May 2005

CONTENTS PAGE From the President... From the President. 1 McHugh J appointed Life Member 1 elcome to Bar Association’s E-Gazette. The revival of the Gazette in its new format is not designed ABA launches new web site 2 W to compete with or replace any existing law journal or other ABA officers for 2005 2 Welcomeprofessional publication. Instead, its purpose is to acquaint University wins members of the Australian Bar with the activities of the Association, 2005 ABA Lawasia Moot. 2 to keep members informed of matters of professional interest to Bar Council supports Zimbabwe them and of what they can obtain through or from the ABA. The Report 2 Gazette will be published three times a year and members are invited to submit letters, articles and other items of interest. New Silks Welcome, Canberra 3 New Silks 4 In this, my first President’s page I can say by Glenn Martin S.C. has managed, once Speech given by that the Australian Bar can look forward again, to match contemporary topics with Hon. Ian Viner AO QC 4 with enthusiasm to a bright future. My engaging speakers in a venue which will aim as President is to strengthen the role both delight and interest. Some of the Extract from the speech given by of the ABA as the representative body keynote Speakers include: Hon. Justice Michael McHugh AC 6 for the independent referral Bars of the Tracing Civil Society and the States and mainland Territories. The The Hon. Justice Michael McHugh AC Rule of Law in Australia 8 Bar performs a vital role in the judicial SUNCORP sponsorship boosts system. This is because are not The Hon. Justice Dyson Heydon national conference 10 involved in solely delivering a product The Hon. Dame Heather Hallett, in a legal market; as a profession, they World Bar Conference 11 of England and Wales also serve a deeper public interest. The Bar must be vigilant to ensure that we The Hon. Lady Smith, McHugh J APPOINTED maintain our independence, enhance our Court of Session, Scotland LIFE MEMBER professional standards, re-focus on the art The Hon. Michael McDowell TD, of advocacy, strengthen the ethos of the Bar Irish Minister for Justice and continue our commitment to public service. The Australian Bar Council recently The Hon. Rory Brady S.C., endorsed the establishment of a working Attorney General of Ireland party to develop a national framework for Professor William Binchy, Regius the delivery of advocacy training for the Professor of Law, Trinity College Australian Bar. The Bar has a rich teaching resource available to it. The Advocacy Judge John Cooke , Cour de Justice Training proposal will draw together Des Communautés Européenes those resources, provide a consistency of Hon. Mr Justice McMeniman, approach to the fundamentals of advocacy High Court of Ireland. and the way in which it is taught and the Harrison S.C., ABA President presenting formulation of guidelines and minimum The overwhelming support from members Life Membership to the Hon Justice Michael standards. I have been encouraged by the McHugh AC at the 2005 Silks Dinner. of the Bar and judiciary is testimony to enthusiasm which the constituent Bars have the Australian Bar’s high standards for On Monday 31 January, 2005 the Bar embraced the proposal. This is but one of producing Conferences which are the envy Council admitted the Hon Justice a number of key initiatives which I hope to of many other organisations. The Conference Michael McHugh AC as a Life Member announced in future editions of the Gazette. has again been sponsored by Suncorp of the Australian Bar Association in Finally, I look forward to seeing many of (Principal Sponsor) and Wilson HTM. Places recognition of his exceptional service you at the Joint Australian and Irish Bars are still available and I would urge you to to justice, the law and the profession. Conference in between 29 June and register early. I look forward to seeing you in The presentation of the Certificate of 2 July, 2005. I am delighted to say that the Dublin. Membership took place at the Silks organising Committee, expertly chaired Dinner.

