special time the court can appoint counsel Mason CJ and McHugh J (at 311): circumstances requiring the services of coun- to represent a defendant is when sel at trial. … it should be accepted that Aus- that person is charged with a capital The Supreme Court remanded the case to the tralian law does not recognise that an offense. I am sorry, but I will have to Supreme Court of Florida for further action indigent accused on trial for a serious deny your request to appoint counsel not inconsistent with the Supreme Court’s criminal offence has a right to the to defend you in this case. decision. Ultimately, Gideon was acquitted. provision of counsel at public expense. During a recent panel discussion in the US in Instead, Australian law acknowledges GIDEON: The United States Su- 2017 about Gideon v Wainwright, which was that an accused has the right to a fair preme Court says I am entitled to be attended by several judicial officers6, Judge trial and that, depending on all the represented by counsel. Timothy Dyk observed that ‘[a]nybody who circumstances of the particular case, The Florida court declined to appoint coun- has practised, really, over the last fifty years lack of representation may mean that sel for Gideon. As a result, he was forced to just assumes that this is the framework that an accused is unable to receive, or did act as his own counsel and conduct his own exists and should always exist. You don’t not receive, a fair trial … defence in court, advocating for his own in- hear people questioning the right to counsel A trial judge faced with an application nocence in the case. At the conclusion of the anymore.’ for an adjournment or a stay by an trial the jury returned a guilty verdict. The At the same panel discussion, Judge James unrepresented accused is therefore not court sentenced Gideon to serve five years in Boasberg observed that the impact of the bound to accede to the application the state prison. decision was so immediate that ‘by 1975 … in order that representation can be From the cell at Florida State Prison, Gideon the court requires that before someone can 5 secured; a fortiori, the judge is not re- prepared a handwritten application , appeal- proceed without a lawyer there must be a quired to appoint counsel. The deci- ing to the United States Supreme Court in knowing, intelligent, and voluntary waiver’. sion whether to grant an adjournment a suit against the secretary of the Florida It is to be hoped that in New South Wales, or a stay is to be made in the exercise of Department of Corrections, HG Cochran. and indeed Australia more generally, we can the trial judge’s discretion, by asking Cochran later retired and was replaced with move towards a position closer to that which whether the trial is likely to be unfair Louie L. Wainwright before the case was is established by the United States by Gideon. if the accused is forced on unrepre- heard by the Supreme Court. Gideon argued However, as will now be seen, there is a sented. For our part, the desirability in his appeal that he had been denied counsel significant impediment to the achievement of an accused charged with a serious and, therefore, his Sixth Amendment rights, of this objective, in New South Wales and offence being represented is so great as applied to the states by the Fourteenth other states in Australia, including Victoria. that we consider that the trial should Amendment, had been violated. proceed without representation for the The Supreme Court assigned Gideon a accused in exceptional cases only. In prominent Washington, DC, attorney, Lack of funding of legal aid in all other cases of serious crimes, the future Supreme Court justice Abe Fortas of NSW and its consequences for remedy of an adjournment should be the law firm Arnold, Fortas & Porter. the bar and the justice system granted in order that representation The Supreme Court’s decision was an- can be obtained … nounced on 18 March 1963, and delivered There are real and prescient issues confront- by Justice Hugo Black. The decision was an- ing counsel, particularly junior counsel at the The position on this topic in the US is nounced as unanimous in favour of Gideon. private bar in New South Wales who accept different. There, a defendant in criminal Three concurring opinions were written by briefs to appear in District and Supreme proceedings is, to put it shortly, afforded a Justices Clark, Douglas and Harlan. Court trials when funded by Legal Aid NSW. better promise. In the US, the case of Gideon The earlier Supreme Court decision of Betts Day rates of $987 plus GST for junior counsel v Wainwright has been described by some as v Brady, 316 U.S. 455 (1942) had earlier have remained unchanged since May 2007, ‘the case that guaranteed the right to counsel held that, unless certain circumstances were save that the day rate in the Supreme Court in every criminal trial in the United States’.3 present, such as illiteracy of the defendant, or was adjusted from $1,142 plus GST to $1,150 The story behind how the matter found its an especially complicated case, there was no plus GST upon the commencement of the way to the US Supreme Court is intriguing. need for a court-appointed attorney in state ‘Complex Crime Panel’ for barristers during Between midnight and 8:00 am on 3 June court criminal proceedings. Betts had thus the period under consideration – that is, 1961, a burglary occurred at the Bay Harbor provided selective application of the Sixth an increase of $8 per day, or expressed as a Pool Room in Panama City, Florida. An Amendment right to counsel to the states, percentage – 0.7 per cent. In contrast, the unknown person broke a door, smashed a depending on the circumstances, as the Sixth NSW attorney general’s rate for junior coun- cigarette machine and a record player, and Amendment had only been held binding in sel appearing for the state in civil cases, as at

The Journal of the NSW Bar Association [2017] (Summer) Bar News 5 PRESIDENT’S COLUMN

1 August 2017, is $285 per hour, with a daily feel that their contribution outweighs trial finalisation is now 714 days (up maximum of $2,140 plus GST. any potential benefit that they may be from 512 days in 2012). The cumulative level of inflation (Consumer receiving; Price Index) from financial year ending 30 BOCSAR released a report in April 2017 June 2007 to financial year ending 30 June e. barristers who undertake 90 per cent titled, ‘Forecasting trial delay in the NSW 2017 is 26.4 per cent with an annual average of more criminal work have been de- District Court: An update’.9 The key find- increase in inflation of 2.4 per cent. clining in number over the last three ings are as follows: Thus, in real terms (i.e. taking into account years (i.e. leading up to 2008); a. a pattern was observed for trial cases the effect of inflation), there has been a f. deficiencies or unevenness in access dealt with in the Sydney District decrease in pay, to an extent which is un- to justice result in less than socially Criminal Court. 10% increase in the acceptable and can no longer be tolerated optimal outcomes and serves to per- Sydney trial case backlog results in by the New South Wales Bar. Many of our petuate social disparity; and an immediate 2.38 per cent increase members (including young and newly admit- in the average time taken to finalise ted barristers) who undertake legal aid work g. the level of sufficiently experienced criminal trials in the Sydney District are doing stressful trials in difficult matters barristers taking up causes funded by Court; and including historical sexual assault cases with legal aid will continue to decline. no proper support. This places enormous b. at present, it takes about 260 days to pressure on them and their families. There Other flow-on effects, in at least some cases, finalise 50 per cent of trial cases in the should be no question that barristers should will include incorrect incarceration, a loss NSW District Court. To reduce the be adequately paid for undertaking such im- of faith in the justice system, increases in median time to finalise trial cases to portant work in the justice system let alone appeals, and aborted trial and retrials. Many 130 days, the backlog of pending trial their remuneration being decreased. criminal cases require a high level of speciali- cases would have to be reduced by The consequences of inadequate pay to bar- sation, experience and commitment and thus about 80 per cent. risters undertaking legal aid work has been a public defence system needs to be able to the subject of a detailed study undertaken attract and retain the appropriately skilled The disturbing levels of delay experienced in by the and Pricewaterhouse- barristers to perform this work. Without criminal proceedings in the New South Wales Coopers in April 2008. The key results of this the result is an inefficient allocation of District Court can be expected to continue, if the study are troubling, but unsurprising. resources and sub-optimal justice outcomes not be exacerbated, unless the under-funding It requires only an application of common that do not align with the principles of a is remedied. The early guilty plea reforms sense, and little foresight, to identify the fair and high quality justice system. Over- which are to be implemented from 1 April serious consequences that will flow from an stretched, inexperienced or under-prepared 2018 will fail in their objective to clear up under-funded, and therefore handicapped, barristers inflict a significant social cost by the District Court caseload unless accused scheme that is otherwise intended to provide decreasing the efficiency and effectiveness of are represented by experienced counsel who representation for defendants in criminal the court systems. are properly funded to deal with cases from proceedings. These have been referred to in One of the conclusions reached in the Price- the start to the finish of a matter. The delay the Pricewaterhouse Coopers study, with ref- WaterhouseCoopers study is that the crimi- in cases impacts not only on the accused but erence to Victoria, and include the following: nal justice system needs appropriate funding victims and witnesses who anxiously await to attract and retain criminal barristers with a trial. Indeed, in some cases, the delay may a. fees paid by Victoria Legal Aid to the necessary commitment and experience. impact on a successful prosecution because barristers in criminal cases fall sig- The results of the review speak with equal the memory of witnesses may fade. nificantly below (i) increases in CPI, force as to the troubling situation and inev- Contrary to what some mischievous politi- (ii) remuneration paid by prosecuting itable consequences for the criminal justice cians and bureaucrats have asserted in the past, agencies to police prosecutors and system in New South Wales, which has wors- the Bar Association’s push for better funding Crown prosecutors, and (iii) remuner- ened in recent years. Significant numbers of is not motivated by a desire to protect its own. ation paid to government and private senior and experienced counsel undertake Rather, it is motivated by the recognition that lawyers in other areas of law; legal aid work in order to ensure that the jus- there will be a significant enhancement to b. Victoria Legal Aid funded barristers’ tice system continues to operate. However, the proper functioning of the criminal justice real take home pay is the lowest com- the government can no longer assume that system when those involved in the system pared to similar professions, at the the New South Wales Bar will continue to are represented by experienced counsel who most 60 per cent of the mean salary, subsidise the justice system at great personal understand how the criminal justice system at each experience level; and financial cost. works, and are able to provide assistance to the The level of delay experienced in the criminal court. This will reduce delays and save money c. Victoria Legal Aid funded barristers’ justice system in New South Wales is dis- in the justice system. real take home pay has fallen by 20-32 turbing. As at July 2016, the District Court The point was made earlier this year, in per cent over the past 10-15 years Criminal caseload was 2,042 criminal trials May 2017, by Ms Jelahn Stewart10 during a while other professions have increased and 1,195 sentencing matters outstanding.7 panel discussion in the US, involving several 15 per cent during this period; In May 2017, BOCSAR released its NSW judicial officers, about Gideon v Wainwright. Criminal Courts Statistics 2016 report.8 The Ms Stewart rightfully made the following d. during 2001-02, Australian barristers key findings are as follows: observation: undertook 289,100 hours of legal aid work at reduced or no fees, personally a. between 2012 and 2016, the median Most people would think that pros- bearing part of the cost of providing delay in the NSW District Court ecutors would not be pleased with access to justice. Practitioners who between committal for trial and final- the decision and that their job would are currently subsidising the criminal isation rose by 56 per cent from 243 be easier if Gideon had been decided justice system by offering their time days to 378 days; and the other way, they would be able to at a significant discount to market, obtain convictions more easily. How- may withdraw their support once they b. the median time between arrest and ever, that’s just not the case. The job

6 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRESIDENT’S COLUMN

of the prosecutor is not just to obtain refused legal aid, can receive assistance from government to engage with the Law Coun- convictions but rather to seek justice, a barrister, either in the form of advice, rep- cil of Australia’s Justice Project. The Justice and seeking justice is far easier when resentation or mediation. Project is the Law Council’s national review you have competent, ethical counsel Since inception, approximately 7,000 applica- into the state of access to justice in Australia. on the other side. tions have been processed and members of the It was set up by Law Council President Fiona bar have contributed approximately 53,000 McLeod SC and is led by an expert Steering The current funding situation in NSW hours of work. Committee headed by former Chief Justice cannot be allowed to continue. The Bar As- Since 2015 all Court of Appeal and Supreme . The Law Council has released sociation is currently engaged in discussions Court referrals are made to LARS in cases 14 consultation papers and the secretariat and with Legal Aid NSW and the NSW attorney where judges or registrars think a self-repre- president have attended 133 consultations and general to ensure that our members who sented litigant is deserving of legal assistance. received over 130 submissions. A progress undertake this most difficult work are fairly A recent analysis of the matters from the court report outlining some of the emerging themes remunerated. indicates that LARS was able to assist the from consultations will be released in Decem- The reality is that in order for the criminal jus- court in over 90 per cent of matters. ber this year. The final report will be released tice system in any society to reap the benefits An analysis of the referrals made through the in late February 2018. The Justice Project is of the principles established in cases such as scheme over the years has consistently shown an extension of the work of the Law Council Dietrich v R and Gideon v Wainwright, there that over 60 per cent of the matters have legal in promoting equality before the law, it rec- must be adequate funding to support counsel merit – a statistic which may surprise some ognises that the justice system is in crisis with representing defendants in criminal trials. given the ‘last port of call’ circumstances of legal assistance services chronically under In the US, it was recently observed that ‘[u] many of the clients. resourced and are operating under immense nderfunding public defender programs is the This is not easy work – many of the clients pressure. Its conclusions will need to be taken most common way that states fail to keep the deliver their paperwork in a form far less tidy seriously by government. promise of the Gideon decision’.11 The same than a crisp white folder bound in pink tape, may be said of the promise of the Dietrich but to the barristers’ credit they are not put Best wishes for Christmas decision in Australia. off and regardless, are able to obtain some very and the New Year worthwhile results. Some of the current efforts of The Law Kitchen was established in 2011 by I would like to extend to each of our mem- members of the New South Wales barristers Les Einstein and Geoff Pulsford, bers, the NSW judiciary and our staff at the Bar to assist the justice system joined by Stephen Richards, a solicitor and a Bar Association, my best wishes for Christmas stalwart supporter of The Law Kitchen’s work. and 2018. I hope each of you takes time to I also want to touch upon the enormous Very sadly since those early days, both Geoff reflect and to rest with your family and friends contribution the Bar already makes to the and Steve have passed away, Steve only recent- during the holiday period after what has been justice system on a pro bono basis, to put into ly. The Law Kitchen has as its objectives the a busy year. It is our family and friends who perspective the concerns we have raised about provision of free legal services to marginalised sustain us during stressful and busy times at our members not being fairly remunerated by persons including those who are transiently, the bar. Now is the time for us to reconnect Legal Aid NSW when appearing in criminal episodically or chronically homeless or in with them. Keep safe and well. trials. I spoke about this on 16 November danger of becoming so. Since inception, the 2017 when I thanked our members at a func- Bar Association has allocated a solicitor em- ENDNOTES tion in the Bar Common Room. Members of ployee to assist barristers who have volunteered 1 D Reynolds and L Goddard, ‘Leading cases in Australian law’ (2016, the judiciary, including Chief Justice Bathurst to help the Law Kitchen by providing weekly The Federation Press) at 121. and Chief Magistrate Henson were in attend- advice sessions at the café in Woolloomooloo. 2 As recorded in Dietrich v R (1992) 177 CLR 292 at 314 per Mason CJ ance to also thank our members as their work and McHugh J. greatly assists the administration of justice. Conclusion 3 Robert White, ‘Gideon v Wainwright’, The Supreme Court Historical The Duty Barrister Scheme at the Downing Society Quarterly, Volume XXXIX, Number 2, 2017. Centre has been operating for 23 years. The As can be seen, the New South Wales Bar 4 https://www.law.cornell.edu/supremecourt/text/372/335 Duty Barrister Scheme at John Maddison contributes greatly to the justice system. It is 5 ‘Petition for a Writ of Certiorari from Clarence Gideon to the Supreme Tower has been operating for the last two hoped that the current efforts of the Bar Asso- Court of the United States, 01/05/1962’. The National Archives. years. 120 barristers of all levels of seniority ciation to procure funding in order to support Retrieved 9 November 2014. have volunteered to assist. an already strained criminal justice system in 6 As reported by Robert White, ‘Gideon v Wainwright’, The Supreme Court Historical Society Quarterly, Volume XXXIX, Number 2, 2017 Four duty barristers see an average of four New South Wales, will be fruitful. In short, 7 http://www.smh.com.au/nsw/district-court-delays-to-criminal-cases- clients each per day which equates to assisting the New South Wales Bar will not be taking unlikely-to-ease-for-a-year-judge-warns-20160902-gr7nie.html over 4,000 members of the public annually. no for an answer – 10 years of no increases 8 http://www.bocsar.nsw.gov.au/Pages/bocsar_media_releases/2017/mr- This does not include the many urgent re- in fees paid to barristers undertaking legal aid NSW-Criminal-Courts-Statistics-2016.aspx quests from the court and/or the DPP for a work is unacceptable. Rather than approach- 9 http://www.bocsar.nsw.gov.au/Documents/BB/Report-2017- barrister to give discrete advice to witnesses or ing this issue in a superficial manner and Forecasting-trial-delay-in-the-NSW-District-Criminal-Court-BB122. a self-represented accused to ensure a trial can responsible ministers pointing the finger at pdf properly proceed. each other, government needs to understand 10 Special Counsel for Professional Development and Director of Training From the feedback that the Bar Association that paying adequate Legal Aid fees will allow at the US Attorney’s Office. has received from both the judiciary and experienced counsel to be retained on a reg- 11 Robert White, ‘Gideon v Wainwright’, The Supreme Court Historical Society Quarterly, Volume XXXIX, Number 2, 2017 members of the public there is every reason to ular basis. This will lead to the more efficient believe that duty barristers have provided, and conduct of proceedings which will reduce continue to provide, a valuable resource for the delays, ensure persons are adequately repre- fair and effective administration of justice. sented and result in substantial cost savings to The Legal Assistance Referral Scheme (re- the community. ferred to as ‘LARS’) has also been operating If more evidence is needed of the lack of for 23 years. It is a scheme where less fortu- appropriate funding for legal assistance and nate members of the public, who have been sustainable court funding then we urge the

The Journal of the NSW Bar Association [2017] (Summer) Bar News 7 NEWS

Open Chambers Evening A report from the Practice Development Committee

10 October 2017 By Liz Cheeseman SC, Caspar Conde

1

One of the primary focuses of the Practice barristers on topical legal issues proceeded Development Committee is the promotion (and in some brave cases preceded) by drinks and marketing of the Bar’s services to in- and canapés. There were some intriguing house counsel in two principal areas: direct variations – one chambers offered a ‘Tastes briefing and early briefing. The Committee of Australia’ evening, providing delegates has been active in developing new ways to with the opportunity to sample local pro- promote the services of the Bar beyond our duce while viewing exhibits from Australian traditional (and still core) market of instruct- artists; another offered a Q and A session on ing solicitors. aspects of legal system and As part of this work, the committee initi- short presentations by an expert Australian ated and co-ordinated an Open Chambers sommelier and fromager (or cheese man). Evening, which was held to coincide with the The Practice Development Committee, with recent International Bar Association Confer- the assistance of Bar Association staff (led by ence in Sydney. All Sydney-based chambers Greg Tolhurst and Alastair McConnachie), were invited to host an Open Chambers was responsible for project managing the event. On the evening of 10 October 2017, a event. The committee continues to work to total of 18 chambers threw their doors open identify opportunities to develop new areas to welcome conference delegates and others of work for the New South Wales Bar. to a variety of satellite events. There were over 2 320 registrations for the various events. Future events The event was directed to marketing the New South Wales Bar and the services it offers to The next initiative arranged by the commit- conference delegates (many of whom are in- tee is the Bar Association’s sponsorship of the house counsel) in a convivial and informal ACC Annual Conference in Alice Springs in atmosphere. Invitations were also extended November 2017. In addition to sponsoring to local in-house counsel, including through an award and a table at the gala dinner, the the Association of Corporate Counsel Bar Association will host a master class on (ACC), as well as to members of the regional direct briefing in an employment context bars, the judiciary and others. (presented by myself [Cheeseman SC], Ing- The proposal was aimed at showcasing the di- mar Taylor SC and Kellie Edwards). A Ba- versity of members’ practices and chambers’ rista Bar staffed by clerks (Michele Kearns, specialties and to promoting collegiality and Angela Noakes and Emma Houlihan) will fostering connections across the profession. run throughout the conference where dele- The New South Wales Bar Association pub- gates can drop in for coffee and find out more lished a web-based program of the various about what the New South Wales Bar has to Open Chambers events with a description of offer, which, it is hoped, includes a decent each event, and IBA delegates were invited to espresso! For next year, the committee is aiming to register to visit one of a number of participat- 3 ing sets of chambers. arrange a New South Wales Bar showcase Most chambers’ events on the night involved event for in-house counsel – keep a lookout a presentation, or presentations, from leading in InBrief for more details in the New Year. This page, top to bottom: 1 Elizabeth Cheeseman SC, New Chambers. 2 David Jackson AM QC New Chambers. 3 Jonathan Horton QC, Benjamin Rigby (England).

8 [2017] (Summer) Bar News The Journal of the NSW Bar Association NEWS

4 5

6 7

8 9

10 11 Photos: Murray Harris Photography Harris Murray Photos:

This page, left to right: 6 Robert Angyal SC and Dr Christopher Ward at 6 9 Edmund Bon (AmerBon Malaysia), Marco 4 Monique Cowden presents a seminar at Level 22 St James Hall Chambers. Nesbeth, Daniel Thomas, Remy Choo (Peter Low Chambers. 7 Komal Kritika Singh, (Fiji), Phillip Sharp, Bhavna & Choo, Singapore). 5 Andrew Pickles SC, Janet McKelvey, Michelle Dhami (India), Chamith Senanayake (Sri Lanka). 10 Simon Lusk (YPOL), Daniel Moujalli, Belinda Kearns, Justice Terry Sheahan (Land and 8 Keni Josifoski, Sir Bernard Eder, Julia Baird SC, Marshall ( Beckley Marshall Legal) Ground Floor Environment Court), Klaus Metsa-Simola David Jackson QC, Elizabeth Cheeseman SC Wentworth Chambers. (Hannes Snellman Attorneys, Finland). New Chambers. 11 Courtney Ensor, Keni Josifoski, Sabrina Acloque.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 9 NEWS

Bar Practice Course 02/2017

Back Row: Kim Boettcher, Claire Palmer, Jennifer Second Row: Michelle Yu, Karen Petch, Talia Epstein, Front Row: Savitha Swami, Jennifer Mee, Beth Hillier, Kayt Hogan, Monika Knowles, Sophie Jeliba, Natasha Laing, Diana Tang, Amelia Smith, Morrisroe, Nili Hali, Jessica Tat, Kate Lindeman, Fiona Gray Holly Kemp Kim Pham

Back Row: Joshua Nottle, Anthony Hopkins, Peter Second Row: Claire Palmer, Kayt Hogan, Eamonn Front Row: Wen Wu, Jennifer Mee, Michelle Yu, Berg, Matthew Coates, William Evatt, John Larkings, O’Neill, Natasha Laing, Kim Boettcher, Savitha Swami, Karen Petch, Beth Morrisroe, Hugh Morrison, Liam O’Reilly, Zoran Petric, Matthew Guyder, Diana Tang, Talia Epstein, Nili Hali, Jessica Tat, Kate Lindeman, Kim Pham, Andrew Smorchevsky, Johnson Jiang, Roy Donnelly Edward Anderson, Peter Thompson, Maurice Baroni, Amelia Smith Thomas Woods Third Row:Nicholas Olson, Thomas Liu, Jennifer Hillier, Garth Campbell, Monika Knowles, Holly Kemp, Sophie Jeliba, Fiona Gray, John Anderson, John Mort, Adam Booker

Photos: Murray Harris Photography

10 [2017] (Summer) Bar News The Journal of the NSW Bar Association NEWS

Bench and Bar Lunch

Following the closure of the Bar Common Room many years ago, Phil Greenwood SC organised the first Bench & Bar Lunches. Jeremy Gormly SC took over a few years later and then handed the reins to Kylie Nomchong SC in 2011. The purpose of the lunches is to provide an informal and inexpensive forum where members of the bench and bar are seated next to the last person who arrived – in the very same way as the old Common Room lunches, thereby promoting collegiality in the profession and with the bench. They have been extremely successful with lunches arranged about twice per year, each attracting about 70 participants and being held at diverse venues such as The Barracks, Sky Phoenix and the Hellenic Club.

By Kylie Nomchong SC

(Clockwise) Bridie Nolan, Jane Needham SC, Danielle Woods, Kate Madgwick, (Clockwise) Long-standing Bench and Bar Lunch organiser, Kylie Nomchong SC Justice Ruth McColl, James Mack and Piotr Klank with Carole Webster SC, Ingrid King, David Chin and Chris Micali (and in the background, taking urgent instructions on the phone, Paul Menzie QC)

The Journal of the NSW Bar Association [2017] (Summer) Bar News 11 NEWS

Distinguished Gentlemen’s Ride

Nathan Avery-Williams took part in the Distinguished Gentlemen’s Ride on Sunday, 24 September 2017. Thanks in part to the generosity of the New South Wales Bar, he raised $2,213, while his team raised $4,423. The Sydney ride alone had 750 bikes, and raised $350,000 for the Movember Founda- tion and men’s health.

Left to right: Nathan Avery-Williams, Tim Wallis, Liz Wallis and David White.

12 [2017] (Summer) Bar News The Journal of the NSW Bar Association OPINION

Three ministers and a court

By Anthony Cheshire SC Photo: courtesy of the Supreme Court of Victoria

For the Autumn 2017 edition of Bar News, I men charged with terrorism offences were The judicial registrar of the Court of Appeal wrote an article about criticisms of the judici- manifestly inadequate. During the course then wrote to the three ministers and the ary by President Trump in the United States of argument, Warren CJ observed that there newspaper parties responsible for The Aus- and by the press in the United Kingdom that was an ‘enormous gap’ in the sentencing of tralian publication, requiring them to appear would be likely to amount to contempt of terrorism offences between Victoria and New before the court on 16 June 2017 ‘to make court under Australian law. I expressed the South Wales, which she described as being submissions as to why you should not be re- following view: due to New South Wales placing less weight ferred for prosecution for contempt’ in terms on the personal circumstances of the offender that included the following: Honest and robust criticism of judi- than Victoria and generally taking a more cial decisions is a healthy part of our tough-on-crime approach. Justice Weinberg The attributed statements appear to system and helps shape the develop- described that gap as ‘extremely worrying’. intend to bring the court into disrepute ment of the common law, but we all On 13 June, while judgment in the appeal to assert the judges have and will apply have a duty to be vigilant to ensure was reserved, The Australian newspaper pub- an ideologically based predisposition that personal insults and criticisms lished extracts from unsolicited statements in deciding the case or cases and that that are the meat and drink of the sent to it by three federal ministers con- the judges will not apply the law. political process do not encroach into cerning the hearing before the court. These the legal arena. The attributed statements, on their included an allegation that the judges had face, also appear to be calculated to Perhaps sooner than I had anticipated, the made comments during the appeal ‘endors- influence the court in its decision or Victorian Court of Appeal was tested in Sep- ing and embracing shorter terrorist offences’, decisions, and to interfere with the due tember 2017 on this issue by comments of which were ‘deeply concerning’; descriptions administration of justice in this state. three federal ministers about the sentencing of the judges as ‘divorced from reality’ and of terrorist offences in Victoria. ‘hard-left activist judges’, who had ‘eroded Coincidentally, that week Tony Abbott said, On Friday 9 June 2017 the Victorian Court any trust that remained in our legal system’; in the context of the announcement of the of Appeal heard a prosecution appeal brought and the court as being a place for ‘ideological settlement of the Manus Island class action on the basis that the sentences against two experiments’. against the Commonwealth:

The Journal of the NSW Bar Association [2017] (Summer) Bar News 13 OPINION

We’ve got a judiciary that takes the side tralian parties, to the prothonotary of substitute for effective advocacy. Such of the so-called victim rather than the the supreme court for prosecution for personal attacks treat the court as side of common sense. contempt of court. though it were merely a political forum in which bargaining, compromise and During the week, other federal colleagues Her Honour was extremely critical of the ac- even intimidation are acceptable prin- (including the industry minister, Arthur tions of the three ministers, noting that they ciples. The courts of law must be more Sinodinos; the attorney general, George had all trained as lawyers and that there was than that, or we are not governed by Brandis; the education minister, Simon Bir- a significant delay in proffering the apology law at all. mingham; and the prime minister, Malcolm and retraction. Her Honour noted that they Turnbull) expressed their support for the had: To similar effect, at his Senate confirmation three ministers, stressing freedom of speech hearing following his nomination by Presi- and the right of democratically elected rep- …failed to respect the doctrine of dent Trump, Justice Gorsuch, responded to resentatives to raise legitimate community separation of powers, breached the questioning on this issue: concerns, including criticism of the judiciary, principle of sub judice, and reflected and indeed an expectation that they would a lack of proper understanding of the When anyone criticises the honesty, do so. importance to our democracy of the integrity, the motives of a federal On Friday 16 June, the three ministers did independence of the judiciary from the judge, I find that disheartening, I find not attend court, although they were repre- political arms of government. that demoralising, because I know the sented, at the taxpayers’ expense, by the so- truth. licitor-general. The court begun the hearing and concluded: by stressing that the outcome of the appeal One could have no confidence, however, The Court states in the strongest would not be affected by the comments, that the wider community would not have terms that it is expected there will be but Warren CJ noted that they had placed sided with the three ministers rather than the no repetition of this type of appalling the court in the ‘invidious position’ that no court. behaviour. It was fundamentally matter what the result, the integrity of the In the context of the recent High Court de- wrong. It would be a grave matter appeal judgment would be questioned: cision on the disqualification of members of for the administration of justice if parliament for holding dual citizenship, the On the one hand, if we don’t allow it were to reoccur. This Court will prime minister perhaps came rather close to the appeal then we will be accused of not hesitate to uphold the rights of the line when he said: engaging in an ideological experiment citizens who are protected by the sub of being hard-left activist judges. On judice rule. the other hand, if we increase the The Leader of the National Party, the sentences, the respondents would be This represented perhaps the best outcome Deputy Prime Minister, is qualified to concerned that we were responding for the judicial system. Although there is sit in this House and the High Court to the concerns raised by three senior little doubt that the ministers’ comments will so hold. commonwealth ministers. demanded action, full contempt proceedings could easily have been presented by the min- The prime minister subsequently described The solicitor-general said that the comments isters as unacceptable attempts by unelected the result in entirely appropriate terms: had been made ‘in good faith’ and that the judges to silence valid criticisms made (or ministers ‘expressed deepest regret’ if their at least concerns raised) by democratically The decision of the court today is comments had caused concern. When asked elected representatives of the people, rein- clearly not the outcome we were if he was instructed to provide an apology, he forcing labelling of judges as out of touch, hoping for, but the business of gov- responded: elitist and, perhaps worst of all, ‘activist’. ernment goes on. In an era of unprecedented populism, as My instructions are to read what I’ve demonstrated by President Trump’s election It was in 2004 that an application was made read. and the Brexit vote, a full-blown conflict be- to refer the then premier of New South Some time into the hearing, the solicitor-gen- tween the judiciary and the executive could Wales, , to the Supreme Court for eral said his instructions had ‘evolved some- easily provoke a crisis and an excuse for poli- contempt proceedings. During an ICAC what in the time before this court’ and certain ticians to seek to introduce curbs on judicial hearing, the premier noted that his then of the comments would be withdrawn. The power, such as by introducing fixed judicial minister Craig Knowles had been the victim Australian parties offered ‘a full and sincere terms where renewal will depend upon the of attempts to blacken his reputation and apology’, but still the ministers refused to do goodwill of the government of the day. that his behaviour had been vindicated, so. The court reserved its decision. Although the comments of the ministers even though the minister had not yet given It is apparent that the ministers further re- drew a storm of protest, it should be noted evidence and the hearing had not conclud- flected on the matter and, at their request, that this was largely from within the legal es- ed. The premier escaped a referral by giving the matter was relisted on 22 June, when the tablishment. Similarly, it was largely the legal what was interpreted as an apology, although solicitor-general (again in the absence of the establishment that defended the judiciary in fact it was in terms that he regretted any ministers) offered an ‘unconditional apology from the press in the United Kingdom and insult taken. Again, perhaps it was best there and unreservedly [withdrew] all comments from President Trump in the United States. was an apology, avoiding a full-scale battle made in relation to this matter’. Thus, the dissenting opinion of the 9th between the judiciary and the executive. The court determined not to take the matter Circuit Court of Appeals, which would have It must be hoped that it will be at least anoth- further (Director of Public Prosecutions v upheld the president’s travel ban, included er thirteen years before this issue arises again Besim [2017] VSCA 165), but Warren CJ the following: in Australia, although whenever it does the noted: court must be astute to determine whether It does no credit to the arguments of any apology is genuine and remorseful or But for the apologies and retractions, the parties to impugn the motives or whether it is only given as a matter of expe- we would have referred the groups, the competence of the members of this diency. namely the Ministers and the Aus- court; ad hominem attacks are not a

14 [2017] (Summer) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

other in a market in Australia.8 Accordingly, When services sourced overseas the plurality concluded that the price-fixing conduct took place in a market in Australia.9 are in a ‘market’ in Australia Nettle J reached the same conclusion as the plurality, and the importance of focussing Air New Zealand Ltd v Australian Competition and on the location of the competitive rivalry is Consumer Commission [2017] HCA 21 apparent from his Honour’s reasons. His Honour said that, ‘where sellers are engaged Peter Strickland in marketing their goods and services, or perceive themselves to be competing, in areas beyond the area in which they are located, Introduction other hand. However, his Honour concluded commercial reality is likely to dictate that the that this conduct did not contravene s 45(2), market includes those further areas’ (emphasis The key issue before the High Court con- because it had occurred in a market outside added).10 cerned whether Air NZ and Garuda supplied Australia. That decision was predicated on Gordon J also came to the same view. Like the their air freight services from overseas ports the finding that the substitution or switching plurality, her Honour recognised the abstract in a ‘market’ in Australia within the meaning decisions (being the ultimate choice of air- nature of market definition, and said ‘market of s 4E of the former Trade Practices Act 1974 lines) were given effect at the ports of origin identification is an economic tool, or instru- (Cth) (TPA). Contrary to the decision of in Hong Kong, Singapore and Indonesia.1 mental concept, that uses and integrates those the primary judge, the Court unanimously The Full Court disagreed with the primary legal and economic concepts best adapted to affirmed the Full Court’s decision that these judge’s conclusion on the location of the analyse the asserted anti-competitive con- services were supplied in a market in Austral- market, and allowed the ACCC’s appeal. duct’.11 However, in saying that, her Honour ia, but did so for slightly different reasons. Air NZ and Garuda both appealed to the also acknowledged that a market should not There were also other grounds on which Air High Court. be defined ‘arbitrarily’ and that it must be NZ and Garuda said they were exculpated based on findings of fact.12 from liability under the TPA. First, they The High Court’s decision on whether In her Honour’s view, the key question in both alleged that their conduct was com- the market was in Australia locating the market centred on what was pelled by foreign regulations, which meant the area of effective competition in which the they had not made the impugned under- The plurality said that a market under the airlines operated.13 In this case, the evidence standings. Secondly, Garuda alleged that TPA is ‘a notional facility which accommo- demonstrated that the airlines physically com- ss 45 and 45A of the TPA were inconsistent dates rivalrous behavior involving sellers and peted in Australia to obtain custom from ship- with certain provisions of the Air Navigation buyers’.2 However, their Honours recognised pers, and marketed their services to them.14 Act 1920 (Cth), with the effect that s 45(2) that this abstract notion of a market presents Further, there was economically significant did not apply to Garuda’s conduct. These a challenge when s 4E requires that it have a demand from large shippers in Australia, the contentions were rejected by Gordon J, with concrete location in Australia. Their Honours airlines negotiated with those shippers, the whom the plurality (Kiefel CJ, Bell & Keane held that the task of attributing a geographical airlines tracked those shippers’ activities and JJ) and Nettle J agreed. location to a market is to be approached ‘as a the airlines designed their products according practical matter of business’ and not divorced to this demand.15 These factors were sufficient Background from the ‘commercial context of the conduct to demonstrate that the airlines competed in a in question’.3 market in Australia.16 Section 45(2) of the former TPA prohibited The plurality recognised that although substi- the making of a contract, arrangement or tutability is often an important, if not decisive, The foreign state compulsion issue understanding containing a provision that factor, this is not always the case.4 Their Hon- had the purpose, effect or likely effect of ours observed that s 4E treats substitutability The airlines contended that where conduct substantially lessening competition. It also as the principal driver of the rivalrous behav- is compelled by a law or valid practice of a prohibited giving effect to such a provision. ior accommodated by a market, but the act of foreign state, it cannot be the case that the A provision was deemed to have had the req- substitution merely marks the conclusion of compelled person made a contract, arrange- uisite purpose or effect if it had the purpose, that rivalry.5 In that way, the plurality found ment or understanding with the requisite effect or likely effect of fixing, maintaining that the primary judge’s approach accorded purpose, effect or likely effect under s 45(2). or controlling prices between competitors: too much weight to substitutability in locat- Their submission was that they did not arrive s 45A. Although this meant there was no ing the market. Instead, the focus needed to at, or give effect to, certain impugned un- need in price-fixing cases to demonstrate be on the ‘geographical area of the rivalry derstandings within the meaning of s45(2) a substantive impact on competition, the which precedes that act of substitution’.6 In because regulations made in Hong Kong, price-fixing still had to relate to competition their Honours’ view, the key issue is the lo- and the administrative practices of the Hong in a ‘market’. That was because s 45(3) de- cation of the rivalry, or the interplay between Kong regulator,17 compelled each of them to fined ‘competition’ for the purposes of s 45 the relevant supply and demand, not the place do so.18 to be competition in any ‘market’ in which a where the act of substitution is recorded. In holding that those contentions were party supplied or acquired goods or services. In this case, the primary judge’s findings of rightly rejected by the primary judge and the Further, it also meant that the market had to fact revealed that shippers in Australia were majority of the Full Court,19 Gordon J (with be in Australia, because s 4E defined ‘market’ a substantial source of demand for air freight whom the plurality and Nettle J agreed) did as meaning ‘a market in Australia’. services from overseas ports, and that airlines not decide this issue as a matter of principle, At first instance, the primary judge held engaged in rivalrous behavior that sought because it was unnecessary to do so. The short that Air NZ and Garuda had been party to match the supply of their services with point was that, on the unchallenged findings to price-fixing arrangements in relation to that demand.7 The airlines’ ‘deliberate and of the primary judge, the airlines were not fuel surcharges on their air freight services rivalrous pursuit of orders emanating from compelled by any foreign law or practice to between Hong Kong, Singapore and Indo- Australian shippers’ provided compelling agree on fuel surcharges, or to impose fuel nesia, on the one hand, and Australia, on the evidence that they were competing with each surcharges, so the contentions did not arise.20

The Journal of the NSW Bar Association [2017] (Summer) Bar News 15 RECENT DEVELOPMENTS

The inconsistency issue

Garuda argued that ss 45 and 45A of the Revisiting Project Blue Sky TPA, and certain parts of the Air Navigation Act 1920 (Cth) were practically and opera- Kate Lindeman reports on Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 tionally inconsistent. In particular, it was noted that s 13 of the Air Navigation Act permitted the Minister to suspend or cancel In Forrest & Forrest Pty Ltd v Wilson, the High Court, An act done in breach of a condition regu- an international airline licence if the airline by a majority of 4:1 (Nettle J dissenting), allowed an lating the exercise of a statutory power is not did not comply with the relevant air services appeal concerning the effect of non-compliance with necessarily invalid and of no effect. Whether agreement between Australia and Indonesia. certain provisions of the Mining Act 1978 (WA). it is depends upon whether there can be dis- This was said to be significant in Garuda’s The case contains the High Court’s latest statement cerned a legislative purpose to invalidate any case, because the Air Services Agreement on the effect of the principle established by Project act that fails to comply with the condition. between Australia and Indonesia contained Blue Sky,1 specifically considering how the doctrine The existence of the purpose is ascertained provisions requiring the fixing of ‘tariffs’. operates in the context of statutory regimes confer- by reference to the language of the statute, Gordon J (with whom the plurality and Nettle ring power on states to grant rights to exploit natural its subject matter and objects, and the conse- J agreed) found that the alleged inconsistency resources. quences for the parties of holding void every act done in breach of the condition.’ did not arise, because, the conduct that con- Facts and procedural history travened the TPA involved understandings In Forrest, the majority observed that the court in arrived at in Hong Kong and Indonesia In 2011, the second and fourth respondents lodged Project Blue Sky was strongly influenced by the fact containing provisions to charge specific fuel applications for mining leases. The Mining Act that the conditions in question regulated the exercise surcharges, not agreements or understandings required the lodgement of mining operations state- of functions already conferred on the relevant agency, to set tariffs by way of minima under the Aus- ments and mineralisation reports within a prescribed as well as by the circumstance that the provisions tralia-Indonesia ASA.21 period after lodging the applications, but none were did not have a ‘rule-like quality’, that many of the lodged in time.2 relevant obligations were expressed in ‘indeterminate ENDNOTES The warden (the first respondent) nevertheless held language’, and that ‘public inconvenience would be a that he had jurisdiction to hear the applications. He result of the invalidity of the Act’.5 The majority in 1 Australian Competition and Consumer Commission v Air New considered that failure to lodge the mineralisation Forrest considered that the present case was readily Zealand Limited (2014) 319 ALR 388 at [323]. reports on time was no more than an irregularity, distinguishable. 2 Air New Zealand v Australian Competition and Consumer which could be cured by subsequent lodgement, as The majority pointed to the fact that, first, the -ex Commission [2017] HCA 21 at [12]. 3 Air New Zealand v Australian Competition and Consumer well as by the wide discretion given to the minister press terms of the provisions in question and their Commission [2017] HCA 21 at [14]. to grant an application under the Mining Act not- structure as ‘sequential steps in an integrated process 4 Air New Zealand v Australian Competition and Consumer withstanding non-compliance with provisions of the leading to the possibility of the grant of a mining Commission [2017] HCA 21 at [26]. Act. The warden proceeded to recommend that the lease’, revealed that the relevant sections imposed 5 Air New Zealand v Australian Competition and Consumer minister grant the applications for mining leases. essential preliminaries to the exercise of the minis- Commission [2017] HCA 21 at [27]. Forrest applied for judicial review of the warden’s ter’s power under the Act.6 Secondly, the majority 6 Air New Zealand v Australian Competition and Consumer decision on a number of grounds, only one of which observed that any inconvenience suffered by treating Commission [2017] HCA 21 at [28]. was relevant in the High Court; namely, that the the requirements of the Act as conditions precedent 7 Air New Zealand v Australian Competition and Consumer warden made a jurisdictional error in holding that to the exercise of the minister’s power would enure Commission [2017] HCA 21 at [31]. he had jurisdiction to hear the applications for the only to those with some responsibility for the 8 Air New Zealand v Australian Competition and Consumer Commission [2017] HCA 21 at [34]. mining leases. Allanson J, at first instance, concluded non-observance, whereas the contrary view would 9 Air New Zealand v Australian Competition and Consumer that the warden’s hearing of the applications did not disadvantage both the public interest and individuals Commission [2017] HCA 21 at [35]. amount to a jurisdictional error, and the Court of who were within the protection of the Act. Finally, 10 Air New Zealand v Australian Competition and Consumer Appeal of the Supreme Court of Western Australia the majority emphasised that Project Blue Sky was not Commission [2017] HCA 21 at [40]. (McLure P, Newnes and Murphy JJA) upheld the concerned with a statutory regime for granting rights 11 Air New Zealand v Australian Competition and Consumer decision, finding that only a failure to provide a min- to exploit the resources of a state.7 Commission [2017] HCA 21 at [59]. eralisation report at all would prevent the satisfaction 12 Air New Zealand v Australian Competition and Consumer of a condition precedent to the warden making a Interpretation of statutory regime conferring Commission [2017] HCA 21 at [60]. recommendation to the minister. Forrest appealed to power to grant rights to exploit state resources 13 Air New Zealand v Australian Competition and Consumer the High Court. Commission [2017] HCA 21 at [83]. 8 14 Air New Zealand v Australian Competition and Consumer The majority referred to a line of authority which Commission [2017] HCA 21 at [116]. High Court Appeal establishes that where a statutory regime confers 15 Air New Zealand v Australian Competition and Consumer power on the executive government of a state to grant Commission [2017] HCA 21 at [121]. The majority of the court (Kiefel CJ, Bell, Gageler and exclusive rights to exploit the resources of the state, 16 Air New Zealand v Australian Competition and Consumer Keane JJ) allowed the appeal, holding that the rele- the regime will, subject to provision to the contrary, Commission [2017] HCA 21 at [122]. vant provisions of the Mining Act imposed essential be understood as mandating compliance with the 17 Air New Zealand v Australian Competition and Consumer preliminaries to the exercise of power by the minister requirements of the regime as essential to the mak- Commission [2017] HCA 21 at [53]. to grant a mining lease.3 This conclusion involved a ing of a valid grant. This means that, in short, the 18 Air New Zealand v Australian Competition and Consumer consideration of the application of Project Blue Sky to statutory conditions regulating the making of a grant Commission [2017] HCA 21 at [138]. a statutory regime conferring power to grant rights to ‘must be observed.’9 19 Air New Zealand v Australian Competition and Consumer Commission [2017] HCA 21 at [140]. exploit natural resources. This line of authority was said to support parliamen- 20 Air New Zealand v Australian Competition and Consumer tary control of the disposition of lands held by the Commission [2017] HCA 21 at [141]. Project Blue Sky Crown in right of the state, and to recognise that 21 Air New Zealand v Australian Competition and Consumer the public interest is not well served by allowing Commission [2017] HCA 21 at [174]. In Project Blue Sky, a majority of the High Court held:4 non-compliance with a legislative regime to be over-

16 [2017] (Summer) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS looked or excused by officers of the executive govern- The sufficiency of evidence to a finding ment charged with its administration. Importantly, the majority held that ‘[n]othing said in Project Blue of guilt beyond reasonable doubt Sky diminished the force of the authorities which 10 Alexander H Edwards reports on support this approach.’ GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698. Applying this line of authority to the relevant pro- visions of the Mining Act, the majority held that nothing in the language of the relevant provisions re- Overview Appeal to the High Court vealed any intention to depart from what the majority The High Court unanimously determined The first ground of appeal before the High termed the ‘settled approach’ to the construction of that the evidence as to a historical sexual Court was that the reasons given by Atkinson such a legislative regime. The majority also observed offence was not capable of supporting the J failed to demonstrate that her Honour had that compliance with the regime in question served conviction. conducted an independent assessment of the the public interest, including by improving efficiency, evidence. The second ground was that it was by ensuring owners and occupiers of land were not Background not open to the jury to conclude beyond rea- troubled unnecessarily or prematurely, by protecting sonable doubt that the appellant was guilty of the rights of objectors by ensuring that objectors have The appellant was charged with three counts the charge in count three. the benefit of the information contained in mineral- of indecently dealing with a child, his daugh- isation reports when preparing their objections, and ter. He was acquitted on the first two counts, The sufficiency of the evidence by protecting the interests of miners in competition but convicted of the third. The particulars of for access to the state’s resources.11 the third offence were that on the relevant The High Court accepted that the evidence Accordingly, the majority held that the appeal should date, the appellant touched the complainant of the complaint allowed an inference that be allowed, and relief sought by Forrest granted. ‘on or her near the vagina’. was capable in law of supporting the particu- Nettle J delivered a dissenting judgment. His Honour The evidence relating to the third count lars of the charge upon which the appellant 1 agreed with the majority that the Mining Act re- came from three sources: the complainant; was convicted. This limited evidence was, quired that the respondents’ applications for mining her sister, DML; and her mother, GJC. The however, marked by serious inconsistency complainant made a statement to police with the accounts of DML and GJC,2 and by leases be accompanied by a mineralisation report at 3 the time of lodgement. However, his Honour did not 10 years after the incident. The complainant’s recollections that suggested reconstruction. agree that a delay between the lodgement of an appli- evidence in chief as to the events was vague This latter aspect, in particular, could not be and uncertain but she did say that her father’s excluded beyond a reasonable doubt.4 The cation and the lodgement of a mineralisation report fingers were ‘near my vagina’. The complain- court unanimously (Bell, Gageler, Nettle and vitiates the minister’s power to grant a mining lease 12 ant conceded that her memory was unreliable Gordon JJ, Edelman J agreeing) upheld the in response to the application. and that this had been a problem for most of second ground of appeal for those reasons, her life. GJC said she returned home from resulting in an acquittal.5 Implications picking up dinner to find the appellant in bed with the complainant with the sheets pulled Independent assessment by appellate court The decision in Forrest clarifies the operation of up. GJC said when she pulled back the covers Project Blue Sky in the context of a statutory regime she saw that the complainant’s underpants The majority (Bell, Gageler, Nettle and Gor- governing the grant of rights to exploit the mineral were folded down about an inch. She yelled at don JJ) found force in the contention that resources of a state. Specifically, the majority held the appellant and pulled him out of the bed. the reasons of Atkinson J did not disclose her that nothing in Project Blue Sky limits the long line of She made her statement to police about the Honour’s own assessment of the sufficiency authority holding that such a statutory regime must incident three weeks before she commenced and quality of the evidence as to the particu- be followed and observed, subject to provision to the family law proceedings, seeking orders against larised touching,6 but noted the controversy in contrary. the appellant. DML said that she had been out that regard was somewhat arid in light of their with her mother on the night in question, and view as to the second ground of the appeal.7 had returned to see the appellant in bed with Justice Edelman, who joined in the reasons of ENDNOTES the complainant. DML recalled that the com- the majority as to ground two,8 would have re- plainant got out of bed crying with her under- jected the ground relating to the failure of the 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; pants pulled ‘right down’ and her nightie in court below to make an independent assess- 194 CLR 355. disarray. The appellant gave evidence denying ment of the evidence.9 His Honour observed 2 Sections 74, 74A and 75 of the Mining Act 1978 (WA). any occasion where he had been in bed with that ‘Submissions provide context to the 3 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 at [63]. the complainant. reasons given by a court’ and that proper de- 4 Project Blue Sky at [91]. termination of the ground may have required 5 Forrest & Forrest at [62]. Court of Appeal decision reference to the submissions made before the 6 Forrest & Forrest at [63]. Court of Appeal.10 7 Forrest & Forrest at [63]. By majority, the Court of Appeal (Atkinson 8 Watson’s Bay and South Shore Ferry Co Ltd v Whitfield(1919) 27 CLR ENDNOTES 268; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Ansett J, Morrison JA agreeing) found that there was a rational basis for the conviction on ground Transport Industries (Operations) Pty Ltd v The Commonwealth(1977) 1 At [25] and [28]. three. Atkinson J reviewed the evidence in 139 CLR 54 at 76; Mabo v Queensland [No 2] (1992) 175 CLR 1 at 2 At [28]. 63-64; Wik Peoples v Queensland (1996) 187 CLR 1 at 173; Western support of count three in the course of con- 3 At [29]. Australia v Ward [2002] HCA 28; 213 CLR 1 at [167]-[168]. See also sidering the inconsistent verdicts ground of 4 At [30]. New South Wales Aboriginal Land Council v Minister Administering appeal. Her Honour found that the evidence 5 At [32]. Crown Lands Act [2016] HCA 50; (2016) 91 ALJR 177 at [121]. of DML and GJC relevantly supported the 6 At [25]. 9 Forrest & Forrest at [64]. complainant, and that the inconsistencies be- 7 At [3]. 10 Forrest & Forrest at [65]. tween those accounts were minor. McMurdo 8 At [33]. 11 Forrest & Forrest at [89]. P, in dissent, would have allowed the appeal. 9 At [35]. 10 At [37] and [40]. 12 Forrest & Forrest at [101].

