THE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2019 9 barTHE JOURNAL OFnews THE NSW BAR ASSOCIATION | WINTER 2019 news THE JOURNAL OF NSW BAR ASSOCIATION | WINTER 201 bar A special edition on PRACTICE & PROCEDURE PLUS The future of the independent Bar in Australia Assessing early appropriate guilty pleas one year on CONTENTS THE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2019 02 EDITOR’S NOTE barnews 04 PRESIDENT’S COLUMN 06 OPINION The psychological impact of judicial work The incredible shrinking Bar EDITORIAL COMMITTEE ‘Us Too?’ – findings on bullying and harassment in the legal profession Ingmar Taylor SC (Chair) news Gail Furness SC 12 RECENT DEVELOPMENTS Anthony Cheshire SC Insolvency of corporate trustees Farid Assaf SC THE JOURNAL OF NSW BAR ASSOCIATION | WINTER 2019 Dominic Villa SC Liability of air carriers in negligence for psychiatric harm Penny Thew Determining a place of burial Daniel Klineberg bar Catherine Gleeson Protesting and the implied freedom of communication Lyndelle Barnett Moubarak by his tutor Coorey v Holt: The Court of Appeal permanently Victoria Brigden stays proceedings seeking damages for alleged historical child abuse Juliet Curtin Kevin Tang A fresh federal fight about political donations Belinda Baker The Bowraville Murders – Statutory exception to the double jeopardy principle Stephen Ryan Joe Edwards 25 PRACTICE & PROCEDURE Bar Association staff member: The Australian Bar – Change and Future Relevance Michelle Nisbet The role of the commercial bar in the mid–21st century ISSN 0817-0002 The future of the independent Bar in Australia Views expressed by contributors Tax – Where Laws Intersect to Bar News are not necessarily those of the New South Wales One year of early appropriate guilty pleas? Bar Association. A Clerk's View Contributions are welcome and Workers Compensation Commission – Past Presidents honoured should be addressed to the editor: Ingmar Taylor SC Amending a ‘surprising and unwelcome result’ Greenway Chambers Proceedings in the expedition list L10 99 Elizabeth Street Sydney 2000 Managing civil litigation – Federal Court style DX 165 Sydney The Role of Commissioners in the NSW Land and Environment Court Contributions may be subject to Obtaining leave to appear – NSW Civil and Administrative Tribunal editing prior to publication, at the discretion of the editor. Keeping Your Ex in the Dark – Applications without notice in Family Law Cover: Fairfax Media Work Health and Safety Dealing with cost and delay Child abuse – Liability of organisations 80 INTERVIEW Bar News is published under a Advocate for Change – Andrew Pickles SC Creative Commons ‘free advertising’ license. You are free to share, copy Diversity – Interview with the Hon Justice Kelly Rees and redistribute the material in any 82 NEWS medium or format. You must give appropriate credit, provide a link to 83 BAR SPORTS the license and indicate if changes 94 APPOINTMENTS were made. You may do so in any reasonable manner, but not in any 96 OBITUARIES & IN MEMORIUM way that suggests the licensor 102 REVIEWS endorses you or your use. You may not use the material for commercial 106 ARCHON'S VIEW purposes. If you remix, transform or 107 ADVOCATUS build upon the material, you may not distribute the modified material. 108 FURIES The Journal of the NSW Bar Association [2019] (Winter) Bar News 1 EDITOR’S NOTE Practice and Procedure A special edition While this might come as a surprise to our skin a rarity, and men were, well, only one way large and regular readership, the editor of inclined. Bar News is not normally inundated with Let me turn from the last edition to this one. correspondence. It is comparatively rare for an As our loyal readers can attest, I appreciate a edition to generate more than a single letter or special edition. Following in the mould of the note. As a result, those I do receive I cherish. excellent (and for many now well-thumbed) For example I remember fondly a letter special edition on Expert Evidence, the com- I received in response to Autumn 2018, a mittee decided to publish an edition focusing special edition on First Nations on the Bar, on Practice and Procedure. which the author described as bearing an This gave us a wide canvass to work with, overall theme of victimhood, containing and we have married together some wonder- descriptions of our world-enviable democracy ful pieces written by our leading jurists on as a ‘tyranny of the majority’, proselytising practice at the Bar today and tomorrow, with Marxist Gender Theory, and actually deriding more practical pieces ruminating on practice serving politicians. and procedure in specific jurisdictions which So you can perhaps understand why I was we hope will be of assistance to those who are pleasantly surprised by the reaction to our seeking to practise in those areas. last edition (Autumn 