1 ABA LAUNCHES NEW WEB SITE. www.austbar.asn.au The Australian Bar Council recently re- launched the ABA’s website. A feature of the new site is the distinctive banner which depicts the winning entry in the 2004 High Court Centenary Art Prize - Today now ... we all got to go by same laws - a large nine-panel work depicting traditional law overlaid by contemporary law painted by 24-year- The winning team from the Hong Kong University and one of the finalists from the University of Western old Rosella Namok, from Lockhart Australia at the presentation of the Australian Bar Association LAWASIA Moot. L to R - Ms Asa Collett River in far north Queensland. (HKU), Ms Queenie Lau (HKU), The Commonwealth Attorney-General , Mr Phillip Ruddock, the Chief Justice of Australia, the Honourable Murray Gleeson, Ms Leona Cheung (HKU), Mr Chris Pearce (UWA), The ABA website will provide a point Mr Glenn Martin S.C., Vice President Australian Bar Association , Dr Ros Macdonald (QUT), Mr Glenn of reference for members of the Bar, the Ferguson, President Queensland Law Society and Professor Brian Fitzgerald, Head of School of Law QUT. Profession and the wider community. The new website contains a wide Hong Kong University wins 2005 ABA Lawasia Moot. variety of information about the Australian Bar, its members and the The inaugural ABA LAWASIA Moot was won by the team from the Hong Kong role of the independent referral bar in run in conjunction with the LAWASIA University who beat the team from the Australia. The upgraded site is only the Conference at the Gold Coast from 21 – 23 University of Western Australia in the start of an ongoing process to inform March. It was supported financially by the final, which was judged by Justice Santosh the community about the Australian ABA. Dr Ros Macdonald of QUT School of Hegde, of the Supreme Court of India, Bar and the important role it plays. Law and the LAWASIA Moot Coordinator Justice Garry Downes, President of the The site can be accessed at www. said that without the generous support AAT and Judge Michael Rackemann of austbar.asn.au Comments about the of the ABA the moot would not have the District Court of Queensland. Further site are welcome and these should be gone ahead. The moot in its first year details about the moot and the people directed to the Honorary Secretary at was open to teams from universities who contributed can be found at www. [email protected]. in LAWASIA Member countries. law.qut.edu.au/about/moots/lawasia. Seven teams came from China, India, Sri ABA OFFICERS FOR Lanka, Malaysia and Australia. It was 2005 At a meeting of the Australian Bar Council BAR COUNCIL SUPPORTS ZIMBABWE REPORT held on November, 2004 the following were elected as officers of the ABA: The Australian Bar Council has endorsed Barristers highlights the erosion of the President a report based on the experience of five rule of law and the independence of the The Hon Ian Viner AO QC (WA Bar) leaders of referral Bars from round the judiciary, how many of the judiciary have Vice-President world, who visited Zimbabwe in 2004. been driven from office or have been Glenn Martin S.C. (Qld Bar) These were Stephen Irwin QC, Chairman corrupted, and how much of the legal Hon. Treasurer of the Bar of England and Wales; Conor system of Zimbabwe has been subverted, Stephen Estcourt QC (Tas. Bar) Maguire S.C., Chairman of the Irish by the Zanu-PF government, in an Hon. Secretary Bar; Glenn Martin S.C., Treasurer of the effort to frustrate the proper working of Dan O’Connor (Qld Bar) Australian Bar Association; Roy Martin democracy and to hold on to power. These people assumed office on Monday QC, Vice-Dean of the Faculty of Advocates Recently, the ABA joined with other 31 January, 2005. of Scotland and Justice Poswa S.C., Vice- Independent Referral Bars to sign the At the same meeting, the retiring Chairman of the South African Bar. Edinburgh Declaration Trust which has President, Ian Harrison S.C. was The group met with a broad range of been established to provide barristers thanked by members of the Australian lawyers, legal academics, students and and advocates with an opportunity to Bar Council for his deft stewardship of retired judges during a very intensive provide financial assistance to lawyers in the Association in 2004. visit to Harare. The lawyers included countries where the independence of the the Acting Attorney-General, Mr judiciary and the rule of law is threatened. Bharat Patel, and lawyers who regularly Information about the Edinburgh act for the Zanu-PF government, Declaration Trust can be obtained by as well as those who do not. contacting the ABA Secretariat. The Report, which been adopted by the International Council of Advocates and

2 New Silks Welcome, Canberra

On 31 January, 2005 a ceremonial sittings of the High Court was conducted so that those who had taken Silk in the preceding year could take their bows. Chief Justice Gleeson congratulated those who had been so recognised and made the following remarks: “On behalf of all the members of the Court, I congratulate the newly appointed Senior Counsel. Your appointments are a public recognition of your professional eminence; a recognition that comes primarily from your professional colleagues. For a long time it was customary Coming to the nation’s capital and seat for Senior Counsel to make formal of government at the cost of considerable announcements of their appointment time and effort signifies the national to the Supreme Court of the State or character of the legal profession. Territory in which they have their The occasion signifies something else principal practice. Making announcements that is equally important. It signifies of that kind in this Court at the the relationship between Bench and commencement of law term came about Bar, which is part of our legal and with the development of a national bar. As constitutional inheritance. You have all in most federations, the legal profession been admitted to practice as officers of is organised and administered primarily a State or Territory Supreme Court. By on a State basis, but arrangements for virtue of that admission federal legislation reciprocity of admission and recognition entitles you to practice in federal courts. of status mean that there is now a high In whatever courts you appear, State or degree of mobility between jurisdictions. Federal, your overriding duty as advocates Appointment as Senior Counsel has is duty to the court. The courts depend for never been regarded in any Australian their capacity to administer justice upon jurisdiction as something to which a your skill and integrity. is entitled simply by reason In our legal system, most judges are of durability. It is a formal recognition appointed from the ranks of experienced of the professional standing of those legal practitioners. The professional whose learning, skill and ability have strength and independence of spirit come to be regarded by their peers, and of the Bar sustains the strength and by the relevant appointing authority, independence of the judiciary. as warranting such a distinction. The appointment as Senior Counsel carries You have now reached a milestone in your with it substantial responsibilities as well professional careers. You are faced with as privileges. You now occupy a position new challenges and new opportunities. of leadership in your profession, and Some of you have been accompanied on your conduct will be taken as an example this occasion by members of your family by your juniors. Solicitors, members of and friends. The Court is delighted to the public and courts will place special welcome their participation in this happy reliance on your ability and, as a rule, the occasion. I trust that each of you will find work that you will be given to do, and personal and professional satisfaction the cases you will conduct, will be more in your new rank. Thank you for the onerous. courtesy you have shown in informing the Court of your appointments.” Most of you in Court today, and all of us on the Bench, have travelled to be here. Some of you have travelled a long way.