The Journal of the NSW Bar Association [2017] (Summer) Bar News 17 RECENT DEVELOPMENTS

When tendency evidence will have significant probative value

Kirsten Edwards and Belinda Baker report on Hughes v The Queen [2017] HCA 20.1

Introduction tendency evidence in relation to all of the that the particular features of those previous charges. acts renders the occurrence of the act to be The High Court has held that in There were dissimilarities in the conduct that proved more likely’.4 determining whether evidence will have was the subject of the tendency evidence, The High Court granted special leave in ‘significant probative value’ for the purposes in the ages of the complainants, the nature respect of the question of whether the of admissibility as tendency evidence under s of the alleged conduct and in the locations tendency evidence had significant probative 97 of Evidence Act 1995 (NSW), (Evidence of the alleged incidents. However, it was value for the purposes of s 97 of the Evidence Act), it is not necessary that the evidence contended that the tendency evidence had Act. The grant of special leave did not exhibit ‘similarity’, ‘underlying unity’ or significant probative value because the extend to the Court of Criminal Appeal’s a ‘modus operandi’ with the charged act. evidence ‘disclosed the appellant’s sexual determination that the probative value of the In so finding, the High Court resolved a interest in underage girls and tendency tendency evidence ‘substantially outweighed’ divergence in approaches in Victorian and to engage in sexual activity with them its prejudicial effect for the purposes of s 101 New South Wales courts as to the extent opportunistically as the occasion presented of the Evidence Act. to which similarity of tendency evidence in social and familial settings and the work was necessary in order to meet the statutory environment’.2 The High Court’s decision threshold in s 97. The evidence of the several complainants and the tendency witnesses was held by the By majority (Kiefel CJ, Bell, Keane and Background to the decision trial judge to be cross-admissible as tendency Edelman JJ; Gageler, Nettle and Gordon JJ evidence pursuant to ss 97 and 101 of the dissenting), the High Court dismissed the The appellant was a former star of the Evidence Act. The appellant was convicted appellant’s appeal against his convictions. television program ‘Hey Dad!’ which was of nine of the alleged counts, relating to four The majority, in a joint judgment, held that broadcast in Australia in the 1980s. He was complainants. the decision of Velkoski ‘evince[d] an unduly charged with 11 counts of child sexual abuse An appeal to the New South Wales Court restrictive approach to the admission of against five complainants. The complainants of Criminal Appeal in respect of the tendency evidence’ and that the New South varied in age (from 6 years to 15 years). The admissibility of the tendency evidence Wales Court of Criminal Appeal’s conclusion appellant had come into contact with the (amongst other grounds) was dismissed.3 that the tendency evidence adduced at the complainants through his work, social and In its reasons, the Court of Criminal trial had significant probative value was not family connections. The conduct comprising Appeal held that there was no requirement attended by error.5 the charged acts varied in nature. that tendency evidence necessarily exhibit The majority held that the absence of any At trial, the Crown sought to rely on tendency similarity, underlying unity or a modus reference to ‘similarity’ in the text of s 97 evidence which included the complaints operandi with the charged act for the was a ‘clear indication that s 97(1)(b) is not made by the five complainants, together with evidence to have significant probative value to be applied as if it had been expressed in the evidence of six other tendency witnesses for the purposes of s 97. those terms.’6 The majority stated further who had either worked with the appellant or In so doing, the Court of Criminal Appeal that ‘[d]epending upon the issues in the trial, had known him through social or familial rejected the approach adopted by the a tendency to act a particular way may be connections. Three of the tendency witnesses Victorian Court of Appeal in Velkoski v R identified with sufficient particularity to have were women who alleged sexual misconduct which had held that for tendency evidence significant probative value notwithstanding by the appellant in his home when they were to have significant probative value, it ‘must the absence of similarity in the acts which young girls and the other three were women possess sufficient common or similar features evidence it.’ 7 who alleged inappropriate sexual conduct with the conduct in the charge in issue so In reaching the conclusion that the tendency by the appellant at his workplace when they as to demonstrate a pattern that cogently evidence in the present case was of significant were in their late teens or early twenties. increases the likelihood of the occurrence of probative value, the majority had regard to The Crown sought that each complainant’s that conduct’ and that ‘it remains apposite the unusual nature of the tendency in the testimony be admitted as tendency evidence and desirable to assess whether those present case, namely, an ‘inclination on the in relation to the charges in respect of each features reveal “underlying unity”, a “pattern part of a mature adult to engage in sexual other complainant, and that the testimony of conduct”, “modus operandi”, or such conduct with underage girls and a willingness of the six other witnesses be admitted as similarity as logically and cogently implies to act upon that inclination are unusual as a

18 [2017] (Summer) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS matter of ordinary human experience’.8 The majority also considered it significant that the interactions which the appellant was alleged to have pursued involved ‘courting a substantial risk of discovery by friends, What does it mean to hold an office family members, workmates or even casual passers-by’ and that that level of ‘disinhibited in an international organisation? disregard of the risk of discovery by other adults is even more unusual as a matter of Piotr Klank reports on Commissioner of Taxation v Jayasinghe [2017] HCA 26 ordinary human experience’.9 The majority further observed that the use of the words ‘the court thinks’ in s 97(1)(b) has the result that the admissibility of tendency evidence may involve questions on which Background and significance whether, by reason of s 357-60(1) of Schedule reasonable minds might reach different 1 to the Taxation Administration Act 1953 conclusions. In view of this, the majority The High Court has set out the principles (Cth) and TD 92/153, the commissioner warned that the prosecution should be for determining when a person holds an of- was bound to exempt Mr Jayasinghe from conservative in deciding whether to rely upon fice in an international organisation for the taxation on the income he received from tendency evidence given the risks involved in purposes of the International Organisations UNOPS. seeking to adduce tendency evidence that is (Privileges and Immunities) Act 1963 (Cth) ‘borderline’.10 (IOPI Act). If a person does hold such an of- Did Mr Jayasinghe hold an office in In detailed dissenting judgments, Gageler, fice, the person is entitled to several privileges an international organisation? Nettle and Gordon JJ were each of the view and immunities including exemption from that the key passages in Velkoski were correct Australian taxation. Section 6 of the IOPI Act, titled ‘Privileges statements of principle. Justices Gageler The respondent, Mr Jayasinghe, was a qual- and immunities of certain international and Gordon held that the trial judge and ified civil engineer, who was engaged by the organisations and persons connected there- the Court of Criminal Appeal had erred in United Nations Office of Project Services with’, relevantly provides for the conferral, concluding that the evidence of one of the 15 (UNOPS) under what was known as an ‘In- by regulations, of privileges and immunities year old complainants (EE) was admissible dividual Contractor Agreement’ to work in on entities and persons. Different categories on the other counts.11 In addition, Nettle J Sudan as a project manager. Mr Jayasinghe of personnel are entitled to different privileg- was of the view that there was error in the was an Australian resident for tax purposes es and immunities. admission of further counts and evidence as and the commissioner of taxation (commis- In the present case, the High Court had to tendency evidence.12 Each of the dissenting sioner) assessed the taxpayer on earnings consider the proper construction of 6(1)(d) from his engagement with UNOPS. (i) of the IOPI Act. This confers the privi- justices considered that it was significant Mr Jayasinghe objected to the assessments leges and immunities in Part I of the Fourth that the act that was the subject of the contending that his earnings were exempt Schedule of the IOPI Act on a person who count relating to EE was in the context of from taxation under the IOPI Act, both on holds an office in an international organi- a ‘reciprocated’ relationship which was of the facts and also because the commissioner sation to which the IOPI Act applies. One a different character from the alleged acts was bound by his public ruling TD 92/153. of those privileges is an exemption from which were the subject of the other counts. Mr Jayasinghe’s objection was disallowed and taxation on salaries and emoluments received Hughes v The Queen was the second time in with the aid of counsel appearing pro bono, from the organisation, on which Mr Jayasin- two years that the High Court had resolved he appealed to the Administrative Appeals ghe was relying. a divergence between New South Wales and Tribunal. Mr Jayasinghe was successful on In determining whether Mr Jayasinghe was Victorian approaches to the interpretation both grounds in the Tribunal,1 and again on a person who held an office in an interna- of the Evidence Act. In IMM v The Queen,13 the commissioner’s appeal to the Full Federal tional organisation, the High Court did the High Court by a 4:3 majority found in Court.2 not adopt either the approach advanced by favour of the approach of the New South The commissioner further appealed to the Mr Jayasinghe (which had been accepted Wales Court of Criminal Appeal to the High Court, which unanimously allowed by the Tribunal and by the majority in the definition of ‘probative value’. the appeal in respect of both grounds. The Full Federal Court), which focussed on the primary judgment comprised joint reasons concept of ‘office’ adopted in domestic law ENDNOTE of Kiefel CJ, Keane, Gordon and Edelman following the decision of Rowlatt J in Great JJ. In a short, separate judgment, Gageler Western Railway Co v Bater3, nor the ap- 1 The authors appeared as junior counsel for the J also held in favour of the commissioner proach advanced by the commissioner (and appellant and the respondent in the High Court. for reasons that were consistent with the accepted by Allsop CJ in dissent in the Full Any expression of any opinions is their own. joint judgment. Court), which focussed on the designation 2 Hughes v The Queen [2017] HCA 20 at [10]. of a position as an office by the international 3 Hughes v R [2015] NSWCCA 330. Questions before the High Court organisation itself.4 4 [2014] VSCA 121; (2014) 45 VR 680 at [17], [35]. 5 [2017] HCA 20 at [12]. Rather, Kiefel CJ, Keane, Gordon and Edel- 5 6 ibid at [34]. Two questions were considered by the High man JJ held that in determining whether a 7 ibid at [37]. Court. The first was whether, during the person ‘holds an office in an international 8 ibid at [57]. See also at [40]. relevant income years, Mr Jayasinghe was a organisation’, s 6(1)(d)(i) of the IOPI Act is 9 ibid at [57]. See also at [63]. person who held an office in an international concerned with the incidents of the relation- 10 ibid at [42]. organisation within the meaning of s 6(1)(d) ship between the person and the relevant 11 ibid at [114], [170] and [225]. (i) of the IOPI Act, such that he was entitled international organisation. It focuses on 12 ibid at [170]. to exemption from taxation on the income the substance of the terms upon which a 13 [2016] HCA 14; (2016) 257 CLR 300. he received from UNOPS. The second was person is engaged - not whether the relevant

The Journal of the NSW Bar Association [2017] (Summer) Bar News 19 RECENT DEVELOPMENTS organisation has attributed a particular label considered the incidents of the relationship limited significance beyond the specific con- to the engagement - and on the relationship between Mr Jayasinghe and the UN and held text of the appeal. between that engagement and the organisa- that the Individual Contractor Agreement The ruling excluded from its protection tion’s performance of its functions. between Mr Jayasinghe and UNOPS was ‘persons engaged by [an international] or- 6 Their Honours held further that the phrase determinative of the relationship. ganisation as experts or consultants’.10 Kiefel 8 ‘a person who holds an office in an interna- In this regard, the terms of the agreement CJ, Keane, Gordon and Edelman JJ held that tional organisation’ directs attention to the provided that Mr Jayasinghe was engaged in whether or not Mr Jayasinghe was engaged structure of the organisation and the place of his individual capacity to undertake a non- as an expert depended on the terms of his the person within it. The holder of an office core function; was paid a monthly fee; had engagement, which showed that he was so in such an organisation may be expected the legal status of an independent contractor; engaged to perform ‘specialist services’ in to have a position to which certain duties did not have the status of an official of the recognition of his ‘skills and expertise.’ There attach, duties relating to the performance of UN for the purposes of the Convention on the organisation’s functions and a level of au- the Privileges and Immunities of the United was no inconsistency between his being thority with respect to the organisation. The Nations9 and was considered an expert on engaged as an expert and his performing the 11 position of the person within the internation- mission for the UN within the terms of that functional role of a ‘Project Manager’. He al organisation and the duties and authority convention; was responsible for paying any was not entitled to exemption by reason of associated with it should render explicable tax levied by the Australian Government on the ruling. why the privileges and immunities are con- his UNOPS earnings; and was solely liable ferred. By comparison, a person whose terms for claims by third parties arising from his ENDNOTES of engagement place him or her outside the own negligent acts or omissions in the course 1 Jayasinghe v Commissioner of Taxation [2015] AATA 456; (2015) 101 organisational structure, and which do not of his service under the Individual Contrac- ATR 476. provide that person with any defined duties tor Agreement. 2 Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; (2016) 247 or authority with respect to the organisation FCR 40. and its functions could not be said to hold an Was the commissioner 3 [1920] 3 KB 266. office within the organisation. bound by TD 92/153? 4 Kiefel CJ, Keane, Gordon and Edelman JJ at [32]-[33], [37]. Applying the above analysis, Kiefel CJ, 5 Kiefel CJ, Keane, Gordon and Edelman JJ at [37]. Keane, Gordon and Edelman JJ determined In the alternative, Mr Jayasinghe relied on 6 Kiefel CJ, Keane, Gordon and Edelman JJ at [38]. that during the relevant period, Mr Jayasin- the effect of the commissioner’s public rul- 7 Kiefel CJ, Keane, Gordon and Edelman JJ at [43]. ghe did not hold an office in the United -Na ing, TD 92/153. The decision on this point, 8 Kiefel CJ, Keane, Gordon and Edelman JJ at [42]. tions (UN), by reason of his being engaged which turned on the somewhat obscure 9 [1949] ATS 3. by the UNOPS, within the meaning of s language of the ruling and on the particular 10 TD 92/153 at [2]. 6(1)(d)(i) of the IOPI Act.7 Their Honours terms of Mr Jayasinghe’s engagement, is of 11 Kiefel CJ, Keane, Gordon and Edelman JJ at [57].

20 [2017] (Summer) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

Going behind a bankruptcy order

Sudarshan Kanagaratnam reports on Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28.

Introduction Interim application questioning whether behind the judgment there was in truth and reality a debt due to The High Court has considered the circum- Mr Compton filed an interim application to the petitioning creditor.’ stances in which a Bankruptcy Court, exer- determine, as a separate question, whether The Full Court held that focussing on the cising jurisdiction under s 52 of the Bank- the Federal Court should exercise its dis- pertinent issue revealed substantial reasons ruptcy Act 1966 (Cth) (Act), may ‘go behind’ cretion to ‘go behind’ the Supreme Court for questioning whether the debt was owed, a judgment in order to be satisfied that the judgment to examine the debt upon which considered afresh whether to ‘go behind’ the debt relied upon by a petitioning creditor is the creditor’s petition was based. judgment and concluded that the Bankrupt- in fact owing. In rejecting a narrow formu- At the hearing of the interim application, Mr cy Court should do so to determine whether lation of those circumstances, the majority Compton sought to rely on a ‘reconciliation’ there was in fact any debt owing to Ramsay. affirmed the approach taken by Barwick CJ of indebtedness between the parties, which in Wren v Mahony1 and emphasised the need purported to show that, in fact, Ramsay owed High Court to have satisfactory proof of the petitioning money to Medichoice and an affidavit from creditor’s debt. one of the joint liquidators of Medichoice to Ramsay sought special leave to appeal to the effect that it was more likely that Ramsay the High Court. By majority (Kiefel CJ, Factual background was indebted to Medichoice. Keane and Nettle JJ, Edelman J agreeing in As to the ‘reconciliation’, senior counsel for separate reasons, Gageler J dissenting), the Ramsay Health Care Australia Pty Ltd Ramsay said that it was an ‘open question’ High Court upheld the judgment of the Full (Ramsay), an operator of private hospitals, whether the calculation contained in it with Court, holding that there was a substantial entered in to an agreement with Compton respect to ‘offsets’ and ‘rebates’ was factually question as to whether the debt that Ramsay Fellers Pty Ltd, trading as Medichoice, correct. was relying on to found the creditor’s petition whereby Medichoice would import medical Section 52(1)(c) of the Act provides that at the was owing and the Bankruptcy Court should products on Ramsay’s behalf and act as a hearing of a creditor’s petition, the court shall investigate this question in order to decide distributor of those products. Mr Compton, require proof of ‘the fact that the debt or debts whether it was open to it to make a seques- a director and shareholder of Medichoice, on which the petitioning creditor relies is or tration order. Central to the High Court’s entered, in his personal capacity, into an are still owing and, if it is satisfied with the reasoning were the judgments in Corney v agreement with Ramsay whereby he guar- proof of those matters, may make a sequestra- Brien and Wren v Mahony. anteed to Ramsay the payment of all monies tion order against the estate of the debtor’. In Corney v Brien, Fullagar J said, in a judg- that Medichoice might become liable for in The primary judge (Flick J) dismissed the in- ment that concurred with that of Dixon CJ, the performance of its obligations under the terim application. He accepted the judgment Williams, Webb and Kitto JJ:5 agreement with Ramsay (Guarantee). as satisfactory proof of the debt and declined Ramsay commenced proceeding in the Su- to undertake his own investigation into No precise rule exists as to what cir- preme Court of New South Wales against whether the debt to Ramsay was truly owed. cumstances call for an exercise of the Mr Compton claiming for monies owed to Mr Compton appealed to the Full Federal power, but certain things are, I think, it under the Guarantee. Mr Compton, who Court (Siopis, Katzmann and Moshinsky clear enough. If the judgment in ques- was legally represented at the hearing, served JJ). On the appeal, Ramsay argued that it was tion followed a full investigation at evidence on the quantum of the alleged debt only in the limited circumstances identified trial in which both parties appeared, but did not read that evidence or dispute by the High Court in Corney v Brien3 namely, the court will not reopen the matter the quantum of the alleged debt. Instead, where ‘fraud, collusion or miscarriage of jus- unless a prima facie case of fraud or Mr Compton relied on a non est factum tice’ was made out, that a Bankruptcy Court collusion or miscarriage of justice is defence to Ramsay’s claim. That defence may, or should, ‘go behind’ a judgment. made out. failed and in the absence of a challenge to Further, Ramsay argued that Corney v Brien quantum, Ramsay was awarded judgment in established that a Bankruptcy Court should Ramsay relied on the above passage in sub- the amount of $9,810,312.33.2 Mr Compton not ‘go behind’ a judgment with which fol- mitting that Corney v Brien established that a did not appeal from the judgment. lows a contested hearing where both parties Bankruptcy Court’s discretion to go behind Mr Compton did not pay the debt and were represented. a judgment after a contested hearing was Ramsay served on him a bankruptcy notice. The Full Court unanimously rejected limited to circumstances of ‘fraud, collusion Mr Compton failed to comply with the Ramsay’s argument.4 The Full Court con- or miscarriage of justice’. bankruptcy notice in the time stipulated and cluded that Corney v Brien did not support Observing that by s 52 of the Act, a ‘Bank- so committed an act of bankruptcy by reason such a narrow view of the function of a ruptcy Court must be satisfied with the proof of s 40(1)(g) of the Act. Ramsay presented Bankruptcy Court. Instead, the Full Court of ‘the fact that the debt ... on which the pe- a creditor’s petition in the Federal Court of applying the approach articulated by Bar- titioning creditor relies is ... still owing’, if the Australia in reliance on Mr Compton’s act wick CJ (Windeyer and Owen JJ agreeing) court’s power to make a sequestration order is of bankruptcy. Mr Compton, in opposing in Wren v Mahony held that the primary to be enlivened’, Kiefel CJ, Keane and Nettle the creditor’s petition, contended that no judge erred in focussing his approach on JJ held that Corney v Brien was not authority debt was owed because the judgment in the forensic choices made in the Supreme Court for the proposition that a Bankruptcy Court Supreme Court was not founded on a debt proceedings rather than ‘the central issue, must treat a judgment as satisfactory proof of that was owed to Ramsay. which was whether reason was shown for the petitioning creditor’s debt, save in cases

The Journal of the NSW Bar Association [2017] (Summer) Bar News 21 RECENT DEVELOPMENTS of fraud, collusion or miscarriage of justice. question was raised in the Bankruptcy Court to this to say that Mr Compton was bound Rather, their Honours held that while a as to whether the underlying debt was owed. by the conduct of his case. That is because the Bankruptcy Court has ‘undoubted jurisdic- In contrast, in the present case there was Bankruptcy Court is concerned to protect tion’ to go behind a judgment in circum- no suggestion of a lack of good faith in Mr the interests of third parties to the litigation stances of fraud, collusion or miscarriage of Compton’s application and while the evi- leading to the judgment debt and those third justice ‘to say that the court may do a thing dence disputing the debt may ultimately have parties (creditors in the bankruptcy) should in certain circumstances is not to say it may been unreliable, absent an investigation, that not be prejudiced by a failure on the part 6 11 do that thing only in those circumstances.’ conclusion could not have been reached. of Mr Compton to present his case on the In Wren v Mahony, Barwick CJ (Windeyer Ramsay further argued that miscarriage of merits such that a sequestration order is made and Owen JJ agreeing) said:7 justice in this context was confined to the while that question remains unresolved.15 kind of miscarriage of justice which would Edelman J, in his concurring reasons, agreed The judgment is never conclusive impeach the obtaining of the judgment. In in bankruptcy. It does not always rejecting that argument, Kiefel CJ, Keane that ‘neither precedent nor principle’ im- represent itself as the relevant debt of and Nettle JJ identified the importance posed a constraint on the power of a Bank- the petitioning creditor, even though of protecting third party creditors. Their ruptcy Court acting under s 52(1)(c) of the under the general law, the prior exist- Honours held12 that ‘in point of principle, Act to ‘go behind’ a judgment obtained after 16 ing debt has merged in a judgment. scrutiny by a Bankruptcy Court of the debt a contested hearing. But the Bankruptcy Court may accept propounded by a judgment creditor seeking Gageler J dissented. His Honour identified the judgment as satisfactory proof a sequestration order in no sense involves the question to be whether Mr Compton of the petitioning creditor’s debt. In an attempt to impeach the judgment’. The had shown a prima facie case for the exercise that sense, that court has a discre- function of the Bankruptcy Court is to fulfil of the discretion to go behind the Supreme tion. It may or may not so accept the its statutory duty to be satisfied as to the ex- Court judgment.17 Gageler J considered18 judgment. But it has been made quite istence of the debt founding the application that Fullagar J’s reasoning in Corney v Brien clear by the decisions of the past that for a sequestration order. The purpose of the had repeatedly been interpreted and applied where reason is shown for questioning scrutiny is not only because ‘a creditor should and should continue be treated as a ‘guiding whether behind the judgment or as it not be able to make a person bankrupt on principle’. His Honour distinguished Wren v is said, as the consideration for it, there a debt which is not provable’ but also to Mahony on the basis that the creditor there was in truth and reality a debt due to protect the interests of third parties and, in chose to rely on the antecedent debt as op- the petitioning creditor, the Court of particular, other creditors of the debtor who posed to the judgment debt which was not Bankruptcy can no longer accept the were not parties to the proceeding resulting entered after a trial on the merits. judgment as such satisfactory proof. in the judgment debt and who should not be His Honour held further19 that creditors of It must then exercise its power, or if prejudiced by the making of a sequestration a bankrupt are not to be protected ‘by an you will, its discretion to look at what order which does not reflect the truth and is behind the judgment: to what is its reality of the debt. exercise of judicial discretion from what consideration. Further, their Honours held13 that there was might be shown in retrospect to have been no suggestion in the cases that ‘merger of poor forensic choices which the debtor made Ramsay sought to distinguish Wren v a debt in a judgment limits the power of a in the course of contested proceedings which Mahony on the basis that it involved a default Bankruptcy Court to go behind a judgment have resulted in a judgment on the merits judgment and submitted that the Full Court so that it is confined to circumstances in against the debtor.’ Accordingly, Gageler J took too broad a view of Wren v Mahony. which the judgment itself might be set aside’. held that the Full Court’s identification of Ramsay argued that a judgment obtained That a prior existing debt is taken, at general the central issue was incorrect and the focus in the absence of fraud or collusion after a law, to merge in the judgment does not op- of the primary judge on whether there had contested hearing precludes the possibility erate ‘to relieve a Bankruptcy Court of the been a failure of legal process was correct in of sufficient reasons for questioning whether paramount need to have satisfactory proof of principle. behind that judgment there was, in truth and the petitioning creditor’s debt’. reality, a debt due to the petitioner. Ramsay’s final argument, that a narrow for- However, Kiefel CJ, Keane and Nettle JJ mulation of the circumstances in which the ENDNOTE held that Barwick CJ’s statement ‘should discretion was to be exercised was consistent not be given the artificially narrow appli- with the principle of finality in litigation also 1 (1972) 126 CLR 212. cation urged on behalf of Ramsay’.8 Their was rejected. Kiefel CJ, Keane and Nettle JJ 2 Ramsay Health Care Australia Pty Ltd v Compton [2015] NSWSC 163. Honours observed that Wren v Mahony held held that while Ramsay’s concession that it 3 (1951) 84 CLR 343. that a Bankruptcy Court may go behind a was an open question whether the calculation 4 Ramsay Health Care Australia Pty Ltd v Compton (2016) 246 FCR 508. judgment, notwithstanding that the judg- in the ‘reconciliation’ was factually correct 5 (1951) 84 CLR 343 at 357-357. ment was obtained after a contested hearing. was ‘no more than an acknowledgment of 6 Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 at [39]. Their Honours said that ‘fraud, collusion or the existence of evidence which might tend 7 (1972) 126 CLR 212 at 224. miscarriage of justice’ are the most frequent towards a different result from that reflected 14 8 [2017] HCA 28 at [43]. examples of the exercise of a Bankruptcy in the Judgment’, that concession meant 9 [2017] HCA 28 at [49]. Court’s jurisdiction to go behind a judgment, that there was evidence before the primary 10 [2005] FCA 978. however the overarching obligation imposed judge, which, if left unanswered, supported 11 [2017] HCA 28 at [52]. by s 52(1) of the Act ‘requires a Bankruptcy a conclusion that Mr Compton was not in- 12 [2017] HCA 28 at [54], [55]. Court to be satisfied that there is, in truth debted to Ramsay at all. 13 [2017] HCA 28 at [58]. 9 and reality, a debt’. Their Honours said that while the failure of 14 [2017] HCA 28 at [66]. Their Honours held that Ramsay’s reliance Mr Compton to rely upon such evidence was 15 [2017] HCA 28 at [71]. 10 on Commonwealth Bank of Australia v Jeans unexplained, there was, prima facie, a real 16 [2017] HCA 28 at [97]-[98]. did not assist it because, in Jeans, Hely J question as to whether Mr Compton had 17 [2017] HCA 28 at [79]. explicitly applied the approach in Wren v failed to present his case on its merits at the 18 [2017] HCA 28 at [81] to [88], [90] and [91]. Mahony though, on the facts of Jeans no trial in the Supreme Court. It was no answer 19 [2017] HCA 28 at [92], [94].

22 [2017] (Summer) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

When are state laws ‘picked up’ by s 79 of the Judiciary Act?

Nicolas Kirby reports on Rizeq v Western Australia [2017] HCA 23.

Introduction with s 114(2) of the Criminal Procedure Act Their Honours referred to the fact that the 2004 (WA) (CPA). words used in s 79 of the Judiciary Act, The High Court has considered when a state It was not in issue that the District Court was namely, ‘laws relating to procedure, evi- law will be ‘picked up’ pursuant to s 79 of exercising federal jurisdiction under s 39(2) dence, and the competency of witnesses’ to the Judiciary Act 1903 (Cth) and applied as of the Judiciary Act. some extent elucidates what is encompassed a federal law when a state court is exercising The appellant argued that because the Dis- within the description in s 79 of state laws federal jurisdiction pursuant to s 39 of the trict Court was exercising federal jurisdic- that are ‘binding’ on a court. That, however, Judiciary Act. The appropriate approach is to tion, s 6(1)(a) of the MDA was picked up and does not invite an excursion into the ‘difficult assess the distinction between the jurisdic- applied as a law of the Commonwealth up by and sometimes elusive distinction between tion of the state court and the power that the s 79 of the Judiciary Act. The effect, so the ‘substance’ and ‘procedure’’.4 court is permitted or required to exercise in argument went, was that the trial was a trial Rather, Bell, Gageler, Keane, Nettle and the exercise of that jurisdiction. on indictment of an offence against a law Gordon JJ considered that the appropriate of the Commonwealth to which s 80 of the way in which to consider which laws s 79 of Background Constitution applied. That provision requires the Judiciary Act will ‘pick up’ is the distinc- the verdict of the jury to be unanimous,1 con- tion between the ‘jurisdiction’ of a court (in Section 75(iv) of the Constitution provides trary to the operation of s 114(2) of the CPA, the Chapter III sense) and the ‘power’ that that the High Court has original jurisdiction which allows for majority verdicts. the court is permitted or required to exercise in certain matters including a matter be- The State of Western Australia, with each of in the exercise of that jurisdiction. Their tween a state and a resident of another state. the Commonwealth and other state attor- Honours said: Pursuant to s 77(iii) of the Constitution, the neys- general intervening, argued that s 6(1) By making state laws that are ‘bind- Commonwealth Parliament may invest other (a) of the MDA was not picked up by s 79 of ing’ on courts also binding on courts courts with federal jurisdiction. Section the Judiciary Act. exercising federal jurisdiction, s 79 of 39(2) of the Judiciary Act 1903 (Cth) does the Judiciary Act takes the text of state just that: investing state courts with federal The judgments laws conferring or governing powers jurisdiction in relation to matters in which that state courts have when exercising the High Court has original jurisdiction. The appeal was unanimously dismissed. state jurisdiction and applies that text When a state court exercises federal jurisdic- The primary judgment comprised the joint as Commonwealth law to confer or tion, certain state laws are ‘picked up’ and reasons of Bell, Gageler, Keane, Nettle and govern powers that state courts and applied as federal laws pursuant to s 79 of the Gordon JJ. Kiefel CJ and Edelman J deliv- federal courts have when exercising Judiciary Act. Section 79(1) of the Judiciary ered separate concurring reasons. federal jurisdiction.5 Act provides: Bell, Gageler, Keane, Nettle and Gordon The laws of each state or territory, in- JJ held that the MDA imposed criminal Kiefel CJ concluded that s 79 of the Judici- cluding the laws relating to procedure, liability as a law of Western Australia and it ary Act was directed to courts and that its evidence, and the competency of wit- continued to apply to govern his criminal li- purpose was to ‘fill the gaps created by a lack nesses, shall, except as otherwise pro- ability, notwithstanding that the jurisdiction of Commonwealth law governing when and vided by the Constitution or the laws subsequently exercised by the District Court how a court exercising federal jurisdiction is of the Commonwealth, be binding on to resolve the controversy between him and to hear and determine a matter and the ina- all courts exercising federal jurisdiction the State of Western Australia about the bility of a state law to apply directly to that in that state or territory in all cases to existence and consequences of that criminal court whilst exercising federal jurisdiction’. 2 which they are applicable. liability was federal jurisdiction. In such a case, it is necessary that s 79 adopt Therefore, although the District Court was the state provision and apply it.6 exercising federal jurisdiction, s 79 of the Accordingly, by that reasoning, s 114(2) of the The issue Judiciary Act ‘was not needed, and was not CPA was such a provision as it regulated the engaged’ to pick up and apply the text of manner in which a person’s guilt or innocence Rizeq was a NSW resident charged with of- s 6(1)(a) of the MDA as a law of the Com- was to be determined by a court. However, fences against s 6(1)(a) of the Misuse of Drugs monwealth. The trial was of offences against s 6(1)(a) of the MDA was not such a pro- Act 1981 (WA) (MDA). After a trial in the a law of a state and not of offences against a vision. It created an offence and applied District Court of Western Australia, he was law of the Commonwealth, and s 80 of the directly, of its own force. There was therefore convicted by majority verdict in accordance Constitution had no application.3 no need for it to be ‘picked up’ by s 79 as its

The Journal of the NSW Bar Association [2017] (Summer) Bar News 23 RECENT DEVELOPMENTS application was unaffected by the fact that the court deciding the matter was exercising under wraps federal jurisdiction. Therefore, s 80 of the Constitution was not engaged.7 Edelman J outlined four possible construc- tions of s 79 of the Judiciary Act:8 First, that s 79 refers to all statutory laws of a state and thus all state laws become federal laws in a court exercis- ing federal jurisdiction. This was the broadest construction and the only one which would, if accepted, have yielded success for the appellant.

Secondly, that s 79 refers to statutory laws that confer powers on courts or that govern or regulate a court’s powers. Edelman J said that this was the construction adopted by the other two judgments.

Thirdly, that s 79 refers to only those statutory laws that govern or regulate the powers that a court exercises as part of its authority to decide. This was the construction that Edelman J preferred.

Fourthly, that s 79 refers to laws con- cerning procedure rather than sub- stance. Edelman J said that this was the construction adopted by the WA Photo: Darren Covell / New South Wales Bar Association Court of Appeal. Edelman J acknowl- eged that this construction found some support in early High Court decisions but had been since rejected and was not supported by any party or intervener. The other judgments also rejected the notion that the laws referred to by s 79 are informed by the substantive/procedural dichotomy.

His Honour found that the appellant’s construction had ‘significant support’ in some High Court decisions.9 His Honour examined each of those authorities in detail and concluded that the result in each would be maintained if the second or third con- struction were adopted. In Edelman J’s view, the third construction best accorded with the history, text, context and purpose of the section.10

ENDNOTES

1 Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44. 2 [2017] HCA 23 at [40]. 3 [2017] HCA 23 at [41]. 4 [2017] HCA 23 at [83]. 5 [2017] HCA 23 at [87]. 6 [2017] HCA 23 at [32]. 7 Ibid. 8 [2017] HCA 23 at [115]–[122]. 9 [2017] HCA 23 at [109].

10 [2017] HCA 23 at [181]–[197]. Photo: Richard Cheney SC

24 [2017] (Summer) Bar News The Journal of the NSW Bar Association ADDRESS

2017 Sir Maurice Byers Lecture The law as an expression of the whole personality1

James Allsop* Photo: Murray Harris Photography Harris Murray Photo:

I have taken the title of this evening’s lecture whole. It is incapable of definition. It can be seen as a human feature – as part of the from a short, but powerful, article on the be described, though not fully. It is neither human search for order. It is a way of think- advocate’s view of the judiciary, given by Sir understood nor described by breaking it ing abstractly, in particular about parts and Maurice Byers in 1987, in which he wrote: 2 down into separate component parts (if they their ordering, as opposed to thinking about be separate at all), though the the whole and its character in- The law is an expression of the whole parts may help one understand Subtlety and cluding its implicitness – about personality and should reflect the the whole. It can be illuminated its whole personality. values that sustain human societies. by many things – art, poetry, complexity are How do these features of per- The extent to which those values music, metaphor, dance. It can sonality have relevance for the influence the formulation of the law be appreciated by experience. not matters of law? How do these different varies according to the nature of the It is full of contradiction. It is features and perspectives of the particular legal rule in question. made up of the explicit and the choice. They are personality affect legal think- What did Sir Maurice mean by the phrase implicit, the contradictory and ing, judicial technique and legal ‘law as an expression of the whole person- the ambiguous. It lives relation- how life is. They doctrine? There is something to ality’? We cannot ask him now, but we can ally, as part of human exchange be said, in thinking about the look around and discern the shape and fabric and experience. are features of the law, of the relationship between of an answer: an answer that reflects his Where is the place of logic, of abstraction and theoretical tax- subtlety, complexity and humanity. Subtlety abstracted idea, and of taxono- human, as a whole. onomical ordering of the parts, and complexity are not matters of choice. my in a personality? Taxonomy on the one hand, and a feeling They are how life is. They are features of the is an abstraction of the mind. It is the disem- of the human, the relationally experiential human, as a whole. bodiment of the whole into its parts into an and the contextual, on the other. It is this A personality is a human attribute, an organised logical structure. It can be seen as that I wish to explore from Sir Maurice’s outward expression of the character of the a depersonalised abstraction; but it can also phrase.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 25 ADDRESS

One dimension of the meaning and content sion. Sometimes striving to define in order to legal doctrine and rules to contemplate the of the phrase, ‘the law is an expression of the reach greater precision and clarity is counter- force and power of the phrase. whole personality,’ can be implied from its productive; it brings lack of clarity and false I propose to discuss a number of topics of place in the paper. It followed shortly after distinctions when the subject does not yield private and public law, civil and criminal, the citation of a passage from Sir Anthony meaning beyond a general expression. The in order to suggest the depth of Sir Mau- Mason’s 1987 Lecture en- ‘unacceptable risk’ of sexual abuse of a child rice’s statement, and in order to illustrate titled ‘Future Directions in Australian Law’.3 to justify an order denying a parent custody what I am searching for in exploring the Sir Anthony referred to the evolving concept of the child is an example.5 Unacceptable phrase, in particular its suggested element of the democratic process moving beyond risk is not to be further defined. This is so of the humanity of the law. This is not an an exclusive emphasis on parliamentary su- – because of the human and experientially exercise in seeking to show the gentleness or premacy and majority will, and to the respect founded nature of the subject: the test is left goodness of law, rather to show its structure, for the fundamental rights and dignity of at the appropriate degree of generality, to be fluidity, simplicity, complexity, intellectual the individual. In this respect, Sir Anthony judged against the facts. abstraction and experiential blunt reality.

said: ‘[t]he proper function of the courts is Taxonomy’s relationship with the messiness The relationship between rules and values to to protect and safeguard this vision of the of reality is important for law. Taxonomy too which I just referred reflects, to a degree, an democratic process’.4 simplistically arrived at will see the complex abstracted dialectic in this enquiry, in that The phrase used by Sir Maurice links the and subtle made falsely simple. Taxonomy both are conceptions. Though the critical law to the individual, not as a political ab- too elaborately structured will see the simple values that inform the law, the dignity of straction, but as a human in his or her living made complex, and the complex made in- the individual and the rejection of unfair- character. It is the human, with all his or comprehensible, with false distinctions and ness, are conceptions, they are derived from her frailties, strengths and limitations, who dichotomies, definitions and emotion, sentiment, the human is entitled to dignity, not the atomised and distinctions without difference, The world may be condition and social experience. abstracted element of society. making the meaning of the These values come from life and The phrase (expression of the whole person- whole obscure. ruled by words, but experience. As important as the ality) implies the necessary wholeness of the Something may also be drawn contrasting of rules and values law. It also implies the humanity of the law, from the balance of Sir Mau- it is understood is the relationship between the as something constructed of more than (but rice’s sentence in which the abstract (in its different forms) including) organised abstractions and rules. phrase appears – that the law by the implicit. and the experiential (in its It must be more than this if it is to express a should reflect the values that countless manifestations). It personality. The phrase denies the exclusive sustain human societies. This directs one to is from the experiential that the abstracted authority of the abstracted rule as the essence the relationship between rules and values. human values that sustain societies manifest or nature of law. The derivation of rules from values, and themselves in concrete situations, in law and To say that law is an expression of the whole the importance of values to the law which in society. It is the human and the experien- personality is not to deny the central place of I have elsewhere explored6, can perhaps be tial that give the proper context for the deri- articulation of rule, of clarity, of precision, of explained and illuminated by today’s dis- vation and expression of rules, principles and logic, of abstracted ideas, and, where helpful, cussion – by focussing on the way life and law. From that derivation, rules, principles of the giving of coherent taxonomical form experience, as much as abstracted theory, and law become infused with values. to necessary abstractions of rules. But it is to shape the law. These ideas and this perspective, are not deny the complete dominion or hegemony Too detailed an explanation of Sir Maurice’s just important to the content of substantive of such. That denial is necessary for doctrine phrase, pregnant as it is with meaning and legal doctrine, but they are also important to be shaped in a fully human form, and for implicit metaphor and nuance, may deaden for how we think about the law and how we the application of law to control power in its meaning by the flat weight of prose. The express ourselves. For that reason, I wish to human society. At times, this requires the better approach may be to look at some ex- say something a little later about statutes and recognition of the limits of text and expres- amples of the formation and application of their expression.

26 [2017] (Summer) Bar News The Journal of the NSW Bar Association ADDRESS

Let me begin with a simple example. No cellor’s interference with the enforcement the setting aside of freely entered bargains by one now would deny the objective theory of of defeasible conditional penal bonds (the reference to values. Dunlop, you will recall, contract. The formation and meaning of the origins of the doctrine of penalties11), the concerned a contract for the supply of trade- contract is to be judged by notions of objec- concern of the courts was the control of marked ‘Dunlop’ tyres, tubes and associated tive reasonableness.7 Within that framework, private power. The human imperatives that products to a garage. As was permitted at the place of the plea of non est factum sits generated that exercise of state authority were that time, the contract contained a resale awkwardly. It is grounded on the lack of sub- not capable of definition, but were capable of price maintenance clause with a provision jective consent. But, as Lord Wilberforce put description and recognition from an exami- for the payment of £5 by way of ‘liquidated it in Gallie v Lee,8 the doctrine is necessary nation of circumstances and by reference to damages’ for every article sold in breach of as an instrument of justice. The cases recog- experience. Thus, the notions (all concepts of the agreement. The garage sold the tyres for nise the difficulty in theoretical expression value, degree and indeterminacy) of exorbi- a lower price, thus breaching the agreement. in identifying the boundary (if there truly tance, unconscionability and extravagance The court held that the clause providing for be one) between non est factum and lack of were enunciated as the core of the doctrine. the £5 payments was a valid liquidated dam- capacity (with the differences in remedial The values that underlay these notions were ages clause.19 The four tests of Lord Dunedin consequences) but coherence is maintained decency and fairness in the relational ar- were summarised by Lord Neuberger and by the experientially derived expression of rangements of commerce; derived not from Lord Sumption in Cavendish as follows:20 principle and its application to concrete definitions, but through lived experience. (a) that the provision would be penal if facts. This is an example of one As the doctrine developed ‘the sum stipulated for is extravagant rule qualifying another for the Certainty is through the 18th century, cases and unconscionable in amount in necessary response of the law were decided, rules emerged, comparison with the greatest loss that to human considerations in the sometimes best and surrounding private law could conceivably be proved to have control of power, and the place developed.12 The separate doc- followed from the breach’; (b) that the of the law in protecting the vul- created not by trinal and precedential growth provision would be penal if the breach nerable, by reliance on rule or of the common law and equity, consisted only in the non-payment of principle expressed generally by drawing a black together with the intervention money and it provided for the pay- reference to human experience. of Parliament13 revealed a ment of a larger sum; (c) that there was Let me turn to a creature of line, but by creating body of law tolerably coherent a ‘presumption (but no more)’ that it law and equity – the doctrine which saw provisions acting as would be penal if it was payable in a of penalties in obligations. I a recognisable space. security for the performance of number of events of varying gravity; propose to spend a little time conditions (promissory in the and (d) that it would not be treated as on the subject because it displays with some view of the United Kingdom Supreme Court penal by reason only of the impossi- clarity how the abstract and the experiential but not so restricted according to the High bility of precisely pre-estimating the interrelate in the formation of legal doctrine. Court14) limited in their effect to what was true loss. The setting aside or reforming of private con- just and appropriate given their fundamental tractual arrangements because of the presence purpose to act as security for the primary The contemporary significance of Dunlop of a penal provision has a long history. It was performance condition. was that it was an attempt to draw together recently described by Lord Neuberger and The 19th century saw the development of centuries of cases in equity and at common Lord Sumption as ‘an ancient, haphazardly a more rigidly structured approach and a law and the differing approaches of judges constructed edifice which has not weathered change in focus. This coincided with, and with different philosophical views into a well’.9 It might be thought, however, that if grew out of, the development of the modern stable structure that yet provided for flex- a doctrine has developed and changed over law of contract. There came to be an em- ibility. The framework laid down by Lord 700 years, and still maintains a contempo- phasis on the intentions of the parties in a Dunedin had two central features. The rary relevance, it is hardly surprising, in a society increasingly influenced by laissez faire first was the identification of the relevant legal system built on the literal expression philosophy which saw debates framed in legal technique – he called it ‘this task of of rules, that there have been twists, turns terms of rules and precedents, not in terms of construction’.21 This can be seen, if only in and inconsistencies and that the doctrine is a experientially and relationally derived norms language, to be a doctrinal recognition in little weather-beaten. When one looks to the of conduct applied to circumstance. The the compromise of those judges (such as history of the doctrine,10 one is struck by the doctrine became fixed around the distinction Lord Eldon22 and Sir George Jessel23) who feature that different judges saw different pri- between the penalty and the genuine pre-es- had given primacy to the intention of the orities and different rationales for the inter- timate of damage, albeit expressed in terms parties in describing the clause as a genuine ference with freely-entered bargains. But the of extravagance and unconscionability. In the pre-estimate of damage, which was, by then, principal problem has been the attempts by first fourteen years of the 20th century, three the reflex of the penalty. But, Lord Dunedin judges to define the limits of a concept which powerful courts in a Scottish appeal in the did not mean construction in the strictly is to a degree indefinable, to express abstract House of Lords (from a jurisdiction without textual and interpretive sense. He meant rules as a comprehensive representation of a separate stream of equity),15 a Privy Council characterisation of all the circumstances human standards which are experientially appeal from the Supreme Court of the Cape including (but not bound by) the language and relationally founded and recognised in of Good Hope,16 and an English appeal in of the parties: ‘upon the terms and inherent circumstance, not logically or theoretically the House of Lords,17 sought to reconcile the circumstances of each particular contract’.24 derived. One aspect of this is the limits of abstracted rules and the experientially and Characterisation goes beyond ascription of language. Clarity of expression is vital, but relationally derived human values. meaning and is not a process of definition; only up to, not further than, the end point In the third of those cases, Dunlop Pneumat- it is the evaluative formation of a conclusion of its utility. Recognising that point is not ic Tyre Co Ltd v New Garage and Motor Co from given circumstances applying explicit necessarily easy or self-evident. But a recog- Ltd,18 Lord Dunedin provided a remarkably or implicit norms, values and assumptions. It nition that there is or may be such a point is lucid compromise that became the orthodox is a process and legal technique that pervades of some importance. The world may be ruled penalties model for the 20th century. Its the law and legal thinking that sometimes by words, but it is understood by the implicit. stability came from its form as a rule-based goes ignored, and often goes unrecognised or From the earliest examples of the Chan- construct to solve the enigma to positivists of unremarked.25

The Journal of the NSW Bar Association [2017] (Summer) Bar News 27 ADDRESS

The second feature of Lord Dunedin’s frame- interests of the obligee. The former tended real life. Certainty is sometimes best created work was the expression of tests or rules that to be the approach taken until recently; the not by drawing a black line, but by creat- had a significant degree of certainty, but latter has now commended itself to both the ing a recognisable space. Business people which sought to embody the value-based United Kingdom Supreme Court and the understand conceptions rooted in business heart of the doctrine: a money stipulation . experience. Thus, one buttresses freedom that is extravagant and unconscionable in In Cavendish Lord Neuberger and Lord of contract by the textually less precise, but amount compared with the greatest loss that Sumption recognised the vice of rule-mak- experientially more certain principle because conceivably could be proved to have followed ing in this area. They spoke of the doctrine of of its closeness to commercial reality without from the breach. Around these two features penalties having become: 28 the need to follow precise rules of potentially moved ‘propositions’ that too often were arbitrary application. The buttressing of taken as rules. We see in Lord Dunedin’s the prisoner of artificial categorisa- freedom of contract can be seen in the results structure a search for clarity by structure, yet tion, itself the result of unsatisfactory of Paciocco, Cavendish and ParkingEye where a vindication of human relational standards. distinctions: between a penalty and the interests recognised as legitimate went genuine pre-estimate of loss, and be- beyond a mechanical approach involving tween a genuine pre-estimate of loss comparison with damages calculated in and a deterrent. the usual way. The recognition of the importance of legit- They recognised that:29 imate interests of the obligee, and the bal- ance with freedom of contract was perhaps These distinctions originate in an no better said than in 1986 by Mason and over-literal reading of Lord Dunedin’s Wilson JJ in AMEV-UDC,37 in a passage four tests and a tendency to treat them that has been recently recognised by Lord as almost immutable rules of general Hope for its importance.38 Together with the application which exhaust the field. recent formulations of the Supreme Court … All definition is treacherous as and the High Court, this passage contains applied to such a protean concept. experientially founded principles that bal- The concept is protean (and so changeable, ance two fundamentals of commercial law polymorphic and variable) because it is – freedom of contract and the control of human and experientially based, and to be unconscionable exercise of power through recognised as such, by reference more to the recognition of the relevance of inequality value than to rule. of bargaining power.39 Although disagreeing in an important respect Let me now turn to restitution. There have about the relevance of a breach of contract been tensions and contrasts in the recent to engage the doctrine, the Supreme Court development of the law in England and Aus- in Cavendish30 and Parking- tralia, and over more than three Eye31 and the High Court in Certainty and centuries between judges of dif- A more simply expressed expression of the Andrews32 and Paciocco33 have ferent generations. This can be test came from the speech of Lord Atkinson moved away from a rule-based predictable coherence seen in the different importance (which has become central in the recent structure to one based on the given to abstracted rules on the cases). Lord Atkinson saw the broad justifica- evaluation of interests. In An- is a basal feature one hand, and to relational con- tion for the impugned provision by reference drews, drawing on the broader ceptions based on experience to the legitimate interests of the obligee.26 formulation of the obligee’s of a mature and and values, on the other. The core of the matter was extravagance and interests as articulated by Lord In 1760, in Moses v Macferlan40 unconscionability of compensation by refer- Atkinson in Dunlop, the High civilised legal system. Lord Mansfield sought to ence to something. The ‘greatest possible loss’ Court said it would look to replace an unstructured and was the phrase most often used, being rooted ‘whether the sum agreed was commensurate historically-based body of rules and causes of in the doctrine’s history concerned with with the interest protected by the bargain’.34 action with a principle: ‘the defendant, upon securing performance and the remedial con- This idea of legitimate interest was adopted the circumstances of the case, is obliged by sequences thereof. The greatest possible loss (variously expressed) by the members of ties of natural justice and equity to refund the has an obvious and direct relationship with the court in Paciocco.35 The members of the money.’41 By the early 20th century, the rules the protection of the legitimate interests of Supreme Court expressed the matter not and precedential analysis thrown up by 19th the party to whom performance is owed, but dissimilarly.36 century positivism, saw English courts retreat it does not necessarily define those interests That the doctrine is experientially and rela- into more (barely logical) rules excluding, comprehensively. One can (as the cases from tionally based, not logically founded on ab- and sometimes with condescension describ- the 19th century did) seek to concretise the stracted rules, is a powerful reinforcement of ing, the place of conscience and equity in this law to give certainty. This is what dominated the true nature of the doctrine and of its role field. In 1913 in Baylis v Bishop of London,42 the analysis in the 19th century: what could in the control of the exercise of private power, Hamilton LJ (later Lord Sumner) described be taken as a genuine pre-estimate of damages but in a way that does not undermine central Moses v Macferlan as ‘vague jurisprudence’. was not a penalty. One could, perhaps in the legal values of party autonomy, freedom of In 1914 in Sinclair v Brougham the House of search for certainty, make this assessment by contract and faithfulness to the bargain. This Lords (including Lord Sumner) equated res- going to more rules about recovery of damag- proper balance is not achieved by rules that titutionary recovery to the availability of, and es under Hadley v Baxendale27 and such cases give a false sense of certainty, but which in rules concerning, implied contract.43 In 1923 against which to compare the amount in the fact undermine freedom of contract by ig- in Holt v Markham,44 Scrutton LJ referred clause. Or, one could make the evaluation by noring business relational reality in the par- condescendingly to Mansfield’s ‘well-mean- reference to a broader conception closer to ticular circumstances of the case. Rather, the ing sloppiness of thought’. human experience, expressed more generally, balance is achieved by experientially founded But Moses v Macferlan today, certainly in involving the protection of the legitimate evaluation of the genuineness of interests in Australia, provides the principled foundation