2019, We are the Bar, a Leading the charge are three wonderful special edition on Diversity). Instead of one pieces by Chief Justice Kiefel (The Australian or two well-meant missives, I received dozens Bar – Change and Future Relevance), Chief Jus- of notes, emails and phone calls commenting Bathurst CJ foreshadows tice Allsop (The Future of the Independent Bar on the edition. Beyond pointing out that the in Australia) and Chief Justice Bathurst (The fold-out Vanity Fair cover featured models the impact of technology ... Role of the commercial bar in the mid-21st cen- that in a couple of cases fell short of being presaging a time when ‘physical tury). The latter envisages the Bar of the future, entirely convincing as barristers, the response made up of counsel who are more empathetic was entirely positive. Amongst them I counted appearances in Court might and better listeners enabling them to obtain more than six personal notes from Supreme a greater familiarity with clients’ business Court Judges congratulating the committee. start to become a rarity’. environments and an understanding of what One Queensland Judge was so impressed he it is like to work in the particular industry. had an electronic copy forwarded to the entire omission came about as a result of the untime- Bathurst CJ foreshadows the impact of tech- Queensland judiciary. And the President of the ly if richly deserved appointment of Richard nology, going beyond online Courts to online Court of Appeal, Justice Andrew Bell (past Bar Weinstein to the Bench just as we reached our ADR and virtual appearances, presaging a News editor and a fine judge of a good cover) copy deadline. But I digress. time when ‘physical appearances in Court might invited the whole committee to drinks so that In Andrew Pickles’s interview he speaks of start to become a rarity’. the members of the Court of Appeal could his role as an Advocate for Change, being a On the practical side there is a fascinating thank them in person. prominent advocate for the LGTBI commu- examination of one the most significant pro- I have to say it was a good edition, for which nity. It reminded me of something I was told cedural changes in criminal law in NSW in substantial thanks must go to the Association’s by a Judge who came to the Bar in the early recent decades, the Early Appropriate Guilty Diversity and Equal Opportunity committee 90’s. He said that when he successfully applied Plea reforms. I am very grateful to Belinda who helped identify and curate many of the for readership at one of the Bar’s leading floors Baker who obtained views, one year on, from articles. What made it so good was that it (they would say The leading floor) he had been those best positioned to consider the impact revealed the stories behind members of the Bar careful not to reveal he was gay. He is certain of the reforms, including Chief Judge Justice – demonstrating what the Bar is like now and that if he had told them he would not have Price, DPP Lloyd Babb, Richard Wilson what it is becoming. It is a more inclusive place. been offered a readership. Deputy Senior Public Defender, and three I was pondering this while reading one of That anecdote is both outrageous and tell- defence counsel. articles for this edition, the interview with ing. Outrageous because that was barely 25 Further, there are a number of wonderfully Andrew Pickles. The interview addresses a years ago; telling because in today’s Bar such instructive pieces, such as Judge Scotting’s con- glaring omission from the last edition, namely attitudes are seen as prehistoric – a glimpse cise note as to how to approach a sentencing a substantial piece on LGTBI barristers. That into another era when women were novel, dark hearing in WHS matters, Penny Thew’s guide 2 [2019] (Winter) Bar News EDITOR’S NOTE to obtaining leave to appear before NCAT and Justice Sackar’s note on proceedings in the Equity Division’s expedition list. This edition also carries a number of other important articles, including a thoughtful piece titled The Psychological Impact of Judicial Work by Kylie Nomchong and Peter McGrath, which starts by identifying the shockingly high incidence of judicial bullying and goes on to examine what might be thought as the causes of such behaviour, leaving the reader all but convinced that Judges are human too. Another important article is Penny Thew’s piece summarising the International Bar Asso- cation’s findings on bullying and harassment in the legal profession. There are also a number of entertaining pieces, including a wonderful interview with Justice Kelly Rees, who is widely admired The August 2019 We are the Bar edition as a lawyer and a person. Her response to the opening question is worth the cost interesting collection of recent cases, going delle Barnett, for their contribution over recent of this edition alone.