3 I shall have to seek that advice with NEW SILKS trepidation from Chief Justice Gleeson All those who took Silk since the about his colleague – or colleagues – who commencement of 2004 are set out below. will also be travelling to Dublin – whether AUSTRALIAN CAPITAL TERRITORY their interests will be in antiques in BLOWES S.C. Robert Francis Street; or the bookshops of MEAGHER S.C. Bryan Grafton Street; or the pubs of Temple Bar WESTERN AUSTRALIA or a Jamieson Whisky tasting. BEECH S.C. Andrew Armed with this intimate information CALCUTT AM S.C. Gregory DONALDSON S.C. Grant I will have no fear in confronting any RITTER S.C. Mark stringer the Australian Newspaper sends SHANAHAN S.C. Christopher to Dublin. Your Excellency and Mrs Jeffrey – thank KERR S.C. MP The Hon Duncan you for joining us tonight – we regard it as TREE S.C. Peter a special privilege that you have done so NORTHERN TERRITORY BARR QC Peter this year and last year. COX QC Suzan You can feel at home tonight amongst WEBB QC Raelene some fellow Western Australians who NEW SOUTH WALES have travelled to this foreign place to take ANGYAL S.C. Robert their bows as new Silks – shepherded so BAILEY S.C. Ian well by Western Australia’s first female Bar BURTON S.C. Gregory Hon Ian Viner AO QC CHAPPLE S.C. Keith Association President, Gillian Braddock, COLEFAX S.C. Andrew S.C. – whom I am so pleased has taken DAVENPORT S.C. Carolyn that position. DEMPSEY S.C. Mark DUBLER S.C. Robert Speech Given by the I remember well the leadership, when DURACK S.C. John Governor of Western Australia, your FREARSON S.C. David Hon Ian Viner AO QC at the Excellency gave to the Aboriginal HAESLER S.C. Andrew 2005 Silks Dinner in the Reconciliation movement and I have HAMILL S.C. Peter HARPER S.C. Robert Great Hall of the High Court noted, on the eve of Australia Day your HOWARD S.C. Daniel continuing acknowledgement and support MAHONEY S.C. Phillip of Australian in Canberra on of reconciliation. McCULLOCH S.C. Mark Monday 31 January 2005 From the Head of State, if I may say so, McEWAN S.C. Christopher NEEDHAM S.C. Jane it was a timely reminder, at the heart ROBSON S.C. Jonathon of Australia, Uluru, that reconciliation RONALDS AM S.C. Christine Your Excellency the Governor General should still be a significant national social SMITH S.C. Gregory policy objective. SPEAKMAN S.C. Mark and Mrs Jeffrey, Attorney General Phillip WHITE S.C. Simon Ruddock and Mrs Ruddock, Chief Justice At Western Australian universities there WHITFORD S.C. Peter Gleeson and Mrs Gleeson, Justices of the are now 54 Aboriginal law students QUEENSLAND High Court and other Courts, Fellow Silks which reflects a sea-change in indigenous CALLAGHAN S.C. Peter and colleagues at the Australian Bars, tertiary education. CAMPBELL S.C. Douglas Guests It is a far-cry since 1976 when, as Minister DALTON S.C. Jean DERRINGTON S.C. Roger The retiring President, Ian Harrison S.C., for Aboriginal Affairs, I was acutely aware KEIM S.C. Stephen has welcomed you all here this evening. that the late Charlie Perkins was the only MARTIN S.C. Ross May I add my warm welcome and my Aboriginal university graduate; yet his MURPHY S.C. Peter influence on public affairs was great. PERRY S.C. Richard warm congratulations to the new Silks who have taken their bows today. Senator Neville Bonner was the SOUTH AUSTRALIA PERRY QC Melissa When Ian Harrison rose to speak I was lone Aboriginal politician in the PYKE QC Maurine worried he would leave us bewildered by Commonwealth Parliament in my time. VICTORIA a speech in Italian just to show us that his A wonderful man. A person of immense ALLEN S.C. Duncan magnificent Italian oration in the Palazzo influence on the whole Parliament, not COLLINSON S.C. Peter only his Prime Minister and Party. DAVIES S.C. Jennifer Vecchio in Florence last July was no fluke. ELLIOTT S.C. James Thankfully, tonight, we could understand I look forward to the time when there ELSTON S.C. Raymond every word! will be many indigenous barristers MACLEAN S.C. David representing their peoples and arguing McGARVIE S.C. Richard As English is the lingua franca of this their causes before the Australian McGOWAN S.C. Glenn evening I will take the opportunity to Courts. It will, I am sure, bring about a PULLEN S.C. Susan speak in a dialect which should be well SACCARDO S.C. Francis transformation of public and, I suspect, WHEELAHAN S.C. Michael understood by this audience - plain judicial thinking which will extend english. beyond the contemporary influence of I am not sure what I am going to do in native title law. Dublin for the June 2005 ABA / Irish Bar Encouragement of indigenous barristers Conference. I will have to take advice deserves the support of the Australian Bar from the master of linguistics himself. Association and all the individual bars. I will also have to take other advice to I hope it is something we can all take an ward off disruptive influences. increasing interest in.