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and the unifying concept of the law of resti- of an unjust enrichment cause of action.52 rules made there. tution. In a series of cases,45 the High Court There are, however, signs that the Supreme Certainty is made by strong, clear, reasoned has been largely faithful to what might be Court is softening this somewhat strict taxo- principles based on trust, honesty, reason, said to be the development of doctrine from nomical approach.53 common sense and good faith. These are the experiential – by recognising a unifying That the two approaches can lead to very human values and qualities not definable, concept of unjust enrichment drawn from different results can be seen in the case of but regularly displayed and recognised by human intuitive response, recognising its Ford.54 The decision of the trial judge that commercial people, which lower the transac- application in particular known factual the recipient of funds received an incontro- tional costs of business. circumstances, and using legal reasoning vertible benefit making him liable to repay it New York is, and was in the early 20th (inductive and deductive) to consider the to the lender, in circumstances where he was century, a world commercial centre. It was concept’s application to human circumstanc- vulnerable and simple-minded and duped then, and no doubt still is, home to judges es. This was the force of what was said by by his son to part with the money, have the of great commercial acumen. In the 1920s Deane J in 1987 in Pavey & Matthews Pty hallmarks of a legitimate and structurally and 1930s, these judges included the great Ltd v Paul, when he said:46 sound application of the Birksian rule of Cardozo. Not only was he a great lawyer and [unjust enrichment is a] unifying legal enrichment by incontrovertible benefit by judge, but also he wrote with a style and grace concept which explains why the law receipt of money. The Court of Appeal eval- that exemplified the importance of language recognises, in a variety of distinct cat- uated the justice of the case where the simple to law. Language is not merely the vehicle of egories of case, an obligation to make and vulnerable man had signed documen- meaning, it is a source of law, because it has fair and just restitution … and which tation in circumstances plainly the capacity to excite meaning assists in the determination, by the or- bespeaking his weakness to the The law as and understanding through dinary processes of legal reasoning, of mortgage originator and which feeling. The implicit strength of the question whether the law should, enlivened the doctrine of non est to criminal an idea gives the idea a quality 55 in justice, recognise such an obligation factum. A taxonomy of a cause that distinguishes it. Thus, to in a new or developing category of case. of action based on incontro- responsibility should understand the nature of the vertible enrichment would have requirement of fiduciary trust, The recognition of restitution resting on led to a gross injustice by any be as certain as one can read text book after unjust enrichment took place in England in human standard. The appeal text book, case after case, Cor- 1991 and 1996 in Lipkin Gorman v Karpnale was allowed. possible, with as porations Act provision after Ltd47 and in Westdeutsche.48 But English law Let me say a little more about Corporations Act provision, but has been substantially informed by the work certainty in commercial law. little place for value one will never obtain a better of the great English scholar of restitution, Certainty and predictable sense, feeling or sentiment of fi- Professor Peter Birks. He embarked upon coherence is a basal feature of judgment as is duciary trust than by reflecting the great task of seeking to divine an overall a mature and civilised legal upon Cardozo’s famous dictum structure or taxonomy for the law of resti- system. The less certainty, the reasonably possible. in Meinhard v Salmon:56 tution. Birks’ contribution was of immense more risk; the more risk, the significance; it demonstrates the benefits (but higher the cost. A trustee is held to something stricter also perhaps risks) that flow from structured But certainty is not gained by the written than the morals of the market place. and analytical thinking about the law. Birks word alone. It is derived and felt from an un- Not honesty alone, but the punctilio contended that a case should be analysed49 derstanding of a stable and known position. of an honor the most sensitive, is then according to a framework of whether a That comes as much from a known demand the standard of behavior. defendant has been enriched, whether the for trust, honesty and a lack of sharp practice enrichment was at the plaintiff’s expense, as from clarity of expression. That is why, in And common law is no different to equity. whether there was a most civilised legal systems, there is a con- In dealing with a building contract in 1921, Language is not vitiating factor pres- cept of good faith in the law of bargains; not Cardozo was faced in Jacobs & Young v Kent57 ent that made the en- as a particular or specific implied term upon with a problem of substantial performance merely the vehicle richment unjust, and which to seek damages, but as a pervading and dependent promises. A builder had whether any relevant norm that helps supply the blood and oxygen been required to install a particular brand of of meaning, it is defences were open to honest common sense in the process of piping. A subcontractor had installed a dif- on the facts. These implication and construction of contracts. ferent brand, but one which was qualitatively a source of law, elements, drawn, to Litigation lawyers in particular (by which substantially equivalent. The owner refused a significant degree, phrase I include judges) sometimes resist to pay the balance of the contract sum until because it has the from abstracted these ideas in the name of certainty. That the whole piping was replaced with piping deductive reasoning, resistance can sometimes partly be traced to of the brand requested – an onerous and capacity to excite then led to a conclu- the fact that many gained their ‘commercial’ expensive task. There is much in Cardozo’s sion as to whether a experience from ‘commercial’ litigation. The language that illuminates the process of meaning and defendant has been difficulty with that is they see commerce at characterisation of terms, and the commer- unjustly enriched.50 the failure end, at the place of unravelling cial values which underpin the law. Speaking understanding Evaluative judgment of relationships, where parties sometimes of the process of characterisation of terms as or discretion of what seem to compete with each other to be more dependent or independent, he said:58 through feeling. is said to be uncon- unreasonable, dishonourable, greedier or scionable was to be meaner than the other. Litigation is often a Considerations partly of justice and eschewed.51 place of little trust, and less good faith. The partly of presumable intention are to Birks’ framework, as taken up in English trouble is that the common law is forged in tell us whether this or that promise law, presents an analysis with an abstracted such a place. That is unfortunate because shall be placed in one class or another structure and which could be considered the other 99 per cent of commercial parties … Intention not otherwise revealed as dividing unjust enrichment into distinct who do not need to go to court to engage in may be presumed to hold in contem- elements that come to approach constituents mutually profitable arrangements have their plation the reasonable and probable. If

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something else is in view, it must not the citizen becomes criminal and becomes under 14 – was manifestly inadequate. A be left to implication. There will be no subject to punishment. But the conception of universe of factors can be expressed, but the assumption of a purpose to visit venial wrongdoing is relational and experiential and conclusion can only be reached intuitively faults with oppressive retribution. at some point in the expression of the rule by contemplation and elucidation. The com- clarity is best achieved by ceasing to define, prehensive expression of the precise weight He then went on to say something of symme- or clarity is impeded by continuing to define. and importance of each factor is impossible try and logic, saying:59 Such considerations no doubt have been because the task is the assessment of the important to the general expression of the whole by reference to a human judgment of Those who think more of symmetry offence of misconduct in public office. The appropriateness and justice, based on expe- and logic in the development of legal criminal cartel provisions of the Competition rience and instinct. The plurality judgments rules than of practical adaptation to and Consumer Act 2010 (Cth)62 when read in Wong and Markarian are clear in their the attainment of a just result will be with the Commonwealth Criminal Code63 expression of these concepts. The concurring troubled by a classification where the and the definition-ridden insider trading judgment of McHugh J in Markarian illumi- lines of division are so wavering and provisions of the Corporations nates them with literary power blurred. Something, doubtless, may Act 2001 (Cth)64 are perhaps ...the subject is power: in a piece of writing of devas- be said on the score of consistency and examples of more text leading tating force. His Honour cited69 certainty in favour of a stricter stand- to less clarity. who is authorised to the gritty blunt expression of ard. The courts have balanced such Upon conviction, the criminal the depression years of Sir Fred- considerations against those of equity must be sentenced to punish- wield it, how should erick Jordan in Geddes70 that and fairness, and found the latter to ment. From the universe of evokes in the mind the human be weightier …Where the line is to be liability where rule is central it be exercised and circumstance, reality and trag- drawn between the important and the to legitimacy, one moves to a edy of Mr Geddes’ crime – the trivial cannot be settled by a formula. universe where rule is part, but what are its limits? drunken beating to death of his only part, of an exercise that is physically more powerful rival These words reveal the importance of the experientially intuitive at heart. Rule plays a after the taunts of his estranged partner – an human and the just as well as of the word in part because sentencing must be undertaken intended ‘thrashing’ that ended a life. It is commercial law. That is because law is to be in accordance with relevant legislation. But from the articulation of the reality that the felt as well as read to be understood. Com- it is the human response which dominates. justice of the response, so long ago, is still felt. mercial people do that for a living in their That sentencing must be undertaken accord- This is law and justice, because it is not all own relational activity. ing to statute directs one towards, not away abstracted rule. This is why McHugh J was so Let me turn to the criminal law. There, most from, the ultimately intuitive response to the correct, if that expression be permitted, when clearly, one can see the places of the rule and offending by the offender. The duty of the he stressed in Markarian71 the importance of the value, and the abstracted expression and sentencing judge is, as the High Court said the transparent articulation of the instinctive the experiential. in Elias, ‘to balance often incommensurable synthesis. I would only respectfully add that The need to define, with clarity, the limits and factors and to arrive at a sentence that is just the articulation requires the direct language content of criminal liability is clear, indeed in all of the circumstances’.65 The instinctive of life; and also that there exist limits, and a perhaps self-evident. The law as to criminal synthesis66 is the human, and not mechanical likely ultimate inadequacy, of that articula- responsibility should be as certain as possible, or mathematical, response to the circum- tion, because of the nature of the conclusion with as little place for value judgment as is stances and the often conflicting factors and as, at least partly, an implicit human response reasonably possible.60 This is so even though considerations. There are no quantitative of feeling to the circumstances of life and the criminal law is regulating boundaries or rules of literal the human condition. It is the feeling from human relationships and expe- The duty of the application in sentencing. It is which, at least in part, the law springs. rience. That is not to say, howev- a process fixed upon individual- Within sentencing lies complexity, humanity er, that the content of the rules judge is to reflect the ised justice in the context of the (sometimes with its contradictions), rule of of liability must not be derived offender’s relationship with so- statute and general law, values and societal from a human experiential and human, experiential ciety. It is the evaluation of the response and will to the always unique cir- relational sense of justice. If the human context of the offender cumstances of an individual’s life and rela- rules of criminal responsibility and relationally that marks the process, eschew- tionship with society. The duty of the judge do not conform to, and are not ing any structured approach, or is to reflect the human, experiential and expressed by reference to and whole response of mechanical application of any relationally whole response of society, not as in language conformable with, abstracted rule. These themes a person, but as the embodiment of just state the relationally human and the society; not as a have dominated the jurispru- power. Thus, in a modern judicial reflection experiential, they will lose com- dence of the High Court since of the medieval theory of kingship of the munity consent and respect. person, but as the Wong.67 The experiential, the King’s Two Bodies72, the societal response is Sometimes, however, the eval- implicit and the importance of administered by a human, but one necessar- uative assessment is a central embodiment of feeling to the human circum- ily abstracted; an abstracted representation part of an offence. The offence stance allows the court as an of human society. The contradictions, the of wilful misconduct in public just state power. institution, with its experience requisite balance, and the inability to draw office includes as elements of and knowledge, to express its workable and legitimate conclusions only the offence ‘wilful misconduct, by wilfully response as the manifestation of just state from the application of abstracted rules in neglecting or failing to perform his duty in a power to the inherently human, infinitely this field can be seen and understood in way that merits criminal punishment’.61 varied, often tragic and violent situations Chief Judge Haynsworth’s expression of the Further, to recognise the central place of the before it. One cannot reason out in logic, or purpose of the criminal law and its charac- expression of the rule in criminal liability even describe, except by conclusions evoked ter in US v Chandler73 cited by Gleeson CJ does not detract from the force of something from human feeling, why the sentence im- in Fardon74, and in the human tragedies I said earlier about the limits of text. Rules are posed on the step-father in Dalgliesh68 – who dealt with in the judgments in Veen (No 1) necessary to make clear the line past which had committed incest with his step-daughter and (No 2)75.

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These are not new concepts. They are often that is legal and regular, not arbitrary, vague context, a loss of the expression of the human found in, indeed they pervade, the law. The and fanciful;78 the illegitimacy of a decision purpose of the law. Language is vital for the vain search for definition or explanation of that would not be reached by a reasonable expression of the idea in a way that makes a subject beyond that which the subject will or sensible person.79 Many expressions have its implicit boundaries, context and meaning admit can be seen in a wide variety of con- been employed80, but all are centred on how understandable. To deconstruct into parts texts, from the impossibility of defining con- a human would act, or should act when and to attempt to express by the exhaustive stitutional conceptions beyond such phrases wielding power. Where one cannot find expression of all the parts may not give an as ‘direct’, ‘remote’ and ‘pith and substance’76 some known kind of error but one is seeking understanding of the whole because it may to the protection of the child from ‘unaccept- to make an assessment about the legitimacy hide the implicit in the whole: that which able risk’ in family law, to intuitive synthesis of the exercise of the power from the result, emerges only from the whole, from the ex- in sentencing in criminal law, to the charac- one’s task is evaluative. It is an assessment pression of the personality. terisation of the seriousness of breach in con- framed by any relevant statute, by the nature That the law is drawn in part from an inde- tract law, to the central notion of causation and character of the decision, its legal context finable human source – a source of feeling, in all fields of the law – to wherever one is and attendant values of the common law. of emotion, of a sense of wholeness – gives dealing with a sub- Within the framework of the supervision of it a protective strength in the service of That justice cannot ject which in part is legality, one must assess the decision using human society. That source of feeling and indefinable because descriptive and explanatory phrases of the emotion includes a sense of, or need for, be defined is its of its relationally kind just mentioned. This is to translate the order, but order in its human place, and not human or experien- human into the legal; not to impose the legal overwhelmed by abstraction and taxonomy. inherent strength. tial character. upon the human, as if the former was logical- That partly indefinable sense of wholeness Let me say some- ly and abstractedly derived. of the law allows it to protect and safeguard thing of administrative law. I use the ex- Let me finish with the central topic of the vision of democratic process to which Sir pression ‘administrative law’. The rules and statutes. We live, at least with much Com- referred. It provides the sys- principles concerned with the exercise of monwealth legislation, in an age of detailed temic antidote to logical reductionism that public power are better conceptualised as deconstructionism. The elemental particu- on its own would see the law as the sharp part of constitutional law. It is a branch of the larisation of modern day legislation – its instrument of those who control power. law whose shape and texture are very much deconstructionist form, sometimes arranged That justice cannot be defined is its inherent affected by what I have been discussing. This more like a computer program than a narra- strength and permitted such a great lawyer is so for a simple reason that lies at the heart tive in language to be read from beginning to and legal thinker as Sir to of constitutional and public law – the subject end, reflects a modern cast of mind intent on say that ‘a capacity in special circumstances is power: who is authorised to wield it, how particularity, definition and scientific com- to avoid the rigidity of inexorable law is of the should it be exercised and what are its limits? position and structure that is dismissive of very essence of justice’.81 Power is a relational concept informed by the implicit, of the unknown and of trust in I have not discussed the great constitutional consent, by compulsion, by a respect for dig- the judgment of instinct. Yet these latter are ideas that Sir Maurice was responsible for nity and by the need to eschew unfairness. powerful human forces and influences – not launching and moulding. I have preferred to Contemplation of these concepts reveals that to be left free to run untrammelled as pas- say something about judicial technique and definitional limits and logical constructs will sion, prejudice and bigotry, but to find their mode of thought this evening. That, howev- have their limits. place in a framework of rules and principles, er, leads us back to the Constitution and our The notion or conception of jurisdictional to take their place with rational thought to struggle, as lawyers, with power. Law, after error is central to the analysis of the exercise combine to form reason and human value all, is about power, private and public, and of public power involved in its review under judgments, sometimes which cannot be its control. And as Sir Maurice’s phrase illu- s 75(v) of the Constitution and implicitly deconstructed. minates, in a few lines, the technique of law identically under state law by the doctrine I am not intending by saying anything this must be whole and human – to express a per- in Kirk.77 Essential to the application of the evening to devalue the central structural sonality aided by coherence and reason, but notion of jurisdictional error is the process place of rules and principles clearly and fully recognising that the whole and the human of statutory construction in order that the expressed, where possible in an ordered and are not always definable. textual limits of power be understood. But logical way (whatever the logic may be). Far Perhaps one might finish with a question: the human and relationally experiential from it. Rather, I seek to protect their value Whose personality? The answer perhaps lies judgment involved in legal unreasonableness by recognising that they are threatened by a in the balance of the phrase: the personality does not depend on definitional formulae or failure to accord the place of the wholeness of informed by the values that sustain human some precise verbal expression. The concept the human context, or to use Sir Maurice’s societies, not the characteristics that dimin- under consideration is the exercise of power. words, to recognise the law as an expression ish or destroy. Over-categorisation and over-definition lead of the whole personality. Sometimes that to lack of clarity and confusion. The suffi- failure, with the consequent risk to clarity, Sydney, 1 November 2017 cient defect for the conclusion to be drawn can be seen in statutory drafting; sometimes that the power has not been exercised, that it can be seen in the complexity or rigidity ENDNOTES the jurisdiction to exercise the power was of doctrinal expression. If legislation is to be * Chief Justice, Federal Court of Australia lacking, has been variously expressed over built on complex and interlocking defini- 1 I wish at the outset to express my debt to a number of people whose the years. All the expressions of principle by tions, or if doctrine is to be ordered minutely friendship and intellectual engagement have contributed to my the courts, by reference to the contemplation in the attempt to express exhaustively the thinking in this paper. Paul Finn, Dr Iain McGilchrist, Stephen of the circumstances in question, seek to minute reach and particular application of Margetts, Tim Game, Julia Roy and Kevin Connor have over express something human about power: the the underlying norm, there comes a point different times drawn out for me the importance of the human, the necessity for a discretion to be exercised ac- where the human character of the narrative complex and the indefinable. Dr McGilchrist’s magisterial work The cording to the rules of reason and justice, not fails, where its moral purpose is lost in a Master and his Emissary is a polymathic exploration of the functioning private opinion; according to law, and not thicket of definitions, exceptions and inclu- of the brain and its relevance to history and culture (and so the law). humour; and within the limits that an honest sions. The vice is not just lack of clarity; that 2 Sir Maurice Byers, ‘From the Other Side of the Bar Table: An and competent person would confine himself is bad enough. Worse, it is a loss of human Advocate’s View of the Judiciary’ (1987) 10 University of New South

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Wales Law Journal 179 at 182. on what smilingly may be described as the yin and the yang of 52 Lord Steyn adopted this analysis in Banque Financière de la Cité 3 Geoffrey Lindell (ed), The Mason Papers (Federation Press, 2007) at commercial bargains in describing a test where the ‘negative incentive v Parc (Battersea) Ltd [1999] 1 AC 221 at 227 (Lord Steyn) and 11-26. to perform’ is ‘so far out of proportion with the positive interest in 234 (Lord Hoffmann). Burrows, in fact, describes this academic 4 Ibid 26. performance that the negative incentive amounts to deterrence by framework as having been ‘expressly approved’ by the courts: 5 M v M [1988] HCA 68;166 CLR 69 at 78. threat of punishment’: Paciocco 258 CLR at 580 [164]. Burrows, op cit at 27. Later, in Menelaou v Bank of Cyprus UK Ltd 6 James Allsop, ‘Values in Law: How they Influence and Shape Rules 36 In their reasons, Lord Neuberger and Lord Sumption offered the [2015] UKSC 66; [2016] AC 176 Lord Clarke stated that at 187 [18]: and the Application of Law’ (Paper delivered at the Centre for following by way of definition of the ‘true test’, namely ‘[W]hether ‘In Benedetti v Sawiris [2014] AC 938 the Supreme Court recognised Comparative and Public Law, Faculty of Law, University of Hong the impugned provision is a secondary obligation which imposes that it is now well established that the court must ask itself four Kong Hochelaga Lecture Series, Hong Kong, 20 October 2016); a detriment on the contract-breaker out of all proportion to any questions when faced with a claim for unjust enrichment. They are James Allsop, ‘Values in Public Law’ (Paper delivered as the 2015 legitimate interest of the innocent party in the enforcement of the these: (1) Has the defendant been enriched? (2) Was the enrichment Oration, Sydney, 27 October 2015). primary obligation’: Cavendish [2016] AC at 1204 [32]. Lord Hodge at the claimant’s expense? (3) Was the enrichment unjust? (4) Are 7 See Taylor v Johnson at [1983] HCA 5; 151 CLR 422 at 428-432; (with whom in this respect Lord Toulson agreed) expressed it as there any defences available to the defendant?’. Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; ‘whether the sum or the remedy stipulated for breach of contract is 209 CLR 95 at 105 [25]; Pacific Carriers Ltd v BNP Paribas[2004] exorbitant or unconscionable when regard is had to the innocent 53 See James Allsop, ‘Rules and Values in Law: Greek Philosophy; HCA 35; 218 CLR 451 at 461-462 [22]; Toll (FGCT) Pty Limited v party’s interest in the performance of the contract’: Cavendish [2016] The Limits of Text; Restitution; and Neuroscience? – Anything Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165 at 179-182 AC at 1278 [255]. Lord Mance referred to the need to identify any in Common?’ (Paper delivered at the Hellenic Australian Lawyers [40]-[46]. legitimate business interest protected by the provision and whether Association – Queensland Chapter Seminar, Brisbane, 29 March 8 [1971] AC 1004 at 1026. the provision is extravagant, exorbitant and unconscionable by 2017) at [27]-[28], discussing Commissioners for HM Revenue and 9 Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis reference to it: Cavendish [2016] AC at 1247 [152]. Lord Clarke Customs v Investment Trust Companies (in liq) [2017] UKSC 29; 2 [2015] UKSC 67; [2016] AC 1172 at 1192 [3] per Lord Neuberger agreed with Lord Hodge and Lord Mance: Cavendish [2016] AC at WLR 1200 at 1214 [41] per Lord Reed and Lowick Rose LLP (in liq) v and Lord Sumption. 1285 [291]. Swynson Ltd & Anor [2017] UKSC 32; 2 WLR 1161 at 1171 [22] per 10 See CJ Rossiter, Penalties and Forfeiture (Law Book Company, 1992); 37 AMEV-UDC Finance Ltd v Austin [1986] HCA 63; 162 CLR 170 at Lord Sumption. AWB Simpson, ‘The Penal Bond with Conditional Defeasance’ 193-194. 54 Ford (by his tutor Watkinson) v Perpetual Trustees Victoria Ltd [2009] (1966) 82 Law Quarterly Review 392; Cavendish [2016] AC 1172; 38 Lord David Hope, ‘The Law on Penalties –A Wasted Opportunity?’ NSWCA 186; 75 NSWLR 42. Andrews v Australia and New Zealand Banking Group Ltd [2012] (2016) 33 Journal of Contract Law 93. 55 Ibid at 63-64 [85]-[90]. HCA 30; 247 CLR 205; Paciocco v Australia and New Zealand 39 In AMEV-UDC Finance 162 CLR at 193-194 Mason and Wilson 56 249 NY 458 (1928) at 464. Banking Group Ltd [2016] HCA 28; 258 CLR 525. JJ said: ‘The test to be applied in drawing [the distinction between 57 230 NY 239 (1921). 11 See, generally, Simpson, op cit and Rossiter, op cit. compensation and what is unconscionable and oppressive and penal] 58 Ibid at 242. 12 See Rossiter, op cit; Cavendish [2016] AC at 1193-1194 [6]-[7] per is one of degree and will depend on a number of circumstances, 59 Ibid at 242-243. Lord Neuberger and Lord Sumption and Andrews 247 CLR at 218 including (1) the degree of disproportion between the stipulated sum 60 Taikato v The Queen[1996] HCA 28; 186 CLR 454 at 466. [14]. and the loss likely to be suffered by the plaintiff, a factor relevant to 13 See 8 & 9 Will III, c 11 (1696); 4 & 5 Anne, c 16 (1705). the oppressiveness of the term to the defendant, and (2) the nature of 61 R v Quach [2010] VSCA 106; 201 A Crim R 522 at 535 [46]; R v 14 Cavendish [2016] AC at 1208 [42] per Lord Neuberger and Lord the relationship between the contracting parties, a factor relevant to Obeid (No 2) [2015] NSWSC 1380 at [22] and [111]-[121]; Obeid v R Sumption and Andrews 247 CLR at 225 [39]; 226-227 [42] and 227 the unconscionability of the plaintiff’s conduct in seeking to enforce [2017] NSWCCA 221 at [60] and [201]-[235]. [45]. the term. The courts should not, however, be too ready to find the 62 Competition and Consumer Act 2010 (Cth) Pt IV Div 1 Subdiv B. 15 Clydebank Engineering & Shipbuilding Co Ltd v Yzquierdo y Castaneda requisite degree of disproportion least they impinge on the parties’ 63 Ch 2 of the Criminal Code is applied by s 6AA of the Competition and [1905] AC 6. freedom to settle for themselves the rights and liabilities following a Consumer Act 2010 (Cth) to offences under that Act. 16 Commissioner of Public Works v Hills [1906] AC 368. breach of contract. The doctrine of penalties answers…..an important 64 Corporations Act 2001 (Cth) Pt 7.10 Div 3. 17 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] aspect of the criticism often levelled against unqualified freedom of 65 Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494 [27]. AC 79. contract, namely the possible inequality of bargaining power. In this 66 Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 18 Ibid. way the courts strike a balance between the competing interests of [51]-[52] per McHugh J. 19 See discussion of Dunlop in Cavendish [2016] AC at 1198-1199 [21] freedom of contract and protection of weak contracting parties.’ 67 Wong v The Queen[2001] HCA 64; 207 CLR 584; Markarian v The per Lord Neuberger and Lord Sumption. 40 (1760) 2 Burr 1005. Queen [2005] HCA 25; 228 CLR 357; Hili v The Queen [2010] HCA 20 Ibid at 1199 [21]. 41 Ibid at 1012. 45; 242 CLR 520; Muldrock v The Queen [2011] HCA 39; 244 CLR 21 Dunlop [1915] AC at 87. 42 [1913] 1 Ch 127 at 140. 120; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Elias v The 22 Astley v Weldon (1801) 2 Bos & P 346. 43 [1914] AC 398. Queen [2013] HCA 31; 248 CLR 483; Kentwell v The Queen [2014] 23 Wallis v Smith (1882) 21 ChD 243. 44 [1923] 1 KB 504 at 513. HCA 37; 252 CLR 601; CMB v Attorney General (NSW) [2015] 24 Dunlop [1915] AC at 87 per Lord Dunedin. See also Cavendish [2016] 45 See, eg. Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR Director of Public Prosecutions v Dagliesh (a AC at 1244 [142] per Lord Mance. 221 at 256-257; Australia & New Zealand Banking Group Ltd v HCA 9; 256 CLR 346; 25 James Allsop, ‘Characterisation: Its place in Contractual Analysis and Westpac Banking Corporation [1988] HCA 17; 164 CLR 662 at 673; pseudonym) [2017] HCA 41. Related Enquiries’ (Paper delivered at the Contracts in Commercial David Securities Pty Ltd v Commonwealth Bank of Australia [1992] 68 [2017] HCA 41. Law Conference, Sydney, 18-19 December 2015). HCA 48; 175 CLR 353; Roxborough v Rothmans of Pall Mall Australia 69 Markarian 228 CLR at 383-384 [65]. 26 Dunlop [1915] AC at 92-93 per Lord Atkinson. Ltd [2001] HCA 68; 208 CLR 516 at 543-545 [70]-[74]; Equuscorp 70 R v Geddes (1936) 36 SR (NSW) 554 at 555-556. 27 Hadley v Baxendale (1854) 9 Ex 341 ; 156 ER 145. Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498 at 515-517 [29]-[30]; 71 228 CLR at 390 [84]. 28 Cavendish [2016] AC at 1204 [31] per Lord Neuberger and Lord Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd 72 Ernst Kantorowicz, The King’s Two Bodies (Princeton University Sumption. [2014] HCA 14; 253 CLR 560 at 596 [78]. Press, 1957). 29 Ibid. 46 [1987 HCA 5; 162 CLR 221 at 256-257. 73 393 F 2d 920(1968) at 929. 30 Cavendish [2016] AC 1172. 47 [1991] 2 AC 548. 74 Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at 31 Parking Eye [2016] AC 1172. 48 [1996] AC 669. 589 [11]. 32 Andrews 247 CLR 205. 49 Peter Birks, An Introduction to the Law of Restitution (Oxford 75 Veen v The Queen[1979] HCA 7; 143 CLR 458; Veen v The Queen 33 Paciocco 258 CLR 525. University Press, 1989) 20. [No 2] [1988] HCA 14; 164 CLR 465. 34 Andrews 247 CLR at 236 [75]. 50 Ibid. 76 The Commonwealth v Bank of New South Wales[1949] HCA 47; 79 35 Justice Kiefel (with whom French CJ agreed) formulated the test as 51 A similar approach has been taken by other English writers including CLR 497 at 462. whether the sum imposed was ‘out of all proportion to the interests of Charles Mitchell, Paul Mitchell and Stephen Watterson, Goff & Jones: 77 Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531. the party which it is the purpose of the provision to protect’: Paciocco The Law of Unjust Enrichment (Sweet & Maxwell, 8th ed, 2011) at 78 Sharp v Wakefield [1891] AC 173, 179; Shrimpton v Commonwealth 258 CLR at 547 [29]. Justice Keane (in an approach that reflected an [1-09]; Andrew Burrows, The Law of Restitution (Oxford University important obiter dictum of Mason and Wilson JJ in AMEV-UDC) Press, 2011) at 26-27 and in Andrew Burrows, Restatement of the [1945] HCA 4; 69 CLR 613 at 620. put particular focus on the function of the penalty rule as one that English Law of Unjust Enrichment (Oxford University Press, 2012). 79 Associated Provincial Picture Houses Ltd v Wednesbury Corporation regulated the way in which parties use their bargaining power to Birks himself described Lord Mansfield’s recourse to equitable [1948] 1 KB 223 at 234; Secretary of State for Education and Science v impose punishment on other contracting parties. Where the sum considerations as involving ‘a dangerously high level of abstraction’: Tameside Metropolitan Borough Council [1977] AC 1014 at 1064. was not proportionate or commensurate with legitimate commercial Birks, op cit at 80. For Birks, the ‘unjust’ in ‘unjust enrichment’ meant 80 Minister for Immigration and Border Protection v Stretton [2016] interest, he said, ‘the punitive character of the provision stands the vitiating factors recognised by the law as giving rise to restitution FCAFC 11; 237 FCR 1 at 3-4 [5]. revealed’: Paciocco 258 CLR at 607 [256]. Justice Gageler focussed and did not describe a ‘notion of justice’: Birks, op cit at 99. 81 Cobiac v Liddy [1969] HCA 26; 119 CLR 257 at 269.

32 [2017] (Summer) Bar News The Journal of the NSW Bar Association FEATURES

Protecting whistleblowers: A comparative view from the UK

By Sheryn Omeri

or practitioners of employment and those who blow the whistle in respect of (a) that a criminal offence has been Fdiscrimination law in England, which malpractice in the financial services industry. committed, is being committed or is includes the law pertaining to whistleblow- In reality however, properly drafted whistle- likely to be committed; ing, it was extremely disturbing to read, last blowing legislation has the potential to have year, of the cancellation of the contract of a much wider protective effect. (b) that a person has failed, is failing psychologist, Paul Stevenson, after he had Although some consideration was given by or is likely to fail to comply with any spoken to the Guardian about his experienc- the Joint Committee to the protections af- legal obligation to which he or she es when working within Australia’s offshore forded to whistleblowers in England; in my is subject (including an obligation immigration detention centres at Nauru view, this was somewhat cursory and greater imposed by contract); and Manus Island. Even more disturbing consideration is merited. In England, the was learning that pursuant to s 42 of the rights of whistleblowers are protected by pro- (c) that a miscarriage of justice has Australian Border Force Act 2015, Stevenson visions of the same legislation that provide for occurred, is occurring or is likely to could have been imprisoned for up to two other causes of action which may be pursued occur; years for having disclosed apparently any by employees or workers such as unlawful information he had obtained in his capacity deduction from wages and unfair dismissal; (d) that the health or safety of any indi- as an Immigration and Border Protection that is, the Employment Rights Act 1996 (‘the vidual has been, is being or is likely to worker. It appeared that Stevenson would ERA’, as it is fondly known). In contrast, be endangered; not necessarily have been protected by the the Joint Committee appears to recom- provisions of the Federal Public Interest Dis- mend that whistleblower legislation remains (e) that the environment has been, is closures Act 2013 because his disclosures were largely separate from employment-specific being or is likely to be damaged; or made to the press in circumstances where legislation. In addition, despite recognising they may have concerned the acts of officials the fragmented nature of whistleblowing (f) that the information tending to of foreign (i.e. non-Australian) governments legislation in Australia, the Joint Committee show any such matter has been or is and/or Stevenson may not have first made an nonetheless recommends separate legislation likely to be deliberately concealed. internal disclosure to his employer. If he had in respect of whistleblowing in the public and done the latter, it is not clear whether it could private sectors. This adds or maintains an un- Importantly in the case of people like Steven- be said that any investigation which had been necessary layer of complication in a context son, or indeed, those who blow the whistle on carried out in response was inadequate. which will always be inherently, factually and malpractice in the financial services industry It was encouraging to read, in June 2017, legally complex and which will therefore ben- which has occurred overseas, the ERA spe- of the announcement of Federal Minister efit from as much simplification as possible. cifically states that it is immaterial whether for Revenue and Financial Services, Kelly In the English context, the provisions con- the relevant failure occurs or would occur O’Dwyer, that the Turnbull government cerning whistleblowing are set out from s in the UK or elsewhere and whether the law wishes to introduce measures to tighten leg- 43A of the ERA. In order to benefit from the applying to it is the law of the UK or of any islation to give compensation and protection statutory protection (or compensation in the other country or territory. to whistleblowers. It was also encouraging event of a violation of such protection), em- In 2015, the protection afforded by the whis- to see the publication, even more recently, ployees and workers must satisfy a number tleblowing provisions of the ERA was broad- of the September 2017 Report on Whis- of threshold requirements, which enable their ened through the insertion of an extended tleblower Protections of the Parliamentary disclosures to qualify for protection. The first definition of the term ‘worker’ which, in the Joint Committee on Corporations and Fi- such set of requirements is enumerated in s context of whistleblowing only, now covers nancial Services. 43B, namely that an employee or worker agency workers; those who provide services The focus however, of both the Minister and makes disclosures of information which in to the National Health Service under a va- the Joint Committee was (perhaps unsurpris- his or her reasonable belief are in the public riety of different contractual arrangements ingly, given their portfolios) on protecting interest and which tend to show: which do not fit comfortably within the

The Journal of the NSW Bar Association [2017] (Summer) Bar News 33 FEATURES more traditional concept of an employment claims are treated like discrimination claims financial services sector, among many others. or worker relationship, as well as to those and tribunals are empowered to make (un- In such circumstances, legislative provisions undertaking work experience pursuant to a capped) awards for compensation which like s 42 of the Australian Border Force Act training program. reflect any detriment to which the employee 2015 may be less likely to be enacted in the It is interesting to note that the Joint Com- or worker has suffered (including dismissal first place, given the primacy accorded to the mittee, in recommendations 6.1 and 6.2, and inability to find alternative work) and role of the whistleblower. seeks to broaden protection through exten- damages for injury to feelings, which are not For those who may be concerned about an sion to former public officials and contractors available in the case of other common claims increase in protection for whistleblowers of the Australian Public Service as well as such as unfair dismissal. (perhaps particularly in the private sector) former staff, contractors and volunteers in Complaints of whistleblowing are heard in leading to an opening of the proverbial flood- the private sector. gates, this has not been borne In the English context, qualify- out in the English context. Em- ing disclosures will be protected ployment tribunals are faithful if they are made to a person’s to the terms of the legislation employer. In such cases, the which require evidence of a dis- employee or worker need only closure of information; that is, a have a reasonable belief that conveying of facts which is more the information he or she has than a communication of one’s disclosed ‘tends to show’ one of position in negotiations, an alle- the above-mentioned states of gation or an opinion: Cavendish affairs. The employee or worker Munro Professional Risks Ltd v does not need to have sufficient Geduld [2010] ICR 325. evidence to demonstrate that In addition, most employees a criminal offence has in fact who bring claims for whistle- been committed for example. blowing that are ultimately Provided the employee’s belief unsuccessful find themselves in in the information tending such position because there is in- to show this was objectively sufficient evidence of causation, reasonable, he or she will be that is, material from which the protected even if he or she turns Employment Tribunal can infer out to be wrong. An employee or that the employer dismissed the worker will also be protected if worker because (or at least prin- he or she makes a disclosure to “I’m sensing confidence, boldness, and moral sensibility. cipally because) he or she had a prescribed person such as the You’re not not going to turn out to be a whistleblower, are you?” Aaron Bacall / Cartoonstock made a protected disclosure. In Information Commissioner, if this regard, the Court of Appeal the employee or worker reasonably believes the Employment Tribunal, which was estab- has been clear that, given the terms of the that the relevant failure falls within the remit lished in order to provide a speedy and more relevant statutory provisions, it is perfectly of that prescribed person. Where an employ- cost-effective resolution for employment-re- lawful for an employer to dismiss a worker ee or worker makes a disclosure to someone lated complaints than the ordinary courts. for the manner in which he or she makes a other than his or her employer, a slightly As whistleblowing claims tend to be fact-sen- protected disclosure or for conduct relating higher state of belief is required; that is, the sitive, they are required to be determined to the making of the protected disclosure employee or worker must reasonably believe by a full bench, comprising an employment rather than the fact of the making of the dis- that the information he or she discloses and judge and two lay wing members, one with a closure. In Evans v Bolton School [2007] ICR any allegation contained in it are substan- management background and the other with 641, a high school IT teacher was dismissed tially true, rather than just that they tend to a more employee-focussed (typically union) for hacking into the school’s IT system in show one of the above-mentioned states of background, as in the case of discrimination order to prove how easy it was to do so about affairs. claims (and unlike in the case of contractual which he subsequently made a protected Crucially in many cases, the ERA allows claims or claims for unfair dismissal). disclosure. The Court of Appeal held that employees and workers to make disclosures It is important to note that s 43B(3) of the the word ‘disclosure’ was not a term of art to the press where they believe that the in- ERA confirms that a disclosure of informa- and was to be given its ordinary meaning formation is substantially true, they do not tion is not a qualifying disclosure if the person which does not extend to the whole course of make the disclosure for purposes of personal making it commits an offence by doing so. a worker’s conduct and did not, in that case, gain and in circumstances where any of the Given that s 42 of the Australian Border Force extend to the employee’s conduct in hacking following matters prevail: (i) they think they Act 2015 renders the disclosure of any infor- into the school’s computer network. This was will be subjected to a detriment by their em- mation obtained in one’s capacity as a Border upheld by the Employment Appeal Tribunal ployer; (ii) their employer is likely to conceal Protection worker an offence, even a whole- in the more recent case (in which I acted for or destroy evidence of the subject matter of sale duplication of the provisions of the ERA the employer) of Barton v Royal Borough of their disclosure; or (iii) they have already may not have been of direct assistance to Greenwich UKEAT/0041/14/DXA. made a disclosure of the same information to someone in Stevenson’s position. I say ‘direct’ As a result, when it comes to the drafting their employer. assistance, because indirectly, the enactment of fresh legislation aimed at enhancing the Provided these conditions are met, the em- of whistleblowing protections in England protection available for whistleblowers in ployee or worker will be protected from being and Wales (and their extension to non-tradi- Australia in both the public and private dismissed and also from being subjected to tional workers) has a normative effect which sectors, the Turnbull Government might any detriment short of dismissal. The concept has encouraged a widespread societal respect consider that the corresponding English law of a detriment which falls short of dismissal for whistleblowers and a recognition of the and jurisprudence on the subject provide at has been given a wide meaning by the courts. important role they may play in the fields of least a helpful starting point. In relation to remedies, whistleblowing human rights violations and regulation of the

34 [2017] (Summer) Bar News The Journal of the NSW Bar Association FEATURES

Vicarious trauma in the legal profession

By Kylie Nomchong SC

obyn Bradey, a mental health accredited her seminar, vicarious trauma is an ordinary trauma in the workplace, a lack of formal Rcounsellor with over 36 years’ experi- part of one’s emotional life as an individual, training in dealing with trauma survivors,7 ence, commenced her seminar at the NSW as we all possess a degree of personal vulner- and most importantly, the inability (or un- Bar Association this year with a few simple ability.3 It can be thought of as an advanced willingness) to de-brief about such matters in questions: ‘Do you experience teeth grind- ‘fight-or-flight’ response, where the mere an emotionally honest manner. ing…poor sleep…agitation…rumination… Though lawyers working in non-criminal hypervigilance…stress…headaches..?’ jurisdictions may interact with traumatised There was a steady show of hands in response clients, criminal lawyers have been shown to each question. to suffer from greater and more pronounced Bradey stated that the nature of barristers’ subjective distress, depression and anxiety work necessitates deep involvement in cases than other groups of professionals.8 that may disclose violence, injury, destitu- But who has the responsibility to deal with tion, betrayal, dishonesty, greed, danger and the threat of vicarious traumatisation in the damage. Not only do barristers have to listen legal profession? Individual barristers can to clients describe what, for many of them, strive to build resilience and as a profession, has been a devastating life experience, but we can create a workplace that responds also, barristers must ask those same clients more effectively to the dangers posed by to re-live it over and again during the trial vicarious trauma. process by recounting the details to doctors, There have been several studies in Australia experts and in court. into the wellbeing of law students and prac- Of course, barristers are affected by that pro- titioners. The most widely publicised of these cess - sometimes unknowingly, sometimes was released by the Brain and Mind Research obviously. Bradey warned: ‘Without the Institute in 2009. After surveying 741 stu- emotional reaction to the plight of clients, dents, 924 solicitors and 756 barristers, the we would be sociopaths – content to view the Institute found 31% of solicitors and 16.7% Photo: iStockPhoto: suffering of others without feeling’. of barristers suffered from high or very high distress levels ‘severe enough to warrant What is vicarious trauma? thought of something traumatic occurring clinical assessment,’ compared to 13% in the triggers the feeling of it having occurred.4 general population.9 Being traumatised by what we see and ob- Vicarious trauma is a cumulative reaction Regardless of whether this study accurately serve is known as vicarious trauma. It relates to the experience of secondary trauma borne captures the extent and severity of mental to the experience of a person empathically from a range of interactions with trauma vic- illness in the legal profession, the alarming engaging with the trauma of another person tims or exposure to traumatic content over figures instigated the creation of long over- or group of people. Because of their proxim- an extended period.5 due initiatives, such as counselling services, ity to people and clients undergoing stressful It has implications for the day-to-day func- mental health policies in disciplinary or experiences, the people who are most at risk tioning and overall wellbeing of trauma-ex- regulatory actions and workplace policies are therapists, counsellors, emergency work- posed professionals. It can change a person’s for bullying and discrimination.10 But these ers, police officers, medical professionals and sense of personal or professional identity, undertakings by the legal profession may lawyers. Particularly for lawyers who work affect his or her confidence and damage have omitted to pay sufficient attention to with trauma survivors, vicarious trauma is his or her relationships with others.6 The vicarious trauma. an occupational hazard that often cannot personal, professional and social effects of A 2016 study by Mitchell Byrne and Grace be avoided. vicarious trauma are such that it is important Maguire of the University of Wollongong Vicarious trauma is now a well-recognised for individuals and workplaces to anticipate speculated that the lack of support for vi- phenomenon. The Bar Association audience the experience of secondary trauma and work carious trauma in the legal profession has at Bradey’s seminar was intimately familiar to resolve the issues that it can create, in a manifested in higher levels of symptoms, with its tell-tale signs: avoiding certain types timely and effective manner. Its real dangers particularly depression, anxiety and stress, of matters or clients, engaging in risk-taking are only now being addressed by the legal in comparison to mental health profession- behaviour, insomnia, feeling helpless about profession, which is typically late to integrate als – another professional group that deals work tasks and withdrawing from colleagues, wellbeing practices into standard operations. systematically with trauma survivors.11 friends and family. Closely mirroring the Byrne and Maguire noted that support ser- short-term effects of post-traumatic stress The exposure of lawyers vices for professionals who may be exposed disorder, vicarious trauma can lead to night- to vicarious trauma to trauma victims have traditionally been mares and intrusive imagery, fear for one’s isolated to the ‘helping’ professions such as safety or the safety of others (family members Vicarious trauma most often occurs through mental health workers and social workers. in particular), resistance to hearing accounts the retelling of a traumatic event by the per- While barristers also constitute a ‘helping’ of traumatic events, irritability and emotion- son that underwent or caused it, or through profession, there has been limited study and al numbness.1 More troubling and profound viewing images of the event or its aftermath. less action taken to address the deficiency in long-term effects include changes to the core Environmental factors that contribute to the professional support for the legal profession. beliefs of the secondarily exposed person and risk of vicarious trauma include the frequen- Thankfully, the study attributed the greater his or her view of self, others and the world.2 cy of exposure to traumatised clients, poor vulnerability of lawyers to organisation and As Bradey assured those of us who attended systems and procedures for dealing with not individual personality characteristics.12

The Journal of the NSW Bar Association [2017] (Summer) Bar News 35 FEATURES

Ways to prevent or control mental health professionals, and managing ENDNOTES vicarious trauma workloads. 1 Gillian Iliffe and Lyndall Steed, ‘Exploring the Counselor’s Experience of Working With Perpetrators and Survivors of Some people are inherently more resilient to NSW Bar Association initiatives Domestic Violence’ (2000) 15 Journal of Interpersonal Violence secondary trauma due to personal traits, such 393; Karen Ortlepp and Earle Friedman, ‘Prevalence and as conscientiousness, which allow them to BarCare is an independent professional Correlates of Secondary Traumatic Stress in Workplace Lay Trauma overcome feelings of despair or hopelessness counselling service designed to assist mem- Counselors’ (2002) 15(3) Journal of Traumatic Stress 213. that may arise when dealing with a trauma bers of the New South Wales Bar to manage 2 Lisa McCann and Laurie Pearlman, ‘Vicarious Traumatization: A victim.13 Others, who are more prone to emotional and stress-related problems, such Framework for Understanding the Psychological Effects of Working emotional instability or neuroticism, may as marital breakdowns, drug or alcohol de- with Victims’ (1990) 3(1) Journal of Traumatic Stress 131, 132. 3 Karen Saakvitne and Laurie Pearlman, Transforming the Pain: A Workbook struggle to cope with successive cases that pendency and practice pressures. Go to the centre on traumatic experiences.14 on Vicarious Traumatization (WW Norton & Company, 1996). website at http://barcare.org 4 Robyn Bradey, ‘Identifying, Mitigating and Managing Vicarious Members of chambers should be mindful of The Tristan Jepson Memorial Foundation managing vicarious trauma for themselves, Trauma in Legal Settings: A Manual for Senior Lawyers, (TJMF) is an independent, volunteer, char- Practice Managers, Supervisors and Mentors’ (2016). but also in relation to colleagues. Where a itable organisation whose objective is to 5 Lila Vrklevski and John Franklin, ‘Vicarious Trauma: colleague appears to be at risk of vicarious decrease work-related psychological ill-health The Impact on Solicitors of Exposure to Traumatic trauma, confronting them can worsen the in the legal community and to promote Material’ (2008) 14(1) Traumatology 106, 107. potential effect of the trauma if not ap- workplace psychological health and safety. 6 Saakvitne and Pearlman, above n 5. proached in a careful and knowledgeable The TJMF Best Practice Guidelines for the 7 Laura Schauben and Patricia Frazier, ‘Vicarious Trauma: The Effects manner. Awareness of the symptoms, effects Legal Profession are designed to protect and on Female Counsellors of Working with Sexual Violence Survivors’ and manifestations of vicarious trauma is promote psychological health and safety in (1995) 19(1) Psychology of Women Quarterly 49; Ginny Sprang, Carlton critical to playing a constructive role in its the legal workplace. The Guidelines have Craig and James Clark, ‘Secondary Traumatic Stress and Burnout in prevention and treatment. Child Welfare Workers: A Comparative Analysis of Occupational been endorsed by the NSW Mental Health Bradey identified several preliminary meth- Distress Across Professional Groups’ (2011) 90(6) Child Welfare 149; Commission, which was one of 26 inaugural ods of dealing with traumatic content, such Grace Maguire and Mitchell Byrne, ‘The Law is Not as Blind as it as marking files with a warning, restricting signatories, as were the College of Law and Seems: Relative Rates of Vicarious Trauma Among Lawyers and Mental access to the file and taking scheduled breaks the university law schools. There are currently Health Professionals’ (2016) Psychiatry, Psychology and Law 1, 2. from working. Bradey also counsels in favour over 140 signatories to the TJMF Guidelines 8 Vrklevski and Franklin, above n 7. of erecting physical boundaries such as not including the NSW Bar Association. 9 Discussed in Adele Bergin and Nerina Jimmieson, ‘Australian Lawyer taking traumatic files home or at least desig- The TJMF Guidelines have been modified Well-Being: Workplace Demands, Resources and the Impact of nating a specific room for working on those for use in Chambers and a Mental Health Time-Billing Targets’ (2014) 21 Psychiatry, Psychology and Law 427. files, so that traumatic content is physically, and Wellbeing Policy was developed by 6 St 10 Christine Parker, ‘The ‘Moral Panic’ Over Psychological Wellbeing in the Legal Profession: A Personal or Political Ethical and, it is to be hoped, also mentally, separate James. Both the Modified TJMF Guidelines Response’ (2014) 37(3) UNSW Law Journal 1103, 1106. from personal spaces for relaxation, sleep or and the Mental Health and Wellbeing Policy are available from the Wellbeing Committee 11 Maguire and Byrne, above n 9, 7. spending time with family and friends. 12 Ibid 8. Bradey further identifies processes that can of the NSW Bar Association. 13 Keren Cohen and Paula Collens, ‘The Impact of Trauma Work be employed in anticipation of matters likely The seminar given by Robyn Bradey on Trauma Workers: A Metasynthesis on Vicarious Trauma to trigger vicarious trauma, such as effective in March of this year can be viewed at and Vicarious Post-traumatic Growth’ (2013) 5(6) Psychological and continuous mentoring, speaking with https://www.nswbar.asn.au/for-members/ Trauma: Theory, Research, Practice, and Policy 570. colleagues, wellbeing checks administered by health-and-wellbeing 14 Maguire and Byrne, above n 9, 8.

The Barristers’ Benevolent Association

The Barristers’ Benevolent Association Case study one Case study two of New South Wales was established as a scheme whereby financial assistance may be I was in my first few years at the bar when I My eight year old son suffered a catastrophic provided to persons who are (or have been) felt a crushing pain in my chest. I was to be- accident which left him requiring full-time members of the New South Wales Bar and gin a two-week trial the following Monday, care. As a result, I had to stop work to care for who have practised predominantly in NSW. and wanted to dismiss the pain as an expres- him full-time over several years. As a result, There are no fixed circumstances in which sion of anxiety, or indigestion. Luckily, my our family went into substantial debt, and such assistance may be provided save for it partner persuaded me to call an ambulance. were under significant stress. being directed to ‘necessitous and deserving I had suffered a major heart attack. I received After several years, I wanted to return to cases’. It provides a fund for those who are great care, but I was unable to work for a practice but did not have the resources to suffering from hardship either in the short significant period of time, and a substantial fund my return. I contacted the Bar Associ- term or long term. tax bill was due. ation’s Benevolent Fund. The fund agreed to The funding is an important part of the col- A concerned colleague contacted the Bar make a short-term contribution to the cost legiate life of the bar and how we look after Association’s Benevolent Fund on my behalf. of accommodation in chambers, which was each other. The fund provided an unsecured loan which enough to allow me to re-establish myself in gave me the breathing space I needed to con- practice. centrate on my recovery, and the time I need to return to good health. For information on the Barristers’ Benevolent Association of New South Wales, go to https://www.nswbar.asn. au/for-members/benevolent-association

36 [2017] (Summer) Bar News The Journal of the NSW Bar Association COMMITTEE ROUNDUP

New Barristers Committee

From left to right: James Mack, Duncan McCombe (Chairman UK Bar Council Young Barristers’ Committee), Rachel McMillan (Chair Northern Ireland Young Bar), Sonia Stewart (Bar Association New Barristers’ Committee), Hugh Kam (Hong Kong Bar Association, Chairman of Standing Committee on Young Barristers).