4 In 2003 the Centenary of the High Court When Sir Francis established the Bar Sam Hay summarized common themes of Australia was celebrated. As part of the it was called “the Independent Bar.” (including the slowness of solicitors to celebration the High Court, together with Somewhat of an anachronism many pay!) in this way: the Australian Bar Association, sponsored would think. But the Bar was created “It was interesting to learn that such the 2003 High Court Art Prize. The results out of a fused profession. It was diverse bars all have similar challenges. hang in this Great Hall. deliberately described in that way because It seems that no matter which part of “independence” is the hallmark of a The winning painting hangs on the East the world you practice in,… government Bar and the fundamental attribute of a Wall. It is a profoundly expressive piece competition authorities have the bar in barrister. by Lockhart River Art Gang artist Rosella their sights, and the executive government Namok symbolising the coming together In recent years The Common Law Bars is trying to limit the scope of judicial of traditional law and Australian law. have been under pressure around the intervention in the name of “national world by regulators and governments. security”. Namok’s painting is therefore an inspired It is strange, I think, that this should be The Australian Bar Association will be choice of banner for the Association’s new so, when the rule of law is included as a vigilant, I can assure you, to protect the website which I am pleased to announce fundamental of democracy by those who independence of the Australian Bars and tonight. express a desire to extend democracy active at the international level to help to the world in place of tyranny and If anyone is interested in looking at the other Bars under challenge. history of the High Court on display in terrorism. Because the independence of a the Great Hall they will see a picture of group of advocates before the Courts who The additional threat which the young the opening of the High Court building by are prepared by training, profession and barristers identified was the problem of Her Majesty Queen Elizabeth II on 26 May history to fearlessly stand up for the rights attracting and retaining the “best and 1980. If they look closely they will see a of citizens and to stand between the State brightest” of the younger generation young Ian Viner there, accompanied by and the individual lies at the very heart, – competing with “high flying” careers his young and beautiful wife, Ngaire; Ian like Uluru is to the Australian continent, elsewhere and the attraction for many with a vigorous full head of hair. of the rule of law. top young professionals to choose roles which allowed them to work overseas. That is as long ago as the Attorney and I No democratic government should be All Bars identified ongoing professional were Parliamentary colleagues. He is now afraid of the independence of the Bar or of training as a must in order both to Father of the House. I am only grandfather the independence of the Judiciary; they go maintain the attraction of the Bar as a of 14 children. He is the one who now has hand in hand. professional career and the highest skill the fine head of silvery hair. Democracy survives and prospers when levels and competitive edge of barristers as advocates and advisors. Nevertheless, it is a personal pleasure that the two survive and prosper. Recognising this the Australian Bar the Attorney’s continuing parliamentary The Australian Bar Association is a Council has resolved to establish an career and my professional life should member of The Forum for Barristers Australian Bar Advocacy Training have crossed again and that Phillip and and Advocates whose members are Council to strengthen this objective on a Heather should be here tonight. Thank independent Common Law Bars including national basis. you for coming. South Africa and Zimbabwe. Ladies and gentlemen, at the start of I look forward to a fruitful relationship as The Forum’s Second World Conference another legal year when many national matters arise on which you will need to was held in Cape Town in April 2004. and private legal issues will hit the consult the Association or you may wish headlines; in which, I expect, many here to seek its counsel or assistance. On the eve of the 10th anniversary of the new South Africa it was a moving tonight will be involved may I wish you I will have an open door and our members and remarkable experience to listen to all an engrossing year of professional will be ready to respond. and rub shoulders with barristers who life and, I hope for all the new Silks, a suffered under apartheid because of their rewarding experience. The Australian Bar Association is a very professional independence and political Take time off, if you are able, to join us at important part of the Australian legal association; were jailed, ostracized and the Dublin Conference in June this year profession, representing 5,000 barristers. exiled and some whom even an apartheid and look ahead also to the 3rd World The Australian Bar is, today, a truly government were afraid to attack; and Conference of the Forum for Barristers national profession as Chief Justice those who have survived and carry, not and Advocates to be held in Hong Kong Gleeson remarked this afternoon when bitterness, but an abiding belief in the in 2006. welcoming the new Silks. strength of the independence of the Bar For the remainder of this evening - as On 8 September 2004 Sir Francis Burt the and the superiority of the rule of law. we heard it said so often in Cape Town 11th Chief Justice of Western Australia It was no surprise then that the session – please enjoy. Or when in Florence, died. He was my Principal. I was his last which commanded great interest was that (divirtirsi – dee-ver-teer-see - enjoy). Articled Clerk. He was the founder of the of the young barristers and what they saw Ian Viner, AO QC Western Australian Bar. as the future of the Common Law Bars. President, Australian Bar Association On 1 March 1961 he announced to the Sam Hay of the Victorian Bar was one of Supreme Court of Western Australia he the four speakers. would henceforth practice solely as a barrister. That is still the public statement Independence was the common made by members of the Western nomination of what was fundamental Australian Bar to mark their independence to their futures and the threats to that as barristers. independence were a common experience.

5 and it is vital to our justice system that At the Silks Dinner in judges are able, without question, to hold Canberra the Hon Justice the utmost confidence in the integrity and character of each advocate appearing before Michael McHugh AC proposed the courts. As such, each advocate carries the toast to the new Silks. The a significant burden. This burden is then following is an extract from magnified for those advocates achieving the rank of silk, who are expected to the speech given by McHugh J. lead by example and to discharge these responsibilities to the fullest possible extent. Thank you Mr President. Being granted the status of silk is certainly Your Excellencies, Chief Justice, Mr a considerable personal achievement and Attorney, ladies and gentlemen, on cause for celebration. At the same time behalf of the Justices of the High Court, I however it is more than just a personal welcome you to this dinner, given by the accolade and reward. It brings with Australian Bar Association, to mark the it responsibility for maintaining the appointment of the Nation’s new silks. distinguished tradition and expectation of Being appointed silk means becoming both service and leadership that has been Michael McHugh AC part of a tradition dating back 400 years. central to the institution for hundreds of Over the past decade, significant changes years. to this tradition have occurred. Various It is particularly encouraging to see jurisdictions have replaced the title of increasing numbers of women now being Queen’s Counsel with Senior Counsel, appointed to the ranks of Senior Counsel. discontinued the issuing of a Queen’s Nine of the 48 silks who took their bows Commission and removed the powers of today were women. Such appointments the Executive in the appointment process. were simply unthinkable for a long period The significance of the institution of of time. It was not until 1949 – nearly silk, however, has not diminished, and 350 years after the institution was first the values it embodies remain just as established – that a woman was appointed important in the 21st century as at any as a King’s Counsel at the English Bar 2. time in its history. It was not until 1962 that Dame Roma The Governor-General being greeted by Mitchell was appointed as the first female Harrison S.C. The institution of silk formally dates back to 16041. Initially, Kings Counsel Queen’s Counsel in Australia. Two years were bound by oath not to accept briefs then passed before Joan Rosanove was against the Crown. By the 18th century appointed Queen’s Counsel in 1964, 46 the institution had evolved to a class of years after she had signed the Roll of counsel simply given precedence and a Counsel of the Victorian Bar and eleven rank superior to that of ordinary counsel. years after her first application for silk. Today, the appointment of Senior Counsel The very idea of women practising at provides a clear and public identification the Bar initially met great resistance. of those barristers whose skills, legal Fortunately, much progress has been experience, and personal qualities mark achieved since the 1870s when the them out as being the best within the Wisconsin Supreme Court rejected Miss Harrison S.C. legal profession. As the Chief Justice Lavinia Goodell’s application for admission pointed out today, it is a recognition to the Bar, saying: of professional eminence, with those “Nature has tempered woman as little for achieving the rank being identified the juridical conflicts of the court room, as by their peers as leaders in the field of for the physical conflicts of the battle field. advocacy. For the public, it is a mark of Womanhood is moulded for gentler and excellence and of a continuing expectation better things.”3 that an individual will consistently Still, the appointment of women as perform to the highest standards. These Senior Counsel remains the exception expectations are not limited to the not the rule. While over half the students exercise of legal skills. graduating from Australian law schools “Junior Silk” Jane Needham S.C. Furthermore an advocate, as an officer and approximately half of those entering of the court, is central in assisting in the the legal profession each year are women4, administration of justice according to law numerous studies and articles show that and in upholding the rule of law. As the females continue to be under-represented Chief Justice also pointed out, there is a in the senior echelons of the Australian significant level of trust placed by judges legal profession5. For example, in my home in the advocates appearing before them, State of New South Wales only 14.7% of