The focus of the New Barristers’ Committee will be by invitation only. It is hoped that the NBC recently held a breakfast in Par- this year is twofold. the long lunch will provide an opportunity ramatta and intends to hold further events in First, to foster a greater sense of collegiality for new barristers to catch up with colleagues areas outside the Sydney CBD. amongst new barristers. Second, to promote from their respective Bar Practice Courses. New barristers with any concerns or ideas the economic interest of new barristers by The NBC has also commenced a dialogue are invited to contact the chair of the NBC, raising their collective profile. To this end, with its equivalent bodies in Hong Kong, James Mack (Level 22 Chambers). the NBC is planning a series of joint-CPD the United Kingdom and Northern Ire- A ‘new barrister’ is a barrister of under six and networking events, to be attended by new land. Representatives of the NBC met with year’s call. barristers, solicitors and in-house counsel, to “Young Barrister” representatives from these be held at locations away from the Common bars during the recent International Bar James Mack Room. These events will be an opportunity Association (Sydney) Conference to share for new barristers to engage with an increas- common and differing experiences. The ingly dynamic legal profession. NBC is also engaged in discussions with the The members’ Common Room will still hold Administrative Appeals Tribunal to trial a a place in the heart of the NBC. The NBC pro-bono assistance scheme in the AAT. is planning to utilise the space for a “long The NBC is keen to ensure that the interests lunch”, for new barristers. Attendance by of new barristers from chambers outside of senior members of the bar or the judiciary Sydney CBD are represented. To this end,

The Journal of the NSW Bar Association [2017] (Summer) Bar News 37 PRACTICE

Crossing the line: Behaviour that gets barristers into trouble … the Bar cannot be the last bastion where sexual harassment and assault is countenanced in the workplace’1 by Kate Eastman SC, Sophie Callan and Aditi Rao

High standards are required of legal prac- in circumstances in which a reason- offended, humiliated or intimidated. titioners. The relationships between legal able person, having regard to all the practitioner and client, between legal prac- circumstances, would have anticipat- The SDA and ADA do not exhaustively titioners, and between legal practitioner and ed the possibility that the person har- define the type of conduct amounting to court are those which carry with them mu- assed would be offended, humiliated sexual harassment. Sexual harassment may tual respect and trust in the performance of or intimidated. involve a single or one-off incident or ongo- professional functions. There must be con- ing persistent behaviour. There is an endless fidence in the public and in those engaged (1A) For the purposes of subsection array of behaviour that may constitute in the administration of justice that legal (1), the circumstances to be taken sexual harassment from comments, taunts, practitioners will properly perform these into account include, but are not invasive questioning, email, texts, to physi- functions.2 limited to, the following: cal contact, touching and sexual assault. Such high standards have – in line with modern recognition of proscribed behaviour (a) the sex, age, sexual orientation, Unwelcome conduct in the workplace – found particular articu- gender identity, intersex status, mar- lation in Legal Profession Uniform Conduct ital or relationship status, religious If the conduct of a sexual nature is wel- (Barristers) Rules 2015. Rule 123 provides belief, race, colour, or national or come or there is mutual attraction there is that a barrister must ethnic origin, of the person harassed; no sexual harassment. Anti-discrimination Sexual harassment not, in the course laws should not be taken to discourage of practice, engage (b) the relationship between the consensual sexual conduct whether in the may involve a in conduct which person harassed and the person who workplace or elsewhere. As Mathews DCJ constitutes dis- made the advance or request or who said in O’Callaghan v Loder (1984) EOC single or one-off crimination, sexual engaged in the conduct; ¶92-024 at 75,516: harassment or work- ‘....equal opportunity legislation place bullying. (c) any disability of the person incident or ongoing does not extend to impugn sexual Our focus is sexual harassed; approaches from one person to harassment. For the persistent behaviour. another merely because they are in purpose of Rule 123 (d) any other relevant circumstance. disparate positions in the work-force. ‘sexual harassment’ The object of the legislation is not to is defined by reference to ‘the applicable (2) In this section: sterilise human relationships, but to state, territory or federal anti-discrimina- ‘conduct of a sexual nature’ in- encourage their development on a tion or human rights legislation’ (Rule 125). cludes making a statement of a sexual free and equal basis.’ nature to a person, or in the presence What is sexual harassment? Unwelcome conduct is essentially any of a person, whether the statement is sexual conduct that is not invited or recip- made orally or in writing. In New South Wales, the Sex Discrimina- rocated by the woman. This is the subjective tion Act 1984 (Cth) (SDA) and the Anti-Dis- Section 22A of the ADA provides: element and turns on the reaction of the crimination Act 1977 (NSW) (ADA) apply. woman to whom the conduct is directed. Section 28A of the SDA defines sexual har- For the purposes of this Part, a person The woman is not required to reject the assment as follows: sexually harasses another person if: advances expressly or tell the perpetrator Meaning of sexual harassment it is unwelcome in order for the conduct in (a) the person makes an unwelcome question to be unwelcome. (1) For the purposes of this Division, a sexual advance, or an unwelcome re- person sexually harasses another person quest for sexual favours, to the other Reasonable person test (the person harassed) if: person, or Not all unwelcome conduct will amount to (a) the person makes an unwelcome (b) the person engages in other un- sexual harassment. There are some addition- sexual advance, or an unwelcome welcome conduct of a sexual nature al elements. First, the conduct in question request for sexual favours, to the in relation to the other person, must be capable of offending, humiliating person harassed; or or intimidating the recipient. The expres- in circumstances in which a reason- sions offend, humiliate and intimidate (b) engages in other unwelcome con- able person, having regard to all the bear their ordinary meaning. Generally, an duct of a sexual nature in relation to circumstances, would have anticipat- unwelcome sexual advance or unwelcome the person harassed; ed that the other person would be sexual conduct will offend or humiliate or

38 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRACTICE

intimidate the recipient but not always. If by men who do not have the decency whether the conduct is referable to the barris- the unwelcome sexual advance or conduct and professionalism to treat them with ter’s professional work. results from a misunderstanding but causes the respect and courtesy that all work In New South Wales Bar Association v Cum- no offence, then there is no unlawful sexual colleagues, irrespective of their gender, mins (2001) 52 NSWLR 279 Spigelman harassment. deserve.’(at 78,797) CJ (Mason P and Handley JA agreeing) However, it is important to note that the ques- discussed the distinction between personal tion is not how the reasonable woman should Sex-based harassment misconduct and ‘professional misconduct’ have reacted to the unwelcome sexual conduct. noting that professional misconduct may not So claims that the sexual conduct was a joke, Persistent unwelcome and offensive sexual- be limited to conduct that is ‘directly’ refera- done while under the influence of alcohol or ised conduct may fall short of the definition ble to professional work. At [56] he said: was inadvertent or should not have caused of sexual harassment. However, such con- 56 There is authority in favour of ex- offence are misplaced. The perpetrator’s mo- duct may amount to unlawful sex discrim- tending the terminology ‘profession- tives and reasons for ination because exposure to a hostile work al misconduct’ to acts not occurring There are no engaging in the con- environment subjects women to detriment directly in the course of professional duct are irrelevant. in their employment or as recipients of ser- practice. That is not to say that any defences to sexual Rather, the question vices. It may also amount to bullying. An form of personal conduct may be is focussed on how example is in Hill v Water Resources Commis- regarded as professional misconduct. harassment. The the reasonable by- sion (1985) EOC ¶92-127, where the New The authorities appear to me to sug- stander appraised of South Wales Equal Opportunity Tribunal gest two kinds of relationships that perpetrator’s motives all the circumstances upheld a complaint of sex discrimination justify applying the terminology in assesses the situation. where the complainant was exposed to sex- this broader way. First, acts may be and intentions The key question for ual harassment and sex-based harassment. sufficiently closely connected with the SDA is whether The incidents of harassment were as follows: actual practice, albeit not occur- are not relevant. a reasonable person, • receiving telephone calls where no-one ring in the course of such practice. having regard to all spoke or where an offensive recorded Secondly, conduct outside the course the circumstances, would have anticipated the message was played, including one of practice may manifest the possibility that the woman to whom the sexual from a sexual health clinic; presence or absence of qual- advance or conduct was directed would be • cartoons and sexually For the purpose of ities which are incompatible offended, humiliated or intimidated. Section offensive material sent with, or essential for, the 22A of the ADA requires more than the pos- anonymously in the mail; Rule 123, sexual conduct of practice. … sibility. For the ADA the question is whether • sexist comments being the reasonable person would have anticipated directed to her; harassment must If a question of the proper in- that the woman concerned would be offended, • throwing cartons at the terpretation of the expression humiliated or intimidated. complainant with unnec- be ‘in the course ‘in the course of practice’ arose For the SDA, s 28A(1A) sets out the factors essary force; with respect to Rule 123, a that are relevant to applying the objective • general taunting and teas- of practice’. tribunal may be assisted by test. These factors focus on the power dis- ing; considering the way the SDA parity between the parties, their relationship • advertisements for brothels and other has been interpreted when questions arise in the context of the workplace or particular offensive notices placed on notice whether sexual harassment has occurred setting and whether the recipient of the con- boards; and ‘in connection’ with employment. The line duct has any particular vulnerability. • being subjected to practical jokes. between the private domain and work may In Filas v Fourtounis (1996) EOC ¶92 -780, In that case, the EOT noted the great be blurred.3 the allegations of unwelcome sexual conduct number of incidents which occurred over a concerned invitations for sex, questioning prolonged period. Clearly some of the inci- Experience of sexual harassment and about private and sexual matters and physical dents did not amount to sexual harassment sex-based harassment at the bar contact. Ms Filas said she was ‘revolted’ but as defined by s 22A of the ADA, but did she was not distressed or intimidated by the constitute a form of harassment of Ms Hill Over the past 20 years, women barristers perpetrator’s con- because she was a woman. Male employees have consistently reported experiencing sex- Unwelcome conduct duct. She thought in a similar situation did not experience ual harassment at the bar. that such behaviour such treatment. In 1995 the Keys Young Report on Gender is essentially any by men was ‘normal’. Bias in the Legal Profession identified a In finding the ele- Defences number of areas where women legal practi- sexual conduct ments of s 28A were tioners did not have the same opportunities satisfied, the Com- There are no defences to sexual harassment. as men in the profession. Keys Young Report that is not invited missioner observed: The perpetrator’s motives and intentions are noted alarming reports of sexual harassment not relevant. Likewise, claiming that the for women barristers.4 The women barristers ‘It is a sad com- offensive conduct was intended to be a joke reported sexual harassment by clients, solic- or reciprocated ment on the work- or humorous is not an excuse. itors, fellow barristers and members of the places in which Ms judiciary. The women concerned did not by the woman. Filas has been em- In the course of practice make any formal complaint to address the ployed if she finds conduct. such totally inappropriate behaviour For the purpose of Rule 123, sexual har- On 2 June 1995, the Bar Council resolved normal. It demonstrates that Austral- assment must be ‘in the course of practice’. to implement an equal opportunity policy ian society still has a long way to go This phrase bears its ordinary meaning. For in response to the Keys Young Report. The before women can go to work knowing barristers, this is not limited to a particular Bar Council condemned all forms of sexual that they can focus on the tasks which place (i.e. chambers) or to particular persons harassment, discrimination on the grounds they have to do, and not be bothered (i.e. employees or colleagues). The question is of sex or sexual preference and sexist be-

The Journal of the NSW Bar Association [2017] (Summer) Bar News 39 PRACTICE

haviour of any kind. It resolved to address experienced sexual harassment at their overseas jurisdictions there have been some equal opportunity at the Bar. It established workplace; high profile cases. a Gender Issues Committee. • With respect to the harassment, 56% of In 2004, a practitioner described as a ‘vet- In Victoria in 1998, Hunter and McKel- women did nothing; eran Toronto litigator’ was the first Ontario vie published Equality of Opportunity for • Not one woman lodged a formal lawyer to be disbarred for sexual harassment Women at the Victori- complaint. of two women in the mid-1990s. The ruling More than one in an Bar: A Report to the In response to the NARS Report, the then was later overturned and a 12-month sus- Victorian Bar Council president of the New South Wales Bar Associ- pension imposed.8 ten (12%) of all (1998).5 The research ation Jane Needham SC established a working In 2006, New Zealand barrister Christo- was not confined to group. Together with the Equal Opportunity pher Harder was struck off with respect to respondents reported sexual harassment Committee and Women Barristers Forum, allegations involving sexual harassment.9 but reported on the the response to the NARS Report included He admitted making suggestive and in- having experienced experience of women the adoption of the appropriate comments to a female lawyer barristers. Women de- four new Best Practice Guidelines (BPGs). and that he made suggestive and persistent sexual harassment scribed the courtroom The Best Practice Guidelines on Harassment, phone calls to her and that this amounted was being ‘sexualised’ Discrimination, Victimisation and Vilification to misconduct. while at the Bar. with respect to the (which superseded the 2004 Model Sexual In 2011, a former municipal court judge in manner in which Harassment and Discrimination Policy) and Arizona (who resigned from the bench fol- they were addressed on Bullying provide strong statements that lowing allegations of sexual harassment) was and treated. They noted the expressions such conduct is unacceptable. They deal with suspended from practising as a lawyer for some magistrates or judges had used to acceptable standards of conduct and engage- two years and was prohibited from serving address women barristers, such as ‘girlie’, ment in barristers’ daily professional lives. The on the bench in the future. Mr Ted Abrams ‘love’, ‘young lady’, or ‘having a cat fight Harassment, Discrimination, Victimisation was alleged to have ‘engaged in a prolonged are we ladies?’. and Vilification BPG recognised that barris- and relentless effort to sexually harass an In October 1999, Regulations 69B and 69C ters’ workplaces extended beyond chambers to assistant public defender’ who appeared in were introduced as part of the Legal Profes- the courts, tribunal, participation in Bar As- his court. It was alleged that during a 14- sion Regulation 1994 (NSW).6 Regulation sociation and other practice related activities. month period, Mr Abrams (when a judge) 69B provided that: A legal practitioner must The Grievance Handling BPG was designed sent the woman at least 28 voice mails and not, in connection with the practice of law, to provide a procedure for handling com- 85 text messages, many of which were sex- engage in any conduct, whether consisting plaints of offending conduct confidentially, ually suggestive. At least one he admitted of an act or omission, that constitutes un- impartially, and promptly. The BPG set out was ‘obscene’. He repeatedly pressured the lawful discrimination (including unlawful the appropriate procedure to be adopted by woman for sex, made slurping noises and at sexual harassment) under the Anti-Discrim- complaint contact officers in chambers and at one point fondled her buttocks.10 ination Act 1977. Regulation 69C required the Bar Association. More recently in Singapore, a legal practitioners to undertake mandatory The 2015 New South Wales While a practitioner lawyer was disbarred for sexual- continuing education in the areas of equal Bar Association Practicing ly harassing an employee: Law opportunity, discrimination and occupa- Certificate Renewal Survey should advocate Society of Singapore v Ismail bin tional health and safety. These regulations asked about sexual harassment Atan [2017] SGHC 190.11 In applied in substance up to the introduction and the experience of NSW fearlessly on behalf of explaining the order to strike of uniform practice rules in 2015. barristers. The results of the off the practitioner, the chief In 2004, the Bar Council approved the survey revealed: the interests of their justice said: Model Sexual Harassment and Discrim- • More than one in ten (12%) 18 We turn then to the ques- ination Policy. The objective of the Model of all respondents reported client, that is not an tion of the appropriate sanc- Policy was that each set of chambers would having experienced sexual tion in this case. We begin adopt the policy. harassment while at the Bar; excuse for discourtesy. with the observation that the On 6 January 2014, Rule 117 of the Bar- • Three quarters (73%) of this respondent’s conduct was risters Rules came into effect. It proscribes group were women; egregious. He had abused a junior col- sexual harassment, discrimination and • The majority (85%) of women who expe- league after leading her to a confined workplace bullying. Rule 117 is the prede- rienced sexual harassment indicated that space under the pretext of carrying out cessor to the present Rule 123. the source of harassment was a fellow work on a case. He had also abused In February 2014 the Law Council of barrister the dominance he exercised over her Australia released the National Attrition • Male barristers who experienced sexual by virtue of the position he held in and Re-engagement Study Report (NARS harassment were more likely to report the firm and then engaged in conduct Report). Sexual harassment was identified the source of harassment as a client or that constituted a serious criminal as a significant barrier to women’s partici- solicitor; offence upon her person. Furthermore, pation in the profession. The results of the • Over half (56%) of females and close to the offence appears to have been pre- NARS Survey were disturbing for the bars. half of males (49%), took no action. A meditated with a considerable degree In summary, the NARS Report said: minority raised the issue with a colleague of planning, and involved multiple • 80% of women barristers experienced or a clerk; unsolicited advances. Additionally, the bullying or intimidation: • Not one person (male or female) made a respondent was a senior lawyer, having • 84% discrimination due to gender; formal complaint of sexual harassment. been in practice for about 16 years at • 55% discrimination due to age; the material time, and it is well estab- • 40% of discrimination due to Sexual harassment and sex-based lished that the more senior an advocate family responsibilities;7 and harassment as professional conduct and solicitor, the more damage he • Women barristers were twice as likely does to the integrity (and therefore the as those in private practice or in- Sexual harassment in a professional context standing) of the legal profession. house roles to believe they have ever is not unique to Australia. In comparable

40 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRACTICE

Australia

There are few reported cases in Australia. In 2004, a Victorian barrister was suspended from practice for six months for making sexual advances toward a client during a pre-trial conference. The Legal Profession Tribunal found the barrister guilty of un- satisfactory conduct. The barrister was also reprimanded.12 In Legal Profession Complaints Committee v in de Braekt [2013] WASC 124, the barrister’s conduct included (a) knowingly misleading the Magistrates’ Court; (b) persistent dis- courtesy to the Deputy Chief Magistrate; (c) sending discourteous and offensive emails to a police officer; (d) sending a discourteous, offensive and threatening email to another officer; (e) behaving in a discourteous and abusive manner to an officer of the Central Law Courts complex – including racist, abu- “Remember the good ol’ days when sexual harassment wasn’t such a big deal.” sive, and possibly sexist remarks. In ordering Farris / Cartoonstock that the barrister be struck off, the Full Bench of the Supreme the solicitor terminated her position. The Legal Services Commission pursued the Bar cannot be the Court of Western VCAT (Garde J) found the solicitor had sex- disciplinary proceedings on grounds in- Australia observed ually harassed the complainant on 11 sepa- cluding that Nguyen had engaged in sexual last bastion where that the importance rate occasions, and awarded the complainant harassment in breach of the Queensland of courtesy in the $100,000 compensation.15 In subsequent equivalent to Rule 123.17 It was the first case sexual harassment legal system, and disciplinary proceedings, VCAT (Judge of this kind.18 His conduct was described as in the relationship Jenkins) found each of the 11 occasions con- ‘near the lowest possible edge of seriousness and assault is between the legal stituted professional misconduct, cancelled for such offences’19 and reference is made to profession, the court the solicitor’s practising certificate for eight Mr Nguyen’s ‘mistaken belief … that his countenanced in system, and general months and ordered he not be eligible to flirtatious behaviours were not unwelcome’. public should not regain his certificate unless he satisfied a set The tribunal found he had engaged in un- the workplace. be understated. of conditions. satisfactory professional conduct,20 rather While a practitioner The Court of Appeal recognised that the con- than professional misconduct. By the time should advocate duct was serious, ‘[t]o treat a woman under of the disciplinary hearing, Mr Nguyen had fearlessly on behalf of the interests of their his training in that fashion was unquestiona- addressed his ‘identified deficiency in … client, that is not an excuse for discourtesy.13 bly despicable unprofessional conduct’,16 but perceptual awareness, and thus his ability From ‘the point of view of a profession which considered the risk to the public of repeti- to communicate and respond appropriately seeks to maintain standards of decency and tion of the conduct was low. The court set to women,’21 obviating the need for any pro- fairness, it is essential that the privilege, and aside the penalty – finding the spective conditions. the power of doing harm which it confers, $100,000 imposed by Garde J If an allegation of Mr Nguyen was publicly rep- should not be abused’.14 was a significant sanction likely rimanded and fined ($20,000), This case highlights that courtesy, civility to provide specific and general sexual harassment is with general deterrence a sig- and restraint of power is fundamental to the deterrence, and protection nificant consideration in the character of the legal profession – reflecting against reoffending could be made to a colleague, punishment imposed: ‘the Bar respect for the dignity of every participant achieved by a condition that cannot be the last bastion where in the administration of justice (regardless he not employ any women in clerk, head of sexual harassment and assault is of the individual’s position). Viewed in this legal trainee positions. How- countenanced in the workplace. light, Rule 123 embodies an obvious dimen- ever, because he was a sole chambers or the Bar Whilst it is not suggested that sion of values which have always been present practitioner the cancellation this is the case, such conduct in the regulation of barristers’ conduct. of his practising certificate was Association, there must be strongly deterred.… In PLP v McGarvie and VCAT [2014] VSCA another significant financial [Sexual harassment and sexual 253 a solicitor engaged in persistent acts of burden that would diminish the is an obligation assault] is conduct which must sexual harassment toward a person under- goodwill of his practice and put be discouraged.’ taking legal practical training with him, his livelihood at risk. to report. including: sexual comments and advances In Legal Services Commissioner Other consequences to her; showing her a pornographic video of v Nguyen [2015] QCAT 211, Mr Nguyen, a prostitute performing a sexual act on him; a barrister, twice sexually assaulted a legal Society’s growing consciousness of the de- sending her a photograph of him naked; secretary who was instructing him at court grading effect of sexual harassment, discrim- giving her an unwelcome massage; having on a sentencing hearing. He pleaded guilty ination and workplace bullying has resulted his partner tell her that if the complainant to two charges of sexual assault, for which in a perceived willingness to speak out. There did not sleep with the applicant he would not he was initially convicted and sentenced to is greater awareness of a person’s rights to sign off on her training; on one day engaging three months’ imprisonment, suspended. On make a complaint to regulatory bodies such in no fewer than 78 requests to have sexual appeal the sentence was reduced to a fine of as the Australian Human Rights Commis- intercourse with her. When relations soured, $2000 with no conviction recorded. sion and Anti-Discrimination Board. When

The Journal of the NSW Bar Association [2017] (Summer) Bar News 41 PRACTICE complaints become the subject of litigation, offence, only that it is an offence. ENDNOTES the courts have expressed the view that In NSW, a serious indictable offence can in- 1 Legal Services Commissioner v Nguyen [2015] QCAT 211 at [64]. damages awards should reflect community clude sexual harassment that involves sexual 2 Legal Services Commissioner v Nguyen [2015] QCAT 211 at [18], values: see Richardson v Oracle Corporation assault. citing New South Wales Bar Association v Murphy (2002) 55 NSWLR Australia Pty Ltd (2014) 223 FCR 334. 23 at 52 (per Giles JA). In Richardson the Full Court confirmed Bystanders and accessory liability 3 See Lee v Smith & Ors [2007] FMCA 59, (2007) EOC ¶93–456 that compensation requires an evaluation South Pacific Resort Hotels Pty Ltd v Trainor(2005) 144 FCR 402; of the actual, subjective harm inflicted The former Chief of Army Lieutenant Gener- Smith v The Christchurch Press Company Limited[2001] 1 NZLR upon the victim, observing that whether al David Morrison famously said ‘the stand- 407; Chief Constable of the Lincolnshire Police v Stubbs [1999] ICR a victim of sexual harassment (in this case, ard you walk past is the standard you ac- 547; [1999] IRLR 81, Hely B ‘Open All Hours: The Reach of in the workplace) or a victim of (workplace) cept.’23 For barristers we should ask whether Vicarious Liability in ‘Off-Duty’ Sexual Harassment Complaints’ bullying and harassment lacking a sexual walking past sexual harassment in chambers, [(2008) 36(2) Federal Law Review 173. 4 Keys Young, Research on Gender Bias and Women Working in the element, in both types of case the victim may court or our professional endeavours means Legal System, Report (6 March 1995). See also NSW Government, suffer psychological injuries and distress of a a tacit acceptance of inappropriate conduct. Department for Women, Response to Gender Bias and the Law - comparable kind. Section 52 of the ADA makes it Women Working in the Legal Profession in NSW (October 1995) and The impact on victims can be unlawful for a person to cause, ...a bystander may be NSW Attorney-General’s Department, Department for Women, significant. For example, in Tan instruct, induce, aid or permit Gender Bias and the Law: Women Working in the Legal Profession - v Xenos (No 3) ([2008] VCAT another person to do an act Report of the Implementation Committee, 1 October 1996. See also 584, Dr Tan was a neurosurgical liable for a failure that is unlawful by reason of a Bourke, ‘Gender Bias in the Legal Profession’ Law Society Journal registrar. She came to develop provision of this Act. February 1997, p.52 and Hennessy N ‘Solicitors’ obligations as a supportive professional rela- to act to prevent Section 105 of the SDA does employers under anti-discrimination laws’(1995) 33 (4) Law Society tionship with Dr Xenos and to not apply to sexual harassment Journal, ‘Sex Discrimination and Sexual Harassment. Should there be a professional conduct and practice rule’ Law Society Journal discuss her progress with him. circumstances where but it does apply to discrim- December 1995, p.48. Over the period from January ination (including sex-based another person is 5 See also Justice Kenny Women’s Law Collective: Experiences of Women 2005, Dr Xenos commenced harassment). The reach of the in the Courtroom www.fedcourt.gov.au/digital-law-library/judges- inviting her to his private rooms accessory liability provisions at a known risk of speeches/justice-kenny/kenny-j-20030811 which were adjacent to the is illustrated in the Federal 6 http://www.austlii.edu.au/au/legis/nsw/num_reg/ hospital, for extra tuition. In Court decision of Elliott v lpar19991999562350.pdf early 2005, she accepted an in- sexual harassment. Nanda (2001) 111 FCR 240. 7 See NARS Report at p.80. vitation him to meet him at his The issue was whether the 8 http://www.lawtimesnews.com/author/na/court-overturns- rooms. Dr Tan was assaulted. Her reaction to Commonwealth Employment Service (CES) neinsteins-disbarment-8778/ the incident was profound.22 Dr Tan pursed was an accessory to sex discrimination when 9 https://www.lawyersweekly.com.au/news/1640-nz-criminal-defence- lawyer-learns-hard-lessons a complaint alleging sexual harassment. She it placed a job seeker with an employer who 10 https://www.leagle.com/decision/inazco20110804001.xml was successful in VCAT. She was awarded had been the subject of complaints. Justice 11 http://www.tnp.sg/news/singapore/lawyer-disbarred-sexual- $100,000 in damages – at the time one of the Moore held that CES had permitted the un- harassment highest awards for a sexual harassment claim. lawful conduct to take place. Its knowledge 12 http://www.theage.com.au/articles/2004/04/25/1082831435141. of previous complaints of sexual harassment html. See also http://www.olsc.nsw.gov.au/Documents/civility_ Criminal issues about the employer should have alerted the professionalisam_standards_courtesy.pdf CES to the possibility that any young female 13 at [28]-[30]. Barristers should also be aware of s 316(1) sent to work for the employer was at risk of 14 Clyne v New South Wales Bar Association (1960) 104 CLR 186: of the Crimes Act 1900 (NSW). If an alle- sexual harassment. At [163] Moore J said: 15 PLP v McGarvie and VCAT [2014] VSCA 253. See other examples gation of sexual harassment is made to a of practitioners being ordered to pay damages - In McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, Ms McAlister colleague, clerk, head of chambers or the Bar In my opinion, a person can, for the was sexually harassed by Mr Lamb, a legal practitioner. Mr Lamb Association, there is an obligation to report. purposes of s 105, permit another attended her home to provide legal advice regarding her divorce. An A person who fails to report conduct which person to do an act which is unlawful, issue arose as to whether the conduct occurred in the course of Mr amounts to a serious indictable offence is lia- such as discriminate against a woman Lamb’s employment. The court ordered that Mr Lamb compensate ble to imprisonment for two years. on the ground of her sex, if, before the Ms McAlister in the order of $5,100. The elements of the section are: unlawful act occurs, the permitter 16 At [87]. • a person (including a company) has knowingly places the victim of the 17 Rule 127 of the Barristers’ Rules 2004 (Qld). committed a serious indictable offence; unlawful conduct in a position where 18 Legal Services Commissioner v Nguyen [2015] QCAT 211 at [66]. • another person (including a company) there is a real, and something more 19 at [19]. knows or believes that the offence has than a remote, possibility that the 20 at [37]-[40]. 21 at [44]. been committed unlawful conduct will occur. That is 22 http://www.theage.com.au/victoria/surgeon-caroline-tan-breaks- • that other person has information which certainly so in circumstances where silence-over-sexual-harassment-in-hospitals-20150311-141hfi.html might be of material assistance in se- the permitter can require the person 23 https://www.youtube.com/watch?v=QaqpoeVgr8U curing the apprehension of the offender to put in place measures designed to 24 (2001) 111 FCR 240, 292-293 [163]. or the prosecution or conviction of the influence, if not control, the person’s offender; and conduct or the conduct of the person’s • that other person fails, without reasona- employees.24 ble excuse, to bring that information to the attention of a member of the Police In summary, a bystander may be liable for a Force or other appropriate authority. failure to act to prevent circumstances where A serious indictable offence is an indictable another person is at a known risk of sexual offence which is punishable by imprisonment harassment. for life or for a term of five years or more. It is not necessary that the person know the rele- vant conduct amounts to a serious indictable

42 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRACTICE

Cancellation fees by Mark Brabazon SC

You have been working on a big case for usual basis, i.e. by determining whether the ecutor on a solicitor-client basis, it appeared months. It is listed for hearing with an es- claim is fair and reasonable having regard to that ‘some sort of agreement’ had been made timate of six weeks. You have set that time the relevant facts and circumstances of the that she would pay her counsel ‘“cancellation aside and refused other work. The case is due particular case.1 They treat the question as fees” in respect of some or all of the time to start on Monday 16th. It settles on Friday one that they can determine in the ordinary which was originally expected to be needed 13th. Your family is pleased to have you to way by the application of their professional for the case but was not in fact required.’ themselves for the weekend. You return to judgment and expertise to those facts and cir- Wilcox J said that, in his 21 years at the bar chambers on Monday. There is a large gap in cumstances. Some claims are allowed, some (1963 to 1984), he ‘never heard of such fees the diary. What can you fairly and properly are disallowed, and some are allowed in part. being asked’ and that, as he understood the claim in your bill? The cases in which the assessors see claims usual situation, any disadvantage to the bar- for more than the first hearing day (i.e. other rister from a case ending early ‘had to be bal- Uniform Law and costs assessment than claims that resemble the old fee-on-brief anced against the advantage conferred by the concept) tend to involve large cases listed for rule which permits barristers to charge a full The answer to that question is not determined long hearings. fee on a matter settled after delivery of the solely by the terms of your fee agreement. Sec- The approach of the costs assessors accords brief but before any hearing.’ That practice, tion 172 of the Legal Profession Uniform Law with judicial opinion in Wilkie v Gordian which his Honour expressly contrasted with of New South Wales and Victoria says that Runoff Ltd [2005] NSWSC 873 and Levy v a cancellation fee, clearly involved a charge ‘[a] law practice must, in charging legal costs, Bergseng (2008) 72 NSWLR 178, 198–204, referable to an expected hearing that does not charge costs that are no more than fair and which are considered below. occur. reasonable in all the circumstances’ having His Honour’s observations about ‘cancella- regard to the matters set out in the section. Judicial statements, history, context tion fees’ were, strictly speaking, obiter, and Existence of a compliant costs agreement is were to the following effect:

no more than prima facie evidence that the So what have the judges said about cancel- At a time when legal fees are so on- costs for which it provides are fair and rea- lation fees? Different things in different cir- erous as to exclude from significant sonable (s 172(4)); the principal obligation cumstances, as it turns out. Because of the litigation all but the wealthy and is not abrogated. Section 207 has the effect importance of history and context, it is best the legally-aided, any new practice that a contravention of that requirement is to approach the case law chronologically. which further increases costs requires capable of constituting unsatisfactory pro- It is also important to appreciate that the meticulous justification. I am not fessional conduct or term ‘cancellation fee’ has no current tech- aware of any attempted justification of ...the term professional miscon- nical meaning. It is not used in legislation or ‘cancellation fees’. It seems to me that duct by a barrister. professional rules relating to legal costs or the it would be desirable for Bar Councils ‘cancellation fee’ Unlike previous practice of barristers in New South Wales. It and Law Societies to examine such New South Wales does not have a fixed factual meaning. Some fees, and perhaps issue a ruling or some has no current legislation which people appear to use the term to refer to any guidelines, before the practice becomes focussed on the charge referable to a day when an expected firmly entrenched. technical meaning. fairness of a costs hearing does not proceed, without further agreement, the Uni- qualification. Others use the term in a more The old practice described by Wilcox J is no form Law focusses on fairness of fees actually restricted sense. It used to be distinguished longer used to any appreciable extent, if at all. claimed. It is clear that a fee will not be fair from a fee-on-brief, which was generally It contemplated a ‘fee-on-brief’ that covered if it exceeds what a barrister is contractually payable even if the relevant action settled the first day of a trial and general preparation. entitled to claim but, if a barrister claims before trial. That was the position before 1 If a trial lasted longer than a day, a ‘refresher’ less than a contract permits, it is the claimed July 1994, when fee deregulation began.2 was conventionally charged for each extra amount with which s 172 is concerned. day at 2/3 of the fee-on-brief. A trial would Costs assessors in New South Wales are Razzi (1991) ordinarily take more than half a day to pre- used to dealing with claims for cancellation It is obvious that Wilcox J had the more pare, and a long trial considerably more, so fees in the context of both party/party and limited meaning in mind in Commissioner the fee-on-brief and refresher both reflected practitioner/client (including barrister/so- (AFP) v Razzi (No 2) (1991) 30 FCR 64, a combination of in-court advocacy and cor- licitor) assessments under the Uniform Law 67. A criminal case that had been expected responding preparation. The old practice has and under the Legal Profession Act 2004. The to run for some weeks lasted only four days generally been replaced by explicit charges number of practitioner/client assessments because, not long before the trial date, two for hours and days of a barrister’s professional under the Uniform Law is still quite small of Mrs Razzi’s co-accused decided to plead time, effort and commitment. because transitional provisions preserve the guilty and an agreement made between her old law where first instructions were given representatives and the prosecutor limited Bar Rules in the 1990s before 1 July 2015. the evidence that would be needed. On her The assessors approach such claims on the application for a costs order against the pros- The Barristers Rules included a provision

The Journal of the NSW Bar Association [2017] (Summer) Bar News 43 PRACTICE dealing with cancellation fees as rule 85A gall J in Wilkie v Gordian Runoff Ltd [2005] to the solicitor, that assurance cannot from 1992 to 30 June 1994. The text of the NSWSC 873. The facts arose during the come from having money on account rule has proven difficult to verify. Secondary time of the Legal Profession Act 1987 and after of their fees in the solicitor’s trust sources indicate that it was in these terms: deregulation. Mr Wilkie had been charged account. It is therefore not surprising with offences, and the High Court had held that, as they may now do, counsel re- (a) When a case is settled, adjourned that his insurers were liable to pay his defence quire payment in advance of some part or not reached, or the hearing date is costs. The trial would be long – six to twelve of their fees. vacated, a barrister shall not be enti- weeks – and his counsel, senior and junior, tled to a cancellation fee in addition [16] Particularly where counsel are would have to work full time on preparing to the normal Brief on Hearing fee retained to defend criminal charges, the trial for two to four months beforehand. except by agreement with the in- it is hardly surprising that they require He had entered into costs agreements with structing solicitor. some security for the payment of their his defence counsel. Each required fees. They cannot hold fees in trust, (b) If a cancellation fee is sought at the payment in advance of an amount because they cannot operate trust time of retainer or within a reasonable time of the notification to the barris- ter of the date fixed for hearing, but is not agreed to by the instructing solic- itor, the barrister shall be at liberty to decline the retainer or return the brief. There was also a jointly agreed statement by Bar Council and the Law Society: When a case is settled, adjourned or the hearing date is vacated counsel will not be entitled to a cancellation fee in addition to the normal Brief on Hearing Fee unless agreed. Where counsel has set aside days for the hearing of a case and if counsel desires to charge a cancellation fee counsel must in writing notify the solicitor within a reasonable time after delivery of the Brief and a reasonable time before the date fixed for hearing that a cancellation fee will be charged. equal to 20 days’ fees, on the basis accounts. But they can be paid in that the amount would be payable re- advance. That is what has happened It will be the responsibility of the so- gardless of the duration of the hearing here. It is hardly unreasonable; quite licitor to notify his or her client of the (or, indeed, regardless of whether the the contrary. proposed cancellation fee and, after hearing proceeded at all).5 receiving his client’s instructions, to [17] Equally, it is a fact of life communicate to counsel as to wheth- The insurer objected to this A cancellation that where counsel are retained er the cancellation fee is accepted. term, which was referred to to work exclusively on one matter, in the judgment (presumably fee could also be they must reject all other offers If the cancellation fee is not accepted reflecting its treatment by the for work during the currency of counsel shall be at liberty to return the parties – the description does described as a that retainer. Even with capable brief. not appear to have been conten- counsel, it is not always possible tious) as a cancellation fee. commitment fee. to go out and find other work If counsel receives a fee for the hearing The legal question in this in replacement if such a retainer of a case or cases on days for which the insurance context was whether it had been comes to an end abruptly, unex- cancellation fee was applicable and no reasonable for Mr Wilkie to agree to such a pectedly and early. Thus, it is common prior agreement has been reached to term. His Honour decided that it had been for counsel retained in such matters to cover that situation it is expected that reasonable to agree to a cancellation fee, and require an agreement to pay some sort counsel will act fairly to the solicitor referred the question whether its quantum of cancellation fee. Whether or not that and the solicitor’s client by adjusting (in effect, the 20 days) was reasonable for the practice is reasonable depends, I think, the cancellation fee accordingly, par- report of a referee with expertise in the assess- more on the amount of the fee demand- ticularly when the cancellation fee has ed, and the events by reference to which 3 ment of legal costs. His Honour’s conclusion been agreed upon an indemnity basis. on the question of principle appears at [17]; it is payable, rather than the concept.… It is also understood that Bar Council issued it is useful to read that passage together with (emphasis added) a guideline to barristers concerning rule 85A the two preceding paragraphs: during the life of that rule and subsequently [15] In circumstances where counsel Martiniello (2005) endorsed the view that the spirit of the guide- do not have the ability to require the In R v Martiniello [2005] ACTSC 109 [9], a 4 line survived repeal of the rule. solicitor to pay their fees, it is to be short ex tempore judgment in a criminal case, expected, I think, that they would re- Connolly J was ‘not aware of any practice in Wilkie (2005) quire some assurance for the payment the civil side of [the ACT Supreme Court] The question of cancellation fees was consid- of their fees. Since they do not look where cancellation fees are generally regard- ered in a more modern context by McDou- ed as appropriately caught within a general

44 [2017] (Summer) Bar News The Journal of the NSW Bar Association PRACTICE

form of costs order’ but noted a different before that was to happen, the case settled at proceedings, and to the extent that approach in the Northern Territory. His mediation. Counsel claimed a cancellation the Court is entitled to deal with this Honour also referred to Razzi, declined to fee equal to 20 days, i.e. half the estimated issue, the charging of cancellation fees ‘make an order pursuant to a cancellation fee eight weeks.6 A costs assessor allowed the was reasonable, was part of the agreed basis’, and stood the matter over for negoti- claimed cancellation fee to the extent of 15 costs arrangements and is not rendered ation between the parties. No reference was days, without uplift. The solicitors applied for unjust by any factor adumbrated by made to Wilkie, which had been decided a review, and a review panel reversed. Roth- the Appeal Panel. few months before. man J restored the determination of the costs assessor. His Honour’s judgment should be [111] Nothing in this judgment should KK v JV (2006) understood against this somewhat complex be taken as a general proposition that In KK v JV (12 April 2006, unreported, factual background. all counsel in all cases can reasonably Family Court of Australia), a judgment One other aspect of the case should be and justly charge cancellation fees. concerning a claim for costs between adverse mentioned. The review panel had decided In most cases, and for most counsel, litigants, Faulks J that the costs agreement was unjust under cancellation fees would be unjustifi- A barrister should expressed the view s 208D of the 1987 Act. Rothman J held that able. This judgment deals only with at [113] that ‘the this was ultra vires, as that section only ap- this appeal, relating as it does to senior never charge a charging of cancel- plied to a costs agreement with a client. His counsel engaged ‘on spec’ in particu- lation fees in family Honour also concluded, however, that ‘[n]o larly specialised work for which the cancellation fee law matters at least other reason provided would satisfy me that lead time is lengthy and during which is not to be encour- the fees charged were unreasonable or unjust he has, in fact, foregone other paid without consciously aged’ and at [118] …. If it be necessary, I independently come court work. that, if an indemnity to the view reflected in the Costs Assessor’s considering whether costs order had been Determination.’7 Hoffman (2014) appropriate in the Rothman J declined to follow the approach Razzi, Wilkie and Martiniello and Levy v it is fair to the case, he would not of Wilcox J in Razzi on the basis of subse- Bergseng were con- have been ‘prepared quent factual changes in the nature of a sidered by Neilson Cancellation fees are client to do so and to endorse or ap- barrister’s practice, increased specialisation, DCJ in Commis- prove the application and the fact that, while a significant number sioner of Police v not for everybody, whether the amount of any agreement of barristers had not embraced ‘cancellation Hoffman (2014) 18 about cancellation fees’, the phenomenon of barristers demand- DCLR (NSW) 320; and they are not charged is fair. fees’. The judgment ing such fees ‘is a not uncommon practice’.8 [2014] NSWDC does not make clear His Honour embraced the ‘more modern 113, an unsuccess- for every case. which of the potential meanings his Honour view of cancellation fees’ in Wilkie. ful application for attached to the expression ‘cancellation fees’, His Honour rejected an argument that leave to appeal from a review panel which, other than a pejorative characterisation at the agreement, including the cancellation being divided in opinion, had affirmed the [108] as ‘fees payable to the barrister for not fee, was not a costs agreement within the decision of a costs assessor. The costs assessor attending Court’. His Honour cited Razzi meaning of the legislation on the basis (as had allowed as party/party costs a barrister’s with approval, but did not mention Wilkie. it had been put) that the cancellation fee fee for ‘brief on hearing’ at his daily rate was for work not done. The agreement was where a one day case in the Special Statutory Levy v Bergseng (2008) ‘still a cost for the provision of the work in Compensation List of the District Court Razzi, Wilkie and Martiniello were considered question’.9 This, with respect, was correct. had settled 11 days before the listed hearing by Rothman J in Levy v Bergseng (2008) 72 A client derives a real benefit from a barris- date. His Honour declined to regard this as NSWLR 178, an appeal from a review panel ter’s commitment to expected trial dates. A a ‘cancellation fee’, treating that expression as under the Legal Profession Act 1987 arising cancellation fee could also be described as a referring to a fee where a case is adjourned from an assessment of costs between Levy commitment fee. The language and structure or does not last as long as expected.10 His SC and his instructing solicitors in a complex of the present legislation are different and Honour rejected the submission that the medical negligence case. The ultimate costs some argument might be made about that, barrister had not done ‘any relevant “work” agreement provided that counsel would act however his Honour’s reasoning would point which entitled him to charge a fee-on-brief’ on a speculative basis including a 25 per cent to the characterisation of Mr Levy’s fees as by holding himself available for the hearing uplift and cancellation fees. Pre-trial prepa- ‘legal costs’ as defined in the Legal Profession and concluded that the barrister was ‘entitled ration was extensive; the plaintiff and her Uniform Law (NSW) s 6. to charge a fee for a brief on hearing when the family now resided in Greece, and counsel The reasons that led Rothman J to conclude matter settled when it did.’ travelled to that country and to England in that the cancellation fee was reasonable Levy v Bergseng and Hoffman both rejected the course of preparing the case. The cancel- appear at 72 NSWLR 201 – 202. In sub- the view that the possibility of a barrister lation fee structure was set out in a letter of stance, they relate to the speculative nature of doing chamber work on a cancelled hearing 10/9/2004, sent at a time when the case was the case (including the fact that counsel had day (in contrast to replacement court work) listed to start on 7/2/2005 with an estimate an offer of other work when he committed should preclude or reduce a cancellation fee. of six weeks. It provided for two weeks’ fees to the subject case), specialisation of counsel, if the case should settle by 30/11/2004, three opportunity cost, the fact of agreement, the Other statutory rules weeks if it should settle between 1/12/2004 lead time that would have been involved in and 4/2/2005, and otherwise the remaining getting other court work, the graduated basis Other statutory rules may have a bearing on time set aside for the trial, subject to offset on which the cancellation fee was to be cal- the propriety of cancellation fees. Two will if counsel obtained other court work in the culated in the event of pre-trial settlement, be mentioned here, without elaboration. relevant period. The starting date was put and the offset provision. His Honour’s con- The Legal Profession Uniform Conduct (Barris- back and, after a single day’s hearing, a date clusions appear at 203 [110] – [111]: ters) Rules 2015 says: ‘A barrister must not in was appointed to take evidence in Athens any dealings with a client exercise any undue with an estimate of eight weeks. Twelve days [110] To the extent available in these influence intended to dispose the client to

The Journal of the NSW Bar Association [2017] (Summer) Bar News 45 PRACTICE benefit the barrister in excess of the barris- CPD conferences and presented seminars ter’s fair remuneration for the legal services Equitable briefing informing members about the policy. provided to the client.’ By Brenda Tronson On 16 August 2017, we made history by The Australian Consumer Law Part 2-2 (ss running the first NSW Bar Association 20 to 22A) contains prohibitions on uncon- live-streamed CPD seminar: ‘Reporting scionable conduct in trade or commerce. Since the Bar Association adopted the Law under the National Model Gender Equi- Other provisions might also conceivably Council of Australia’s National Model Gen- table Briefing Policy: A practical guidance be relevant, such as the avoidance of unfair der Equitable Briefing Policy (the policy), the seminar’. The in-person audience was terms in consumer and small business con- Diversity and Equality Committee of the Bar highly engaged; another 200 viewed via tracts under Part 2-3 (ss 23 to 28). Association and the Women Barristers Fo- the live stream. rum have been working together to promote We presented a session on 19 September What is to be done? awareness of the policy and to take steps for its 2017 to provide information and support implementation by the Bar Association. for those wishing to present a seminar on Cancellation fees are not for everybody, and The aims of the policy include driving cultural equitable briefing to their own floors. they are not for every case. Many barristers change within the legal profession, supporting Many of the seminars we run are available never charge a cancellation fee, at least in the progression and retention of women bar- to barristers to view on the Bar Association the narrower sense of that term. Whether it risters and addressing the significant pay gap CPD Online website.2 is called a cancellation fee or a fee-on-brief, and underrepresentation of women in the 2. We have developed resources to support the least contentious is probably a claim for superior courts. Read more broadly, the policy barristers who have adopted the policy, or a single day’s fee when a case settles shortly is a vessel by which unconscious bias may be who wish to learn more, including FAQs, before hearing. The other situation where consciously addressed by those responsible for a Guide to Reporting and a worksheet and a cancellation fee might be justified is the selecting counsel. The policy is available for report template.3 We welcome any feedback. long, all-consuming case. The current state adoption by any briefing entity, including or- 3. We have produced a three year Strategic of New South Wales law is reflected in Wilkie ganisations and counsel, in addition to clients. Implementation Plan for the Bar Associa- and in Levy v Bergseng. The most important Based on the New South Wales Bar Associa- tion,4 which was adopted by Bar Council parts of those judgments are the monitory tion website as at August 2017, women consti- on 11 May 2017. words, which remind practitioners of their tuted just over 20 per cent of all barristers, and The Bar Association’s strategic goals are di- fundamental professional obligations now approximately 10 per cent of silks. Further, vided into two phases, Phase 1 (‘Awareness, expressed in the Uniform Law s 172. approximately 33 per cent of barristers of 10 Adoption and Facilitation’) and Phase 2 (‘Re- In the present regulatory environment, a years standing or under are women, and ap- porting, Monitoring and Evaluation’). The barrister should not claim a cancellation fee proximately 15 per cent of barristers with over two phases are not completely temporally dis- in any sense of that term unless it is covered 10 years’ seniority are women. tinct. Once we have analysed the information by fee disclosure and is within the terms of The policy itself, together with more infor- presented to us through barristers’ reports, any applicable costs agreement. Members mation and the Law Council of Australia’s you will see more Phase 2 activities, and we can find advice about this on the costs and online register of adoptees, are online.1 The will continue to work on the Phase 1 objec- billing page of the Bar Association website. Bar Association adopted the policy in 2016. tives throughout the life of the Strategic Plan. Cancellation fees can be particularly conten- At the time of writing, 75 NSW barristers had tious. A barrister should never charge a can- adopted the policy, together with five NSW Bar Association’s report cellation fee without consciously considering chambers and a large number of important whether it is fair to the client to do so and briefing entities, including law firms of all In September 2017, the Bar Association re- whether the amount charged is fair. If one is sizes, government agencies and corporations. leased its report as a briefing entity. From 1 minded to do so, it is good practice to discuss September 2016 to 30 June 2017, the Bar As- the matter with the instructing solicitor first. What steps has the Bar Association taken? sociation briefed 10 barristers (seven men and If there is any doubt about fairness or amount three women) in 11 matters. The Bar Associa- or if the claim is for more than the first day, it During 2017, the Diversity and Equality tion is pleased to report that the figures show is also good practice to talk to an experienced Committee of the Bar Association and the women were selected for 25 per cent of the and objective colleague who understands the Women Barristers Forum, through a joint briefs and account for 55 per cent of the value relevant area of practice. working group, have taken steps towards the of all brief fees paid. Of the senior barristers, implementation of the policy by the Bar As- women account for 30 per cent of all briefs to ENDNOTES sociation. senior barristers, which meets the 1 July 2018 1. We have presented a number of seminars target of 20 per cent. Neither of the two junior 1 The statutory criteria in a practitioner/client context are now set out in to build awareness of the policy among barristers briefed were women. the Legal Profession Uniform Law s 200. 2 1 July 1994 was the commencement date of most of the provisions of barristers and to assist barristers in under- the Legal Profession Reform Act 1993, including substitution of Part 11 standing their (not onerous) obligations More information? of the Legal Profession Act 1987. once they adopt the policy. 3 See (1997) 35 (6) Law Society Journal 28. On 9 March 2017, we held a CPD seminar If you require more information about the 4 The writer has not yet succeeded in locating primary records of these. entitled ‘Gender Equitable Briefing – policy and its implementation at the NSW They are referred to in correspondence held by the Bar Association. Making it Happen: The Solicitor’s View’. Bar, please contact Ms Ting Lim, policy law- 5 [2005] NSWSC 873 [13]. A panel of solicitors from a range of firms yer, at the Bar Association. 6 The terms of the costs agreement would have entitled him to charge the and agencies provided their perspective on full eight weeks. gender equitable briefing and what barris- ENDNOTES 7 72 NSWLR 178, 209 [138], [139]. ters can do to help firms fulfil their own 8 72 NSWLR 178, 199 [95]. 1 https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/ obligations. This CPD was well-attended 9 At 200 [99], [100]. equal-opportunities-in-the-law/national-model-gender-equitable- 10 The barrister’s costs agreement provided a daily rate for hearings and an and received positive feedback. briefing-policy hourly rate for chamber work, but did not separately refer to pre-trial During the February-March 2017 CPD 2 https://www.nswbar.asn.au/for-members/cpd preparation as a separately billable item; this may have played a role in season, members of the Diversity and 3 https://www.nswbar.asn.au/coming-to-the-bar/equitable-briefing the particular case by reference to the old fee-on-brief concept. Equality Committee attended regional 4 https://www.nswbar.asn.au/coming-to-the-bar/equitable-briefing

46 [2017] (Summer) Bar News The Journal of the NSW Bar Association TECHNOLOGY

Innovation and technology at the NSW Bar

A step towards safeguarding the future of the profession By Ting Lim, policy lawyer at the Bar Association

In May 2017, Bar Council resolved to establish the manner in which barristers, solicitors and 2. identifying client needs and oppor- the Innovation and Technology Committee clients would work together in an increasingly tunities for practice in the evolving in a response to a perceived need to articulate, changing and technological legal environ- technological landscape; consider, and strategically respond to the ef- ment. fect of fundamental and disruptive changes While the ‘technology’ aspect of the com- 3. considering how barristers might brought about by new technologies to legal mittee’s name denotes a sense of modernism, engage with technology in their practice and the administration of justice. it is the ‘innovation’ part of the committee’s practice and use it to better meet The committee consists of a small number of name where the most interesting work will be their clients’ needs and expecta- members – 6 to be precise (Michael Green undertaken. Innovation suggests an element tions and the administration of SC (Chair), Dominic Villa, Catherine Glee- of experimentation. To the New South Wales justice; and son, Anton Hughes, James Mack and Anna Bar Association, it is an opportunity to better Spies) and in its first iteration, all members understand the bar’s place among the legal 4. formulating strategies and im- were selected by the President rather than by profession now and into the future against the provements for practice which application. backdrop of technological developments, the enhance the competitiveness of the The committee’s terms of reference is as fol- precise impact of which is currently unknown. independent Bar while meeting cli- lows: The ever-growing number of solicitors in ents’ needs and maintaining a con- • To identify, investigate and monitor new NSW and the shift from traditional forms of scious concern for the rule of law. technological advancements that may advocacy to a preference by clients and courts change the nature of a barrister’s work for alternative dispute resolution methods The committee intends on organising educa- and their practice; has caused a redistribution of the legal work tional seminars for members some of which within the profession. This has altered the include topics on facial recognition, privacy, • Educate members on the latest technol- place and ultimately the role of a barrister in data security and confidentiality within the ogy and ensure members are properly legal disputes. The extent of the alteration and online environment. equipped to use and embrace develop- whether it will continue is unclear. If you have any topic areas or suggestions on ments that may boost efficiency and Over the next 12 months the committee in- the subject matters the Innovation & Technol- productivity; tends on commencing collaborative relation- ogy Committee should focus on, please feel • Assist members with incorporating the ships with academics to conduct research and free to contact the Innovation & Technology latest technology into their practice; analysis on the changes in society that affect chair, Michael Green SC or the policy lawyer the administration of justice and the delivery at the Bar Association, Ms Ting Lim. • Ensure members are aware of digital of independent legal services. This involves security requirements and guard against understanding the current state of particular potential breaches of data security; aspects of legal practice at the bar which can ENDNOTES be divided into four distinct work areas: • Promote and ensure the ethical use of 1 The Law Society of NSW, Commission of Inquiry, FLIP: The digital devices and services including future of Law and Innovation in the Profession’ 2017 (available social media, cloud based file sharing, 1. investigating the changing demand at: https://www.lawsociety.com.au/cs/groups/public/documents/ data security, storage and deletion, hard- for legal services; internetcontent/1272952.pdf) ware and software; and • Provide advice to Bar Council on matters relating to technology as requested.

In addition to keeping abreast of gadgets and digital developments – the ‘technology’ – the committee will also aim to understand the impact of technology on the evolving environ- ment of legal practice and how the ‘market’ is changing, which in turn has the potential to alter the manner of legal practice, the place of the New South Wales Bar in the legal pro- fession and how justice is done and seen to be done. Earlier in the year the NSW Law Society published its Future of Law and Innovation in the Profession report, also known as the ‘FLIP’ report, which made a number of recommen- dations on the areas the Law Society needed to focus on to assist the legal profession.1 None of the recommendations involved improving

The Journal of the NSW Bar Association [2017] (Summer) Bar News 47 TECHNOLOGY

The paperless barrister: pacity to remove the keyboard and write on it pdf versions of the authorised report from with a pen. David McLure was using one but Westlaw or Lexis, or unreported decisions no longer an oxymoron then moved to an iPad. It was his view that from Austlii, and then load them onto the the Surface is fine as a laptop but not good as iPad in the same manner. By Ingmar Taylor SC a tablet – at least for reading and marking up David McLure tells me Goodreader syncs di- cases and documents. I agree. rectly with all the various cloud services, such There are other tablets. The iPad Pro how- as Dropbox, OneDrive etc and continues to September 2017. It was day one of a two week ever is currently most barrister’s preference. sync with them, so that as new documents trial in a matter where the brief constituted It comes in two sizes. The larger size (12.9 are added to Dropbox they get automatically 12 lever arch folders (yes, I know, a small inch) allows you to read an A4 page at almost added to the iPad. case), yet I was going to court with nothing the correct size. The 256GB storage option more than a slim folder of notes and an iPad. will be large enough for almost everyone, and My junior arrived every day with a laden trol- I found there is no need for cellular data. I ley, plus authorities. Every document and all download everything before going to court the authorities were on my iPad, marked up. using wifi, and find there is no need for the I was smugness personified. extra cost of buying monthly cellular data. By day three of the case both my instructing When I really need it I can use my mobile solicitor and the client had bought iPads. phone as a hotspot. And surely it won’t be too In the two months since, four juniors that long before the Supreme Court matches the I have worked with have each bought iPads. Federal Court and provides wifi. There is nothing new about being able to read documents on a screen. And tablets Apps have been around for some time. The big You need a good pdf reader application. difference is that you can now write on and Ian Roberts and I use GoodNotes. David highlight the documents as well as you can McLure uses Goodreader. Readdle make write on paper – better in fact. For me that PDF Expert, which is popular with US attor- made the difference. Like others, I had often neys. Each allows you to download and then said that I cannot properly read something read and note up documents and back them on a screen. But I found once I could mark up to your computer. up the document I could read and absorb With GoodNotes I create a folder for each Barrister with hard copy brief talking to barrister material on the screen as readily as on paper. matter with subfolders that reflect the with the same brief on iPad. (Photo: D Elder) My major concern was that I would have dif- sub-categories of a brief: i.e., Pleadings, Ap- ficulty locating documents quickly in court. plicant evidence, Respondent evidence, sub- Accessories I found I located the relevant page of the poena materials, authorities etc. Within each The pen is not magnetic, and so is easy to exhibits and affidavits a lot faster than those sub-folder the documents appear as icons, misplace. There are various accessories that reaching for folders and locating the pages with the first page visible. Click on the docu- you can buy to solve that, including a rubber manually. ment and it opens to the page I looked at last. sleeve with a magnet that allows you to at- There are advantages beyond the fact that The notes and highlighting are permanently tach the pen to the iPad. you can take the whole brief home without on the documents, but you can edit them as There are a great variety of cases. My own needing a large wheely-bag. It is easier to your thoughts evolve. choice is a single piece of leather, from Pad be briefed. Solicitors love being able to send Microsoft now have apps for all their Office & Quill. Apple sell a keyboard that attaches and update the brief electronically. No more products which makes them function almost to the iPad. I have found that for what I use sweating couriers banging on the chambers like the full program does on your computer, it for (reading and marking up documents) door at 6.01pm with documents for the next allowing you to use the iPad to create or edit that is an additional weight I do not need. If day. No more having to manually rearrange documents in Word or Excel (although I do I do travel I take a wireless Apple keyboard (or indeed construct) briefs, or battle with not use the iPad for that myself). with me, which is easier to use. I used a matt broken folders. No more having to arrange to screen protector called Paperlike that has a return bulky briefs. Receiving the brief slightly rough feel that makes writing feel Second, in electronic form the text of the It surely won’t be too long before there is a more like writing on paper. documents can be searched; including my briefing app. In the meantime I ask solicitors handwritten notes. Third, the saving on to create a Dropbox folder with all the docu- The paperless future printing: my printing bill is now 10 per cent ments in pdf format, arranged in subfolders The paperless electronic courtroom is not of what it was. The iPad will pay for itself as they would a brief. It is then a matter of a unknown, but is currently the exception, over its lifetime. minute for me to open that Dropbox folder usually reserved for the largest cases or on the iPad and select every document to inquiries. That will change. The Land and Some tips download into the corresponding folder in Environment Court has conducted paperless GoodNotes. Thereafter the solicitor need trials. If they can do that with A2 size plan- Before I bought the iPad I spent some time only email to say the Dropbox folder has been ning documents, it can be done in every case. quizzing others who got there before me, in- updated and I can download the new docu- Electronic filing is the forerunner of the cluding David McLure SC and Ian Roberts ment. Alternatively, I can open emails on the change. Courts will next develop protocols SC, and doing some research. iPad and move the attached documents into so all documents to be used are catalogued in For those who are keen to swap paper for a a GoodNotes folder. That is a little slower, a way that allows the parties to access them tablet, here are my tips. but still quicker than printing a hardcopy, in court without printing them. By then bar- holepunching and putting it in a folder (es- risters will need to be used to reading them The device pecially when the printer is playing up). electronically. It is the future. Embrace it. I had thought I would buy a Microsoft Sur- Obtaining authorities works much the same Feel smug. face Pro. It is a full laptop, but with the ca- way. I find or get someone to save to Dropbox

48 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Sir Frederick Jordan’s brushes with ‘degenerate art’

By Keith Mason1

Jordan was a Balmain boy, the immigrant son of a shopkeeper.

t Dr John Bennett’s urging, I am re- Asearching the life of Sir Frederick Jordan who was Chief Justice of New South Wales between 1934 and 1949. When I started, I knew something about the man’s brilliant judgments that are more widely cited than any other of his generation, with the possible exception of Sir . But I had grossly underestimated Jordan’s humanity. Sir Maurice Byers once wrote that ‘the Bar was firmly convinced that [Jordan] had no human passions’.2 In like vein, my legal miscellany Lawyers Then and Now recycled old stories about ‘Frigidaire Freddie’, the man who could be relied upon to deliver a few ‘well-frozen words’ on official occasions; and who was said to give his wife a cold whenever he got into bed. As Jordan’s enthusiastic biographer, I have now gained entre into many of his intimate- ly-shared experiences on literature, music Arthur Fleischmann’s life-size sculpture of Sir Frederick Jordan in an exhibition. and art. Jordan is almost certainly the most widely read judge to have occupied the bench going west towards its terminal so as to guar- lot in writing with his intimate friend Lionel of any Australian Court. He had a vast antee a seat on the way back Lindsay. At Lindsay’s urging, knowledge of the English classics, but he to Vaucluse, allowing him to Fifty per cent of the Jordan resolved to go into also read literature in Greek, Latin, French, plunge into a beloved book. Sir print after retirement from the German and Italian. He collected or bor- Frederick and Lady Jordan were stuff on the walls bench, but he died in office. So rowed books voraciously and returned to his not blessed with children and Lindsay then took up the task favourites many times over. television lay yet in the future. looked like the and produced the book called Not overlooking World War II, the pressures Jordan did not wear his heart Appreciations3 that contains Jor- of judicial life in the 1930s and 40s appear on his sleeve. But his opinions efforts of untrained dan’s insightful pieces on many very different to nowadays. The caseload was on art, music, literature and topics. I have also accessed the a lot smaller. Chief justices were not expected popular culture were strong by inebriates. correspondence of the two to attend law conferences or give speeches any standards. Unlike some men, at the State Library of and papers. Jordan used to catch the 5.15pm judges, he kept them largely to himself. But New South Wales where Jordan worked as tram from Queens Square, and he took it fortunately for his biographer, he shared a he put himself through university as a part

The Journal of the NSW Bar Association [2017] (Summer) Bar News 49 LEGAL HISTORY

time student. It is unlikely that biographers Art’ (Entarte Kunst). In it, artists including too the giants of the media as well as leading of modern judges will have such advantages Klee and Kandinsky were chaotically hung, artists and art teachers. None more vigor- in the world of the ephemeral email. accompanied by text labels deriding their ously than Lionel Lindsay, the confidante of works. Movements such as Bauhaus, Cubism, both Menzies and Jordan. The ‘modern art’ controversies Dada, Expressionism, Impressionism and Menzies had been greatly disappointed with of Jordan’s era Surrealism were panned. The Degenerate an exhibition of cubist and surrealist art that Art exhibition attracted the bigger crowds, he visited in London in 1935. He recorded In the 1930s and 40s there were huge con- probably because Hitler drew such attention in his diary:8 troversies about ‘modern art’. Paintings that to it when opening the parallel event. In his Do they really reject anybody’s work? were abstract or non-representational were speech, the failed artist turned Fifty per cent of the stuff on decried because they shunned beauty and Fuhrer condemned galleries the walls looked like the ef- promoted often unpleasant messages. Galler- that had had the effrontery to ...our national forts of untrained inebriates. ies were chided for their readiness to display display:6 such unpatriotic trash. Artists maligned galleries are The following year the attor- each other and their works. Politicians and pictures submitted for ney-general ignited a smoul- press magnates weighed into the conflict. Art exhibition [by men whose controlled by men dering controversy in the prizes like the Archibald became the stuff of eye] shows them things art world between a bruising litigation. different from the way who suffer from an traditionalist establishment and A typical remark from one public figure of they really are. There really artists who were seeking inspi- this era was: are men who can see in intense abhorrence ration from ‘modernist’ work Perhaps...the Art Gallery is accumulating a the shapes of our people abroad.9 He spoke out decrying Chamber of Horrors, in which to display the only decayed cretins: who of anything that has ‘the singularly ill-drawn pic- sort of rubbish that managed to attract atten- feel that meadows are tures of ‘modern’ art, described tion through incompetent criticism.4 blue, the heavens green, been done since 1880. by their authors as having a As we shall see, these words might have come clouds sulphur-yellow.... symbolic value unintelligible to from , or Lionel Lindsay, or In the name of the German people the unilluminated mind.’ Menzies set about Josef Goebbels, or Adolf Hitler. But it was Sir I only want to prevent these pitiable founding a ‘Royal’ Australian Academy of Art. This project would be announced in 1936 by Sydney Ure Smith, himself a close friend of the Jordans. Rather than establishing an accepted medium for promoting art in Australia, these moves exacerbated tensions within the art world. According to Menzies’ biographer, Professor A W Martin:10 ...by early 1937 a variety of dissensions had become evident. The conserva- tive-modernist controversy lay behind some but by no means all of them. A tangle of personal, institutional and interstate jealousies was also involved. The Sydney committee resented what it saw as Melbourne’s arrogance. The Contemporary Art Society would be founded in Melbourne in 1938, in reaction to Menzies’ proposal. These activities would open a new front in the long war between Robert Gordon Men- zies and Herbert Vere Evatt. In retrospect, the years up to the end of Arthur Fleischmann working inside his Sydney studio during the 1940s surrounded by many of his sculptures. In World War II were Evatt’s glory days, before the centre of the image is a small version of the sculpture of Sir Frederick Jordan. his many reverses stemming from the ALP/ DLP split and Menzies’ skill at exploiting his Frederick Jordan in a letter written in 1940. unfortunates, who clearly suffer from political naivete. But in the 1930s Evatt the He too used the term ‘degenerate’ to describe defective vision, from attempting jurist had the upper hand. Never more so those who practised this modern art.5 with their chatter to force on their than when repeatedly thwarting Menzies’ ef- Nazi Germany witnessed an extreme ver- contemporaries the results of their forts to exclude Egon Kisch from landing on sion of the phenomenon when the works of faulty observations, and indeed from these shores.11 Kisch was a Jewish communist particular artists - some Jewish, many not presenting them as ‘art’. who had already suffered under Hitler. In - were attacked for being unpatriotic. Two 1934, he came to Australia with a message of exhibitions were organised simultaneously Australia experienced a parallel controversy world peace and warnings about the threat in Munich in 1937. The Great German Art in the 1930s and 40s7 with leading public of Nazism. But the Melbourne establishment Exhibition was designed to show works ap- figures enlisting in the culture war. Robert was not yet ready for such views. Indeed, proved of by Hitler and Goebbels. The two Menzies, when federal attorney-general, and their chief spokesman Menzies would return men also organised a concurrent exhibition, Herbert Vere Evatt, when a High Court jus- from Germany in late 1938 with admiration down the road, labelling it ‘Degenerate tice, entered the fray on competing sides. So for what he had seen there.12

50 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Mr Justice Evatt was as strong a supporter got to on a public cent garb of ‘defending his art’.’ of modern art as Attorney-General Menzies scholarship and then studied both Arts and Much of Lindsay’s vomit was also spewed out was its opponent. When opening an exhibi- Law part-time at Sydney University. Lionel in his letters to Jordan. Whatever his person- tion of paintings by Adrian Lawlor in June Lindsay was an accomplished artist and an al views on Lindsay’s outpourings, Jordan 1936, Evatt proclaimed that ‘Australia lagged art critic who wrote for The Bulletin. He assisted Lindsay in the project that came to far behind the standard of art in England, and Jordan shared their views on literature, light in 1942 with the publication of a book America and Europe’. This he attributed religion and art over many years. (So too called Addled Art. In it Lindsay attacked ‘chiefly to the fact that our national galleries Lindsay and Menzies who frequently corre- ‘modernism’ in all its forms, including are controlled by men who suffer from an sponded and dined together during Menzies’ cubism, fauvism and surrealism, describing intense abhorrence of anything that has been fallow years in the 1940s.) them all as ‘pretentious inventions deliberate- done since 1880’.13 Evatt’s wife Mary Alice Lindsay had a horror of Surrealism, Expres- ly practised and marketed for their sensation was herself an accomplished artist of the sionism or any art that explored what he value.’ Lindsay described modernism as ‘the ‘modern’ bent and her brother in law, Clive called ‘the dark night of the soul’.19 It was exploitation of novelty, a demented reaction Evatt KC14 would appoint her a trustee of the this art that he described as ‘Modern’ and to academic art, a refuge of charlatans who New South Wales Art Gallery just in time he felt it was being foisted on a gullible Aus- cannot draw and disdain to study.’25 One to cast a favourable vote in the controversial tralian public especially by the Fairfax family chapter of Addled Art decried The Cult of Archibald prize competition of 1943 to through their publications and support. Ugliness. which I shall return. Lindsay’s continuing dislike of the Sydney Another chapter was entitled The Jew in Menzies would stick to his anti-modernist Morning Herald was encouraged by Menzies, Modern Painting and in it Lindsay focussed guns both publicly and privately. In 1946 he who had his own reasons, both political and on ‘who’ was organising the whole deception, told Lionel Lindsay that he entirely favoured personal, for resenting Warwick Fairfax.20 especially in France. Picasso got special the abolition of the Archibald Prize.15 He In October 1940, the Sydney Morning Herald attention in a diatribe against the Jewish regarded ‘ninety percent [of the competitors] published a letter from Lindsay in which domination of the art market, that Lindsay as rank imposters; some of them refugees he attacked the aesthetic influence of ‘the labelled a ‘racket’. The chapter ended with a who have discovered the art racket since their German degenerates’. He proclaimed that:21 flourish: ‘Art, bow your diminished head to arrival in Australia and have become execu- the only true god, the Calf of Gold.’ The Australian public is perhaps yet tants without first being students’. Lindsay also attacked the work of female unaware that modernism was organ- Incidentally, Menzies (as prime minister) modernists on the additional ground that ised in Paris by Jew dealers, whose first wanted Jordan to take Evatt’s position when ‘they have more leisure, and the superficial care was to corrupt criticism, originate the latter retired from the High Court in nature of modern living attracts their light propaganda – in this infinitely superi- 1940 to re-enter politics. But we learn from hands; picture or hat, all is one.’26 or to Goebbels, for it worked – and Sir Owen Dixon’s diary that, when sounded Although published in Sydney by Angus & undermined accepted standards so out by his former pupil master, Sir George Robertson, Addled Art was strangely silent that there should be ample merchan- Rich, at Menzies’ request, he turned down about the Australian scene with which dise to handle. the proposal in emphatic terms.16 The disrup- Lindsay had embroiled himself over many tion of travelling around Australia may have This sentence was edited out by The Daily years. The closest he came was in the Preface been a reason, but I suspect that the baleful Telegraph when it published the same letter. It asserting that for over 40 years he had seen presence of Sir on the High has been speculated that the Sydney Morning Australian art as ‘undefended, threatened Court had a lot to do with Jordan’s decision Herald included the offending sentence in by the same aliens, the same corrupting not to leave a happy band of Supreme Court order to set Lindsay up for the fire storm that influences that undermined French art, both colleagues for a very unhappy one in the ensued. There was certainly a strong reaction supported by powerful propaganda’. This High Court.17 Whatever Jordan’s reasons, in letters published in response, accompa- lacuna was reluctant but deliberate, because Menzies had consulted with his revered pupil nied by an editorial probably penned by the chapter on modernism in Australia was master Owen Dixon, then senior puisne jus- Warwick Fairfax himself.22 The secretary of dropped on Jordan’s strong recommendation. tice on the High Court, before making the the Contemporary Art Society, Peter Bellew, Jordan warned his friend not to put his fate indirect approach to Jordan. And he would suggested that, whatever Lindsay’s purposes in the hands of jurors in a likely defamation have learnt the response before turning to in writing:23 action. For good measure, he added that the Jordan’s former pupil, , to offending portions seemed ‘to give some mis- it is unlikely to achieve any more than fill the Evatt vacancy. At his retirement as erable individuals an importance which they an enthusiastic ‘heil’ from the in- chief justice in 1964, Dixon (in Menzies’ have not got and do not deserve’.27 mates of our internment camps, and presence) chose to publish a different story After examining a second draft of the whole maybe an autographed watercolour about Jordan’s non-appointment, gently book, Jordan opined that it contained noth- from Hitler. chiding the government for the appointment ing defamatory.28 He also tendered some not taking place.18 Since it is very unlikely Less than three months later, Lindsay would copyright advice. Lindsay was so grateful for that Dixon would have misremembered the receive a knighthood, on Menzies’ recom- this assistance that he gave Jordan a Rem- critical detail of something he chose to speak mendation, in the New Year’s honours of brandt etching entitled ‘Adoration’, 29 telling about, I suspect that he was fibbing. But why 1941. Jordan was present at the investiture, him that ‘if [Addled Art] annoys the Herald he would have done so in Menzies’ presence as New South Wales’ lieutenant-governor, and all the modernists I shall be gratified’.30 remains a mystery. but not before he warned Lindsay to avoid Publication of Addled Art at a time when greeting him as ‘Fred’. Australians were discovering the horrors Lionel Lindsay on modern art In 1944, Vic O’Connor published a piece of the Holocaust would cement Lindsay’s called ‘Art and Fascism’ in Australian New reputation for anti-semitism and lose him Lindsay had first encountered Jordan at the Writing.24 In it he attacked Lindsay for think- many supporters even in an art milieu used State Library of New South Wales where ing and speaking like Hitler and for being to extreme language. (Incredibly, Lindsay Jordan worked as a library assistant during both a ‘vague historian [and] also a very republished Addled Art in England after the his university days. Jordan was a Balmain dishonest one’ who attempted to ‘cover his War without in any way tempering its mes- boy, the immigrant son of a shopkeeper. He racial prejudice [against Jews] with the inno- sage or language.)

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On 28 August 1942 Jordan sent Lindsay perspective, are content to exhibit harm to Australian art, and the public in the galley proofs of his recent judgment in shapeless daubs, and partly of artists Melbourne – We can thank Murdoch for his Gardiner v John Fairfax & Sons Pty Ltd on who, conscious that they will never three years propaganda of Modernist follies the subject of fair comment. The acerbic art be more than second-rate, seek to for this.’ critic might have been less than pleased to distract attention from their technical see a significant win by the Fairfax company. deficiencies by deliberate distortion or The two portraits of Jordan But one passage in the reasons seems almost craziness of subject. and their linkage with the to have been written for his benefit. Jordan To Jordan, the greater part of ‘Modern Art’ Archibald Prize controversies wrote that:31 was the product of ‘people who are mental- ly unstable, and by charlatans who, being There are two portraits of Sir Frederick Jor- Whistler obtained his verdict, not either too incompetent or too idle to learn dan as he appeared late in his life. Both were because Ruskin had accused him of the alphabet of artistry, prefer to mimic the commissioned by the New South Wales Bar ‘flinging a pot of paint in the public’s off-scourings of imaginations which are Association but that is about all they have in face’, but because he was injudicious mentally diseased.’ Their work was never- common. enough to call him a coxcomb into theless ‘welcomed for public exhibition by... The official portrait displayed in the Banco the bargain and to suggest that he was fellow degenerates in company with similar Court, along with that of all other chief jus- guilty of wilful imposture....A critic is productions of their own.’36 tices of New South Wales, was commissioned entitled to dip his pen in gall for the These words might have tripped from purpose of legitimate criticism; and the tongue of Goebbels or Hitler. no one need be mealy-mouthed in de- But Jordan never descended to Lind- nouncing what he regards as twaddle, say’s anti-Semitism poured out in daub or discord. English literature the correspondence between the two would be the poorer if Macaulay had men and in Addled Art. Though not not been stirred to wrath by the verses a religious believer, Jordan was very of Mr Robert Montgomery.... familiar with the Old and New Tes- Lindsay wrote back saying that he was ‘fasci- taments and he shared with Lindsay nated by [Jordan’s] wisdom and delicate dis- his views and readings on the origins criminations and particularly rare humour.’ of Christianity, adding ‘Needless to say, this does not represent my official Jordan’s own attitude to modern art views on the matter.’37 Much of Lind- say’s vomit against Jews was spewed I am not suggesting that Jordan held all of out in his letters to Jordan. But, to mix the views that his friend Lindsay shared with metaphors, Jordan tended to return him. But, in a letter to his friend, Jordan service with a straight bat. The closest called Addled Art ‘a most important con- he came, in my researches to date, was tribution to the history of the pathology of to describe the book and song The Last art’ and he labelled the current artistic era as Time I Saw Paris as ‘the worst types of decadent, and populated by ‘degenerates’.32 American-Jewish greasy sentimental- While omitting any whiff of the Jewish art ity.’38 Photo: FairfaxphotosPhoto: conspiracy theory, Jordan’s reasons for at- Jordan described as ‘meretricious tacking modernism root and branch closely rubbish’ the Herald Exhibition of Mary Edwards, Victoria Square Courts, 23 October 1944. mirrored the views of contemporaries I have Contemporary Art of 1939 that was already mentioned. on display in Sydney at the David Jones after Jordan’s death (for 700 guas) and paint- In a note on modern art later published in department store.39 This was the Melbourne ed from a photograph. The artist was Sir Wil- Appreciations, Jordan recorded that:33 Herald newspaper run by Keith Murdoch, liam Dargie CBE who also painted Jordan’s Rupert’s father. There were paintings by Pi- successor, Sir Kenneth Whistler Street.43 The chief reason for the decadence of casso, Cezanne, Gauguin and Dali and the The painting depicts a robed judge, seated the artistic period through which we exhibition toured Australia during the war, and looking intently past the artist into the are now passing is unwillingness of because it was too unsafe to return the exhib- middle distance. The spectacled eyes betoken many who profess the arts to submit its to Europe. This event re-stoked the fires self-assurance without arrogance. There is no themselves to the discipline necessary of the modernist controversy. For example, J smile, but certainly more warmth than Jor- to acquire an adequate technique. S MacDonald, the director of the National dan’s caricatures. The featured long-fingered They want the prize without the toil. Gallery of Victoria who would offer the hands justify the comment made by Jordan’s For Jordan, it was ‘no new thing’ to abandon strongest of evidence against William Dobell associate and private secretary John (later Mr form and structure if one recognised that in the Archibald litigation, declared that the Justice) Slattery: ‘He had long fingers and he writers such as Carlyle and Joyce had chosen work was that of ‘degenerates and perverts’.40 might have been a pianist I suppose, a certain formless styles.34 But while they had also Jordan’s response to the Herald exhibition softness about them.’44 written to attract attention, a talent to write was: ‘It may be Contemporary, but why call Painting from a photograph, rather than properly had been demonstrated in their it Art? You might as well call sleeping in a from life, would have disqualified Dargie earlier works. By contrast, ‘Modern Art’ was, ditch ‘contemporary architecture’’.41 from entering the portrait in the prestigious to Jordan:35 I have already set out Jordan’s remark that Archibald Prize that he would win eight the work partly of young men desirous ‘Perhaps...the Art Gallery is accumulating a times. At least, that was the controversial of attracting attention to themselves Chamber of Horrors, in which to display the ruling of Justice Helsham, CJ in Eq, in 45 as artists but who, being either too sort of rubbish that managed to attract atten- 1983 in one of four court cases involving incompetent or too idle to learn tion through incompetent criticism.’ Lindsay the contested scope of the Archibald trust. 42 46 the elements of drawing, colour or in reply agreed heartily, adding that ‘the Helsham’s decision was tellingly criticised truth is that the Herald has done immense by the editor of the Australian Law Journal

52 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

on the basis that ‘If a live sitting were the Bar in 1941 and practised there through the Edwards had several supporters in the divid- primary criterion, there would be difficulty 1940s.50 ed art world. The case was lost with a blaze of in accepting as portraits the self-portraits One of several notable cases in which she negative publicity. Both William Dobell and of Rembrandt and Rubens [which] must appeared was Ex parte Walsh.51 The former Joshua Smith were scarred for life over their have been painted on the basis of images in suffragette Adela Pankhurst Walsh had been painful brush with the law. a mirror: is there any distinction of signifi- detained under the National Security Regu- When Edwards and Wolinski appealed cance between a photographic image and a lations by order of the minister for the army to the High Court the proceedings in the mirror image?’47 who recited his satisfaction that this was attorney-general’s name were discontinued. Had Jordan been sitting on appeal from necessary to prevent her acting in a manner Solicitor-General Weigall KC advised that Helsham, posthumously and in breach of the prejudicial to the public safety or the defence there was no question of general public rules of ostensible bias, there might have been of the Commonwealth. Speaking for the importance and that the appeal was devoid the additional issue whether a painting based Full Court, Jordan CJ reluctantly upheld the of merits. The relators protested mightily, as- on a photo of a living person effected after validity of the detention and refused habeas serting ‘political intervention’ and claiming that person’s decease would have involved a corpus. But he declined to award the Com- to have a favourable opinion on prospects ‘live sitting’. But in those days Equity judg- monwealth its costs. This would be a com- from Barwick KC.54 Ann Bernard picked ments in the Supreme Court were almost in- paratively rare win for the Commonwealth up the tab for the costs awarded against her variably taken on appeal to the High Court in Jordan’s court in a National Security Act client. or Privy Council. case and the chief justice made it clear When engaged to There were, however, that his freedom to decide otherwise several actual links was reluctantly curtailed by High do Jordan’s portrait, between Jordan and Court and House of Lords precedents. the Archibald Prize. When engaged to do Jordan’s portrait, Mary Edwards Most of them are Mary Edwards was already a contro- associated with versial figure in the Sydney art scene. was already a Mary Edwards, the Jordan (who would have endorsed the woman who painted choice of artist) and the Bar Associa- controversial the earlier portrait of tion were playing with fire right from Jordan that currently the beginning. Edwards had been the figure in the sits in the back cor- Archibald runner-up in 1942, losing ridor that the judges out to William Dargie. In those days, Sydney art scene. pass through before there was what lawyers call a reason- entering the Banco able expectation that the runner-up Court. That portrait depicts Jordan, robed one year would win the next.52 In the and standing, with more than a hint of a meantime, however, Mary Alice Evatt smile on his face. Unlike Dargie, Edwards had been appointed to the trustees had the advantage of a living ‘sitter’ to pro- of the New South Wales Art Gallery duce her portrait of the (standing) judge. She by her brother-in-law. Described by chose to locate him out of doors, al fresco Lionel Lindsay as ‘an ardent supporter as Jordan would say in the famous Spilstead of modernism in every shape’, Mary divorce case.48 Her means of portraying this Alice Evatt in 1943 would vote (with would cause a big kerfuffle. Lindsay) for Dobell in what would In August 1947, Edwards was commissioned be a seven to three vote decision that The portrait of Ann Bernard by the Bar Association to paint Jordan for preferred Dobell’s portrait of Joshua an agreed fee of £750.49 When the artist Smith to Joshua Smith’s own portrait of Writing privately to Jordan, Lindsay de- enquired whether a judge ever appeared Dame Mary Gilmore. (In the following year, scribed Dobell’s portrait of Smith as ‘admira- outside the courtroom in his red robes, she Edwards’ entry would get to the shortlist of ble, although a work of extreme decadence, a was told that this might occur on ceremonial nine, but no further. The normal pattern of sort of belated rococo statement – Rembrandt occasions, presumably during circuits. So events would be resumed the following year emasculated and a cocaine addict!’.55 Lindsay she added the sprig of greenery that traverses when Joshua Smith got the prize.) was, in his own words, ‘extremely exercised’ the bottom left of the picture. The Bar Asso- Edwards and Joseph Wolinski went to Equity about Roper’s decision, but the ever proper ciation objected to this addition and, when to challenge the trustees’ decision, suing as Jordan did not respond on this topic. the artist dug in her heels, refused to take ‘relators’ in the name of the attorney-general. It is, nevertheless, fascinating to speculate the portrait or pay the agreed price. I have They engaged KC, leading what might have happened if Jordan had it on the authority of two chief justices of Ann Bernard. It was asserted that Dobell’s himself heard the case or sat on an appeal the High Court (Garfield Barwick, who told startling exaggeration and distortion of from the decision of his close friend David Murrray Gleeson) that Jordan himself reject- Joshua Smith was a caricature, thereby (it Roper.56 In March 1946, after a walk to ed the portrait because the greenery suggest- was contended) precluding the picture from the Art Gallery ‘to get a little sun’, Jordan ed a laurel wreath, with the connotation of a being a ‘portrait’. The painting was described announced that he was ‘depressed by the Roman triumph. by one witness as representing ‘the body of a systematic ugliness of the Dobells and the Edwards had been put in touch with the Bar man who had died in the position and [had] Russell Drysdales’.57 He told Lindsay that:58 Association by one of its members, Mrs Ann remained in that position for a period of Bernard. Back in the 1920s, Bernard had some months and had dried up’. 53 I can’t understand how the Art Gallery gone to Fiji to work for the governor there. Roper J would, however, recognise a suffi- allows itself to be bluffed into buying But after her husband died from a war injury, cient likeness and unsurprisingly conceded the rubbish of Drysdale and Dobell. she went to England to study law at Oxford considerable (artistic?) licence to the trustees Drysdale’s pictures haven’t even got and then qualify as a barrister at the Inns as judges of the prize. Most commentators bad drawing, there is no attempt at of Court. She was admitted to the Sydney see the case as doomed from the outset, but drawing at all, and the colouring is

The Journal of the NSW Bar Association [2017] (Summer) Bar News 53 LEGAL HISTORY

lurid and hideous. Dobell’s the encouragement of a Dutch stuff is mere caricature and missionary. Between 1939 and rather indifferent caricature. 1948 he was a tenant at ‘Meri- oola’, a Victorian-era mansion Coming, as it did, a little over in Woollahra. It hosted a bo- a year after Roper J’s still con- hemian artistic centre occupied troversial ruling, Jordan’s use of by what was variously called the the phrase ‘mere caricature’ was ‘Merioola Group’ or the ‘Sydney extremely pregnant. Had Jordan Charm School’. Mary Edwards been the trial judge, it is far from was another tenant there. clear that he would have taken During his stint in Sydney, the position adopted by Roper. Fleischmann sculpted several But it is equally clear to me that prominent public figures he would have recused himself including Cardinal Gilroy, anyway in light of his own hos- Governor-General Lord Gowrie, tility towards Dobell’s paintings. Sir Percy Spender, Clive Scarred like almost every other Evatt and Jordan himself. At participant in the Archibald con- some stage, the small Jordan troversy, Edwards made another sculpture was acquired by the Photo: Chris Winslow / New South Wales Bar Association of her many name changes.59 lawyer-cum-politician, Edward © Geoffrey Robert Proud/Licensed by Viscopy, 2017 She later retreated to the Pacific St John QC. When he retired islands, where (dubbed ‘the painter of the executor Karam Ramrahka, a Sydney solici- in about 1972, the sculpture passed to Rick South Pacific’) she executed many portraits tor of Fijian origin. After failing to persuade Burbidge QC when he bought St John’s 12th of the native people of Fiji, Java, New Caledo- Handley to buy the painting, Ramrahka Selborne chambers ‘lock, stock and barrel’. nia and Tahiti. Further unhappy distancing yielded to the judge’s request to donate it to Burbidge’s move to State Chambers atop the from the Australian artistic establishment the Supreme Court. (To date this transaction State Bank Building would, ironically, put ensued in 1945 when her portrait of Dame has not been challenged as the outcome of Sir Frederick back into the face of another Enid Lyons was rejected as ‘unsatisfactory’ by undue influence by a person in authority; art controversy – a really bitter one, in which the federal government’s Historic Memorials and the Limitation Act has now added its the word ‘degenerate’ may have been the Committee. As would later occur with the protective embrace. My capacity to express only harsh word not uttered by either side. Jordan portrait, that commission would be any opinion as to the application of transferred to William Dargie. the recipient limb of Barnes v Addy is But back to Edwards’ portrait of Sir Freder- further compromised by me being one ick himself that the Bar Association refused of the original recipients, as a member to accept or pay for. Jordan certainly knew of of the Supreme Court at the time, not Edwards’ role in prosecuting the case against to mention some well-known ‘seriously Dobell whose paintings he (Jordan) detested. considered’ dicta of the High Court.) So, was his initial endorsement of Edwards In recognition of Jordan’s service in as his portraitist a message of support for the Full Court that had been the pre- the battered loser in her litigious tilt against decessor to the Court of Appeal, the modernism? Quite likely, in my opinion. portrait was unveiled in the President’s When the standoff occurred, Mrs Bernard Court at a celebratory event in 2003.60 paid the artist the agreed fee and acquired On this occasion, Mr Justice Roddie the picture for herself. Edwards entered the Meagher, himself a prolific art collec- portrait for the Archibald Prize and it was tor never shy of making controversy, exhibited in early 1948. But it did not win. conceded that the painting was not For a time the painting was displayed at the without merit. But, in customary voice, Sydney University Law Library. It was then he added that ‘it was a touch too pretty taken to Fiji by Bernard when she returned and feminine, but better than the there in 1954. As a barrister, she gained a usual academic rubbish which passed reputation for taking on unpopular causes. muster in Sydney portrait painting cir- She would return to Sydney in retirement in cles’. Roddie’s chief objection, however, the 1960s and died in 1973. Her own por- was that the Edwards’ work did not Photo: Darren Covell / Bar Association

trait by Mary Edwards now hangs in the Bar ‘portray, or even hint at, Sir Frederick’s Common Room. notorious iciness’. Sir Fredrick Jordan In art circles, Kenneth Handley is best That iciness may have been Jordan’s known as the father of David Handley, the public persona, but it was by no means his Throughout the 1990s the New South Wales entrepreneur behind Sculptures by the Sea. true personality. For further particulars of Bar Association was wracked by a brawl about But in legal circles, Ken is revered for his this statement readers will have to await the a Geoffrey Proud painting that its principal service as an outstanding and longstanding publication of my biography of Jordan. donor, Roderick Pitt Meagher QC (as he appellate judge, both here and in the South then was),61 called ‘an untitled Renoiresque Pacific. Ken grew up in Fiji and served on Jordan sculpted by Arthur Fleischmann lady’. It portrayed a woman sitting naked, that country’s Supreme Court for several legs apart, with her right hand either resting years. Eager to recover the Jordan portrait for Fleischmann was a Slovak-born sculptor or moving (depending on one’s imagination posterity, Handley contacted Ann Bernard’s who left Central Europe in 1937. Spending or sensibilities) near her dark panties. Clive adopted daughter, Angela Davis, in about two years in Bali en route to Australia, he Evatt Jnr described the sitter as ‘unaware of 2003. She put him in touch with her mother’s converted from Judaism to Catholicism with section 576 of the Crimes Act, dealing with

54 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

indecent exposure’.62 1, p 195). 41 Letter from Jordan to Lindsay 24 October 1940. Years of controversy within the Bar Council 9 Mendelssohn suggests (op cit, pp 194-5) that Menzies ‘saw himself 42 Letter from Lindsay to Jordan 23 August 1943. would deeply affect three of its presidents as a cultural leader as much as a political one.... Menzies wished to 43 J M Bennett, Portraits of the Chief Justices of New South Wales 1824- (each of whom shared the Court of Appeal encourage the same association with the conservative tastemakers. 1977, pp 5, 42 (where the Jordan portrait is reproduced), 46 (where Bench with me for a stretch). Roddie Meagh- He ultimately failed in this objective because he did not understand the Street portrait is reproduced). the complex network of loyalties, rivalries and enmities that made 44 The Hon John Patrick Slattery AO QC, interview by Justice er resigned his membership of the Bar Asso- up the politics of Australian art.’ Kenneth Carruthers, 20 September 1993, transcript in Supreme ciation for a time in protest against what he 10 Martin, op cit, p 196. Court Library, p 41. saw as feminist-induced political correctness; 11 See , Old Law, New Law A Second Australian Legal 45 See further Keith Mason, Lawyers Then and Now, pp 205-8. Murray Tobias threatened to sue the ABC for Miscellany, The Federation Press, 2014, pp 154-9. 46 Bloomfield v Art Gallery of New South Wales, unreported, 23 defamation in a ‘mockumentary’ called The 12 In a letter to his sister Belle dated 6 August 1938 Menzies noted September 1983. The case involved a ‘portrait’ of John Bloomfield Naked Lady Vanishes; and Ruth McColl led that ‘this modern abandonment by the Germans of individual by Tim Burstall. a finally successful push that saw a majority liberty and of the easy and pleasant things of life has something 47 J G Starke, ‘Literary and Artistic Competitions’ (1984) 58 Aust Law of the Bar Council voting to remove the rather magnificent about it....The Germans may be pulling down Jo 52. painting from Bar Common Room.63 This the churches, but they have erected the State, with Hitler as its head, 48 See Spilstead v Spilstead (1944) 44 SR (NSW) 242 at 245-6. occurred not long before Mary Edwards’ into a sort of religion which produces spiritual exaltation that one 49 Information about the commissioning and rejection of Edwards’ cannot but admire.’ portrait of Jordan and the later travels of the painting comes painting of Ann Bernard would become the 13 AW Martin, Robert Menzies A Life, pp 195-6, quoting Argus, 3 from The Merioola Group, David Jones Art Gallery Catalogue, first but not the last true heroine of the New June 1936. See also Evatt’s Opening Address, First Exhibition 1947; Sydney Morning Herald 28 May 1948 (Column 8) and South Wales Bar to be honoured by being of the Contemporary Art Society, 1939, reproduced in Stephen, 2 June 1948 (Column 8); Karam Ramrahka, ‘Memoir of Ann hung in the Common Room. McNamara and Goad, op cit, pp 392-6. Bernard, transcribed 19 July 2010 and accessible via the NSW But what was the Bar Council now to do with 14 The father of ‘Young Clive’ Evatt who still practises at the Sydney Bar Association Women Barristers Forum mentioned in the next Geoffrey Proud’s controversial ‘naked lady’? Bar in his 80s. footnote; Michael Pelly, ‘The picture of a perfect Sydney gentleman’ After coming down from public display, she 15 Menzies’ lengthy letter is set out in Stephen, McNamara and Sydney Morning Herald 29 August 2003; Bar News 2003/2004 p67 was stored in a basement. But howls of pro- Goad, op cit, p 483 ff. Menzies also told the secretary of Sydney’s (which contains a picture) and from the writer’s interview with the test saw her partial restoration, at least so far Contemporary Art Society: ‘I never liked French art, it was always Hon Kenneth Handley AO QC. as the office occupied by Babette Smith, the decadent and the fall of France proved it’ (Richard Haese, Rebels and 50 There is a lot of fascinating biographical material about Bernard Precursors: The Revolutionary Years of Australian Art, Penguin, 1988, accessible online at NSW Bar Association, Women Barristers Forum, chief executive officer. Then, for several years, p 110). Pioneering Women of the NSW Bar. Rick Burbidge generously agreed to let her 16 See Philip Ayres, Owen Dixon, 2003, The Miegunyah Press, citing 51 (1942) 42 SR (NSW) 125. sojourn in his State Bank Chambers. Owen Dixon, Diary 5 September 1940. 52 According to Joanna Mendelssohn, Lionel Lindsay An Artist and His There the naked lady was positioned so that 17 See Clem Lloyd, ‘Not Peace But a Sword – The High Court under Family, p 209. she and Sir Frederick eyed each other. I J G Latham’ (1987) 11 Adel L Rev 175. See also Starke’s gratuitous 53 See Scott Bevan, Bill. The Life of William Dobell, Simon & Schuster, wonder what each of them thought about insult of Dixon, Evatt and McTiernan JJ in Piddington v Bennett 2014; , Barwick, pp 38-42; Keith Mason, op cit, pp 205- this? All we know for certain is neither of and Wood Pty Ltd (1940) 63 CLR 533 at 550. In 1935, Dixon 8 for further details about the Joshua Smith portrait litigation. them blinked. According to Sir Garfield Bar- himself declined an invitation to dine with the Jordans when he 54 Sydney Morning Herald 3 March 1945. wick, Jordan always ‘liked a warm joke’. So learnt that Starke had been invited (see Ayres, op cit, p 69 (‘He had 55 Letter to Jordan 28 January 1944. See also letter to James McGregor perhaps he would have been amused at the invited Starke so I wrote I hoped to go to Melb for the week end’)). 24 January 1944. 18 See 110 CLR x, xi. 56 Dixon’s Diary records Jordan telling him on 7 April 1941 that whole situation, whatever he thought about 19 Mendelssohn, op cit, p 192. ‘Kitto not strong personality Roper best – he thought, if a vacancy the Renoiresque, Modernist artwork. 20 Mendelssohn, op cit, p 193. occurred or Judiciary Act enlarged [the number of High Court 21 Sydney Morning Herald, 16 October 1940. See further ‘On Prejudice justices, as would occur in 1945].’ ENDNOTES (Modern and Not So)’ New Matilda 24 September 2007. 57 Letter from Jordan to Lindsay 19 March 1946. Jordan was also 22 Mendelssohn, op cit, p 202. highly critical of Dobell’s portrait of Lord Wakehurst in a letter to 1 The Hon Keith Mason AC QC is currently a visiting professorial 23 Letter from Peter Bellew, Hon Sec of the Contemporary Art Society, Lindsay dated 22 December 1944 with which the latter agreed in fellow at the University of New South Wales. A version of this paper Sydney Morning Herald, 17 October 1940. spades. was presented on behalf of the Francis Forbes Society for Australian 24 Australian New Writing, no 2, 1944, pp 47-52, reproduced in 58 Letter to Lindsay 20 August 1943. Legal History in the Banco Court on 10 October 2017. Stephen, McNamara and Goad, op cit, p 458 ff. 59 According to the online lists of Archibald entrants, she was also 2 Sir Maurice Byers, Recollections of Sir Frederick Jordan’ Bar News, 25 Addled Art, flyleaf. known as Edwell Burke, Mary Edwell and Mary Edwell-Burke. Winter 1991, p 13. 26 Addled Art, p 53. The chapter is reproduced in Stephen, McNamara 60 See Pelly, op cit. 3 A limited edition of the book (150 copies) was published by Ure and Goad, op cit, at p 417 ff. 61 The painting was gifted in 1975. Much later, Meagher JA spoke at Smith in 1950. 27 Letter from Jordan to Lindsay 19 December 1941. the hanging of the Edwards’ portrait of Jordan in the President’s 4 Letter from Jordan to Lionel Lindsay 24 October 1940. 28 Letter from Jordan to Lindsay 18 August 1942. Court (see above). He also ‘judged’ the ‘retrial’ of the Dobell Case, 5 See text associated with fn 32 below. 29 Lindsay gave Jordan a second Rembrandt etching and it was later delivering reasons that were more amusing than those of Roper J, 6 Hitler’s speech at the Opening of the House of German Art in gifted by Jordan or Lady Jordan to Mr and Mrs Vrisakis. but with the same outcome (see (1999) 73 Aust L J 710). Munich (18 July 1937). English translation from Benjamin Sax and 30 Letter from Lindsay to Jordan 29 April 1943. 62 Clive Evatt, ‘The Artful Bar’, Bar News, Summer 1988. Dieter Kunz eds, Inside Hitler’s Germany: A Documentary History of 31 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 63 I give an account of the controversy in Keith Mason, Lawyers Then Life in the Third Reich, Heath & Co, 1992. 174. and Now, An Australian Legal Miscellany, The Federation Press, 7 See generally Bernard Smith, Place, Taste and Tradition A Study of 32 Letter from Jordan to Lindsay 19 December 1941. 2012, pp 208-212. Australian Art since 1788, 2nd ed rev, 1979, OUP, chap 8; Joanna 33 Appreciations, p 44. Mendelssohn, Lionel Lindsay An Artist and His Family, Chatto 34 Carlyle had adopted a ‘formless style, composed of jerks, squawks & Windus, 1988, pp 189-205 (‘The Great Modernist Debate and ejaculations’ and Joyce had produced in Ulysses ‘a work which 1936-1943’); Eileen Chanin and Steven Miller, Degenerates and in structure and content resembles nothing so much as a dunghill’ Perverts. The 1939 Exhibition of French and Contemporary Art, (Appreciations, p 45). The Miegunyah Press, Melbourne, 2005; Ann Stephen, Andrew 35 Appreciations, p 45. McNamara and Philip Goad, Modernism & Australia. Documents on 36 Appreciations, p 49. Art, Design and Architecture 1917-1967, The Miegunyah Press, 2006. 37 Letter from Jordan to Lindsay 24 June 1941. James McDonald, appointed Director of the National Gallery of 38 Letter from Jordan to Lindsay 28 August 1942. Victoria in 1936 with the active support of conservative politicians, 39 See generally Eileen Chanin and Steven Miller, Degenerates and described all non-academic art as ‘gangrened stuff which attracts the Perverts. The 1939 Exhibition of French and Contemporary Art, The human blowflies of the world who thrive on putrid fare’ (Notebook, Miegunyah Press, Melbourne, 2005. See also Mendelssohn, op cit, p quoted in Mendelssohn, op cit, p 192). 197. 8 Menzies’s Diary, 3 May 1935 (see Martin, Robert Menzies A Life, vol 40 Chanin and Miller, op cit, p 88.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 55 LEGAL HISTORY

The strange resignation of a chief justice – Lord Trevethin

by Geoffrey Watson

Who was Lord Trevethin?

Alfred Tristram Lawrence was born in 1843, and read law at Trinity College, Cambridge. He was called to the Middle Temple in 1869 and took silk in 1897. In 1904, he was appointed to the High Court, sitting in the King’s Bench Division where he was an affable, serviceable, and utterly unexceptional judge. Upon the resignation of Lord Reading, on 15 April 1921 Lawrence was appointed to the office of lord chief justice of England and Wales and elevated to the peerage, taking the rather ornate title of Baron Trevethin of Blae- ngawney. This appointment was a surprise appointment to many: although Lawrence was 77 years old, he was not the most senior of the puisne judges,1 and had not been a standout performer. But Trevethin’s appointment, as you will see, was not an appointment based on merit.