6 Their Excellencies with Chief Justice and Mrs Gleeson, The Attorney-General and Mrs Ruddock and Silks Dinner 2005 members of the Australian Bar Council. barristers, and 3% of the senior Bar, are asserted that the best person for the job (Footnotes) women6. Similarly, research conducted should be appointed without any regard 1 Merralls, “Some Marginal Notes about by the Law Society of New South Wales being given to factors such as gender. Queen’s Counsel”, (Winter 1994) 89 Victorian Bar News 51. in 2002 found that approximately 13% The argument that appointments should 2 Mrs Helen Normanton and Mrs Rose of partners in law firms were women and be based purely upon merit becomes Heilbron were the first two women to be that the salaries of female solicitors were, problematic however when systemic appointed King’s Counsel at the English Bar. on average, 82% of the salaries earned by and structural discrimination places Both were appointed in 1949. See Derriman, male solicitors 7. female lawyers competing on “merit” at a Pageantry of the Law, (1955) at 59. disadvantage10. 3 In the Matter of the Motion to Admit Miss This under-representation is clearly Lavinia Goodell to the Bar 39 Wis 232 (1875). apparent when we look at counsel In considering the question of judicial 4 Davis and Williams, “A century of appearing before the High Court. No appointments it is important to keep in appointments but only one woman”, (2003) female advocate actually had a “speaking mind that the legitimacy of the judiciary 28(2) Alternative Law Journal 54; Law Council of Australia, 2010: A Discussion part” before the High Court until rests upon the support and confidence Paper: Challenges for the Legal Profession, Joan Rosanove appeared in 1938 in the of the Australian people. The continued (2001) at 18, 132; Law Society of New South well-known case of Briginshaw 8. Justice failure to appoint a qualified female Wales, After Ada: A New Precedent for Kirby has noted that in his first eighteen to our highest court runs the risk of Women in Law, (2002) at 7. months on the High Court bench he slowly eroding that support. Over time 5 See, for example, Law Council of Australia, 2010: A Discussion Paper: Challenges for the heard over two hundred barristers argue a court that does not reflect the diversity Legal Profession, (2001); Law Society of New their cases, but heard only six women of society at large, that is denied the South Wales, After Ada: A New Precedent for advocates 9. While the number of women potentially distinctive perspective that a Women in Law, (2002); Taylor and Winslow, female Justice may bring to the law and “A statistical analysis of gender at the NSW advocates appearing before the High Bar”, (Winter 2004) Bar News 20 at 20; Court is increasing, it is occurring at that is socially and culturally homogenous Victorian Bar Council, Equal Opportunity for an extremely slow pace. For example, in its male membership may not retain Women at the Victorian Bar, (1998). in the year 2002-2003 the percentage public confidence 11. 6 Taylor and Winslow, “A statistical analysis of of women with “speaking parts” before gender at the NSW Bar”, (Winter 2004) Bar This is one of the reasons why it is so News at 20. the Full Court (including special leave important to encourage women to embark 7 Law Society of New South Wales, After Ada: applications) was less than 9% of all upon a career at the Bar and to apply for A New Precedent for Women in Law, (2002) advocates with “speaking parts” over appointment as Senior Counsel. The Bar in at 6, 35. that period. A quick examination of the general, and Senior Counsel in particular, 8 Joan Rosanove appeared as junior counsel High Court Register of Practitioners have traditionally been the source of in Briginshaw v Briginshaw (1938) 60 CLR demonstrates that this trend looks set to 336, and was recorded as having addressed judicial appointments. Necessarily, as long the High Court, although only briefly. See continue in the near future, with less than as they remain the principal sources of Blackshield, Coper and Williams, The Oxford 7% of senior counsel on the Register being judicial appointments, a limited number Companion to the , female. of female Senior Counsel is likely to mean (2001) at 722. a limited number of female judges and 9 Kirby, “Women Lawyers – Making a The under-representation of women Difference”, speech delivered to the Women within senior legal ranks is also reflected Justices. Female silks are also important Lawyers’ Association of New South Wales, 18 within the judiciary. The most obvious role models for other women in the legal June 1997. example is the lack of any female profession. This can be seen in the clear 10 McHugh, “Women Justices for the High representation on the High Court bench influence that women such as Dame Roma Court”, speech delivered at the High Court Dinner hosted by the Western Australia Law following the retirement of Justice Mitchell and Joan Rosanove have had on Society, 27 October 2004. Gaudron and the fact that since its the women who followed in their paths. 11 McHugh, “Women Justices for the High establishment in 1903 she remains the Mr President, as the then President of the Court”, speech delivered at the High Court only female appointed to the High Court. Australian Bar Association, I presided over Dinner hosted by the Western Australia Law Society, 27 October 2004. This contrasts with other jurisdictions the first dinner given by the Association such as the United States, Canada, New to mark the appointment of the nation’s Zealand, India, , Ireland and new silks. It therefore gives me especial England, all of whom currently have one pleasure, in attending this dinner for the or more women appointed to their final last time as a Justice of the High Court, to appeal courts. propose the toast to this year’s new silks. Is this something that we should be Ladies and gentlemen, I propose the toast concerned about? After all, it is commonly – the new silks.