The office of lord chief justice

Strangely, the office of lord chief justice of England and Wales is relatively new.2 The of- fice was only invented after the three ancient common law courts (King’s Bench, Com- mon Pleas and Exchequer) were folded into High Court in 1875. And then it was only in 1880, once two of the presiding judges in those courts had died or retired, that a single chief justice was appointed – Sir Alexan- der Cockburn. The office quickly became a political gift – six of the next seven chief justices after Cockburn had been politicians and had served as attorney-general. In fact, a practice developed under which it was accepted that if the position of chief justice became free, the attorney-general of the moment had a right to claim the office. This led to some

Photo: Elliot & Fry poor appointments of unsuitable types and under-skilled lawyers. n the morning of Friday 3 May 1922, This practice was well-entrenched by the Othe lord chief justice of England, Lord time Rufus Isaacs KC3 was appointed Trevethin, was reading The Times while pre- attorney-general in H H Asquith’s Liberal paring himself for that day in court. One ar- government. ticle – quite understandably – caught his eye: Isaacs had taken silk in 1898 and was a genu- it was titled ‘Retirement of Lord Trevethin’. ine leader of the bar, rated as one of the lead- Much to Trevethin’s surprise, the journalist ing advocates of his day, with a large and very recounted: ‘The king has been pleased to lucrative practice. His parliamentary career accept the resignation of the Rt Hon Lord was much less successful, and he and David Trevethin from the office of lord chief justice Lloyd George had been very badly damaged of England’. from the fallout from the Marconi scandal Until he read the article, Trevethin had no – in which both were implicated in insider idea that this had transpired. trading by purchasing shares in a company How did this happen? with which the government was about to do business.

56 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

So, when Lord Alverstone retired as chief performers. So Lloyd George explained to The new chief justice justice in 1913, Isaacs claimed his entitlement. Hewart that he could not afford to let him go, By this time Lloyd George had replaced and then let Hewart know about the ‘elderly So what did all this intrigue produce? One Asquith, and the new prime minister imme- judge’ ruse. But Lloyd George then came up can only hope it was worth the effort. diately appointed his friend Isaacs – who was with a refinement: he would not rely merely Well, no. On 8 March 1922 Baron Hewart relabelled as Lord Reading. upon the judge’s age – in return for the stop- of Bury was sworn in as the seventh chief It was quickly apparent that the new Lord gap appointment, Lloyd George would ac- justice.8 He is, of course, the author of the Reading had little interest in the work of quire a signed and undated resignation from famous aphorism insisting that justice must the court. In fact, he spent little of his time the new chief justice on the understanding also be seen to be done9 – a standard which sitting as a judge, or even in the United King- that it could be deployed at any time. Hewart constantly failed to meet. dom. He headed the Hewart agreed to forego his Professor Richard Jackson Trevethin’s Anglo-French war loan ‘right’ to the chief justiceship on described him as ‘biased and mission to America in those conditions. Lloyd George incompetent’ and said Hewart appointment, as 1915, stayed on as high The of the time was ‘the worst English judge commissioner, and he was the Lord Birkenhead – not would acquire a within living memory’. C P you will see, was even took an appoint- exactly a soft and compliant Harvey QC claimed he lacked ment as ambassador to character.5 When he was told of signed and undated only one quality as a judge – not an appointment the USA from 1917 to the plan, Birkenhead exploded. ‘that of being judicial’. Professor 1919 – all while he was He wrote two swingeing letters resignation from the Robert Heuston said Hewart based on merit. chief justice. to the prime minister, pointing was ‘perhaps the worst chief jus- In 1920, Lord Chelms- out just how disgraceful this new Chief Justice on tice since the seventeenth cen- ford’s tenure as viceroy to India was drawing proposal was. Each point Birk- tury’, but Lord Patrick Devlin to an end. Reading made it known to Lloyd enhead made was well-made. the understanding said that Heuston was not being George that he wanted the Indian job, but he Birkenhead said that Lloyd ‘quite fair. When one considers had a problem. Although he had made a lot George’s scheme made the chief that it could be the enormous improvement of money at the bar, he had also spent a lot of justice a ‘creature of political in judicial standards between that money (something which might resonate exigency’ and that, given the deployed at any time. the seventeenth and twentieth with readers of Bar News). Sir Edward Carson government was a regular liti- centuries, I should say that, KC4 happened to be present at a dinner when gant in the chief justice’s court comparatively speaking, he was Reading explained all of this to Lloyd George. (commonly represented by the attorney-gen- the worst chief justice ever’. Carson recalled Reading as saying that ‘he eral), in any such proceedings the case would Hewart was chief justice for 18 years; he had lived expensively and had not made suffi- be heard and decided ‘with the knowledge retired in 1940. cient provision for the future’ and explaining in the minds both of the judge and of the to Lloyd George that he could not leave for advocate that the latter could at any time ENDNOTES the viceroyalty (which carried no pension) as displace the former from his seat and occupy 1 The most senior was Justice Darling, who although senior to Lawrence he had not served long enough to attract a it himself’. on the bench was two years younger. Stung by being overlooked, judicial pension. Carson listened in horror as Lloyd George, of course, ignored that, and Darling joked that he had been bypassed because, at 75, he was the two close friends then hatched a cunning just went ahead and did what he wanted. regarded as too young for the job. plan. The viceroyalty was for a fixed five year 2 It is interesting to observe that the office of Chief Justice of New South term, and that old schemer Lloyd George The selection and rejection of Lawrence Wales is substantially older – 77 years older. blurted out an idea – he said to Reading he 3 Rufus Daniel Isaacs: b 1860; d 1935. Called to the Bar 1887; QC 1898; could appoint ‘an elderly judge as stop-gap’, Birkenhead had predicted in one of his letters MP 1904-1913; solicitor-general 1910; attorney-general 1910-1913; while Reading was in India, and then ‘Rufus to Lloyd George that it would be difficult to lord chief justice of England 1913-1921; viceroy of India 1921-1926 can come back, resume the chief justiceship, find a suitable candidate willing to accept an 4 Edward Henry Carson: b 1854; d 1935. Called to the Irish Bar 1877; and earn his pension’. appointment on such terms, and then went QC 1889; MP 1892; solicitor-general of Ireland 1892; solicitor-general for England 1900; attorney-general 1915; lord of appeal in Ordinary Now while that is not the way things worked further to denigrate the abilities and capacity 1921-1929. Carson was the outstanding advocate of his time, perhaps out, it was the first step toward the Trevethin of each of the most senior judges, including most famous for his cross-examination of Oscar Wilde in Wilde’s resignation. disparaging the abilities of Lawrence. criminal libel suit against the Marquis of Queensbury. It is not now known if or to whom Lloyd 5 Frederick Edwin Smith: b 1872; d 1930. Called to the Bar 1899; MP Things get complicated George offered the position apart from Law- 1906; KC 1908; solicitor-general 1915; attorney-general 1915-1919; rence; all we know is that Lawrence accepted lord chancellor 1919-1922. Smith was one of the leading barristers On 2 April 1921, Reading was appointed the the terms and took the appointment. On 15 of his day, notorious for his acid tongue. He was a very effective viceroy to India, thus opening the position of April 1921, Lawrence was sworn in as the conservative politician. chief justice – but a complication arose when, sixth chief justice and was rebadged as Lord 6 I suppose that Lloyd George could relieve himself of the burden of his in accordance with the accepted protocol, Trevethin. concurrent promise to Reading – because, he could have plausibly said, he would be out of office at the time Reading returned from India. the attorney-general, Gordon Hewart KC, Trevethin did not last long in the job. By 7 At least his son, Geoffrey Lawrence, was able to recover the family claimed the top job. early 1922, it was clear that the Liberals were dignity. Geoffrey became a distinguished judge, presiding at the This placed Lloyd George in a difficult posi- floundering and would lose the election due Nuremberg trial, and eventually elevated to the House of Lords as Lord tion in two different ways. One problem was later that year. Hewart pressed for fulfilment Oaksey. 6 the arrangement he had with Reading (not of the promise and Lloyd George acceded. 8 Gordon Hewart: b 1870; d 1940. On paper Hewart had a stellar career that breaking promises was ever a matter It was in those circumstances that Lloyd in law and politics: called 1902; KC 1912; MP 1913-1922; solicitor- which troubled Lloyd George). Hewart was in George submitted Trevethin’s resignation to general 1916-1919; attorney-general 1919-1922; lord chief justice his early 50s and would not easily be shifted King George V. Lloyd George did so with- 1922-1940. when Reading returned. Lloyd George’s other out even taking the time or courtesy to tell 9 R v Sussex Justices; ex p McCarthy [1924] 1 KB 256. problem came from the fact that his Liberal Trevethin. government was struggling, and Hewart had Poor old Trevethin sidled off into retirement been one of his most effective parliamentary and obscurity.7

The Journal of the NSW Bar Association [2017] (Summer) Bar News 57 LEGAL HISTORY Classic Image / Alamy Stock Photo

The Star Chamber By Kevin Tang

he Star Chamber’s gruesome confines hardly ever legally trained. This aberrant Twithin the labyrinth of corridors which conciliar court has fired the imagination of comprised the palace at Westminster were common law lawyers throughout the ages.1 known for more than a century before the statute of 1487 purportedly established it. Origins Originally, it was a special tribunal to try particular legal issues and matters of public The chamber was originally used for sittings order. This was a court of the King’s Council, of the King’s Council. The Star Chamber the members of which sat, without reference was first referred to in 1398 as the Sterred to civilised practice and procedure, and were Chambre and by 1422 as Le Sterne Chamere.

58 [2017] (Summer) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

The legend spread over the channel into Nor- determined by Privy Councillors sitting as diction. It was a Common Law court. man France and it was called La Chambre judges of the Star Chamber. At its height, During the 17th century, the Star Chamber Etoilée and in Latin Camera Stellata. Charles I used the Star Chamber as a de-fac- awarded damages to its claimants – a matter The court was established to ensure the fair to parliament in the years 1628-1640, when hitherto unknown to the Chancery. enforcement of laws against the privileged he refused to call parliament. The Privy English upper classes (those likely to be Council’s identity as an appellate court came Court of law or lore born above the law or those so powerful and about by the 17th century. infamous that the ordinary courts could The Star Chamber was so much the Law, not convict them of monstrous crimes). It Jurisdiction and procedure that it became lore itself. In this procedur- was understood to be a jurisdiction which ally opaque jurisdiction, the Crown had an countenanced morally reprehensible mis- Generally, the chamber’s opaque and inde- enormous advantage in prosecutions. It tried demeanours but which were not necessarily terminate nature (as to practice and proce- citizens who had fallen from public favour, a violation of the letter of the law. It had a dure) gave rise to despotic and totalitarian unfavourable or notorious litigants and wide-ranging jurisdiction, it characterisations of its own accused persons. The court was used to sup- could punish a defendant or an jurisdiction. Its jurisdiction was press sedition and to accused for any action which untrammelled. This was the age discourage political the court felt should be unlaw- The procedure was of civil unrest, lengthy wars and activism and similar. ful, despite being technically anarchy. As Thomas Hobbes The activist William The activist William lawful. By 1529, when Cardinal simple: a prosecution said in Leviathan (1651), ‘[Man Prynne (1600-1669) Thomas Wolsey was chancellor, lived in] continual fear, and who published trea- Prynne (1600-1669) it became a regular court of law. was brought before danger of violent death; and tises against religious Sir Edward Coke (1552-1634) the life of man [was] solitary, holidays and Christ- who published described the Star Chamber the court upon poor, nasty, brutish, and mas was known to grandiloquently as ‘the most short.’ have ‘lost his ears’ treatises against honourable court (our Parlia- referral by the A Star Chamber judge sat twice (by degree) ment excepted) that is in the without jury and wholly out of by order of the Star religious holidays Christian World both in respect Attorney-General the public gaze. This fired the Chamber. He was of the judges in the court and its imagination of the public. An- brought before the and Christmas was honourable proceeding’.2 and any defendants other court which approached Star Chamber for the terrifying and perverse de- his religious libels in known to have ‘lost Cognoscenti were tried scriptions of the Star Chamber’s the Puritan context.3 practice and procedure was the William Noy (1600- his ears’ twice (by In 1540, the court of the Star summarily in the Court of High Commission, 69), the attorney, Chamber and the Privy Council which was the pope’s own pri- referred the matter degree) by order of became formally separate entities. absence of a jury and vate court, the quintessential into the cham- Before and after that date, howev- ecclesiastical court. ber. The church the Star Chamber. er, the judges who sat in the Star without witnesses. In Stuart times, the Star fathers condemned Chamber were all Privy Council- Chamber dealt with criminal Prynne’s infamous lors. Most of them, however, were causes, and after conviction in views and searing criticism against stage not legally qualified. During the 16th century, the Star Chamber, only the king was able plays and his assiduous railing against the the Privy Council was a select and secret in- to pardon wrongdoers. By the 16th century, monarchy. In addition to earlier orders caus- stitution. It was a band of the king’s own pri- those cases had almost ceased to be referred. ing the loss of his ears Prynne was sentenced vate advisers, chosen for their knowledge and The procedure was simple: a prosecution was to the pillory and publicly humiliated. The ‘know-how’ in relation to government policy brought before the court upon referral by the chief justice ordered him to be branded on and administration. attorney-general and any defendants were the cheeks ‘S L’ a ‘Seditious Libeller’. Prynne Perhaps surprisingly, the Star Chamber tried summarily in the absence of a jury and preferred his own Latin formulation of those from the first quarter of the 16th century without witnesses. A private petitioner or ag- letters ‘stigmata laudis’ – signs of praise, exercised a mainly civil jurisdiction. Like grieved citizen could also seek that a cause be claiming it a higher honour. the Chancery, the relief granted concerned referred to the chamber or to another court, In the aftermath of the treatment of Prynne mainly matters of real property. usually by indictment. and other politically active individuals, the However, unlike Chancery, the Unlike the Chancery, Noted in Star Chamber Long Parliament (1640-1660) abolished the petitioners to the court usually procedure was the ex offi- Star Chamber by introducing the Statute of complained of riot, unlawful the Star Chamber cio oath where, as a result of Habeas Corpus in 1640. The Star Chamber assembly, forced entry and op- their high positions, accused by then was a legend in its own right for arbi- pression; matters of public dis- was not a court individuals would be forced to trary procedure and chilling cruelty. order which gave the council its swear to answer truthfully any During its existence, the Star Chamber impetus to act in such matters. concerned with questions asked of them. Then, developed the law of misdemeanours. Its In reality, many of the allega- beset by hostile interrogation, hallmark, however, became its terrifying tions and claims made before conscience. the accused was forced into brutality and imaginative punishments for the court were probably fictions. the ‘cruel trilemma’ - having misdemeanours, for example the slitting of The real reason for the Privy Council de- to incriminate themselves, to face charges noses, severing of ears and public humili- ciding these issues was essentially to decide of perjury if they answered unsatisfactorily, ation, although it did not order death. The title. However the statutes of Edward III or be held in contempt of court, if no answer more gruesome punishments became a prohibited the council from deciding issues was forthcoming. feature in the last 10 years of its life. Con- in relation to freeholds – these were known Unlike the Chancery, the Star Chamber was stitutional principle precluded felonies from as the statues of due process and precluded not a court concerned with conscience. There being tried in the chamber – a man could such actions – resulting in these issues being was no development of any equitable juris- only be tried for his life by a jury of his peers.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 59 LEGAL HISTORY

Punishments for misdemeanours that were unfixed at Common Law at that time, al- lowed the Star Chamber to decree whippings and the pillory in lieu of a pecuniary fine. The chamber had morphed into favouring cruel and unusual punishments – perversity became its signature. The Star Chamber heard cases of criminal libel, forgery, perjury, subornation perjury, conspiracy and attempts to commit crimes. It has been said that it was a jurisdiction for criminal equity, however, that overstates the equitable nature of the court, if it ever existed. By the time of the abolition of the Star Chamber, it had commenced creative work which the other courts developed. On the demise of the Star Chamber, the King’s Bench claimed to have inherited some aspect of equitable function of developing Chronicle / Alamy Stock Photo the criminal law to meet particular or new circumstances that might have presented. de Justice on the Ile de la Cite. Street, went into the night and were often Sir Edward Coke however urged that any In light of its décor, the likely source of the termed ‘Star Chamber sessions’, due to their creativity of the jurisdiction or ability to Star Chamber’s name comes from Ovid’s impromptu nature and unsubtle advice from deal with the novelties which might have Metamorphoses ‘soe called of the serpent stel- the top. presented were not desirable in penal mat- lio…For the form of the said serpent was in The Star Chamber is an expression that has ters. It is understood that any such equitable colour blewe, al to be speckle with spots shy- become synonymous with disregard of per- jurisdiction, or room for it to develop was neigne in the night bright like unto starres’.4 sonal rights, liberties and the abuse of power. abandoned in the interests of certainty. The Ovid was a popular reference in Elizabethan The term ‘the Star Chamber’ has entered the Bill of Rights of 1689 prohibited cruel and England, and this description concerns English vernacular and is referred to in many unusual punishment. punishment which became the chamber’s judgments which observe the aberrant and signature. invasive procedures of authority. It is me- Fabled decor The Star Chamber room was demolished morialised in English case law, by reference in 1806, long before the great fire which to interrogations, Kafkaesque procedures, The Star Chamber took its name from the destroyed that part of the palace in about and inquisitorial procedures, as Lord Dyson golden stars painted on its blue ceiling. No- 1830. The décor, however, was salvaged. The noted in a case about disclosure and closed tably, the ceiling was painted in cerulean door of the chamber room hangs in the well- material procedure Al Rawi & Ors v Security blue, ultramarino (Latin beyond the sea), known Westminster school nearby. That Service [2011] 3 WLR 388 at [37]. which was a coveted colour in decoration fabled Star Chamber ceiling with its bright Scott LJ in Bayer v Winter & Ors (No.2) in Medieval and gold stars on the blue ground was taken to (1986) 1 WLR 540 at 544 made the follow- Its hallmark, Renaissance times. the Leasowe Castle on the Wirral Peninsula ing remarks concerning an application for It rivalled the colour in Cheshire directly from the demolition site. orders permitting the applicant the right to however, became its of murex favoured There were four tapestries of Flemish origin conduct an interrogation without limit in an of the Ancients that covered the chamber’s four walls – arras- action for Anton Pillar orders: ‘Star Chamber terrifying brutality in rarity and ex- es which insulated for sound and heat. The interrogatory procedure has formed no part pense. That colour arrases were gifts to the British Royal family of the judicial process in this country for and imaginative blue was made by from a Netherlandish royal house and de- several centuries. The proper function in grounding to a fine picted the four seasons. Those tapestries were my opinion of a judge in civil litigation is to punishments for powder lapis lazuli removed to the great house Knole, the seat decide issues between parties. It is not, in my from Afghanistan, of the Sackville-West family since the 1450s, opinion, to preside over an interrogation’. misdemeanours, then mixed with in Sevenoaks in Kent. It was the traditional other compounds. holding venue for obsolete furniture of royal ENDNOTES It was otherwise and government houses. According to one for example the 1 Sir John Baker An Introduction to English Legal History London (2nd ed.) used for the robes source, the workmen dismantling the old Butterworths 1979 slitting of noses, in depictions of the chamber noticed mysterious black encrusta- 2 Edward P. Cheyney. The Court of Star Chamber. The American Virgin Mary, the tions similar to flecks of dried blood at inter- Historical Review, Vol. 18, 4 (July 1913) at 745 severing of ears and serene colour being vals as they were lowered, on the green blue 3 Losing the lobes of one’s ears was a signature punishment known to be symbolic of holi- tapestries, having borne witness to chilling done by degrees in the chamber. public humiliation, ness and humility. forms of brutality over the centuries. 4 See Ed. Hutson Oxford Handbook of English Law and Literature Oxford The gold stars were a University Press (2017) although it did popular motif at the Vernacular time and applied not order death. directly onto the In the 1980s and 1990s, Baroness Thatcher blue ground. Such was known to hold private ministerial meet- ceilings are observed in buildings which date ings at which disputes between the Treasury to the time; for example, La Sainte Chappelle and certain government departments were in Paris, built in 1240 for Louis IX – the argued and resolved. These high level ques- king’s own private chapel within the Palais tion time meetings, held at 10 Downing

60 [2017] (Summer) Bar News The Journal of the NSW Bar Association BOOK REVIEWS

methodology to assembling a compilation of excellent book, The Trials of Justice Murphy. Leading Cases in 100 cases. This involves a strict organisation In late 1984, Murphy, then a sitting High by order of the frequency of citation in later Court judge and a former Senator and fed- Contract Law decisions, determined with the assistance of eral attorney-general, was charged with two By Daniel Reynolds and Lyndon LexisNexis Australia. Differing from any of counts of attempting to pervert the course of Goddard | The Federation Press | 2017 its predecessors, it is not a generalist work justice. In one count, the prosecution alleged but contained to a defined field of law. The that in early 1982 he attempted to induce absence of curation results in the persistent NSW Chief Magistrate Briese to intervene in themes of contract rising and falling with committal proceedings in respect of forgery an unpredictable tempo. The effect, read and conspiracy to forge charges laid against a through, is something akin to seeking an solicitor, Morgan Ryan, that were before an- understanding of the evolution of dinosaurs other magistrate. It was alleged that Murphy by reference to exhibits at the Australian had a close association with Ryan and that he Museum ordered by popularity. To take had cultivated Briese by telling Briese that he the most apparent example, notable and not would advance the cause of independence for always consistent authorities dealing with NSW magistrates with the state government. aspects of construction appear in the first Murphy was accused of suggesting that Briese half of the work at #1 (Codelfa), #3 (Toll ), return this favour by helping Ryan when he #5 (BP Refinery), #12 (Pacific Carriers), #29 spoke to Briese in January 1982, saying ‘And (McCann), #39 (Woodside) and #43 (Magg- now, what about my little mate?’ Murphy bury). Despite the best efforts of the authors consistently denied that he was as close to in reconciling and cross-referencing these Ryan as suggested by the prosecution. He This work is the sibling of the authors’ previ- cases in their commentary, the result is dis- said that it was Briese who lobbied him about ous publication, Leading Cases in Australian orienting. guarantees of independence for magistrates Law. It presents a collection of the 100 most Nonetheless, approaching the work in this and that it was Briese who first mentioned frequently cited judgments in contract law way offers for those reasonably acquainted Ryan’s case, not him. He denied he said those and allied concepts (such as restitution and with the field a refreshing insight into the famous words (or ever used the word ‘mate’) estoppel) each accompanied by a statement controversies that have animated contract or made any request of Briese about the Ryan of principle and a short note. It belongs to a law in Australia. Even the most jaded reader case. genre of legal work with considerable legacy might find awakened a long-dormant desire The other charge against Murphy was that he by reference to the popularity in its time of to discuss with any unfortunate colleagues in attempted to influence District Court Judge the 13 editions of Smith’s Leading Cases on reach the historically, if not recently, vexed Paul Flannery who was to preside over Ryan’s Various Branches of the Law with Notes (1837 questions of ambiguity and estoppel. This trial. The prosecution alleged that Murphy to 1929). peculiar aspect, and the value of Leading also cultivated Flannery and that, during a One could not find a better summary of Cases in Contract as a reference work, make it dinner on the Saturday night before Ryan’s principle or place in law of any of the fea- a valuable addition to the contractual corpus. trial, Murphy implicitly suggested that Flan- tured cases in this work. The statements of nery should help Ryan when he complained principle range from the straightforward Reviewed by Alexander H Edwards to Flannery about the practice of prosecutors (Hoyt’s Pty Ltd v Spencer (1919) 27 CLR laying conspiracy charges when a substantive 133, ‘A collateral contract is enforceable if it offence was available (as had supposedly oc- is consistent with the main contract’) to the The Trials of Justice Murphy curred in Ryan’s case). Flannery said Murphy nuanced (Koompahtoo Local Aboriginal Land By Stephen Walmsley | Lexis- referred to a recent High Court decision on Council v Sanpine (2007) 233 CLR 115, in Nexis Butterworths | 2016 that topic (R v Hoar (1981) 148 CLR 32). relation to intermediate terms); they are all Ryan’s trial was not mentioned at the dinner. succinct and, in the view of the reviewer, Despite competition from other states, New Murphy denied that he cultivated Flannery, accurate. The case notes are divided into a South Wales remains home to Australia’s denied that he knew Flannery was the trial statement of facts; the determination of the judge for Ryan, and said that it was Flannery Court, or the relevant determination where who introduced the general subject of con- the case deals with aspects of law outside spiracy charges at dinner. contract; a collection of commonly cited pas- (Spoiler alert.) At his first trial in 1985, sages; and the author’s commentary on the Murphy was acquitted of the Flannery charge decision and its place in relation to the other but convicted of the Briese charge. On appeal, cases featured. The authors manage this task he secured a retrial (R v Murphy (1985) 4 in two pages for each judgment. NSWLR 42). He was acquitted of the Briese Leading Cases in Contract is accompanied count in April 1986. Murphy died of cancer by an appendix containing, in alphabeti- six months later. In the meantime, a dispute cal order, each of the cases attached to the had broken out over his entitlement to return applicable one-sentence proposition of law. to sit at the High Court. An inquiry into his The appendix alone justifies its position in conduct was commenced and then wound up the chambers of any commercial barrister while in its infancy. What became of that is or, even better, within easy reach on the bar now publicly available. table. Murphy’s two trials are the focus of Walms- These estimable practical features should not greatest judicial controversy: the allegation ley’s book but they are only the middle obscure the startling experience of reading that a justice of the High Court, Lionel Keith chapters of a saga that the author lays out Leading Cases in Contract cover to cover. Like Murphy, twice attempted to pervert the judi- in a page-turner that begins with a dinner Leading Cases in Australian Law, it applies cial power of the Commonwealth. This con- in 1979 attended by Briese, Ryan, Murphy, what the authors describe as a ‘mechanistic’ troversy is the subject of Stephen Walmsley’s the Police Commissioner and Briese’s pre-

The Journal of the NSW Bar Association [2017] (Summer) Bar News 61 BOOK REVIEWS decessor as Chief Magistrate, who was later left firmly on the Crown case. Walmsley also Advocacy and Judging: convicted of corruption. Walmsley follows refers to a wide array of press commentaries the story from the dinner which coincided to paint the atmosphere in the courtroom Selected Papers of with an illegal phone tapping operation that during the trial, even allowing for the fact focussed on Ryan, and traces it through the that a number of them had skin in the game. two Senate inquiries that preceded the trial. From that, the prosecutor ( QC) Hugh Dillon (Ed) | And as legal sagas go, this one emerges as someone to avoid The Federation Press | 2017 had everything: high political ... as legal sagas being cross-examined by. scandal, underworld figures, My only grumble with the book a prosecutor who later sat on go, this one had is the perspective of the chapters the High Court with two of that precede the first trial. The Murphy’s character witnesses, a everything: high author tells us early on that he is premier convicted of contempt, Flannery’s son-in-law and he ad- some complex points of law, an political scandal, mired Briese as a whistle-blower. interview with the foreman of Still, these chapters take it from the first jury on talkback radio underworld figures, their perspective, so we start by which revealed the jury’s delib- thinking that Murphy did it erations, references to a judge’s a prosecutor who and then we learn how he beat sexual drive, a who’s who of the the charges. Whole chapters are best advocates of the 1980s, a later sat on the devoted to Briese and Flannery misconstrued suggestion that respectively. Mini-portraits of the High Court would go on High Court with their personalities are littered This work contains 33 papers authored by strike, and eight Supreme Court throughout the book. Murphy the Honourable Murray Gleeson AC during judges who were involved in the two of Murphy’s only exists through his actions. the period 1979 to 2015, covering a range of trials and appeal writing to a Walmsley tells that when Flan- legal topics relevant to the practice of barris- Crown witness (Briese) to assure character witnesses... nery was thinking of speaking ters and Australian law more generally. him that Murphy’s acquittal did up, he was in a ‘moral dilemma’ As the title of the compilation suggests, not warrant any action being taken against and concludes that ‘[u]ltimately [Flannery] many of the papers principally focus upon him as had been suggested by the premier. chose the truth’. In this search for truth, we are aspects of advocacy or the role and work One revelation from the book is the doozy of told no less than three times that Flannery’s of judges. These papers address topics such a question posed by the jury to the trial judge son received a call in Sydney from Murphy as the function and method of advocacy, at Murphy’s first trial, namely that ‘[w]e have seeking his father’s contact details at a hotel cross-examination, judicial method, judi- no evidence concerning the probity, legality in Brisbane, even though this was never ad- cial selection and training, the nature of or otherwise of whether or not a Judge, High duced in evidence at the trial. The author tells the judiciary, qualities necessary for judicial Court or otherwise, is permitted to discuss us that Flannery did not want his son called activity, the impact of the Constitution current matters before another judge with as a witness. What are we to make of this and legislation upon such activity and the that other judge. Please comment’. This ques- apparently ‘new evidence’? Was it investigated importance of public confidence in the tion went to the heart of this tale, and it is per- or tested? Does the Murphy family have their judiciary. haps its only continuing relevance. How this own ‘untold story’ that never came out? Aside from those papers that address those question was dealt with at the trial and the In the end, we learn a lot about what hap- subjects as their principal focus, all of the ensuing debate about whether that involved pened to Murphy but not much about who he selected papers address topics fundamental a misunderstanding of the question are well really was. Despite all that has been written to the work of barristers and judges. The covered in the book. But it is a topic that war- about Murphy including this excellent book, rule of law and the nature of the adversarial rants serious thought and I would have been he remains elusive. A realistic assessment of system are constant undercurrents in most interested to read the author’s view on the Murphy appears stuck in the no-man’s land of the papers. This selection includes papers jury’s question. (After judgment has been de- between, on the one hand, the odd combina- on fundamental principles of the common livered, the following conversation often takes tion of (once) radical journalists whose certi- law, such as legality, finality and legitima- place between judges. Judge 1: tude that he was a crook never cy, and in relation to the criminal justice ‘Have you read my [implicitly Does the Murphy waivers and those who despised system, the presumption of innocence. fabulous] judgment in [totally Murphy and anything he stood Several papers address matters which are forgettable case]? Judge 2: ‘No’.) family have their for, and tribal warriors who intrinsic to the work of lawyers and judges, Not surprisingly, Walmsley’s have canonised the avowedly such as legal interpretation and contractu- coverage of the trials is the own ‘untold story’ atheistic Murphy on the other. al interpretation. These papers provide a strongest part of the book. The scenario that Murphy was thorough foundation in an easily digestible Drawing on the original sources that never came out? a gregarious but undisciplined format for those principles, the legal recep- and having spoken to many of personality who simply would tion of which can often be assumed and the players, he explains the course of the trials not stop talking about current cases that were therefore taken for granted. These works and the tactics in a style that is accessible for before a judge but did not intend to nobble contain a valuable exposition of the basis of practitioners and non-practitioners alike. We them appears to have been a case theory that such principles. learn that Ian Barker QC, who appeared for no one had an interest in running or writing Many of the papers consider aspects of Murphy at the second trial, banned trolleys, about. [1] constitutional law and several take the Con- folders and documents from the courtroom. Read the book over summer. Make your own stitution as their principal focus, including No frills. Unlike the first trial, the defence mind up, or maybe just let the jury verdicts one on the constitutional decisions of the case in the second trial was over in two hours: stand. Founding Fathers, and another on section Murphy gave a short dock statement, there 74 of the Constitution, which prohibits was some brief evidence from his secretary Reviewed by Robert Beech-Jones appeals to the Privy Council from the High and no character witnesses. The focus was Court on constitutional matters. Other

62 [2017] (Summer) Bar News The Journal of the NSW Bar Association BOOK REVIEWS areas of law have not been forgotten: most of judicial style, Mr Gleeson referred to a The Burden of Lies are of general application to multiple areas letter from Professor Harrison Moore to A Peter Tanner Thriller of law, and one addresses the significance of Andrew Inglis Clark written in 1906, in 1 By Richard Beasley | Si- Donoghue v Stevenson . There is a wealth of which Professor Moore complained that mon & Schuster | 2017 material to satisfy those interested in legal during three and a half days of addressing history, including a paper on ‘Magna Carta the High Court, counsel ‘never got a clear – History and Myth’, as well as papers con- five minutes speaking’, due to judicial in- sidering the history of the High Court and tervention. Mr Gleeson stated in his paper the Privy Council, particularly (which was delivered in 2003, as regards Australia. during his tenure as chief jus- Most, if not all, of the papers tice of the High Court) ‘No were delivered as oral addresses This book is an counsel would be given three or speeches. The audiences of and a half days now, and a clear those addresses varied, ranging indispensable five minutes speaking would from solicitors at the Australian only happen if all the Justices Government Solicitor’s Office, resource for walked off the Bench’.5 readers and junior barristers In ‘A Changing Judiciary’, an practising in New South Wales, Australian lawyers, address delivered to the Judi- Australian judges, legal prac- cial Conference of Australia titioners, academics and law particularly Colloquium, Uluru, on 7 April We first meet Peter Tanner, the barrister pro- students in Australia, members 2001, Mr Gleeson emphasised tagonist in Richard Beasley’s The Burden of of the public, and the members barristers, and will the importance of institutions Lies, in the Downing Centre, where he is de- of the Singapore Academy of having a ‘corporate memory’ fending a racist. Tanner is a senior junior at the Law. The range of audiences also be welcomed to safeguard against error in criminal bar and racial vilification, we learn, means that the papers contain declaring an existing state of is not his bread and butter. Instead, he prefers differing amounts of intro- by those with an affairs essential or fundamental ‘not to get out of bed unless blood had been ductory material and assumed without adequate knowledge of spilt’. Yet while Tanner proudly makes a living knowledge depending on their interest in Australian what has occurred in the past, defending the low-lifes of Sydney, his sense of target audience. While some or what occurs in other places. moral outrage at the crimes his clients commit papers were delivered to expe- legal history or He stated:6 is keenly felt. This much is made clear when rienced lawyers and judges on Tanner asks the magistrate hearing the racial the judiciary. People may be surprised to whose part a reasonable level learn that what they regard as vilification charge to ‘add a couple of zeros’ to of knowledge on the relevant an indispensable part of the the $550 fine his client receives for spray-paint- topic could be assumed, others natural order of things is, in ing a racial slur on the front wall of an Islamic were not, and the resulting truth, a recent development, or primary school. And clearer still when in paper could easily be appreciated by may be quite different from the way conference later that day with a different cli- non-lawyers, or lawyers unfamiliar with things are done, by respectable people, ent – a ‘hedgefund sociopath’ who was not, the Australian legal tradition. For example, elsewhere. They may be alarmed by to Tanner‘s mind, showing sufficient remorse ‘Australia’s Contribution to the Common aspects of current practice which for his actions – Tanner smashes the client’s Law’ was an address given to the Singapore are not really new, but are simply a smartphone to smithereens, using a cricket bat. Academy of Law on 20 September 2007. In response to problems that have been It would seem that Tanner is struggling not it, Mr Gleeson highlighted particular High around for a long time. only with his clients’ choices but also some of Court decisions in areas of importance in his own. The (thrilling) backstory to some of criminal law, equity, contract, tort and Given that the earliest of these papers was these choices can be found in the first book of administrative law, where the Court could delivered 38 years ago, and many of the this series, Cyanide Games, but it is not nec- be seen to be ‘acting sometimes creatively papers contain a careful recitation of the essary to read it to know that Tanner is more and sometimes traditionally, sometimes historical and legal development of the than a little bit broken and badly in need of boldly and sometimes cautiously, but in relevant topic, the book in and of itself will some time off. However, in the fine tradition all cases consistently in the application of contribute to the safeguarding of a collective of the bar, rather than take the year off that a judicial method … in the mainstream memory in respect of the issues with which his shrink has urged upon him, Tanner throws of the common law tradition’.2 That paper it is concerned. himself into his next big brief, a juicy murder traverses years of the High Court’s body of This book is an indispensable resource for trial defending a property developer charged work across many areas of law that would Australian lawyers, particularly barristers, with killing her banker. Of the trial, Beasley be of interest to those new to Australian law and will also be welcomed by those with writes: as well as Australian lawyers interested in a an interest in Australian legal history or the The victim was an ex-high-flying summary of significant matters in Australi- judiciary. banker who did nearly six years for coke an jurisprudence. distribution. He was not long out of Each paper addresses the issues with which Reviewed by Victoria Brigden prison when someone had fragmented it is concerned in depth, yet concisely, and his kneecaps to bits of bloody gravel in an entertaining style. In ‘The Centenary ENDNOTES and then removed the back of his head of the High Court: Lessons from History’, 1 [1932] AC 562. with a close-range shot. The accused Mr Gleeson described a judgment of Sir 2 Advocacy and Judging: Selected Papers of Murray Gleeson at 101. was an attractive and once successful , then chief justice, in Baxter 3 Id at 133. businesswoman in a man’s game who’d v Commissioner of Taxation (NSW) (1907) 4 ‘The Centenary of the High Court: Lessons from History’, in been ruined by the dead guy and the fi- 4 CLR 1087 as being ‘the most vitriolic Advocacy and Judging: Selected Papers of Murray Gleeson at 132. nancial leviathan he’d once worked for. judgment in the Commonwealth Law Re- 5 Id at 145. There was a young hitman, and another ports’.3 Elsewhere,4 in addressing aspects 6 Id at 53.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 63 BOOK REVIEWS

crown witness with a criminal record and overtones of the underworld. There Extract from to me.’ was nothing the press didn’t like about ‘Anything else?’ R v Athina Leonard. The Burden of Lies She shrugged. ‘I’ve heard he’s quite con- by Richard Beasley vincing when it comes to marginal devel- The Leonard trial, together with Tanner’s opment applications. He’s been known to unorthodox but punctilious preparations for persuade members of local government it, provide Beasley with all the vital ingredients The crime scene shots of the aftermath of to see things from a developer’s point of for a fast-paced legal thriller. The story that the head wound weren’t pretty. Nor were view.’ unfolds as Tanner prepares for and appears in the close-ups of Randall’s knees. ‘One of those acts of persuasion got him a the trial is also very much of its time and place. The woman said to have ordered this exe- criminal record.’ The glamour and greed and the successes and cution sat with her hands clasped together ‘My brothers say Mick leads people to excesses that make Sydney are centre-stage. on one side of Kit Gallagher’s conference water,’ she said, ‘and then he makes them There are the greedy property developers room table. She stood to greet Tanner. drink.’ carving up the last available slices of Sydney’s She was in an ivory suit, one button on ‘Sounds like the sort of person to in- harbourfront real estate, the greedier banks the jacket, tightly tailored at the waist. troduce to an ex-banker you’ve got bad funding all the development, and corrupt cops She was short, but the heels gave her memories of.’ are thrown in for good measure. Tanner has enough height. Long straight black hair, There was a flash from her dark eyes, his work cut out for him, both in terms of un- deep black eyes that could have looked almost like a camera at night. ‘I didn’t ask covering the various levels of corruption at play over the Nile from a palace five thousand him to kill Oliver Randall. If I’d wanted and in weaving a plausible case theory about years ago. The rest was the Golden Age that done, I would have done it myself.’ who might have killed his client’s banker, if of Athens. Tanner smiled. ‘If I call you to give ev- not she. Along the way, Beasley slips in enough Gallagher ran through Tanner’s CV. If idence at your trial, Tina, don’t answer wry observations about the wealthier echelons Tina Leonard was impressed, she didn’t that way. It sounded too close to having of Sydney society, as well as about the quirks of show it. She looked like she made her the ring of truth.’ the legal profession as it exists today, to make own mind up about people. She had a She looked at him, nodded slowly. this book more captivating and relevant than pink rock on a finger you weren’t meant ‘Jayden Webb. He did kill Randall. How your standard work of crime fiction. to miss, smaller stones of the same kind does he have fifty thousand of your dol- While the facts of the trial and its denouement on each ear. Her ring finger was clear. Her lars at his flat?’ make for a real page-turner on their own, it is marriage, like her business, had crumbled ‘I know you’ve read the brief, Peter,’ she the character Beasley has created in Tanner post the GFC. said. ‘Kit told me you were thorough.’ that is most enthralling. He is successful, yet ‘Do you know the prosecution’s witness- ‘Reading the brief isn’t being thorough, troubled. Conspicuously flawed, yet eminently es?’ Tanner said, once his career high- Tina. It isn’t even first base. You read the likeable. He is smart, and a good lawyer. His lights had been covered. brief in the dugout. I’m going to hear your performances in the courtroom are enor- ‘Not as friends,’ Tina Leonard said. ‘I’m whole story in your words. Then I’ll listen mously entertaining. Conveniently (for plot sure you’ve gathered that.’ Contralto to it again. We might go over it ten, fifteen purposes), he is widowed, giving him a whiff voice, which lesser men would run from. times. There are only two rules: you tell of tragedy and also making him available for Those who didn’t would do what they me the truth, and you tell me everything. dalliances with the women with whom he were told. Why did Webb have your money at his comes into contact. ‘Let’s start with Mick Bitar. How long home when he killed Randall?’ The frequency with which Tanner reminds have you known him?’ Tina Leonard told them that the money those around him that he has devoted his life An eyebrow arched, her black eyes went was for Bitar. She wanted a meeting with to representing the truly repellent members of back in time. ‘Twenty years. Twenty-five.’ her brothers. She wanted back into the society reminds one of Rumpole of the Bailey. ‘How?’ family empire. He was their associate. His risk-taking and obvious allure for the ‘He performed services for my father,’ she When they wouldn’t meet or even talk to women whom he encounters is more reminis- said. ‘He did the same for my brothers. her, she contacted Bitar, had lunch with cent of Rake’s Cleaver Greene. But mention of For some of that time I was working for him. He said he could make it happen. those two fictional advocates is not to suggest the family company.’ She said the last Fifty thousand was his fee. Webb was a that Tanner is in any way derivative. Tanner words like they were the ugliest in the labourer on building sites. Bitar sent him is his own self. He is a workaholic, but values English Language. to pick up the cash. his family above all else. He clearly loves being ‘Services?’ ‘Why would you want back in?’ Tanner a barrister but sports an obvious ambivalence A faint smile appeared. ‘He’s a facilitator. asked. ‘Didn’t you want out years ago? about what he does and the people who brief He calls himself a fixer.’ Wasn’t that what setting up your own him. He takes himself seriously, but has ‘What does he fix, Tina?’ company was all about? Freedom from enough self-awareness not to let his successes ‘He often makes arrangements for the the tyranny of the men? go to his head. Early on in the novel, Tanner smooth running of construction sites.’ That’s my take on it from your statement. jokingly tells his psychologist that he will give ‘What does that mean?’ Am I wrong?’ his final submissions in the Leonard trial via a Her smile broadened. ‘Usually no more She picked up the glass in front of her series of tweets. It is comments like these and than mediation between people who are almost in slow motion, took a sip, put it the aforementioned character traits that sug- failing to communicate.’ down. ‘I’d been bankrupted, Peter. Oblit- gest that in Tanner, Beasley may have created ‘What people?’ erated. a legal hero for Gen X. And as Tanner issues ‘Everyone. Builders. Trades people. I was ready to get back to work, to what his final invoice after the jury has delivered its Union officials. Local government.’ I’m good at. I wasn’t ready to start on my verdict, one is left hoping that Beasley will find ‘Are his mediation techniques legal?’ own again. That I’d do later.’ the time to give Tanner a new brief. The smile faded away. ‘Not every detail ‘Even with four million of your father’s of my father’s business was made known money?’ Reviewed by Juliet Curtin

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‘That was my money,’ she said sharply. ‘That and more. My brothers have con- tacts. They’re in the building game. I needed to reacquaint myself with it before I ran on my own again.’ Tanner nodded, made a note to get Gal- lagher to make attempts to talk to Leon- ard’s brothers, confirming their resistance to meeting with her. ‘Why the animosity with your brothers, Tina? Where’s that come from?’ She looked at him blankly, then at Gal- lagher. ‘We’re going to cover my whole family history today? Don’t you want to hear about who actually killed Oliver?’ ‘We’ll get to that. What happened?’ Leonard took them back more than twenty years, to when she was Athina Io- annidis. She was spoilt, she admitted. ‘My father had become wealthy by the time I was a little girl. I got treated to things my brothers hadn’t. From toys to travel to interested, Tina, so I will be.’ male-structured entertainment. Oliver the homeland. My sister and I did well at She tilted her head upwards. The phar- made that clear.’ school, the boys – they didn’t really apply aoh’s queen looking at some commoner. ‘He told you himself?’ themselves. We got into university, they A clever slave, perhaps. ‘You wouldn’t be She took a deep breath, shook her head. went to work for dad.’ otherwise?’ ‘Not about the girls. I heard that from – She loved buildings, design, studied hard, ‘I don’t wish to upset you, Tina, but no, well, it doesn’t matter, it was true. He told got into architecture. not particularly. You have my full atten- me about the drugs once, not in – just in ‘I worked for my father when I finished tion because you’re my client. I like to an unguarded moment.’ uni,’ she said. ‘He had his architects let me make that clear to people from the get-go. ‘An unguarded moment?’ help them. I was good with numbers, I did I have a professional interest in helping ‘My first lender was Nipori Bank. Its budgets, drafted development and project you beat this charge. Otherwise, I really Australian business went bust in the GFC. applications – he let me have a finger in don’t care who shot Oliver Randall.’ They were bought by SEBC. I had a close everything. I did an MBA. My brothers ‘I’m glad you’ve made that clear,’ she said, relationship with the banker I originally hated how involved I was. They hated me leaning towards him, elbows now on the had at Nipori before SEBC bought it out. more once I left and became successful desk, hand clasped together under her He was a bit of a surrogate father – at on my own without our father’s company chin. ‘Can I be clear too? I don’t need a least in the lending world. He introduced behind us. They’ve built nothing on their knight on a white charger. I never have. Oliver to me when SEBC took over, did own. I have.’ Right now, I want the best lawyer. I hope things he didn’t have to do given the – ‘Simple as that? Sibling rivalry?’ that’s you.’ well, given the circumstances. Oliver took ‘Sibling envy, Peter,’ she said. ‘But as ‘The prosecutors say you had Randall shot a real interest in Leonard Developments. simple as that. My brothers inherited my because he ruined you. They’re right about We had a good rapport.’ father’s views about women. They inherit- the last bit at least, aren’t they? You had ‘That’s quite a betrayal then? Randall was ed what I can guarantee are high levels of cause?’ the main witness in the proceedings when testosterone. They didn’t want me in the She smiled faintly again. ‘Oliver did over the bank sued you.’ family business. I wasn’t a man. Then they five years in prison. What do I need with She paused again, he saw her reaching liked me less when I stood on my own two revenge?’ back for what she felt at the time, stopping feet.’ ‘How does a bank executive end up doing herself. ‘He was a puppet,’ she said. ‘Other ‘And they didn’t like you any more when five and a half years for supplying com- people pulled the strings.’ your business failed?’ mercial amounts of coke?’ ‘Tell me what went wrong first.’ Her eyes flashed that light again. She had Tina Leonard put her arms down on the Leonard sighed, but then said, ‘They were fire in her, he could see that. table. ‘He used to feed it to his clients,’ she funding my biggest development. Some- ‘Jesus, Pete,’ Gallagher muttered, not quite said. ‘The bank’s clients. Coke. Girls. thing I’d worked on for years. When I was under her breath. The budget was substantial for both.’ still with my father. Something he started.’ Tina Leonard’s mouth opened slightly, ‘Girls and coke?’ Tanner said. ‘My client ‘Your father started?’ but she waited a moment before she spoke. development practices are behind the She nodded, smiled. ‘The bay where ‘You should read your brief, Peter,’ she said times. What’s the name of this bank Limani Views is situated was where my calmly. ‘My business didn’t fail. Things again?’ father built his first big home. Nothing got tight. Then Oliver Randall lied to me. ‘South East Banking Corporation,’ she like Hunters Hill, where we ended up, but He and his bank stole Limani from me, said. . . . Anyway, he bought up land in the area. and sold it to one of the big boys. Lovro ‘How do you know this – about Randall? Houses. Flats. He had a grand plan, got Constructions.’ She pointed to one of the Were you invited to any of these parties?’ distracted by other grand plans. I bought folders Tanner had in front of him. ‘It’s all She laughed, spontaneity mixed with bit- some apartment blocks in the area when I in there. If you’re interested?’ ters. ‘They’re not used to women clients. started to make money with the business, Tanner nodded. ‘You’re paying me to be Not as property developers. This was then with my ex-husband. Then an old

The Journal of the NSW Bar Association [2017] (Summer) Bar News 65 BOOK EXTRACT

warehouse went up for sale right on the She nodded. deal and blame Tina, when really someone river foreshore. I was the only person who ‘I read the letter. It does say he wanted to else paid him to kill Randall?’ could develop the site properly, because we apologise in person for something. The ‘It’s not a theory, Peter,’ Leonard said owned so much of the surrounding land.’ things he wished he hadn’t done to you? sharply. ‘You did Limani with your father?’ You say he spilt the beans when you met ‘Why does Mick Bitar hate you so much? She shook her head, gave a sad smile. ‘We him?’ Why would he lie and say you asked him weren’t talking by then. He never forgave ‘He told me the whole story. How SEBC me for going off on my own. He –’ managed not to lose money, how Luka to kill Randall?’ Leonard paused, and Gallagher took the Ravic from Lovro and –’ ‘He knows Luka Ravic, the head of Lovro time to pour her some water. There was ‘Hold up,’ Tanner said. ‘I don’t want to get Constructions. He does business with the barest moment when Leonard’s top lip to that yet. People saw you arguing with them. They would either have used him, quivered, but Tanner could see that tears Randall in a café about a week before he or Mick has seen a way to make money by weren’t a common part of her game. She was killed. What was that about?’ setting me up as their scapegoat for killing knew how to bury grief, even if whatever She let out a kind of ironic laugh. ‘Timing.’ Randall.’ she felt remained unresolved. ‘He sold the ‘Timing?’ ‘That’s an interesting case theory, Tina,’ land to me. He did a business deal with ‘I asked him to help me. To tell his story. Tanner said. He closed the folder in front me. He let Leonard Developments buy out To a court if I sued, to my lawyer, to a of him. He’d had enough for now. Ioannidis & Sons’ properties in the area. journalist – I hadn’t worked it out. He My brothers –’ She tipped her head back wasn’t ready. He said he would, but he had He had in his brief the story she’d laid out and smiled, and the effort nearly pushed things he had to straighten out first.’ in the statement, so the main thing was a tear from an eye. ‘My elder brother Theo ‘Like what?’ to check that she didn’t seem crazy. She’d prides himself on maintaining control, but ‘Something to do with his family. He passed that test, even if he wasn’t sure her Jimmy – he rang me and called me names was scared of these people. They had the story did. ‘You said you have a younger you don’t call women.’ drugs planted in his house. He did nearly sister?’ Construction work at Limani Views was six years in prison because of them. He ‘Anastasia. Taz.’ held up by court challenges to the devel- wanted to make some sort of peace with his ‘You’re living with her now you’re on bail?’ opment approvals. Leonard had other daughter. She was thirteen, I think, when She nodded. ‘Much to the delight of her projects on the go, other debts to pay. Pre- he went to prison. She – well, he wanted to sales were slow. A monthly loan payment do that. I was anxious to move forward. I husband.’ was only partially met, then the same lost my temper. It was momentary.’ ‘How does Taz get along with your broth- happened the following month. There was ‘You’re saying the coke was planted at ers?’ a meeting she had with her estranged hus- Randall’s house?’ ‘Better than me.’ band, who still had a stake in the business, ‘Yes. That’s what he told me.’ ‘I like specific answers to my questions, their CFO and Randall. They put a plan ‘Meaning your conspiracy theory involves Tina. You’ll need to follow that protocol.’ to Randall to manage their loans, a long- the police?’ ‘Taz wasn’t interested in the family busi- term prognosis and strategy. ‘He promised ‘Certain police.’ ness. She’s married to a guy who’s got his us a twenty-four-month loan extension, ‘Why – why would they do that?’ own money. She raised a family. They . . and a repayment restructure. ‘Because SEBC saw him as a liability – I’ve . they don’t disapprove of Taz like they They called in our loans eight days later.’ spelt this all out in my statement.’ ‘What happened then?’ Tanner blew out a long breath. ‘So, Tina,’ disapprove of me.’ Tina Leonard looked at her glass of water he said, ‘our case theory for your defence? ‘You have your own children?’ in disgust. ‘They sued for the entire debt. SEBC or Lovro Constructions find out She smiled. ‘Two boys. Alex and Chris.’ Over two hundred million. They put in re- Oliver Randall might spill the beans on ‘How old are they?’ ceivers to Limani, sold it at a public tender the wicked game they played on you, and ‘Nineteen and sixteen.’ for a pittance. they had him killed?’ ‘And they’re –’ Just before the tender, the bank released a She glared at him before answering. ‘You ‘They’re with my ex-husband,’ she said. report saying the land and the sediments don’t believe me, Peter?’ The smile faded. It was a topic to drop. He laughed. Some kind of reflex. ‘Not yet, in the river where the marina was to be ‘We’ll talk many times, Tina,’ Tanner built were highly polluted. Lovro Con- no. But I don’t disbelieve you yet, either.’ said. ‘In the meantime, do you have any structions bought my project for a quarter ‘I was hoping for better than that.’ of its worth. And guess what – it turned ‘This man Webb – he didn’t name you at questions for me?’ out that the land wasn’t that polluted first as having hired him to kill Randall. ‘You haven’t asked me if I had Oliver Ran- after all. Now Lovro has a project worth a That was a few days later. You say he was dall killed, Peter.’ couple of billion. How fortunate for one of got at?’ ‘Should I ask? Sounds like a trap for begin- SEBC’s biggest global clients.’ ‘There is something interesting there,’ ners to be so direct.’ ‘You obviously think this is the result of Gallagher said. ‘Webb’s solicitor – Tom He stood to leave. ‘Did you keep your a conspiracy between SEBC and Lovro Clayton – he’s been known to act for Mick papers from your case with SEBC? Affida- Constructions?’ Bitar.’ vits, pleadings, that kind of thing?’ ‘I know it is,’ she said, raising her voice. ‘So?’ ‘I can find them somewhere.’ ‘Oliver told me.’ ‘So, he wasn’t Webb’s first lawyer. He had Tanner added to some notes he’d already someone else for a few days, then Clayton ‘Send them to Kit.’ made of things he was going to ask Kit steps in. Then Webb does a deal, and fin- ‘Oliver Randall was worth a lot more to Gallagher to do, things that needed fol- gers Tina.’ me alive than dead, Peter,’ she said as he lowing up. ‘He wrote to you right before ‘What’s our theory about that? That Bitar shook her hand in farewell. ‘I didn’t have his release?’ sent his lawyer to Webb to get him to cut a him killed.’

66 [2017] (Summer) Bar News The Journal of the NSW Bar Association BOOK REVIEWS

Can You See with comments such as ‘factually correct, but of the background to and outcome of the lacks colour and amusing anecdotes’. litigation culminating in Giannarelli v Wraith the Mountain? While at university, Heerey did national ser- (1988) 165 CLR 543, in which he appeared A Legal Journey vice. He discusses this in chapter 4 (‘National at all levels, acting for the defendant solicitor, Service’)?. Heerey describes his introduction Mr Shulkes. with a Few Diversions to classical music as when, to accompany a In the third part of the book, which covers passing-out parade, the army band played Heerey’s time on the Federal Court following By Peter Heerey | Hy- ‘Non più andrai’ from Mozart’s The Marriage brid Publishers | 2017 his appointment in 1990, he discusses his of Figaro. Whether this had the same effect on experience as a judge. He identifies a number him as did ‘Sull’aria’ – also from The Marriage of memorable cases, covering topics such as of Figaro – on the inmates of Shawshank State investment schemes, price fixing, abuse of Penitentiary, is left unstated. market power, admiralty law and intellectual The legal event that dominated Heerey’s time property. In relation to the latter, one case at university was the litigation involving Pro- mentioned is Comite Interprofessionel des Vins fessor Sydney Sparkes Orr. This is discussed in Côtes de Provence v Bryce [1996] FCA 742 chapter 9 (‘The Orr Case’). Orr was dismissed which concerned whether a Tasmanian vine- by the University of Tasmania as professor of yard, which was established by a Frenchman philosophy primarily on the ground that he who named it ‘La Provence’ and which sold had a sexual relationship with an 18-year old undergraduate student. Orr’s claim for unfair wine which included those words on the label, dismissal was rejected: Orr v University of contravened the Australian Wine and Brandy Tasmania (1957) 100 CLR 526. Heerey refers Corporation Act (Cth). to several features of the litigation and to Orr Chapters 29 to 32 concern experts and expert himself. Heerey met Orr on several occasions assessors. Heerey appointed an assessor in a when Heerey was an articled clerk at the patent case concerning erythropoietin and ge- This enjoyable book is the Peter Heerey’s ac- Hobart firm Hodgman and Valentine, which netic engineering. Other chapters in this part count of his life, including his time as a Fed- acted for Orr. include ‘Law and Literature’ and ‘Judgment eral Court Judge. In a light-hearted manner, Heerey describes his career as a barrister over Writing’ in chapters 33 and 34. In discussing it recounts the ‘interesting and wide-ranging a number of chapters. He refers in chapter judgment writing, Heerey refers to ‘some personal and public life’ of the author, as stat- 17 (‘Life at the Bar’) to a number of cases unnecessary and irritating habits’, particularly ed in the foreword to the book by Alex Cher- in which he was involved as a junior over a ‘bracket creep’. The example given is Google nov, the former barrister, judge and Governor variety of subject matters. The criminal cases Inc v ACCC (2013) 249 CLR 435 at [1] where of Victoria. included R v Mitchell, which ran for 133 days, French CJ, Crennan and Kiefel JJ commence Heerey’s book is a very readable of which the Full Court was as follows: work. The chapters are not long, Heerey gives an highly critical on appeal ([1971] The appellant, Google Inc (Google), oper- some less than a few pages in VR 46 at 64-65) in what Heerey ates the well-known internet search engine length. Heerey has an engaging interesting summary describes as ‘fair comment’. ‘Google’ (the Google search engine). style of writing and the chapters He had a significant media cover a diverse range of subject of the background practice. This included a general Heerey suggests imagining the sentence with- matters. retainer from the Herald and out the bracketed inserts and asks ‘would any The chapters are grouped into to and outcome Weekly Times and appearing for reader later coming across the words “Google” four parts. ‘Early Days’ touches Fairfax during a Victorian Gov- and “Google search engine” have any doubt on Heerey’s family history and of the litigation ernment inquiry into newspaper as to what the writers had in mind?’ He also then traverses his upbringing and ownership on a team led by Tom describes the cliché as the ‘bane’ of good legal education in Hobart. The title’s culminating in Hughes QC and David Bennett writing. reference to the ‘Mountain’ is to QC. In 1985, Heerey participat- The final few chapters concern Heerey’s Mount Wellington in Hobart, Giannarelli v Wraith. ed in one of the last Australian post-judicial career and interests following his where Heerey was born in 1939. appeals to the Privy Council in retirement from the Federal Court in 2009. ‘The Victorian Bar’ centres on his 1967 move a dispute between Lang Hancock and Peter Most notably, he was Chair of the Australi- from Hobart to Melbourne to join the Bar. Wright on one side and Hammersley Iron on an Electoral Commission for five years. He ‘The Federal Court’ discusses aspects of his the other, over a royalty agreement. He recalls summarises the convoluted manner in which judicial career following his appointment to ‘a pleasant conference with Doug [William- the Federal Court in 1990 as well as certain son QC], pouring over a map of London and s 213 of the Commonwealth Electoral Act 1918 features of civil litigation, particularly the use discussing the relative merits of the Dorchester prescribes how the order of names on a ballot of experts. ‘After Court’ contains several chap- and the Savoy’. Heerey also describes trips to paper is to be determined, which Heerey says ters in which Heerey discusses his post-judicial Bougainville in a dispute concerning the Pan- is ‘a classic example of the Commonwealth career and interests. guna copper mine and to South Africa. The “itchy pen” philosophy of legislative drafting’. A number of chapters in ‘Early Days’ concern latter concerned proceedings commenced by A number of chapters throughout the work Heerey’s time studying law at the University the South Australian Cricket Association to refer to Heerey’s non-legal interests. In ad- of Tasmania. He had significant involvement have the Australian ban on sporting contact dition to rugby, mentioned above, there are in rugby, which is discussed in chapter 6 with South Africa on account of the apart- chapters on skiing, sailing, cycling and travel- (‘Rugby’). He played prop or fullback and heid regime declared illegal, following the ling, including to Ireland for which it appears was President of the University Rugby Club. announcement of the ‘rebel’ tour led by Kim Heerey has a particular regard. Heerey describes meeting Edward ‘Weary’ Hughes. Peter Heerey is to be commended for an in- Dunlop at an Intervarsity competition Heerey was appointed silk in 1985. In chapter teresting and thoughtful reflection of his life. in Melbourne. One of his coaches was a 19 (‘Barristers’ Immunity – The Giannarelli university lecturer who would mark essays Case’), Heerey gives an interesting summary Reviewed by Daniel Klineberg

The Journal of the NSW Bar Association [2017] (Summer) Bar News 67 BOOK REVIEWS

The Charles Manson with the murder which occurred in mid-Au- of all the issues surrounding these murders, gust 1969. Manson had said that Shea was written in a style that is easy to understand, Murders: In a responsible for a police raid on the ranch and is informative of legal issues and the relevant that he, i.e. Shea, wanted to have ‘the Family’ law, yet also tells a narrative, a story, a story of Summer Swelter evicted from the ranch. extreme ideas and extreme violence. By Simon Davis Finally, Davis gives us a chapter entitled ‘Re- Only a few weeks before I wrote this book flections’ which is just that. He deals with the review, I saw on the news that Leslie Van question whether justice was done, the motive Houten had been granted parole. The State for the murders, ‘The cult of Charlie’, Cultish Governor could still overrule the decision. She behaviour, whether the time period ie 1960’s is now 68 years of age, has many wrinkles but had some significance, the concepts of ‘Au- beautiful totally grey hair (she was 19 years thorisation and Obedience’ and ‘Group Con- old at the time she brutally stabbed Leno and formity’ with a reference to the experiments of Rosemary La Bianca). Stanley Miligram in 1961, and the concept of This book is incredible to read - even if you dehumanisation. have read it all before. What Davis has done in this book is not only deal with themes and issues that have always Book reviewed by Caroline Dobraszczyk surrounded these murders such as ‘Helter Skelter’, the role of drugs, the role of a cult, the extraordinary ‘evil’ personality of Manson and his ‘hold’ over ‘family members’ and the The Pillars It must be very difficult to write about perhaps personalites of the followers, i.e. the family of Digital Security: the most famous criminal trial in the history of members, particularly those who were charged the world. Everyone has read something, seen with such gruesome murders. This book also How to ethically a television program or movie about it and it provides us with details of the charges, what captivated everyone at the time the trial/trials happened during the grand jury hearing, the use technology in were in progress. Much too has been written trials and the appeals, the cross examination about it, so what more can be said, one might of key witnesses and whether it succeeded or legal practice failed, the advocacy (which was good, bad ask? By Philippe Doyle Gray Simon Davis has done something unique and great), the extraordinary largely unethical in that he has written a book that deals with behaviour of some of the lawyers for the young many different aspects of this most famous female co-accused (lawyers who basically case. What we have first is a took instructions from Manson summary of ‘The Family’, who Lawyers who even though they were acting Charles Manson was, what he for one of the young females, thought, what he believed in, his basically took to implicate the young girls as misogyny, love of violence, the much as possible in the murders way he lived and his leadership. instructions from and thereby reduce Manson’s We then learn of the shooting role), as well as providing a legal of a drug dealer in mid 1969 (a Manson even though commentary and legal explana- few months before the murder tion as to, for example, what the of Sharon Tate), showing the they were acting for prosecution needed to prove, the violent way Manson lived at this differences between the charges, time and his false protestations of one of the young how evidence was used and the ‘doing it’ for ‘the family’. law at the time. He does all this We then learn of the murder females, to implicate by referring in detail to court of Gary Hinman, a friend of transcripts, the police interviews, ‘the family’, a kind, gentle man the young girls as police statements, parole hearings In 2014 Phillipe Doyle Gray wrote a lengthy who it seems was killed for his and American criminal law cases article for the Summer edition of Bar News money. Manson and ‘family much as possible as well as quotes from numerous called ‘The pillars of digital security’ in members’ Susan Atkins and sources including books written which Mr Gray explored the pitfalls of Bobby Beausoleil were charged in the murders by Atkins, Watson, the Prosecu- legal practice in the digital age, and offered with the murder. We then have tor Vincent Bugliosi, an inter- helpful suggestions on how to minimise the the remainder of the book deal- and thereby reduce view with Manson by reporters risk of inadvertent disclosure of confiden- ing mostly with the murders of from Rolling Stone magazine on tial information obtained or generated in Sharon Tate and four others who Manson’s role. 25 June 1970, other articles in the course of providing legal services. An just happened to be staying with magazines as well as videos/films online review said of that article that it: her that night i.e. 9 August 1969, and Leno and by the ABC, CNN, Discovery Channel and Rosemary La Bianca, who were found dead an interview of Leslie Van Houten by Barbara provides a vocabulary for lawyers who on 10 August 1969. Manson and 5 ‘family Walters for the ABC in January 1977. know little about technology, and it members’, Tex Watson, Susan Atkins, Patricia We also have some photos in this book. We aims to provide a universal approach Krenwinkle, Linda Kasabian and Leslie Van all will recognise most of them, especially that to issues of ethics and malpractice, Houten were charged with the murders. There infamous photo of the three young co accused, regardless of the operating system, is then a chapter dealing with the murder of Atkins, Krenwinkel and Van Houten, arriving device, or particular technology. His Donald Shea, a ranch hand at the ranch that at Court for the first Tate/La Bianca trial, in formulation links (1) key terms of the family were living at at the time. Manson their prison dresses, short hair, smiling widely. … rules of professional conduct, (2) and two other family members were charged What we have in this book is a detailed account the way in which computing devices

68 [2017] (Summer) Bar News The Journal of the NSW Bar Association BOOK REVIEWS

work, and (3) the way in which law- ‘to the use of’ another substantially predates yers practice their profession. the Statute of Uses and the origins of the modern day trust. It argues that a liability Undoubtedly, Mr Gray’s 2014 article is to account will arise whenever a person re- a useful primer on the subject of digital ceives property which they are not allowed security, and at the time was truly ground- freely to use, a liability that is independent breaking. of liability in contract, tort, unjust enrich- His self-published book The Pillars of Digi- ment, trusts or other fiduciary obligation. tal Security is a revision of the 2014 article. Eschewing this traditional taxonomy of the Despite the subtitle ‘How to ethically use law of obligations, Watson divides his treat- technology in legal practice’ the book re- ment of the duty to account into chapters mains a treatise on how to maintain security dealing with accounting parties at law, and and confidentiality in the age of electronic accounting parties in equity, and within legal practice. It does not, for example, ex- each chapter describes a wide variety of plore wider ethical issues of technology in relationships and transactions in which one legal practice, such as the appropriate use of party may be liable to account to another. a party’s social media presence, or the use One consequence of Watson’s thesis is that of technology in presenting re-enactments it is wrong to ask whether an account of in court. profits is available as a remedy for, say, a tort Compared to Mr Gray’s 2014 article (freely or a breach of contract. Instead, according available on the internet) this book really to Watson, the correct approach is to ask does little more than update references to whether the circumstances that amount to iOS 7 and 8 to iOS 10.3 (now supersed- a tort or a breach of contract are also cir- ed), and provides some minor additional cumstances in which there is an obligation discussion about security protocols and the to account. Such re-calibrated analysis dangers of network communications. At provides a coherent explanation for the out- USD99.95 (Amazon), this book may be come of otherwise conceptually-awkward useful for those who consider themselves cases. Having said that, Watson recognises to be more or less technologically illiterate. that his thesis does not explain all of the For everyone else, the original article and a circumstances in which an obligation to Google search should suffice. account may arise. His endeavour is much more modest than that of the ‘restitution industry’. Watson’s book is the classic ‘jack of all The Duty to Account: trades, master of none’. It is a very inter- esting historical exploration of the duty Development and to account, but it is by no means a work Principles of legal history (nor, in fairness, does it purport to be). While it provides an in- By J A Watson tellectually stimulating explanation of the doctrine of account, its utility in day-to-day practice may be limited. It does, however, supply fertile ground for the forensically adventurous seeking to justify an account in circumstances where the prior caselaw would disallow it.

To a common lawyer taught property and equity at the University of NSW, The Duty to Account is at times a challenging read. Having sorted one’s socage from one’s scutage, however, Watson’s text is an en- joyable discussion of the nature and (long) history of account. By reviewing the feudal system of landhold- ing, Watson demonstrates that the legal ob- ligation to account for property being held

The Journal of the NSW Bar Association [2017] (Summer) Bar News 69 BOOK EXTRACT

Korea - The Endgame Council. The proposed dividing line was parallel. So impressed was one American selected on 10 August 1945 by two young military historian that he named the Soviet colonels from the State Department working invasion of Manchuria and the Korean pen- late in the evening in the Pentagon. They insula ‘Operation August Storm’2. were given half an hour for the task and a A divided Korea was not what Franklin map of ‘Asia and Adjacent Areas’ from a 1942 Delano Roosevelt had contemplated. But he National Geographic magazine. One of the died in April and President Truman was a colonels was Dean Rusk. different, more conservative man. Roosevelt The partition was a unilateral initiative. The had embraced a post-war world order that United Kingdom was not consulted, nor any included a vision of a free and independent other allied power. Korea was ignored. It was Korea, to be preceded by a period of inter- prompted by the entry of the Soviet army national trusteeship to prepare it for self-rule. into Manchuria and came in the immediate As early as March 1943, he raised the concept aftermath of the detonation of atomic bombs of a trusteeship of Korea with the British on Hiroshima on 6 August and Nagasaki on Foreign Secretary, Anthony Eden; and the 9 August. Stalin acquiesced, intriguingly and principle was subsequently embodied in the Michael Pembroke, historian and Supreme without demur. The division of Korea was Cairo Declaration in December that year. Court judge, travelled through North Korea not entirely without precedent, as Imperial Shortly afterwards, he raised it with Stalin,3 in 2016. He has been a Visiting Fellow at Russia and Japan had considered a parti- who responded favourably, although he Wolfson College, Cambridge (2015) and tion in 1896 and again in 1903 – although thought the period of trusteeship should be as a Director’s Visitor at the Institute for Ad- the military and State Department men in short as possible. On 2 August 1945 the final vanced Study, Princeton, NJ (2017). This SWNCC had no idea of those events.1 proclamation at the Potsdam Conference in is an edited extract from his book Korea – The determining consideration had been Brandenburg reiterated that ‘the terms of the Where the American Century Began, which Russia’s intervention in the Pacific war. Stalin Cairo declaration shall be carried out’. will be released in February 2018. Noam had agreed at the Yalta Conference to enter But as the radioactive fallout from Hiroshi- Chomsky said of the book: ‘Perceptive and the war against Japan within three months ma and Nagasaki settled over Japan, a not compelling – often heart-rending, some- of the end of the war in Europe. The German so subtle metamorphosis was occurring in times downright terrifying – this is a richly surrender took place on 8 May 1945 and pre- Washington. Roosevelt’s concept of an in- informed study.’ cisely three months later, on the evening of ternational trusteeship for Korea was buried 8 August, Soviet Foreign Minister Molotov by Truman’s implacable anti-communist The Korean peninsula has had a troubled informed the Japanese ambassador of his resolve. The United States had invited and history but nothing quite compares with government’s hostile intentions. That night encouraged the Soviet army’s movement into the tragedy of its American-inspired divi- around midnight, the Soviet army moved Manchuria and Korea and had urged Russia sion in the twentieth century; or the war into Manchuria on a grand scale. Its front, to declare war on Japan, but some in Wash- that inexorably followed; or the permanent consisting of three army groups, 1.5 million ington were beginning to have reservations. conflict that has ensued. It is not simply that men and over 5,000 tanks, extended more There was a newfound perception of the so many millions of people died or that so than 4,600 kilometres from the Pacific coast strategic importance of denying a substantial many families have been torn apart. It is that to eastern inner Mongolia. Its manifest abili- part of Korea to Soviet Russia. One histori- a festering and unresolved geopolitical sore ty to occupy the whole of the Korean penin- an noted drily that ‘The fate of the Korean has been created; one that has made matters sula before American forces could arrive was peninsula suddenly became of interest to the worse; one that has exposed the peninsula a source of consternation in the Pentagon. By Americans’.4 to competing political interests, contributed 10 August the first elements of the Russian The change of thinking by the Truman ad- to social dysfunction and disadvantage and 25th Army had entered northeast Korea. A ministration led to a change of direction that made northeast Asia more dangerous. China, fortnight later they had completed occupa- altered the course of history in the region. Russia and South Korea have understandable tion as far south as Pyongyang. By 1 Septem- Russia’s aspirations were entirely expected. It interests in the stability of the peninsula by ber they had effected occupation to the 38th had long held a natural and understandable reason of their adjoining borders. Japan has a legitimate interest by reason of its geographic proximity and its historical relationship. The United States – the original proponent of the division - has neither borders nor proximity. Its underlying interest is in the maintenance of its regional hegemony and in pushing back against the rise of China in the Asia-Pacific region.

The division

The fateful proposal that the Korean nation should be divided at the 38th parallel was an American initiative, made by a little known war-time policy committee known as the State-War-Navy Co-ordinating Committee - called ‘Swink’ after its acronym SWNCC. It was a precursor to the National Security A North Korean soldier stands watch at the Demilitarized Zone July 17, 2008. Photo: US Defense Dept / Wikimedia Commons

70 [2017] (Summer) Bar News The Journal of the NSW Bar Association BOOK EXTRACT

interest in Korea and Manchuria, where it had been humiliated in the Russo-Japanese War (1904-5). But the United States had not previously expressed any strategic in- terest or concern. It had even been advised internally that, in return for their assistance in the war against Japan, the Soviets ‘would want all of Manchuria, Korea and possibly parts of North China’5. This was the price to be paid. And the reason was clear. Until the atomic bomb made it unnecessary, the Americans expected heavy losses in their planned invasion of the Japanese mainland but believed that the casualties to be incurred by the Russians in invading Manchuria and Korea would be greater. A Joint Chiefs of Staff document stated unambiguously that ‘our objective should be to get the Russians to deal with the Japs in Manchuria (and Korea if necessary)’6. The quid pro quo for persuading the Russians to do the nasty work B-29s of the US Air Force drop their 500-pound bombs over North Korea was the known probability that they would to this day so unexplained; in none appropriate Manchurian and Korean territo- people are estimated to have been more than does blunder and planning oversight ry on their far eastern border. three million - but we will never know. appear to have played so large a role… But in August 1945, when the Soviet army After repelling the invasion, the unnecessary [and] there is no division for which entered the war, Truman and those advising American-led crusade to cross the 38th paral- the US government bears so heavy a him decided that they no longer wanted to lel, to invade North Korea, to impose regime share of the responsibility as it bears pay the price, at least in Korea. The balance change and to threaten the Chinese border for the division of Korea’.8 had shifted, as it so often seems to do, in on the Yalu River, was a calamity. The follow- favour of those who preferred confrontation, The arbitrary division of the Korean penin- ing words are as apt for Korea, as they were the establishment of clear territorial bound- sula was an invitation to conflict. It made for Vietnam, and for so many subsequent aries and the use of military force and occu- a war for the reunification of the peninsula American interventions – ‘In attempting to pation. For ideological reasons, Washington inevitable and it created a source of discord snuff out a small war they produced instead wanted a defensive wall. And so it made a and international tension that remains unre- a massive conflagration. Determined to scramble for Korea. solved. When war arrived less than five years demonstrate the efficacy of force employed Thus only a week after Potsdam, one of later, it became the first of America’s failed on a limited scale, they created a fiasco over America’s most pressing political and mil- modern wars and its first modern war against which they were incapable of exercising any itary objectives suddenly became the per- China. The conflict launched the long era control whatsoever’9. ceived need to secure and cement an artificial of expanding American global force projec- In late October, China reacted by entering division of Korea at the 38th parallel - and tion and marked the true beginning of the the conflict in force - using exceptional to occupy the country south of the proposed American Century. infantry tactics. The resulting retreat by the dividing line as soon as possible. It was a US Eighth Army was not merely the longest purely reactionary and strategic decision that The war in American military history but ‘the most marked the beginning of the most anoma- disgraceful’10, ‘the most infamous’11 and ‘one lous period in Korean history since 668 CE, Few Americans know the true history of the of the worst military disasters in history’12. In when the kingdom was first substantially Korean war. Few understand how Washing- reality it was a rout and President Truman unified. Not only did the partition ignore the ton tragically chose to continue the war after declared a state of emergency. Legitimate Korean people but its practical effect was to October 1950, despite the warnings of China questions about the wisdom, morality and undermine Roosevelt’s notion of trusteeship, and the apprehensions of the British. Fewer legality of taking offensive action north of with its correlative standard of international still are prepared to accept any responsibility the 38th parallel were lost beneath a familiar fiduciary behaviour ‘higher than that trod- for the consequences that have ensued or the wave of moral righteousness and misplaced den by the crowd’7. For it was patent that impasse that now exists. The war started as confidence. Doubters were sidelined, sceptics once division and competing antagonistic oc- a United Nations ‘police action’ to repel the labelled as appeasers and allies were either cupations were imbedded, future unification North Korean invasion and restore peace at ‘with us or against us’. Washington wrapped would be increasingly unlikely - as it surely the border. After three months, Kim Il-sung’s itself in an armour of certitude. proved to be. ambitious attempt to reunify the peninsula In a pattern that has since been repeated, One former US Foreign Service officer prof- with Soviet tanks had been defeated, the the quest for UN authority to cross the 38th fered this heartfelt and damning description – mandate of the United Nations Security parallel was mired in unconvincing rationali- Council achieved and the North Korean sation, transparent ambiguity and diplomatic ‘No division of a nation in the present forces pushed back to the 38th parallel. But and legal machinations reminiscent of the world is so astonishing in its origin as has happened so often since, Washington’s wrangling over the invasion of Iraq in 2003. as the division of Korea; none is so ideological and military enthusiasm ensured The British government agonised. Canada unrelated to conditions or sentiment a wider and more substantial conflagration was troubled. India opposed. And Australia within the nation itself at the time – continuing the war for nearly three more dared not disagree. Washington would not the division was effected; none is years. Civilian deaths among the Korean be deterred. A conflict that started with noble

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intentions as a United Nations police action, those who remained lived a troglodyte exist- broken. Conventional explosives and napalm transformed itself into an unnecessary war ence in caves and holes in the ground. had achieved their intended effect. Not only in which the principal antagonists became The architect of the bombing campaign were more bombs dropped on Korea than in China and the United States. It did not have was Curtis LeMay, head of Strategic Air the whole of the Pacific theatre during World to be. And it only made things worse. Command. His commander-in-chief was War II – but more of what fell was napalm After the battle line settled around the 38th President Truman. LeMay was the world’s in both absolute and relative terms. The parallel, the profligate bombing campaign foremost practitioner of obliteration bomb- bombing campaign continued relentlessly north of the border and the widespread use ing. It has been said of him that the Luft- for nearly three years after the invasion had of napalm, flattened, burned and destroyed waffe’s Hermann Göring and the Royal Air been repulsed in September 1950. And it

Bombing of Wonsan, North Korea, 1951. Photo: US Air Force North Korea and instilled in its people a level Force’s ‘Bomber’ Harris ‘weren’t even in the kept going for fifteen months when the only of distrust and resentment that has shaped same league’16. When LeMay reminisced on outstanding issue at the truce talks was the the country’s continuing hostility toward his achievements in Korea, he remarked with question of the release and repatriation of the United States. In the re-built streets of unflinching casualness that ‘Over a period of prisoners. John Foster Dulles liked to call it Pyongyang, the legacy of bombing is bit- three years or so, we killed off – what – twenty ‘massive retaliation’22. Even when peace was terness. Most of North Korea was levelled percent of the population of Korea as direct in sight, Dulles had misgivings about letting – ‘systematically bombed town by town’13. casualties of war, or from starvation or expo- up on the bombing campaign. He did not Cities and towns were razed, leaving a land- sure?’ He added that we ‘eventually burned want an armistice ‘until we have shown - scape pockmarked by piles of bricks and the down every town in North Korea anyway, before all Asia - our clear superiority’23. Now foundations of buildings. MacArthur said some way or another...’17 there is blowback. in 1951 that ‘The war in Korea has almost LeMay’s attitude to civilian casualties was Henry Kissinger said that if President destroyed that nation. I have never seen such morally indefensible by any standard. ‘There Truman had been prepared to accept the devastation…If you go on indefinitely, you are no innocent civilians’18 he said. ‘It is their status quo at the 38th parallel, ‘he could are perpetuating a slaughter such as I have government and you are fighting a people, say he had rebuffed communism in Asia… never heard of in the history of mankind’14. you are not trying to fight an armed force He could have shown a face of power to the It only got worse. Dean Rusk said that the anymore. So it doesn’t bother me so much to world while teaching Americans the wisdom United States bombed ‘everything that be killing the so-called innocent bystanders’19. of constraint in using such power. He could moved in North Korea, every brick standing By his own estimation ‘we killed off over a have escaped terrible battlefield defeats, the on top of another’15. By late 1952 the pop- million civilian Koreans and drove several panic and gloom that followed, and other ulation of Pyongyang was down to about million from their homes’20. LeMay conceded grave difficulties’24. Kissinger’s US-centric 50,000 people from half a million before the however that ‘I suppose if I had lost the war, I analysis is important but it is only part of war. The few officials who had not moved would have been tried as a war criminal’21. He the story. The consequences to the Korean to safety at Kanggye in the north, operated was probably right on the last point. people were far more tragic; the effect on the from underground bunkers; many women By the time the armistice was agreed in long-term stability of the peninsula far more and children had been sent to China; and July 1953, civil society in North Korea was serious; and the prospect for ongoing conflict

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in northeast Asia more worrying. The failed ed, yet biting and uncomfortable cynicism, conflict was a just war. But the fateful deci- war in Korea established the pattern for the the foreign policy trend that Washington has sion in October 1950 to invade North Korea next sixty years, and the world is reaping the followed ever since – ‘We honor no treaties. was driven by an ideological objective – to consequences. The ‘wisdom of constraint’ We spurn international courts. We strike impose social, political and regime change. remains elusive. One of the consequences is unilaterally wherever we choose…we bomb, Like the slow-burning consequences of that we have entered a ‘strange new world’ invade, subvert other states’29. interventions in the Middle East, it has en- where Americans ‘are finding it harder The Korean war was the key that unlocked gendered a deeper and longer-lasting conflict; than ever to impose their will on anyone, the riches of NSC-68; removed the post- one that is exacerbated by the continuing any where’. 25 As the bestselling writer, Alistair war cap on military spending; restored and festering presence of American troops on the

US Army Col. Kurt Taylor briefs Secretary of State Hillary Rodham Clinton, left, and Secretary of Defense Robert Gates, right, at the truce village of Panmunjom, in a demilitarized zone (DMZ) north of Seoul, South Korea, July 21, 2010, as a North Korean soldier watches through the window.

Horne, observed so wisely - ‘How different enlarged the American military apparatus peninsula, from which they have never left. world history would have been if MacAr- after nearly five years of demobilization; and It is not difficult to understand why there thur had had the good sense to stop on the gave oxygen to the Truman Doctrine. And is still no peace treaty with China or North 38th Parallel’26. it defined the modern world in a way that Korea. Nor is it difficult to understand why pitted the United States against any move- the Korean peninsula has become the world’s The legacy ment wherever it saw a perceived threat to most volatile crisis point. its strategic or economic interests or even its The war left North Koreans with a perma- It is now obvious that the Korean war was a credibility. Then and now Washington had a nent siege mentality, a defensive, embattled, watershed. The manner of the war’s conduct, fetish for credibility over proportionality. As ultra-nationalistic spirit and a self-image and the assumptions and attitudes that it gen- for China, the ill-tempered Korean armistice based on pride at having survived an encoun- erated in Washington, established a precedent served only to deepen and continue Washing- ter with the most technologically advanced that the United States has chosen to continue ton’s antagonism toward it. And as for North power in the world. Despite the protestations time and again - no more clearly demonstrat- Korea, the seeds of its nuclear ambitions were of Secretary of State Tillerson that ‘we do not ed than by Secretary of State Madeleine Al- probably sown a few years after the armistice seek an excuse to send our military north of bright’s jarring statement that ‘If we have to when - in flagrant violation of the terms of the 38th parallel’30, the country lives with a use force, it is because we are America; we are the armistice - Washington introduced nu- constant fear of invasion, subjugation and the indispensable nation’27. As one diplomat- clear weapons onto the peninsula, despite the occupation. Pyongyang braces every spring ic historian noted somberly - ‘Korea’s legacy is concerns of its allies and the unambiguous when the United States and South Korea practically incalculable…in terms of the cost advice of the State Department. conduct their annual joint military exercise of the arms race, the international isolation No one can deny the validity of the initial in the seas around the Korean peninsula. of China, and for the impact on American decision to repel the North Korean invasion And the siege mentality is exacerbated by political development’28. Half a century after and restore peace and security at the 38th the menacing presence of American troops Korea, Gore Vidal described with exaggerat- parallel; or that the ensuing three-month just below the 38th parallel and the almost

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permanent deployment of naval ships and ence, not the cause of it. Paradoxically, Wash- 11 Jonathan Pollack, ‘The Korean War and Sino-American Relations’ aircraft in the region. More threatening ington has reversed the logic, portraying in Harry Harding and Yuan Ming (eds.), Sino-American Relations still is the United States’ nuclear and missile Pyongyang’s capability as the justification for 1945–1955: A Joint Assessment of a Critical Decade, Delaware Scholarly arsenal. The Pyongyang regime knows – the its indefinite military posture in South Korea Resources, 1989, p. 224. 12 David McCullough, Truman, Simon & Schuster, 2010, p. 984. whole world knows - that the United States and its continuing wartime operational con- 13 Charles Young, Name, Rank and Serial Number: Exploiting Korean War has a stockpile of between 4,000 to 7,000 trol of the South’s armed forces. POWs at Home and Abroad, Oxford University Press, 2014, p. 77. nuclear warheads; that over a thousand are Pyongyang wants engagement and respect; 14 MacArthur Hearings, May 1951, part 1, p. 82: https:// actively deployed on ballistic missiles, sub- it wants regime security and state survival; it babel.hathitrust.org/cgi/pt?q1=almost%20destroyed%20 marines and at air bases; and that some are wants a peace treaty to end the 70-year war that%20nation;id=umn.31951d02097857x;view=1up;se- almost certainly targeted at Pyongyang. and remove the threat to its existence; and q=92;start=1;sz=10;page=search;num=82, accessed 10/7/2017 In the face of such threats, North Korea it wants a way forward with South Korea. 15 Robin Anderson, A Century of Media, A Century of War, Peter Lang regards its nuclear program as ‘an important Denuclearization is unlikely to occur without Publishing 2006, p. 41; Korea: The Unknown War (1988), DVD, deterrent to external aggression and a secu- them. China’s recent criticism was pointed. London, Thames Television; extracts from the DVD can be viewed rity guarantee for the regime’s survival’31. It counselled the United States that it was at https://www.youtube.com/watch?v=ba3dgDUtE9A, accessed 15/8/2017 Nuclear weapons and ballistic missiles are driving North Korea ‘in the wrong direction’, its ultimate insurance. It will never surrender 16 Bacevich, (2010) p. 44. that it was ‘only making things worse’ and 17 Richard Kohn and Joseph Harahan (eds.), Strategic Air Warfare: An them in response to threats, coercion and that its ‘hostile policy is to blame for North Interview with Generals Curtis E. LeMay, Leon W. Johnson, David A. 34 sanctions. Pyongyang officials repeatedly Korea’s weapons programs’. China’s recent Burchinal, and Jack J. Catton, Office of Air Force History, 1988, p. 88 state that nothing will stop their nuclear and joint proposal with Russia represents the 18 Michael Sherry, The Rise of American Air Power: The Creation of missile development and that sanctions will way forward – a two track path toward both Armageddon, Yale University Press, 1987, p. 287. not stop the process. There is every reason denuclearization and a peace mechanism. 19 Lloyd Gardner (ed.), The Korean War, The New York Times Company, to believe them. They feel threatened and But Washington appears to want the former 1972, p. 129. have done so for nearly seven decades. And without recognizing the need for the latter. It 20 Kohn and Harahan p. 88; Robert Neer, Napalm: An American Biogra- their conviction and sense of threat are real. is playing a losing hand. Sanctions will cause phy, Harvard University Press, 2013, p. 100. The war has not ended. There has been an hardship but will not influence government 21 Colonel Alfred Hurley and Major Robert Ehrhart (eds.), Air Power and Warfare: The Proceedings of the 8th Military History Symposium, armistice between military commanders not policy. Nor will they precipitate the collapse a peace treaty between states. United States Air Force Academy, Office of Air Force History, 1979, p. of the regime. As the respected British jour- 200; A C Grayling, Among the Dead Cities: Is the Targeting of Civilians James Clapper, United States Director of Na- nalist Simon Jenkins wrote recently the most in War Ever Justified? Bloomsbury, 2007, p. 171. tional Intelligence from 2010-17, could not effective sanction on North Korea is ‘the 22 Emmet Hughes, The Ordeal of Power: A Political Memoir of the 35 have been clearer. He warned that the notion sanction of prosperity’. Eisenhower Years, Atheneum, 1963, p. 163. of getting North Korea to give up its nuclear To similar effect is Thomas L. Friedman, 23 Hughes, p. 105. 32 capability is a ‘lost cause’ and a ‘non-starter’. writing in the New York Times. He has prof- 24 Henry Kissinger, Diplomacy, Simon & Schuster, 1994, p. 480. And General James F. Grant, a former direc- fered the solution that Washington seems 25 Geoffrey Wheatcroft, The New York Times, 10 February 2011: https:// tor of intelligence for US Forces Korea, once unwilling to recognise. The United States mobile.nytimes.com/2011/02/11/opinion/11iht-edwheatcroft11. explained that ‘It [nuclear capacity] is their should ‘offer to recognize the legitimacy of html, accessed 15/8/2017 Hubris: The Tragedy of War in the Twentieth Century only current asset that makes them a serious the North Korean regime’; it should ‘open an 26 Alistair Horne, , player at the negotiating table. In their minds, Hachette, 2015, p. xxix. embassy in Pyongyang, engage in economic 27 Interview of US Secretary of State Madeleine Albright on the NBC it is the ultimate poison pill that will forestall trade and aid’; and it should put ‘a very clear military action against them…’ In Grant’s Today Show, 19 February 1998: https://1997-2001.state.gov/www/ peace offer to the North Koreans’ that ‘if statements/1998/980219a.html, accessed 19/6/2017 opinion, North Korea has four overall goals you fully denuclearize and end your missile 28 Lloyd Gardner, ‘Korean Borderlands-Imaginary Frontiers of the Cold - ‘regime and state survival and continuity, program, we will offer you full peace, full War’ in Stueck, (2004) p. 142. external respect and independence of action, diplomacy, full engagement, economic aid, 29 Gore Vidal, Perpetual War for Perpetual Peace: How We Got To Be So controlling the nature and pace of internal and an end to the Korean War.’36 This is the Hated, Public Affairs, 2002, p. 158. change and the eventual peaceful unification only endgame. 30 Rex Tillerson Remarks at the Press Briefing Room, 1 August of the Korean peninsula under terms accept- 2017, US Department of State: https://www.state.gov/secretary/ 33 able to North Korea’. Invasion of the South ENDNOTES remarks/2017/08/272979.htm, accessed 7/8/2017 is not one of them. Nor is a first strike on the 31 Dursun Peksen, ‘Authoritarian Regimes and Economic Sanction United States or its armed forces. Kim Jong- 1 Dean Rusk, As I Saw It, W.W. Norton, 1990, pp. 123–24. Effectiveness: The Case of North Korea’, Korea Economic Institute of un is neither irrational nor suicidal. 2 David Glantz, ‘August Storm: Soviet Tactical and Operational Combat America, 23 June 2016: http://www.keia.org/sites/default/files/publi- The perception of American hypocrisy only in Manchuria 1945’, Combat Studies Institute, June 1983: http:// cations/kei_aps_north_korea_sanctions.pdf, accessed 24/7/2017 32 David Brunnstrom, Reuters, 26 October 2016: http://www.reuters. strengthens Pyongyang’s resolve. While usacac.army.mil/cac2/cgsc/carl/download/csipubs/LP8_August- StormSovietTacticalAndOperationalCombatInManchuria_1945.pdf, com/article/us-northkorea-nuclear-clapper-idUSKCN12P2L7, Washington professes to desire a world accessed 4/4/2017 accessed 24/7/2017 without nuclear weapons and demands a 3 FRUS, 1945, 6:1098 (1945). 33 General Grant, 11 April 2000 in Selig Harrison, Korean Endgame: A denuclearized Korean peninsula, it will not 4 Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea, Strategy for Reunification and US Disengagement, Princeton University abide by the same rules. In 1957, the United W.W. Norton & Company, 2013, p. 18. Press, 2002, p. 132. States unilaterally abrogated the armistice 5 The Entry of the Soviet Union into the War against Japan: Military Plans, 34 Fu Ying, Munich Security Conference, 18 February 2017: https:// treaty by introducing nuclear weapons. In 1941–45, p. 51: https://babel.hathitrust.org/cgi/pt?id=mdp.39015002 www.youtube.com/watch?v=WXmaseU6h5Q, accessed 24/7/2017. 2001, it withdrew from the Anti-Ballistic 987595;view=1up;seq=61, accessed 8/8/2017 35 Simon Jenkins, The Guardian, 6 July 2017: https://www.theguardian. Missile Treaty with Russia. And in 2016-17, 6 FRUS, 1945, 1:905 (18 June 1945).. com/commentisfree/2017/jul/05/china-trump-kim-jong-un-north- it opposed – and lobbied its allies to oppose 7 Cardozo J, Meinhard v Salmon 249 N. Y. 458 (1928) at 464. korea-beijing, accessed 27/7/2017 – the groundbreaking United Nations reso- 8 Gregory Henderson, Richard Lebow and John Stoessinger, Divided 36 Thomas Friedman, The New York Times, 10 August 2017: https:// lution for multilateral negotiations designed Nations in a Divided World, David McKay Company, 1974, p. 43. www.nytimes.com/2017/08/10/opinion/trump-north-korea-strat- 9 Andrew Bacevich, Washington Rules: America’s Path to Permanent War, egy.html, accessed 15/8/2017; Friedman interview on CNN, 11 to achieve a worldwide nuclear ban treaty. Metropolitan Books, 2010, p. 108. August 2017: https://www.newsbusters.org/blogs/nb/brad-wil- North Korea’s nuclear and missile capability 10 Russell Spurr, Enter the Dragon: China’s Undeclared War Against the US mouth/2017/08/11/friedman-us-should-offer-peace-treaty-full-rela- is a response to the American military pres- in Korea 1950–1951, Newmarket Press, 1988, p. xxxii. tions-north-korea; accessed 15/8/2017.