7 Sir James Dowling was the third judge colonial courts and a brief biography of Tracing Civil to be appointed to the New South Wales the judges to provide further context Supreme Court in 1828, and became to the cases contained in the volume. Society and the its second Chief Justice in 1837. Born Many of Dowling’s cases have in humble circumstances in Dublin, contemporary significance, particularly Rule of Law in he owed his appointment to his merit in such areas as the restraint of executive as a barrister and accomplished law and judicial power by the use of Australia reporter in London, rather than wealth prerogative writs and damages claims, the or family connections. Initially trained development of jury law in Australia, or as a journalist and parliamentary the application of libel law and its effect ö reporter, Dowling had the keen eye of upon newspapers and the right to free a judicial naturalist for observing and speech. Other cases have an intrinsic recording the differences between life historical value in showing how the T.D. Castle and and the law as it existed in New South Supreme Court established the rule of law Wales – which then comprised most of Bruce Kercher 1 in Australia from such diverse areas as mainland Australia – in contrast to that negligence in relation to carriage accidents which he knew at Westminster Hall. and warranties of soundness in relation Australia embodies one of But Dowling, and his fellow judges to the sale of horses, to the regulation of the great modern historical were not merely observers, but actively bills of exchange and the administration contradictions. How did a participated in the process of shaping of early insolvency law. And other cases society which began as a jail a distinct Australian common law. One provide an insight into the workings of of their primary “duties”, identified by colonial society and the convict system. and dumping ground for British Blackstone and confirmed in s.24 of the The latter led to a particularly rich criminals, transform itself into Australian Courts Act 1828, 9 Geo. 4 c. 83, stream of independent legal thinking. a modern, sophisticated, free was to determine which parts of English In his Foreword to the volume, Spigelman society fundamentally based law should be accepted and which rejected CJ has written: “The cases reported here upon the rule of law? And exactly to suit the conditions of the colony. apply legal principles and manifest a style what role did lawyers and the Reproduced in a single volume, Dowling’s of reasoning of which we are the direct Courts play in assisting this Select Cases 1828-1844 contains 465 inheritors today. Many of the principles transformation? The answers cases selected by Dowling (from the have not changed at all. Many of the many thousands of cases that he heard cases would be decided in exactly the to some of these questions during his sixteen years on the bench) same way. The cases manifest, however, may be found in a volume for publication as Australia’s first set of one abiding theme: the omnipresence of published in March, Dowling’s law reports. These cases were contained continuity and change.” The continuing Select Cases 1828 to 1844. in nine manuscript notebooks that relevance of the inherent jurisdiction of have remained virtually untouched, in the Supreme Court, dating back to its If you would like a copy please state archives, for the past 161 years. establishment in 1824, was confirmed by contact: The Francis Forbes What these cases illustrate is the way the High Court last year in A Solicitor Society for Australian Legal in which a distinct Australian common v The Council of the Law Society of History, Ph: (02) 9232 4055. law was developed by the judges, as they New South Wales [2004] HCA 1. adapted English law to the reality of the The publication of this volume is the customs and expectations of daily life latest in a series of projects of The as it was lived in colonial Australia. 1 Tim Castle is a barrister at Seven Francis Forbes Society for Australian Wentworth Chambers who specialises in Over three-quarters of the cases selected Legal History, founded in 2001, and has commercial law. He is also member of The by Dowling involve civil matters, and been carried out in conjunction with Council of Law Reporting for New South span the full spectrum of legal issues. We The Council of Law Reporting for New Wales and a Research Fellow at Macquarie have arranged these cases into twenty-two South Wales and Macquarie University. University Division of Law. Bruce Kercher is a Professor of Law at Macquarie University, broad subject classes from Aboriginals Order forms to purchase a copy of whose principal research interest is in to Wills, Probate & Administration. We Dowling’s Select Cases 1828-1844 can colonial legal history. He has published have also verified the authorities cited, be obtained from the website of the two books and numerous articles on legal and included references to the English Forbes Society at www.forbessociety. history, as well as several websites of Reports, which were published after org.au. We particularly commend this colonial cases. Dowling’s death. The Table of Statutes, volume to practitioners interested in for example, shows the extent to which understanding more about how the early law received in Australia dates rule of law evolved in Australia, as well back in some cases to laws passed in as to students of Australian colonial the reign of Edward I in 1285. We have history and legal history generally. also provided, in the Introduction, a description of the operation of the Continued next page.