74 [2017] (Summer) Bar News The Journal of the NSW Bar Association APPOINTMENTS

Swearing in of his and often patient and generous personality; and he fondly remembered his other mentors one who was always ready to advise and to Justices Latham Hulme and Johnson, among Honour Judge Timothy calm a panic-stricken reader or junior with others including Michael Crawford-Fish urgent questions. and Carolyn Davenport SC. His Honour Gartelmann SC as a Several high profile and important cases of acknowledged how gratifying it was to come judge of the District legal principle were referred to; for example this far and look forward to the challenges of Crickett in the CCA, R v RMC in 2013, the future. Court of NSW and in 2014 CS v R. These three cases were particularly grave examples of criminal be- By Kevin Tang haviour and displayed crucial aspects of his His Honour Judge Timothy Gartelmann Honour’s customary frankness and candour SC was sworn-in as a judge of the District before the court and his full appreciation of Local Court of NSW Court of NSW at a ceremonial sitting on responsibility. These cases indicated a high Tuesday, 3 October 2017. Attorney General esteem in which the bench held his Honour Magistrate Brett Shields Mark Speakman SC MP spoke on behalf and the attorney indicated that his Honour’s of the New South Wales Bar, while Richard qualities of trustworthiness, consideration Brett Shields was sworn-in as magistrate of Harvey, treasurer of the Law Society, spoke and fairness were unassailable. the Local Court of NSW on Monday, 28 Au- on behalf of the solicitors’ profession. Reference was also made to his Honour’s pre- gust 2017. His Honour graduated from law His Honour was raised in the Adelaide Hills, dilection for mountain bike riding and road school in 1985, after which he practised as the son of an artist and an IT expert at the cycling. The attorney indicated that riding, a solicitor at Ebsworth & Ebsworth, then at Woomera Rocket Range. His Honour was although an enjoyable pastime, had caused Mallesons. He was called to the bar in 1994 the eldest of four children and attended an his Honour physical injury and lengthy peri- and read with Mark Williams, now Judge Adelaide private school before leaving early ods of rehabilitation rather than the more an- Williams SC of the District Court. Eventual- to test alternative careers in landscaping and ticipated result of good health and improved ly he took a room on 12th Floor Wentworth the army. It is rumoured that upon com- physical ability. and built up a practice that included com- pletion of his military training his Honour Mr Harvey, on behalf of the Law Society, mercial, industrial and employment law, as could speak in Morse code. said that Judge Gartelmann had practised as well as personal injury. It was after completing the leaving certificate a distinguished silk for some 15 years before that his Honour took a punt and enrolled in taking appointment to the District Court. Magistrate Theresa Hamilton a journalism degree in the Northern Territo- His Honour was first an accredited criminal ry, where it just happened that there was one law specialist as far back as 1999 and cer- Theresa Hamilton was sworn-in as a magis- compulsory law subject, and this began more tainly in recent years has proven this to be trate of the Local Court of NSW on Mon- than 25 years in the law as solicitor, barrister his area of exceptional expertise. Mr Harvey day, 11 September 2017. The majority of her and senior counsel. then reminded his Honour’s customary career was spent in Queensland. She studied In fact it was one of his teachers in the calmness and intelligence when faced with a law at the University of Queensland and was journalism course who first saw a certain curious (sometimes uncomfortably curious) admitted as a barrister in that state in 1978. aptitude that his Honour possessed and en- judge during difficult cases. Initially, she worked for the Commonwealth thusiastically recommended that he pursue a Beyond cycling and a career as a leading silk Crown Solicitor’s Office in Queensland as law degree. Promptly, he transferred to the his Honour was noted as having an artistic a Crown prosecutor. In 1983 her Honour Australian National University, where he streak – most probably inherited from his joined the Aboriginal and Torres Strait obtained his degree in 1991. mother, Roe Gartelmann – a noted South Islander legal service. In 1990 she joined In 1992 he completed the College of Law and Australian landscape artist. However his Queensland’s Crime and Corruption Com- embarked on a career as a solicitor at several Honour’s greatest devotion was of course mission, rising to general counsel and other specialist criminal law firms, after which he to his family as husband to Magistrate Nell senior positions over the next 17 years. In accepted a position at Legal Aid NSW. His Skinner and father to children Sam, Alex 2007 she joined the Independent Commis- Honour has spent more than two decades in and Eliza – all of whom have exceptional sion Against Corruption in NSW as a deputy the service of the people of NSW. Briefly his original stories about adventures and travels. commissioner. Honour was a solicitor advocate appearing Finally, his Honour noted that he was not in the Local and District courts, the quin- the first barrister or judge to have started his Magistrate Christopher Halburd tessential sole practitioner before being called career eschewing public speaking however to the Bar. as things go he got used to it. His Honour Christopher Halburd was sworn-in on Attorney General Speakman spoke on behalf remembered fondly being John Stratten’s last Monday, 11 September 2017. His Honour of the Bar and reminded those in attendance pupil before becoming silk. His pupil master received a Diploma in Law from the LPAB of his Honour’s superlative knowledge of the had encyclopaedic knowledge of criminal and joined a busy practice in in the Albury criminal jurisdiction, his insight and calm law but the real lessons learnt were more Wodonga area. He was appointed by the and measured temperament during his years about John Stratten’s advocacy style. After Victorian health minister to sit on the board as a barrister. His Honour appeared in nearly watching and spending time with his pupil of Albury Wodonga Health. His Honour is every type of application in the criminal master his Honour appreciated that a good committed to lifelong learning and has three jurisdiction from bail applications, severity barrister might not necessarily be the most masters degrees, including business adminis- conviction appeals, sentence hearings, fitness, theatrical, the most aggressive, colourful and tration from Charles Sturt University and in- as well as every ‘special’ hearing and of course full of movement. Rather it is often the oppo- ternational law from the University of Kent’s he was an old hand at trials with juries. The site. The most important lessons learnt were Brussels School of International Studies. His attorney also shone the light on his Honour’s those of method, preparation, and above all Honour Magistrate Halburd is known as a many occasions before the Court of Criminal reasonableness. These made for by far the compassionate, considerate and thorough Appeal. In fact he was regarded as counsel more effective style of advocacy. His Honour practitioner and has the added distinction of of choice in that particular jurisdiction. The also remembered the great privilege it was to having lived and worked overseas in Brussells, attorney recalled his Honour’s personable be led by Paul Byrne SC and Mark Ierace SC, Vietnam and the UK.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 75 APPOINTMENTS

Senior counsel appointments 2017

Back row, left to right: Huw Baker, Lesley Whalan, Melissa Gillies, Michael Wright, Michael Elliott, Francis Hicks, Greg Waugh Front row, left to right: Naomi Sharp, Ruth Higgins, Kate Morgan, Richard Scruby

Huw Baker Melissa Anne Gillies Dr Ruth C A Higgins Crown Prosecutors Chambers Sydney Culwulla Chambers Banco Chambers

Huw Baker commenced practice at the New Melissa Gillies commenced practice at the Dr Ruth Higgins commenced practice at the South Wales Bar on 24 January 2005, when New South Wales Bar on 23 February 2001. New South Wales Bar on 1 May 2006. Her he was appointed as a Crown prosecutor. He Since 2003 she has specialised in the area of principal areas of practice are competition specialises in the area of criminal law as both family law, appearing in the Family Court law and economic regulatory law (especially trial and appellate counsel. He is the chair- and Federal Circuit Court, along with fam- energy and telecommunications). She also ap- person of the ODPP Indigenous Lawyers ily-related matters and some criminal matters pears in class action proceedings, public and Mentoring Pilot Program and regularly gives in the Local Court. Melissa is an accredited constitutional matters, corporate criminal informal presentations concerning criminal family law arbitrator and regularly presents matters and general commercial disputes (in- law, practice and procedure, advocacy and papers to various groups on various aspects cluding insolvency). Ruth has been a visiting evidence at conferences. [BA Australian Na- of family law. [LLB University of Technology scholar at Columbia University in New York tional University; DipL Legal Practitioners Sydney] and a lecturer in law at Corpus Christi Col- Admission Board] lege, Oxford. In 2007 she was the co-conven- Francis Paul Hicks or of the New South Wales Bar Association’s Michael Robert Elliott Greenway Chambers rhetoric series of lectures and was a co-editor 8th Floor Selborne Chambers of Historical Foundations of Australian Law: Francis Hicks commenced practice at the Vols. I and II. [LLB (Hons) Glasgow Univer- Michael Elliott came to the New South New South Wales Bar on 17 February 2003. sity; DPhil Oxford University] Wales Bar on 15 February 2002. His major He generally undertakes commercial matters, area of practice involves commercial disputes, being primarily engaged in technology and with a particular focus on professional neg- construction disputes concerning commer- ligence, insurance, contract law, trade prac- cial, retail, industrial, mining and infrastruc- tices, corporations law, equity and fraud. He ture projects (including renewable energy) also has appeared for a range of organisations and large scale residential developments. He and individuals in royal commissions, ICAC has worked on Halsbury’s Laws of Australia hearings and other inquiries. More recently, Building and Construction title and given nu- Michael was counsel assisting the Heydon merous papers at Building and Construction Royal Commission into Trade Union Gov- Disputes Workshops, CLE seminars and in- ernance and Corruption. [BA, LLB (Hons) surance forums. [BA, LLB University of New University of Queensland] South Wales]

76 [2017] (Summer) Bar News The Journal of the NSW Bar Association APPOINTMENTS

Katharine Clare Morgan Naomi Louise Sharp Lesley Anne Whalan Tenth Floor Selborne/Wentworth Chambers Sixth Floor Selborne / Wentworth Chambers Frederick Jordan Chambers

Kate Morgan commenced practice at the Naomi began practising at the New South Lesley began practising at the New South New South Wales Bar on 16 February 2004. Wales Bar in 2002 after she had received the Wales Bar in 1998. Her main areas of prac- She practices in the areas of regulatory liti- Blashki Award for coming first in the Bar Ex- tice are medical negligence, product liability, gation, including civil penalty proceedings, ams. Her principal areas of practice include commissions of inquiry and coronial in- commercial and taxation law, competition competition and consumer law, contract, quests. Between 2013 and 2015 Lesley was and consumer protection, constitutional and equity and trusts, public and administrative a member of a Bar Association Professional administrative law and criminal matters, law, as well as inquests and inquiries. In 2014 Conduct Committee. [BA (Australian Na- among others. Kate was the co-vice chair of she was counsel assisting in the Australian tional University) LLB (University of NSW)] the Women Barristers Forum for 2014 and Human Rights Commission Inquiry into 2015 and has been a member of Bar Council’s Children in Immigration Detention. Simi- Michael Luscombe Wright Working Party on the Equitable Briefing Pol- larly, she was counsel assisting in several case Frederick Jordan Chambers icy and is currently a member of the Equitable studies for the Royal Commission into Insti- Briefing Working Group. She has addressed tutional Responses to Child Sexual Abuse. Michael began practising at the New South the Bar Readers Course and presented Bar She has also served on Bar Council, as well Wales Bar in 2000. Prior to that he had Association seminars regarding CPDs for the as a Bar Association Professional Conduct practised for some years as a solicitor in Pap- Bar Association in relation to practice at the Committee and its Human Rights Commit- ua New Guinea. His main areas of practice bar and family responsibilities. [B Ec, LLB tee. [BA (Hons) LLB (University of NSW) are environment and planning, native title, (Hons) ; LLM (Yale)] LLM (McGill University, Montreal)] administrative law and alternative dispute resolution. Michael is currently a member of Richard Craig Scruby Gregory Richard Waugh the Bar Association’s Joint Working Party on Tenth floor Selborne / Wentworth Chambers 12th Floor Selborne / Wentworth Chambers Over-representation of Indigenous People in the NSW Criminal Justice System. [BA LLB Richard began practising at the New South Greg began practising at the New South (University of Sydney)] Wales Bar in September 2002. His main Wales Bar in 1990. His principal areas of areas of practice are equity and commercial, practice are commercial, equity, with a par- bankruptcy and insolvency, tax and revenue ticular focus on probate law, and alternative law. In 2015 he was junior counsel assisting dispute resolution. Greg has served on the the Royal Commission into Trade Union board of 12th Floor Selborne/Wentworth Corruption. He is a member of the Diversity Chambers. [LLB BComm (University of and Equality Committee. [BA LLB (Univer- NSW)] sity of Sydney), BCL M Phil (Oxford)]

The Journal of the NSW Bar Association [2017] (Summer) Bar News 77 BAR SPORTS

NSW Bar FC 2017 following what he thought was a foul, ‘Why deter doping and the importance of educa- does the referee not see this?’ I guess we play tion in promoting both breadth and depth of 10th Anniversary the game a little bit differently here. compliance with the Code. The year the silverware returned home Lastly, Graham Turnbull SC addressed the 7th Annual Sports Law Conference topic ‘Toxic Masculinity or Men Just Behav- ing Badly’. The newspapers are seemingly Introduction The 7th Annual Sports Law Conference replete with examples of professional sport- was held at the TAG Room at the Sydney spersons, men for the most part, behaving The NSW Bar Football Club (NSW Bar University Soccer Football Grandstand on badly both on and off the sporting arena. FC) is open to barristers, members of the 9 September 2017. It was opened by the Such conduct may give rise to a plethora of judiciary, judges’ associates and tipstaves, Hon Justice Anna Katzmann of the Federal legal challenges for the player, his/her club, clerks and employees of the Bar Association, Court of Australia and chaired by the Hon sponsors and for the game as a whole. Some regardless of gender, level of ability or fitness. Justice Geoff Lindsay of the Supreme Court sociologists are referring to such conduct as It currently consists of some 90 members. of NSW. an emanation of ‘toxic masculinity’. Graham Approximately 40 barristers were registered took to his task with relish and provided an Domain Soccer League (DSL) for the conference. Also in attendance was entertaining account of both endearing and Mr Stephen Doherty, senior claims advisor, some not so endearing moments in world NSW Bar FC competed in the DSL compe- Suncorp. football. tition which was held at lunchtime between Alan Sullivan QC spoke about ‘Ethics in April and September in the Domain. Sport-the FIFA Code of Ethics and the Bar Football – Suncorp Promoted to Division 3 for the 2017 season, Garcia Report’. He provided an incisive and Perpetual Trophies it was a season filled with close contests that illuminating account of his work as deputy saw Bar FC remain competitive with many chairman of the Adjudicatory Chamber of At the conclusion of the seminar and lunch, teams who had age on their side. The results the FIFA Ethics Committee. During his some 45 barristers and a few of their sons, for the season overall proved that football is four-year term which ended in May 2017, took to the Sydney University Football a game of fine margins with Bar FC being many big names in football were suspended Ground for the annual Suncorp Football unlucky on a number of occasions not to or banned from the game by the Ethics Com- Challenge. win games or, at least, draw games that were mittee, including the then president of FIFA, Game 1: Victoria v Queensland ultimately lost. Mr Sepp Blatter, the president of UEFA (one-all draw) From 15 games played, Bar FC won only 1 and a senior member of the FIFA Executive game, drew 6 and lost 8. The games were Council, Mr Michel Platini and the FIFA The Victorians led by Captain Anthony tight and the result decided by no more secretary-general (CEO), Mr Jerome Valcke. Klotz and otherwise comprising Alexander than one goal. The team played a brand of Alan spoke about why football is particularly Solomon-Bridge, Phil Cadman, Nicholas football that was both attractive to watch and susceptible to corruption, the work of the Phillpott, Daniel Nguyen, James Fitzpatrick, competitive. FIFA Ethics Committee and the challenges Douglas James, Mike Kats, Chris Pearson, Special mention should be made of a few faced by it. He concluded with a consider- Chris Beach, Chris Archibald, Keeper John players who have contributed significantly ation of the controversy surrounding the Harris (NSW) and Xavier Bolger (Craig Bol- over the years. Captain Simon Philips has preparation and publication of the Garcia ger’s son) (NSW), took on an understrength been a stalwart in central defence and a con- Report (a report prepared by the former Queensland Team consisting of Captain stant inspiration to all members of the team. chairman of the Investigatory Chamber of Johnny Selfridge, David Chesterman, Eoin On the few occasions he was not present, his the FIFA Ethics Committee, Mr Michael Mac Giolla Ri, Jens Streit, David Purcell, lack of instruction and intuition were sorely Garcia and the then deputy chairman of the Michael Hodge, Samuel McCarthy, Daniel missed. Goalkeeper John Harris also put his Investigatory Chamber of the FIFA Ethics Favell, Andrew Skoien, Mac Giolla Ri Junior body on the line repeatedly, resulting in an Committee, Mr Cornel Borbely) into the and Daniel Lo Surdo (Anthony Lo Surdo’s orbital fracture being sustained during the 2018/2022 FIFA World Cup bidding process. son)(NSW). course of one of the DSL games (Captain Professor Deborah Healey of the University In a fairly even contest each team had their Philips denies he was the culprit). Harris was of NSW, addressed aspects of the law, prac- share of chances with neither able to fully sidelined for a few games and, as might well tice and policy of anti-doping. She spoke capitalise on their opportunities. In the be expected, somewhat cautious upon his about how doping undermines the value of end, it was a fitting one all draw. Best and return. Within a few weeks though, Harris sport. She quoted David Howman, the chief fairest for Victoria was Michael Kats and was back to his winning ways and kept a executive of WADA, who said that ‘the in- for Queensland Jens Streit. The match was clean sheet in the last two games of the DSL. trinsic value of sport, often referred to as the refereed by Simon Burchett (NSW). Some newer members also proved invaluable ‘spirit of sport’ is a celebration of the human Game 2: New South Wales v to the team. Anais d’Arville and Sebastian spirit, body and mind, and is characterised Queensland (NSW 7, Queensland 2) Hartford-Davis toiled hard all year and pro- by values such as ethics, honesty, respect for vided finesse, pace and guile to the midfield. rules, self-respect and respect for others, fair The Queenslanders joined by Craig Bolger A welcome addition to Bar FC was the return play and healthy competition. If sport is void (NSW) and Keeper Alex Kuklik (NSW) of Jeh Coutinho (clerk, Banco Chambers) of these rules (and others) it might be argued were required to play on against a rested and who played in the opening season and has that is no longer sport’. well-prepared NSW team consisting of Hugh strapped on the boots yet again in 2017, a Professor Healey also spoke about the Code Morrison; John Harris (GK), Simon Philips testimony to the pull of the beautiful game. as providing a practical need to create a level (C); Anais d’Arville; Jeh Coutinho; Vahan A final mention should be made of Joe playing field for sport from which the most Bedrossian; Michael Fordham SC; Richard Hunter, a German student who worked with skilful athletes or teams ultimately emerge as di Michiel; Shereef Habib SC; Lachlan Gyles David (Sir Alex) Stanton during the year. the winners of any particular competition or SC, Rohan de Meyrick, Adrian Canceri and He brought a European flavour to the team event. She also touched upon the likelihood Darren Covell. that was appreciated by all although, he was of Code compliance from a psychological The much-anticipated contest between heard to exclaim on a number of occasions perspective, whether the Code will actually Queensland, the then holders of the Suncorp

78 [2017] (Summer) Bar News The Journal of the NSW Bar Association BAR SPORTS

NSW Bar v Vic Bar v Qld Bar Challenge Cup and a NSW team out to avenge its narrow loss in 2016 loomed as a classic ‘State of Origin’ showdown. However, such was the dominance of the home team, that the match was effectively over well before half time. The game plan of NSW (cooked up by the brains trust of Coach (Sir Alex) Stanton and Captain Philips) involved using a 3-4-3 formation to take advantage of the huge expanses of the Sydney University Football Ground and the pace of our front three – and it certainly worked a treat (much better than for the Socceroos earlier in the week) as NSW found themselves 2-0 up after only a handful of minutes, with well-taken goals by Di Michiel and ‘speed machine’ Morrison. The NSW midfield of d’Arville, Coutinho, Canceri and Habib dominated all aspects of the game, leaving our defence (Fordo, de Meyrick, Philips and ‘Bomber’ Harris in Further sustained pressure from Queens- Coutinho, Simon Philips (C), Vahan Bedros- goal) with little to do except keep score. The land, especially by Bolger in concert with sian, Glenn Fredericks and Anais d’Arville. hapless Queenslanders, already exhausted his son Xavier and Daniel Lo Surdo allowed NSW swapped Kuklik into goal, Fredericks from their exertions against the Victorians, Bedrossian another goal. In the end, NSW and Griscti into defence, Sergi and Fagir out could do little to stop the NSW juggernaut won comfortably, 7-2. wide and Bolger and debutant Hackett up and further goals to Bedrossian, Coutinho, The victory for NSW meant that avoiding a front. Harris was in goal for Victoria, who Morrison and Di Michiel made the half time loss to Victoria would ensure the ‘Tri State’ also had the speedy Xavier Bolger to bolster score 6-0. Cup returned to its rightful and proper home. their squad. At half time, several home players swapped Best and fairest for NSW was Richard Di The Victorian line-up consisted of a few the blue and white for maroon and played Michiel and for Queensland, Craig Bolger first-timers for Bar football. Notwithstand- for Queensland in the second half, which (NSW). The game was refereed by David ing that fact, the Victorians probably played made for a much more even affair. Gyles (Patchildinho) Patch (NSW). the most inspired football witnessed in many and Covell came on for the home team. Game 3: New South Wales v years of this contest. Bedrossian, playing for Queensland now Victoria (NSW 3, Victoria 2) While NSW generally controlled the game, (on matrimonial instructions), pulled one the Victorians defended resolutely, with Tony back for the visitors, before Canceri stepped The third and final match of the day was Klotz marshalling his troops brilliantly, and up at the other end with a brilliant curling a much tighter affair. The members of the played strongly on the counter attack. Fred- shot which evaded Keeper Kuklik (in goal NSW contingent for this encounter were ericks had his work cut out denying his much for Queensland) and snuck in off the inside Alex Kuklik (Keeper), Geoff O’Shea, Craig younger opponent, but did his job effectively. of the far post – a contender for goal of the Bolger, Ivan Griscti, Nicole Compton, Oshie D’Arville and Coutinho again dominated tournament to put NSW up 7-1. Fagir, Tim Hackett, Richard Sergi, Jeh the midfield battle and the latter appeared

Back Row (left to right): Craig Bolger, Vahan Bedrossian, Darren Covell, Adrian Canceri, Lachlan Gyles SC, Richard di Michiel, Rohan de Meyrick, Gillian Mahony, Geoff O’Shea, Jeh Coutinho, John Harris, Ivan Griscti, Tim Hackett, Shareef Habib SC, Hugh Morrison, David Stanton (Mgr) and Anthony Lo Surdo SC (Referee). Front Row (left to right): Richard Sergi, Michael Fordham SC, Nicole Compton, Anais d’Arville, Simon Philips (C), Alex Kuklik, Glenn Fredericks and Oshie Fagir.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 79 BAR SPORTS

Enforcer) Mahony and Graham Turnbull SC, each foundation members of NSW FC but who, for various reasons, were unable to take to the field. Also in attendance was Peter Agardy of the Victorian Bar who founded the Victorian Bar Team.

Donation

The Sports Law Conference raised $1,500 which was donated to CanTeen to assist with its ongoing support of, and commitment to, children battling cancer, including the funding of sports and other camps to pro- vide those children and their parents with much-needed respite.

Acknowledgements

NSW Bar FC acknowledges Suncorp for its ongoing and generous support. A special thanks to: David Chesterman of the Queensland Bar, Anthony Klotz of the Victoria Bar and David Stanton of the NSW Bar for arranging their respective teams; Justice Katzmann for opening the Sports Law Conference; Justice Lindsay for chairing the Sports Law Conference; Alan Sullivan QC, Professor Deborah Healey and Graham Turnbull SC for speaking at the conference; Each of the participants and especially to have opened the scoring with a brilliant, the bar for another contender for goal of the those members of the Queensland and dipping long range effort which beat Harris day, to make it 3-1. Victoria Bars for travelling to Sydney; and all ends up but unluckily cannoned back The Victorians continued their relentless from the underside of the cross bar. Soon pursuit for the back of the net and with a Anthony Lo Surdo SC for after, Hackett calmly finished off a great spell tiring NSW defence and Captain Philips organising the day. of team passing to put NSW 1-0 up (which having firstly pushed further forward and was the half time score). then retired from battle to avoid an official The future Two further goals to the home team early sanction for ‘being egregiously out of posi- in the second half then decided the contest. tion’, Chris Archibald (Vic) had a cracking NSW Bar FC provides an ideal opportunity First, di Michiel beat the offside trap (much shot at goal from about 20 metres out. It was for barristers to mix with other barristers, to Harris’ displeasure) to tap one in and then hit with such vehemence that NSW keeper judges and members of the profession in soon after, Bedrossian finished off a brilliant Kuklik didn’t see it coming as it slammed a healthy way. The forty-minute games at team move of four one touch passes involv- into the back of the net. lunchtime in the DSL have proven time and ing d’Arville, Coutinho and others for what The final score of 3-2 in favour of NSW was time again to be the best form of Zen for was undoubtedly the silkiest goal of the day. a reasonable reflection of the closeness of the busy barristers. NSW then rang the changes with Comp- match. It also meant that NSW retained the The Bar Football ‘State of Origin’ and Sports ton and O’Shea providing much-needed Suncorp NSW Bar v Victoria Bar Challenge Law Conference will be held in Melbourne fresh legs. Cup and regained the Suncorp NSW Bar v in 2018. Needing to score an unlikely four goals in Vic Bar v Qld Bar Challenge Cup! We look forward to welcoming new members about 15 minutes to claim the silverware, the Best and fairest for NSW was Jeh Coutin- to the squad in 2018. If you are interested in Victorians did not lie down. A complacent ho and for Victoria Chris Archibald. The joining the team, please email David Stanton second half start by NSW saw Phil Cadman game was refereed by Anthony Lo Surdo ([email protected]) to join the (Vic) nutmeg Simon Philips (NSW) in the SC (NSW). mailing list. If you would like to attend or middle of the pitch which gave the cover The games were followed by drinks and cana- speak at the 8th Annual Sports Law Confer- defence a few anxious moments as did Al- pes and then a sit-down dinner and speeches. ence in 2018, please email Anthony Lo Surdo exander Solomon-Bridge’s (Vic) spectacular It was a fun and memorable way to celebrate SC ([email protected]). bicycle kick attempt on goal which flew the 10th anniversary of NSW Bar FC and the comfortably over the cross-bar to the relief of inaugural NSW Bar v Vic Bar game played Anthony Lo Surdo SC Keeper Kuklik. However, from well outside on a rain-sodden St Johns Oval all those years David Stanton Simon Philips the box, one of the Victorian midfielders ago. In attendance at the dinner and during outrageously chipped over Kuklik and under the day were John Marshall SC, Gillian (The

80 [2017] (Summer) Bar News The Journal of the NSW Bar Association ADVOCATUS

rate will receive many opinions. They will One might, stoically, accept a moderate generally fall into two categories: the rate is income for a 35 hour working week. Or a far too high; or the rate is far too low. ‘The 70 hour week with commensurate financial juniors at Banco charge thrice that--people rewards. It is a little more difficult to resign will assume you’re not good.’; or ‘That’s far oneself to a future characterised by both over- too high. I can get Andrew Bell for that. And work and financial ruin. Similarly: you’re not even a doctor.’ Some of the advice is given during the Bar The bar is not what it was. Our Practice Course. M-, an experienced and work is no longer valued. Clients are highly regarded clerk, came to speak to forever squeezing us on costs, usually Juniors’ fees the nascent readers about rates. She is an successfully. adherent of the second view. She suggested that readers should charge $750 for a day in The cost of litigation is now astronomical. court. ‘But M-’, no one exclaimed, ‘that’s ri- Lawyers over-charge continually. For the quantification, then, what shall I diculous. A month ago as a solicitor I charged Millions of dollars are diverted from do? I am already reeling under the advice $500 for one hour. And that was before I had commerce and the public into the of many prophets. There is no Polonius at the benefit of this life-changing Bar Practice pockets of lawyers. The barristers may hand to give me memorable precepts as he Course’. not be as bad as the solicitors for over- did Laertes when he fled the confusion. I M- also suggested that readers charge one charging, but they are bad. shall simply select a figure as Tom Collins third of their normal hourly rate for devil- selected a day from his diary and we shall ling. This because the silk would do the work One might be able to bear public disappro- see what turns up. Such is life. in a third of the time and would only charge brium with the help of, say, a BMW 5-Series; the client a third of the time. ‘But M-’, no one or endure penury comforted by a kind of Readers who are very old or who practise in pointed out, ‘there is an enormous flaw in moral correctness. But to suffer both poverty the ignoble and second-rate field of industrial that logic. It takes me three times as long but and public censure seems a little unfair. law may recognise the above passage from a the silk is charging the client at three times So, then, for the quantification, what shall judgment of Justice Staples, formerly of the my normal rate. The effect of your proposed the junior barrister, reeling from the incon- Conciliation and Arbitration Commission discount is that I am subsidising either the gruent advice of many prophets, do? in Federated Storemen and Packers’ Union v silk or the client. It is a nonsense.’ The one true prophecy is this. The junior’s Albany Wool Stores Pty Ltd and Ors (1979) Perhaps M-, like many clerks, is suffering rates have little to do with the quality or 231 CAR 388. Decrepit industrial bar- from a kind of Stockholm syndrome vis-a- quantity of work received. Early success is a risters (like our president) will also recall vis silks which saps her objectivity. But she function of many other factors, some related that Staples J was the first and thus far last is not alone in eschewing rationality when it to capability but most arbitrary; predomi- tribunal member to publicly acknowledge comes to juniors’ fees, prospects and working nantly accidents of timing and the random that award wage setting is an intellectually requirements. Lack of reason is characteristic kindness and cruelty of others. With time, offensive psuedo-science, much like colonic of discourse in these areas. Cognitive dis- perhaps, ability and cost--or ability relative hydrotherapy, feng shui and the assessment sonance is common. Consider two familiar to cost--become factors. But not so in the of damages. His Honour’s candour was refrains: early years. rewarded by the abolition of the Arbitration Once that premise is accepted, the answer to Commission and its reconstitution as the I regret that you have come to the bar the rate-setting question is clear. The junior Australian Industrial Relations Commission, at a time of severe decline. Everything should determine the top of the range for her sans Staples J. settles. You will have no work. level of experience and area of law, and adopt In Albany Wool Stores Jim Staples was asked Financially you will suffer. it. It probably will not win briefs; it probably to fix the wages of wool storemen. Junior bar- will not cost briefs. If it does cost some briefs, risters are asked to fix their own rates of pay. You will be perpetually over-worked. there is the comfort of earning the same The judge and the juniors have a problem in You will not see your families for many money for less work, and there is something common. moons. Cheshire & Fifoot are your to be said for that. A junior seeking guidance about a proposed only friends now. And, of course, Polonious’ precepts remain true:

Give every man thy ear, but few thy voice;

And certainly not thy voice for $750 a day; not once, not ever, no matter what the M-s may say.

Advocatus replaces the previous column Advocata, following Advocata’s retirement. Practising barristers at the NSW Bar are invited to send an opinion column to the editor, with your name, providing a perspective of practice at the Bar. Entries that seek to critique existing practice or mores by reference to personal experience will be preferred. In each edition one selected piece will be published anonymously under the title ‘Advocatus’.

Roy Delgado / Cartoonstock “Remember to bill for the time it takes to bill for the time it takes to bill.”

The Journal of the NSW Bar Association [2017] (Summer) Bar News 81 BULLFRY

R v Dookheea:1 Bullfry and the onus of proof

Just when you thought it was safe to go back jury must be reasonably satisfied by cogent Court cite for this suggestion? into the water! In its joint decision in R v evidence, not inexact proofs or indefinite tes- Dookheea, the High Court has re-agitated timony, or indirect inferences, that given the Bullfry: Very little, unfortunately. There is a the question how to direct a jury on the seriousness of the allegations and the gravity reference at footnote [59] in Dookheea to the meaning of ‘beyond reasonable doubt’. Ever of the consequences for the accused, that Bench Books (which are Delphic) and to Ho9 since Thomas,2 the unwisdom of the trial he committed the offence. Such a direction and to Ward v The Queen10. Now the refer- judge seeking to provide exegetical comment continues to recognise the civil standard, as ence in Ho at 548, [15] is not to the Court of on those simple English words has been em- the High Court noted in Neat Holding Pty Criminal Appeal’s judgment at all – Bell J is, phasised at the highest level – until now. Ltd v Karajan Holding Pty Ltd.4 There must in fact, quoting from the impugned judgment In Dookheea, the High Court (without any be evidence sufficient to move the mind to of the trial judge in Ho who had referred to need to do so) has gone a step further: a state of actual persuasion of a fact where ‘a civil case whether monetary damages are the finding of fact is one to which serious claimed and where the case is decided on the Secondly, although, as authority consequences attach. balance of probabilities’. Her Honour makes stands, it is generally speaking unwise the point that in Fontaine11, Barwick CJ had for a trial judge to attempt any expli- Of course, there is a subtle difference between confirmed that it is ‘unnecessary and unwise cation of the concept of reasonable the persuasion of the mind having regard to for a trial judge to attempt explanatory doubt beyond observing that the the gravity of the fact, and the standard of glosses on the classical formula’. In Ho, the expression means what it says and proof which your Honour will have no dif- complaint was not about use of the civil onus that it is for the jury to decide whether ficulty in explaining to twelve laymen. As to but the far more common distinction drawn they are left with a reasonable doubt that last point, your Honour will no doubt between a finding ‘beyond reasonable doubt’ … the practice ordinarily followed have in mind the simple distinction drawn and a finding ‘beyond any doubt’’. in Victoria … and often followed in by the High Court in Rejfek v McElroy5 to New South Wales includes contrasting the effect that: Her Honour: Are you saying that Ho does the standard of proof beyond reasonable not in terms support the new approach? doubt with the lower civil standard of The ‘clarity’ of the proof required, where proof on the balance of probabilities. so serious a matter as [armed robbery] Bullfry: Unfortunately, it would seem not. That practice is to be encouraged. It is to be found, is an acknowledgment And if the practice is ‘often’ followed in is an effective means of conveying that the degree of satisfaction for NSW, one might have expected a footnote to a jury that being satisfied of guilt which the civil standard of proof calls replete with references. beyond reasonable doubt does not may vary according to the gravity of simply mean concluding that the the fact to be proved. Her Honour: Well, what about Ward? accused may have committed the Her Honour: How does that differ from offence charged or even that it is more proof beyond reasonable doubt?6 Indeed, Bullfry: Ward is a most peculiar case in likely than not that the accused com- that last sentence in Neat sounds like proof which the trial judge, to assist the jury on mitted the offence charged. What is beyond any doubt at all – ‘actual persuasion’ onus, using his hands to demonstrate(!), required is a much higher standard of of a fact? And does not section 140(c) of the invoked the metaphor of ‘tipping scales’ so satisfaction, the highest known to the Evidence Act now cover Briginshaw?’ that in a civil case if the scales tipped ‘ever law: proof beyond reasonable doubt. so slightly’ to one side or the other, that side (Emphasis supplied.) Bullfry: That is a question upon which great- was successful: see per McClellan CJ at CL er minds than mine have stumbled, your at [52]. It is a little like the Queensland case The scene: the District Court at Honour. ‘Actual persuasion’ is satisfied at a where the Court of Appeal deprecated the Parramatta (Judge Blenkinsop presiding). civil trial, your Honour, once the occurrence use by the trial judge of the cricket umpire of the act is more probable than not – then it and the LBW appeal. Your Honour will Bullfry (for the defence): And we would also is certain’.7 remember it – R v CBK12 in which the trial ask your Honour to direct the jury in terms judge, to make things easier for the jury, had of Dookheea, but on the basis that this is a Her Honour: Well, that is a fine distinction discussed their being satisfied beyond reason- very serious offence (armed robbery) and that which will be difficult to explain. And I able doubt in terms of the ‘height of the ball, they must approach the matter using the civil thought that ever since Green8 and Thomas, … the snicker and any other replays that are standard as explained in Briginshaw v Brigin- trial judges have been strictly adjured not to available, where the ball pitched, whether it shaw3 which is to be applied by them when attempt to explain what the simple English was in line with the stumps …’’. making the contrast. words ‘beyond reasonable doubt’, mean? Her Honour: Is that it? Is that the entirety Her Honour: The contrast with what, Bullfry: That position, so it would appear, of the authority? Mr Bullfry? is yesterday’s thinking. The High Court pays lip-service to the traditional position but Bullfry: It is. And your Honour is bound to Bullfry: Your Honour, the contrast between then goes on to suggest that the trial judge apply it. In fact, doing so is to be encouraged. the ordinary civil standard and the criminal do the very thing which the authorities have Now my requested direction doesn’t involve standard, as suggested by the High Court. hitherto made clear is very dangerous. anything ‘fanciful’, so the problem in Green13 The charge is very serious. The consequenc- does not arise. My request simply requires es are very grave for the accused. Thus, the Her Honour: What authority does the High an appropriate Briginshaw approach. In

82 [2017] (Summer) Bar News The Journal of the NSW Bar Association Briginshaw, Dixon J pointed out that: ‘… Judges often say that advocates should only reasonable satisfaction is not a state of mind THE FURIES take their best points and avoid unnecessary that is attained or established independently evidence and cross-examination. But it is of the nature and consequence of the fact difficult or impossible to identify the best or facts to be proved. The seriousness of an points until the end of the trial (or the end allegation made, the inherent unlikelihood of the appeals); many cases are lost because of an occurrence of a given description, or such-and-such a question wasn’t asked or the gravity of the consequences flowing such-and-such a point wasn’t taken. How can from a particular finding are considerations I follow the instruction to be highly selective which must affect the answer to the question without running the risk that I will abandon a potentially winning point? Surely my duty whether the issue has been proved to the to my client requires that I err on the side of reasonable satisfaction of the tribunal. In caution and include those points which might such matters ‘reasonable satisfaction’ should Lifts. Every day I go to court I have to do the win, not only those which appear to be the not be produced by inexact proofs, indefinite ‘lift dance’. Men more senior than me insist on best points at the outset of a case? testimony, or indirect inferences ….14 waiting for me to enter and leave first, while within male ranks juniors give way to seniors. Dear Unbridled Barrister, Her Honour: But surely, as soon I give that Sometimes it takes an extra half a minute to sort of direction, I will be inviting the jury to do this dance. Should I say that I don’t want Your two-paragraph question suggests you may engage in an analytic exercise dissecting such to be marked out as different because of my lack some discipline in expressing yourself (as doubts as they may be experiencing? It will gender? to which we refer to the Furies’ first advice in be creating a mare’s nest. the last edition of Bar News). Apparently, that Dear Escalating Advocate, also extends to points of argument and possibly Bullfry: That is no doubt something that claims. the CCA can sort out in due course if your Civility, whether it is at the lift well or in a court To answer your question, the Furies invoke the Honour goes astray. May I, with respect, room, is never a waste of time and a courtesy, words of none other than Chester Porter QC: hand up a suggested direction to the jury provided it is motivated by respect, is always ‘The secret of winning cases, criminal or civil, is that deals with the balance of probabilities worthwhile. Taking your time to acknowledge to pick out one or two points that you’re really example in the context of Briginshaw – and another in the lift and, with eye contact and going to fight on, and fight on those. The scat- your Honour will see that I have purposely gesture, allowing them to precede you, may well tergun defence never works.’ be the beginning of many fruitful encounters refrained from introducing any hand ges- Chester Porter QC was, before his retirement whether ascending a building or transcending tures, or references to cricket. in 2000, accorded Christ-like qualities which a timetabling issue. If the other person would, the Furies suspect was not just because his last instead, prefer to extend to you that courtesy, ENDNOTES name has the happy coincidence of rhyming then eye contact and a hand gesture (taking all with ‘water’, but because many people thought of three seconds) should be sufficient to make 1 [2017] HCA 36 at [41] per Kiefel CJ, Bell, Gageler, Keane, Nettle, and he knew a thing or two about advocacy. His that clear. However, an impatient insistence Edelman JJ. words have been faithfully recorded on the oral 2 (1960) 102 CLR 584. that you squeeze yourself between trolleys and histories section of the Bar Association website 3 (1938) 60 CLR 336. “In Briginshaw five judgments (those of Latham the generous girths of older practitioners to exit (Chester 14:10), but little else is given to explain CJ, Rich, Starke, Dixon and McTiernan JJ) were delivered, each with on a floor (possibly not yours), just because you them. substantial differences and nuances of meaning , and with Latham are wearing a skirt, is neither courteous nor Without wanting to risk a theological rift with CJ indeed dissenting as to the result”: per Peek J in Stanberg Pty Ltd v respectful and should be treated with contempt. Tabibi [2012] SASC 187 at [99]. If you are extended the courtesy of entering a the more devout believers in Porter’s divinity, 4 [1992] HCA 66; 67 ALJR 170 at 170 – 171 per Mason CJ, Brennan, lift first, perhaps you can reciprocate by offering the Furies interpolate that in ‘picking one or Deane and Gaudron JJ. to press the button? Otherwise, have you ever two points that you are really going to fight on’, 5 [1965] HCA 46; (1965) 112 CLR 517 at 521 – 522 per Barwick CJ, offered to allow others to go before you at the Porter QC was suggesting that they ought to be Kitto, Taylor Menzies, and Windeyer JJ. lifts? If not, then you may well be in breach of your best points. We may even go further and 6 See the discussion by Peek J in Stanberg Pty Ltd v Tabibi [2012] SASC the unwritten rules of lift precedence which we suggest that, in more complex cases, more than 187 at [112] and following. now set out for your edification: two points may be required to win, in which 7 “A common law court determines on the balance of probabilities case you must run your necessary or winning whether an event has occurred. If the probability of the event having 1. All juniors (regardless of gender) should points. Running unnecessary and losing points occurred is greater than it not having occurred, the occurrence of the allow silk to take precedence, acknowl- is distracting, time wasting and may diminish event is treated as certain”: per Deane, Gaudron and McHugh JJ in edging, as they must, the respect owed the potency of your best points. Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 642 – to senior counsel for their fortitude in Of course, you are now asking the question: 643. answering questions from judges. how does one decide which are the necessary or 8 (1971) 126 CLR 28 citing Dixon CJ in Dawson v The Queen (1961) winning points? This requires judgment. Good 2. All barristers (regardless of gender) 106 CLR 1 at 18: “it is a mistake to depart from the time-honoured barristers have it and we are reliably informed formula. ... The attempts to substitute other expressions … have never should allow judges to take precedence, that, through experience, it may be developed. prospered.” And see Darkan v The Queen (2006) 80 ALJR 1250 at acknowledging, as they must, the respect Until you have judgment, may we suggest that 1265, [69]. owed to judges for their fortitude in deci- you give judgment, or at least pretend to. If you 9 (2002) 130 A Crim R 545 at 548, [15] per Bell J phering responses from senior counsel. 10 [2013] NSWCCA 46 at [54] per McClelland CJ at CL (Latham and were to judge the case before you, in a way that is Adamson JJ agreeing) at [246], [247]. 3. Everyone should allow couriers to take both favourable to your client and intellectually 11 (1976) 136 CLR 62 at 71. precedence, acknowledging, as they must, honest, what points would you rely upon? If, in 12 [2014] QCA 35 at [4]. that no one has the fortitude to come be- doing this, you develop judgment, you may find 13 (1971) 126 CLR 28 at 33. tween a courier and an opening lift door. yourself being accorded a status that guarantees 14 (1938) 60 CLR at 361 – 362. And see FTZK v MIMA [2014] HCA 26 you precedence at the bar. Maybe even at the per French CJ and Gageler J at [12]. lifts. But perhaps not before couriers.

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1

David Bennett AC QC 50 years at the New South Wales Bar

Members of the bench and bar gathered in was from him that we did learn many the Common Room on 20 October 2017 to relevant things. David’s favourite movie 2 congratulate David Bennett AC QC for his is Dr Strangelove. His favourite piece of remarkable achievements during the half-cen- music is ‘Oh Susannah’. His most rec- tury since he was called to the bar in 1967. ognised talent is the ability to simplify Not since the 150 Not Out Dinner in 1999 complex concepts. David’s hobbies for Tom Hughes, Chester Porter and Frank include dinner parties and computer McAlary had there been a gathering under games. He has a strong dislike of white Bar Association auspices to celebrate the mile- wine and champagne before dinner stone of 50 years in practice. Speakers for the and claims to make the best martinis evening were John Sheahan QC, President in the Southern Hemisphere. He once Arthur Moses SC and, of course, David Ben- famously said that being a barrister was nett AC QC himself. ‘like being paid for eating chocolate’. Mr Bennett’s accolades are many and varied. He took silk in 1979; was appointed officer in 3 the Order of Australia on 12 June 2000 for … service to the law and the legal profession in the areas of administration, education and practice. He was appointed as a life member Unfortunately, overshadowing much of of the Bar Association in October 2001. He David’s hard work in the office of bar has served as bar councillor for many years. president is his brush with The Naked He was an office bearer and president of Lady – that scandalous painting which the New South Wales and Australian Bar had hung on the walls of this common Associations. He served as president of the room. I won’t say anything more about Medico Legal Society of NSW; as a council that matter, except that David’s opinion member of the Australian Academy of Foren- on the lady who is the subject of the 4 5 sic Sciences; as member of the International painting has, according to Ackland, Commission of Jurists, Australian Section. ‘troubled many medical and legal In August 1998 Mr Bennett was appointed as experts’. solicitor-general of the Commonwealth, then subsequently appointed for a second five-year In May 2003, at the swearing-in of term in 2003. Following David’s second term Annabelle as a Federal Court judge, as solicitor-general he returned to the bar and David broke with the convention that in 2010 delivered the Sir Maurice Byers Ad- the attorney-general should speak on dress – the Bar Association’s premier oration behalf of the bar. This was done on on Constitutional law. the basis that ‘sometimes the first law In addition to being a celebration of David officer accepts and acts on recommen- 6 7 Bennett’s achievements during a half-century dations from the second law officer’. in the law, the evening was also an opportuni- In the conclusion to his speech David ty for a light-hearted roast. President Arthur noted that ‘this is the first and last time This page, top to bottom, left to right: 1. Tim Hale, Jeff Phillips, Trish Kavanagh. Moses SC spoke about, among other things, on which I’ll be able to address you as 2. Tony Bannon, Chief Justice Bathurst, Mr Bennett’s interview ‘On the Couch’ with your Honour. Notwithstanding that I Peter Jacobson, Ishita Sethi. Richard Ackland. He said: will never cease to honour you and your 3. Catering. incredible achievements’. It was the first 4. Jeffrey Phillips. Richard couldn’t be here tonight. In and only time that I can recall a swear- 5. Garth Campbell, Andrew Smorchevsky. 6. John Sheahan. fact, he was not invited. However, it ing-in ceremony bursting into applause. 7. David Jackson.

84 [2017] (Summer) Bar News The Journal of the NSW Bar Association PERSONALIA

8 9 10

11 12 13

14 15

16 17 18

19 20 21

Top of this page, left to right: 13. Carer, Phillipa Gormly, David Williams, 17. Matthew Lewis, Brian Knox, Michael Heath. 8. John Sheahan, Hugh Stowe. Matthew Lewis, Paul Glissan. 18. Tony Bannon, Peter Jacobson. 9. James Gibson, Sam Hallahan, David Larish. 14. Simon Kalfas, Trish Hoff, Mark Boulton. 19. David Bennett, John Sheahan, Tim Hale. 10. Michael Izzo, David Harris. 15. David Jackson, David Bennett, Maher Gaven, 20. , David Jackson. 11. Simon Kalfas, Charles Gregory, Vance Hughston Malcolm Oakes, John Sheahan, Noel Hutley. 21. Virginia Lydiard. Mark Boulton. 16. Dale Bampton, Sonia Stewart. 12. Rashelle Seiden, David Jackson, Sheila Kaur-Bains.

The Journal of the NSW Bar Association [2017] (Summer) Bar News 85 PERSONALIA

Claire Palmer her, that led the Bar Association’s president, qualifications and demonstrated leadership Arthur Moses SC, to suggest to the Katrina in the community, the selection committee Dawson Foundation that the bar find a way was looking for applicants who were able to to acknowledge and contribute to her legacy. show an ability and desire to participate in, To date, the Katrina Dawson Foundation has and foster life at the bar. had as its focus the funding and mentoring Claire Palmer very recently commenced of young women at the undergraduate and her career at the bar, having participated in postgraduate level. However, when Moses the September Bar Practice Course. She has pitched the idea that an award be created in joined the Sixth Floor, where she is reading Katrina’s name, with the objective of encour- with James Arnott and Ross Foreman. Im- aging women to commence their practice as mediately prior to coming to the bar, Palmer a barrister, it was warmly embraced by the completed a DPhil at the University of foundation. ‘We have always been enormous- Oxford as a Clarendon scholar. During her ly grateful for the support members of the bar time overseas, Palmer also lectured in law have provided to the foundation’, said Nikki and international relations and worked as an The New South Wales Bar Association, in Dawson, the foundation’s chief executive associate in the Supreme Court of Namibia. conjunction with the Katrina Dawson Foun- officer. ‘The award has been funded entirely ‘I am tremendously honoured to be the 2017 dation, has awarded Claire Palmer the inau- through the generosity of members of the recipient of the Katrina Dawson Award’, gural Katrina Dawson Award. The Katrina New South Wales Bar and we are thrilled Claire said. ‘It is a clear testament to Kat- Dawson Award is an annual award that was that the Bar Association was able to see the rina’s warmth, brilliance, and generosity of created to honour the memory of Katrina award all the way through from the initial spirit that her colleagues and friends have Dawson, who was a beloved member of the idea of its being granted, to its first recipient.’ contributed so generously to make this New South Wales Bar. The award, worth $12,000, is open to women award possible. The objective of the award Katrina’s colleagues will remember her for who have passed the New South Wales Bar is to support women who decide, as Katrina far more than her exceptional skills as an exam and are committed to starting practice. did herself, to start a career at the bar. I am advocate. Perhaps most of all, she will be This year’s award was funded by donations extremely grateful to the New South Wales remembered as someone who made life at made to the team of barristers that ran in the Bar Association (and all those who have the bar so much the richer because of the 2017 Sydney Half-Marathon. A four-person supported this award) for this exceptional friendships she forged and for the mentoring selection committee was formed to choose the opportunity.’ and assistance she provided to anyone who inaugural recipient of the award. It consisted sought her out, as many did. It was this con- of Jeremy Stoljar SC and Sandy Dawson SC, tribution that Katrina made to the bar and both directors of the Katrina Dawson Foun- the extent to which she had a positive impact dation, as well as Anna Mitchelmore. Among on those who had the privilege of knowing other criteria, including excellent academic

Art Law

Mr Shane Prince and Mr Brian Kelly leaving the Supreme court following Save Our Rail NSW Inc v State of New South Wales by the Minister administering Transport for New South Wales [2014] NSWSC 1875 (24 December 2014). The painting, by Emily Beckett, was entered in the Law Society’s ‘Just Art’ competition.

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The Peteris Ginters Lunch icism. His primary concern has been his ience than their colleagues practising family and the pressure the disease has placed in commercial and personal injury – In honour of his upon them. Peteris loves his family and his litigation. retirement from practice thoughts are about them and not himself. He Peteris has proven himself to be a lead- knows he has a battle on his hands but his ing member of the industrial bar. His Robert Reitano primary concern is to shelter his family and colleagues invariably describe him as

On Friday 27 October 2017 a group of 70 or so barristers, former barristers, clerks and chambers staff gathered at the Marigold Restaurant in Chinatown to celebrate the retirement from practice of one of the bar’s own, Peteris Ginters. Peteris was diagnosed on 7 November 2016 with motor neurone disease. The lunch was an opportunity to say thank you to a friend, a colleague, a mentor, a fellow practitioner and most of all, to one of Members and staff of 15 Wardell Chambers. Standing from left to right: Andrew McSpedden, Adrian Canceri, the good blokes of the New South Wales Bar. Andrew Joseph, Tim Reilly, Larissa Andelman, George Lucarelli, Erik Young, Geoff Johnson, Hanna Roberts, Few of you will ever know the feeling of emp- John McNamarra, Casey Thomas. Seated from left to right: Paul Jones, Peteris Ginters, Robert Reitano. tiness that surrounded me on the morning of 10 November 2016. After not seeing Peteris friends as best he can from his suffering. diligent, bright, punctual and capable: for two days, he entered my room, closed the Peteris has entered a trial of a new therapy an absolute delight to work with. door and uttered the words I will never ever under the care of one of Australia’s leading forget: ‘So do you want to know my news? neurosurgeons, Professor Dominic Rowe As some of you may know, Peteris I’ve got motor neurone disease.’ There was AM, acknowledging that while his expe- began returning briefs late last year, nothing to say so I filled the silence with the rience may assist others, it is unlikely to following his diagnosis with MND. only word I could think of: ‘f**k’. After that extend his life. In true Peteris style he took He has shown great courage, dignity I went through all those things that I suppose the opportunity to speak in support of Pro- and determination in the face of what people confronted by such news from others fessor Dominic Rowe’s Research Project at must have been a great shock to him go through, ‘This might be a mistake, you the lunch, and as a result $16,000 was raised and his family. need to get a second opinion’. He left cham- for the cause. bers that day with the promise that we would As a bar, one thing we do very well is close I should note that when Justice Mar- still have lunch. And we certainly did on 27 ranks in adversity. This was certainly no shall retired from the Federal Court in October 2017. exception. This was an advertisement for a ceremonial sitting in 2015, he singled It is not uncommon to question why it is that everything that is good about the bar. It was out Peteris for special praise, saying someone who has lived a healthy, productive a remarkable celebration from beginning to that he had been ably assisted by Pe- and blameless life can be struck down by end. Ingmar Taylor SC as master of ceremo- teris as his associate. Justice Marshall such a debilitating disease without warning nies was as perfect as ever. The speech from referred to Peteris as a leading member or provocation. There is no satisfactory or re- Moses SC was greeted with a standing ova- of the Sydney junior industrial bar. The motely appropriate answer to such a question. tion like no other. Peteris replied to Moses SC judge was wrong to say that. Peteris is On any level there is no good that can come in a speech that left no eye dry in the house. a leading member of the Sydney indus- of this. Or at least that was what I thought Kenzie QC proposed a memorable toast. trial bar, period. He ran rings around until I considered what I had learnt from the Moses SC’s remarks included: senior counsel, especially some present experience of watching my friend and his We know that collegiality matters in today, including myself. Had Peteris wife, Caroline’s response to motor neurone this profession which can be bruising. remained at the bar, I believe he would disease. Those at the lunch were privileged to However, I should note, that accord- have been appointed senior counsel. witness Peteris’s response to his diagnosis of ing to a survey undertaken recently Peteris is married to Caroline, who a disease without a cure. The good to come of the New South Wales Bar, the data joins us today, with whom they have out of this lay in the sterling example Peteris showed that members of the criminal two children: his son, Mason and offers to each one of us in confronting this and industrial bar, where collegiality daughter, Taylor. Both were named – challenge. is the strongest, reported higher scores not at all inappropriately – after High From the time of his diagnosis Peteris has for quality of working life and resil- Court judges. Caroline has been a faced the challenge with strength and sto-

The Journal of the NSW Bar Association [2017] (Summer) Bar News 87 PERSONALIA

great source of strength and love to investigator in a world first human staff from my former chambers – John, Peteris and the love of his family will trial of a drug, CuATSM. I am in the Casey, Hannah and Mitchell – for sustain him. privileged and very lucky position to taking on the burden of managing be a participant in this drug trial. Cur- logistics. Lastly, and most importantly, Peteris, on behalf of the entire bar rently there are only about 30 people my best friend Robert Reitano, who of New South Wales, I offer you my has been a great support for me since sincere congratulations for all that on the trial, with the hope that it will you have achieved during a career that has, regrettably, come to an end far too soon. I also offer my heartfelt best wishes and promises of support for you and your family in the times ahead. We stand by you, now and in the future. We thank you. We love you. We salute you.

The standing ovation that followed saluting our friend and colleague resounded through the Marigold Restaurant and down the streets of Chinatown. Peteris was then heard in reply: It’s traditional at events like these to begin with a roll call acknowledging and thanking the judicial and tribunal members and distinguished and other guests for being here. I would prefer to start by simply saying welcome, and thank you to all of my dear and close friends for being here, as that captures how I feel about everybody in this room. I am overwhelmed and humbled by the number of people who Members and former members of H B Higgins Chambers, where Peteris started at the Bar: Seated: Adam Searle are here to share today with Caroline MLC, Peteris Ginters, Ingmar Taylor. Standing left to right front: Mark Gibian, Shane Prince, David Chin, Francis Backman, Adam Hatcher, Patricia Lowson. Standing left to right behind: Darien Nagle, Tony Howell, and me. Geoff Warburton, Andrew Joseph, Daniel Brezniak and long-standing clerk Damian Elliott. So, why are we all here? First, to enjoy my diagnosis, as well as being the lunch, a few drinks and a catch up expand to include about another 20. driving force behind making today’s with friends and colleagues. Secondly, To date, animal trials of CuATSM function a reality. because on 7 November last year I was have been encouraging. For example, diagnosed with motor neurone disease. use of CuATSM restored health to a Thank you again for all being here to share this day with Caroline and me. Motor neurone disease, or more very sick mouse model of amyotrophic specifically in my case, amyotrophic lateral sclerosis, extending its one- to two-week lifespan to almost two years. There was not a single person at the lunch lateral sclerosis, was first described as a who did not regard themselves as utterly neurological disease by a French physi- Unfortunately though, humans are privileged to have shared any part of their cian (J M Charcot) in 1874. In simple not mice, so there is a great deal of life’s experience with Peteris and to hear him terms, we are all full of nerve cells (or work that still needs to be done to speak of his life, his wife and children and his neurones) that control the muscles that determine whether CuATSM will be approach to motor neurone disease. enable us to move, speak, breathe and safe and effective in slowing down the The New South Wales Bar rose to its feet for swallow. In people with motor neurone degenerative effects of motor neurone Peteris that day and continues to do so in sup- disease these neurones fail to work disease in humans. port of him and his family, honouring him as normally, degenerate and die. With a true friend. A man of strength, courage and no neurones to activate them, muscles It’s very early days but I have to be, and substance whose professional life reflects the gradually weaken and waste. do remain, optimistic. I’ve got nothing best of life at the bar and whose family life to lose, and there is a great deal to be has set a standard that can only be admired. The form of motor neurone disease said for the power of positive thinking! that I have typically commences by Again Peteris Ginters, we salute you. first attacking the neurones associated With this in mind, and if you wish with the major muscle groups in the to, please feel free to contribute to If you would like to make a donation to Professor Dominic Rowe’s research, legs and arms. As you can see I’m a case Professor Rowe’s research. You can please contact Robert Reitano at in point. Motor neurone disease goes be assured that every (tax-deductible) [email protected]. on to affect a person’s ability to walk, dollar donated will go directly and in speak, swallow and breathe. For this full to Professor Rowe’s research. reason it is ultimately fatal. Finally, I must make special mention of Fortunately I am under the care of a a few people who helped with making brilliant neurologist, Professor Dom- this day possible. Arthur Moses and inic Rowe at Macquarie Neurology. Ingmar Taylor for coming up with Dominic is presently the principal the idea of holding a get-together. The

88 [2017] (Summer) Bar News The Journal of the NSW Bar Association