8 For the enjoyment of all readers, we have as costs out of pocket, unless it be made man of honor and character fit to hold set out on the following pages, one of the to appear that there has been fraud or the important office of an attorney decisions, which concerned a challenge collusion. It is difficult to lay down any could be expected to consult his client to the reasonableness of Counsel’s fees. precise rule upon a matter of this kind. upon a nice calculation of pounds, We suspect that there would be few An attorney is no doubt an agent for shillings or pence, what fee ought to barristers in 2005 who would disagree his client for the faithful, honest and be given to his counsel in the progress with the sentiments expressed by Dowling zealous protection of his rights and of a suit, whether civil or criminal. CJ, Burton and Stephen JJ in 1844 in interests, and being more competent from There has been no impeachment of the case of Clarke v Fitzhardinge, cited his professional knowledge to judge of the integrity and good sense of the as (1844) NSW Sel. Cas. (Dowling) the merits of his client’s case than the learned Prothonotary, but it was not 866, on a cost assessment in relation to client himself, he must be vested with a unfairly urged that he is new in office the reasonableness of counsel’s fees. sound discretion as to the fitness of the and was not in the Colony during the counsel to be retained and the measure criminal trials in which Mr Clarke ö of the fee to be given, not merely with and the other parties prosecuted with reference to the standing of the advocate, him, were involved. Two members of but the difficulty and importance of the the Court have judicial knowledge of Thomas Clarke v. interests committed to his charge. the length, difficulty and fatigue of The Court cannot however, recognize the those trials and it is possible that if our W.G.A. Fitzhardinge broad principle that there is to be no limit learned officer had been a spectator of to the discretion to be exercised by the the talent, learning and untiring zeal An attorney is vested with a sound attorney in the amount of fees to be given, of those who brought the proceedings discretion as to the fitness of counsel because it might be carried to an injurious to a favourable issue for Mr Clarke and to be retained and the measure of the if not ruinous extent and it would be the other gentlemen implicated, he fee to be given, which ought not be impossible to say where it must stop. The might have been disposed to relax the struck off his bill of costs unless it is safer rule to guide him is the discretion stringency of taxation of a bill placed outrageous or plainly extravagant.* which he would exercise were the case before him for cold calculation without his own, having regard to the magnitude a leaving impression of the substantial This was an application to the Court of the interest at stake, the weight and merits of the work done and performed to order the Prothonotary to receive standing of the advocate and the probable or the vital importance of that work his taxation of Mr Fitzhardinge’s bill difficulty and labour to be imposed in to the client. We cannot help thinking of costs against Mr Thomas Clarke, the effective advocacy of the matter in therefore that with this intimation his as between attorney and client in issue. If an attorney has with reference to taxation of the bill may be reviewed and about divers matters in which these considerations paid bona fide out in a more liberal spirit without he was employed professionally. The of his own pocket fees to counsel to an violating the conscientious desire of Prothonotary having reported to the amount perhaps startling to a successful doing right, which it is conceded on Judges the principle on which his taxation client in the fair protection of that client’s all hands it has been his disposition was founded, the motion for a review interests, whether savouring of safety to manifest. Unless therefore the fees was discussed at great length in the against ignominious punishment, or loss bona fide paid out of pocket to counsel early part of the term, when the Court of character or privation of property, we by Mr Fitzhardinge be outrageous or reserved its decision and now Sir James cannot but think that it would be the extravagant, we think this part of his Dowling C.J. delivered judgment. height of injustice to suffer him to be at taxation may with justice be reformed. The Court. We have fully considered the loss. It is, we think, a sound principle Having then disposed of the prominent the matter of this application and to lay down, that payments so made by objection to the principle of the are of opinion that the rule must be an attorney on his client’s account ought Prothonotary’s taxation, we are now to made absolute for referring it to the not to be struck off his bill of costs, advert to smaller matters. We perceive Prothonotary to review his taxation. The unless they are outrageous or plainly that the Prothonotary has disallowed main objection to the Prothonotary’s extravagant. With this limit, that he is a fee of £5.10 paid by Mr Fitzhardinge taxing the bill submitted to him, was that to be left to the exercise of such liberal to a gentleman at the bar, for attending he had disallowed large sums of money discretion as would guide him in his a meeting of creditors to advocate actually paid out of Mt Fitzhardinge’s own case, we think he ought not to be the interests of Mr Fitzhardinge’s pocket to counsel as fees, on the ground fettered by a niggard review of his bill at clients, but which he did not attend. that they were not sanctioned by the the instance of a client, who is perhaps client and it was broadly contended that from his own habits of life and pursuits, Continued next page. this was an unjust principle, for that an incapable of appreciating the learning, attorney has an unbounded discretion the ability and zeal and labour of his in determining what amount of fees he advocate. There may indeed be cases in will or will not give to counsel for the which it would be prudent for an attorney conduct of his client’s case, and that he to take the express directions of his client has in the taxation as between himself when an unusually large fee is proposed and his client a right to be allowed them to be given, but in ordinary cases no

9 Continued from previous page. The Prothonotary has disallowed several The charge for costs made by Mr fees for consultations with counsel, on Fitzhardinge in the cases of Mrs That matter has been satisfactorily the ground of being unnecessary in his Campbell, Mr W.P. Gordon, Mr Lockyer explained to the Court. It appears that judgment, having been held on matters and Mr Scrutton have been disallowed a brief with the fee in question was left of minor import or on points where the on the ground that they were incurred with the barrister, who distinctly told knowledge of a skilful practitioner ought without retainer and contrary to Mr Fitzhardinge that if he left it he must to have been sufficient. The Court goes instructions from Mr Clarke. Retainer or do so at the peril of his being unable to along with the principle laid down by the no retainer in these cases (in the absence attend during the sittings of the Supreme Prothonotary that it is a highly important of any proof before the Prothonotary) is Court then going on; but that he would part of the duty of an attorney to save a question of fact to be determined by prepare himself to attend the meeting of his client every possible expense; yet if trial. It is no doubt a question within creditors and would attend if he could. consultation fees have been bona fide paid the province of the Prothonotary to It so happened that he could not attend (and are not exorbitant) in the progress determine, but in case of doubt like and another gentleman appeared, but of a pending case of deep importance to a the present, we think Mr Fitzhardinge the attorney took the chance of the client charged with fraud and conspiracy, ought to be left to his action to establish other barrister being able to attend. The it may be difficult after the proceedings Mr Clarke’s liability under these heads. brief had been read and the counsel had are ended to determine whether such It was suggested that in taking his prepared himself to attend if he could. consultations were really necessary or taxation the Prothonotary had by mere Under such circumstances we are not judicious. The client entrusts his interests miscalculation disallowed or overcharged aware of any professional rule which to his attorney and if the attorney bona Mr Fitzhardinge with £20. If this be so, it required the fee to be returned and fide thinks it expedient to consult will be a matter of easy adjustment when therefore we think this disbursement counsel, and has in fact paid money out the bill comes again before that officer. ought to have been allowed on taxation; of pocket, it would indeed be paid upon With these observations the Prothonotary but at the same time we cannot forbear him to be at the loss. In reviewing this will review his taxation, the costs of which strongly discommending the principle part of the bill, the Prothonotary will will abide his final report. of leaving a brief and paying a fee be guided by a more liberal view, and on the contingency of the barrister endeavour if he can to avoid exception being unable to attend. It is not only on the score of strict severity of taxation. injurious to the client but unfair With the remaining parts of the towards other gentlemen at the bar. Prothonotary’s report we can find no fault.

SUNCORP SPONSORSHIP BOOSTS NATIONAL CONFERENCE

A host of leading international speakers Trinity College, Judge John Cooke (Cour have been secured for the Joint Irish and de Justice Des Communautés Européenes) Australian Bars Conference thanks to a and the Hon. Mr Justice McMeniman, High $55,000 sponsorship from SUNCORP. Court of Ireland. The Australian Bar Association Vice “It provides an excellent opportunity for President Glenn Martin S.C. said the our members to hear from people who are sponsorship would ensure the 2005 at the cutting edge of our profession and Conference to be held in Dublin between to cement relationships with international 29 June and 2 July, 2005 would be the best barristers,” Mr Martin said. to date. SUNCORP has been supporting the “Thanks to the SUNCORP sponsorship Australian Bar for well over 10 years we can bring a high calibre of speakers to and this sponsorship continues their the Conference and develop a programme commitment to the Australian Bar. which will make this an extremely valuable SUNCORP provides a range of services Attending the $55,000 Suncorp cheque event for all participants.” to the Australian Bar including endorsed handover were (from left) – Glenn Martin S.C., income protection and superannuation ABA Vice President and Conference Chair; Apart from Justices McHugh and Heydon Peter Steele, Suncorp Senior Consultant; and from the High Court, speakers will include schemes, professional indemnity, Life Steve Mitchell, Suncorp Business Development the Hon. Dame Heather Hallett, from the Insurance, Chamber Insurance and a Manager. High Court of England and Wales; the commercial Barrister’s package. Hon Lady Smith, of the Court of Session, Peter Steele, Director of Medico Legal Scotland, Michael McDowell TD, Irish Group Pty Ltd and a Senior Consultant Minister for Justice, the Attorney General with SUNCORP said that his team was of Ireland, Rory Brady S.C., Professor working on other products specifically William Binchy, Regius Professor of Law, tailor to the needs of the Australian Bar.

10 World Conference of Advocates and Barristers Hong Kong and Shanghai • 15 – 19 April 2006

The International Council Very successful conferences have already been held in Edinburgh and Cape Town. of Advocates and Barristers Those who have attended have had the will be holding its third benefit of hearing from a wide range of speakers such as Mary Robinson UN world conference in Commissioner for Human Rights, the Hon. Anthony Gubbay (the former Chief Justice Hong Kong and Shanghai of Zimbabwe), Param Cumaraswamy, UN from 15 to 19 April 2006. Special Rapporteur on the Independence of the Judiciary, Justice Ian Callinan (High The International Council of Advocates Court of Australia), and Justice Dikgang and Barristers is an organisation formed Moseneke (Constitutional Court of South by the Bar Associations in jurisdictions Africa). Speakers of similar calibre will where there is a separate profession of participate in next year’s conference. an independent referral Bar. Its members DETAILS: are currently the Bar Associations of Date 15 to 17 April, 2006 Australia, England and Wales, Hong Kong, Place Hong Kong the , New Zealand, Venue Island Shangri-La Hotel, Northern Ireland, Scotland, South Africa Hong Kong and Zimbabwe. The objects of the Council Date 19 April, 2006 include the promotion and maintenance Place Shanghai of the rule of law and the effective Venue Pudong Shangri-La Hotel, administration of justice. Its focus falls on Shanghai matters particularly important to the Bar worldwide, including: regulatory issues, When further conference details better training for the profession, and are available they will be posted at strengthening the independent Bar as a www.worldbaronline.com prerequisite to an independent Bench.

Should you wish to receive a registration brochure before they are generally released please send your contact details (including an e-mail address) to: World Bar Conference Secretariat Level 5, 107 North Quay 4000 Tel 617 3238.5100 Fax 617 3236.1180 E-mail [email protected]

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