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The Journal of the Nsw Bar Association | Spring 2017

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The Journal of the Nsw Bar Association | Spring 2017 barTHE JOURNAL newsOF THE NSW BAR ASSOCIATION | SPRING 2017 news THE JOURNAL OF NSW BAR ASSOCIATION | SPRING 2017 bar BN Cover Spring 2017 23Aug17 Final OL.indd 1 23/8/17 8:17 pm THE JOURNAL OF THE NSW BAR ASSOCIATION | SPRING 2017 Contents 2 Editor’s note Bar News Editorial Committee Jeremy Stoljar SC (chair) 3 President’s column Greg Burton SC 8 Recent developments Kristina Stern SC Anthony Cheshire SC 18 News Dominic Villa Bench and Bar Dinner 2017 Daniel Tynan Nicolas Kirby Bar Practice Course 01/2017 Daniel Klineberg Catherine Gleeson 22 Features Victoria Brigden Off with the wig Caroline Dobraszczyk Talitha Fishburn Mediation and advocacy Juliet Curtin Radhika Withana Southern-style justice Kevin Tang Charles Gregory Equitable restitution Uche Okereke-Fisher Beyond Bleak House Chris Winslow (Bar Association) 54 Address The art of advocacy: Sir Garfield Barwick, the radical advocate 61 Practice ISSN 0817-0002 The dvancedA Trial Advocacy Intensive Views expressed by contributors to Bar News are not necessarily those of the New South Wales Bar 62 Bar history Association. Contributions are welcome and should John Walpole Willis be addressed to the editor, Jeremy Stoljar SC. 8th Floor Selborne Chambers 66 Appointments 8/174 Phillip Street Sydney 2000 69 Obituaries DX 395 Sydney Bill Grant OAM Contributions may be subject to editing prior to publication, at the discretion of the editor. 72 Book reviews Cover: Portrait of the Hon Justice Gageler 76 Bullfry by Tomas Maceiras Prego Bullfry and the wasteland 78 Advocata Tempus fugit 80 The Furies Bar News is published under a Creative Commons ‘free advertising’ license. You are free to share, copy and redistribute the material in any medium or format. You must give appropriate credit, provide a link to the license and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. You may not use the material for commercial purposes. If you remix, transform or build upon the material, you may not distribute the modified material. Bar News : The Journal of the New South Wales Bar Association [2017] (Spring) Bar News 1 EDITOR'S NOTE Every now and then Bar News has the barrister’s work in mediations. opportunity to publish an important Geoffrey Watson SC has contributed piece of bar history. This issue’s article another excellent piece on legal history, by Sir Anthony Mason on the late Sir this one examining the version of justice Garfield Barwick is one such piece. meted out to Bob White, an African- It is not easy now to appreciate Barwick’s American accused of raping a white significance during his time at the woman in Texas in 1937. Jane Needham bar. These days the bar is much larger SC has a piece on succession law, with and more diversified. New chambers diversions into Dickens, Trollope and have opened up. Barristers practise Harry Potter. This issue also includes in different geographical areas and in an examination of the law of equitable different specialities. They don’t all know compensation for breach of confidence by each other. There is no one dominant Dr Peter Turner, with commentary by the figure, the way Barwick was. There may Hon Justice Mark Leeming. not be again. Since the last issue there has been a Barwick practised at the New South changing of the guard at Bar Council. Wales Bar from 1927 till 1958. He went Bar News thanks the outgoing president, on to become both attorney-general of Noel Hutley SC, for all his work during the Commonwealth and chief justice of his time in office. And we congratulate Australia. He died in 1997, aged 94 and thank the incoming president, Arthur Sir Anthony Mason knew Barwick well. Moses SC, on taking over the post and While still a law student he watched wish him the very best of luck in meeting Barwick on his feet in court. In due the challenges that will come his way. course he was briefed as Barwick’s junior Arthur’s inaugural column as president in many matters, as his article relates. appears on the next few pages. Through this article we can glimpse This will be my last issue as editor. I Barwick the barrister at work: confident, would like to thank all those who have eloquent, precise, extraordinarily contributed to Bar News over the years, efficient. Few lawyers have had so long most particularly the various members and illustrious career as Sir Anthony of the committee, past and present who Mason. He says of Barwick: ‘In my long have given so generously of their time. experience in the law he was the finest Bar News is the New South Wales Bar’s advocate I ever heard. This view was journal of record. It has been a privilege to widely shared.’ have been in charge for the last five years Elsewhere in this issue we look at the and to have served on the committee for important question of a barrister’s role quite a number of years before that. I wish in mediations. We are delighted to the incoming editor, Ingmar Taylor SC, include an address on this topic by the the best of luck in his new role. chief justice, the Hon T F Bathurst AC, Jeremy Stoljar SC entitled ‘Off with the wig’. Among other Editor things, the chief justice observes that in the light of recent decisions of the High Court it is unlikely that the conduct of a barrister in a mediation will be protected by the advocate’s immunity. David Ash has also contributed an article which examines comprehensively all aspects of a [2017] (Spring) Bar News 2 Bar News : The Journal of the New South Wales Bar Association PRESIDENT'S COLUMN The future of the New South Wales Bar: a time to reflect and act By Arthur Moses SC the New South Wales Bar is undergoing to work without an independent bar change. The policy dilemma for Bar does not explain the importance of the Council is that the bar might not be bar as an institution, which enhances the changing fast enough. Over the past administration of justice. On this issue, 14 years the total number of practising Chief Justice Mason stated: barristers in NSW has increased by only the adversary system can function 221. During this same period, the total without the establishment of an number of practising solicitors in NSW independent bar. Just how well it can has increased by more than 13,400. function is another question. 1 While the New South Wales Bar has not grown much, numerically speaking, Sir Owen Dixon, described by Sir it has grown older. Nearly one-third Anthony Mason as ‘Australia’s greatest of practising barristers are aged 60 or lawyer’, said the following, when sworn in over. Most of those are men. It is an as chief justice of Australia: aim of my presidency to recruit younger It is an honour and a privilege to be [B]ecause it is the duty of the practitioners and more women to the entrusted with the role of president of barrister to stand between the subject bar. This is vital to ensuring the New the New South Wales Bar Association, and the Crown, and between the rich South Wales Bar remains the largest and which I first joined in 1993 as a 24 year and the poor, the powerful and the strongest independent bar in Australia. old. I am mindful that I follow in the weak, it is necessary that, while the It is also an aim of my presidency to footsteps of giants of the New South bar occupies an essential part in the ensure that the Bar Association provide administration of justice, the barrister Wales Bar, including Tom Hughes QC, barristers with assistance in their practice should be completely independent Bret Walker SC and Ian Barker QC development and open up new sources of and work entirely as an individual, who have each mentored me over the work through engagement with in-house years. I look forward to working with my drawing on his own resources of solicitors employed by corporations. 2 colleagues on Bar Council to promote the learning, ability and intelligence. administration of justice and improve the The policy dilemma There are, of course, many good reasons practices of barristers. underpinning the observations of two of for Bar Council is that Australia’s greatest jurists. One reason is I acknowledge the service and dedication that having an independent bar facilitates of our former president, Noel Hutley the bar might not be the application of the cab rank principle, SC who has served on Bar Council since changing fast enough. which may otherwise be difficult, if not 2013 when we were both elected. At my impossible, to apply in the context of a first Bar Council meeting as president It is timely to reflect on why we exist as an ‘fused’ profession. on 11 May 2017, I moved that Hutley independent bar and note some of the SC and Justin Gleeson SC be awarded work that the Bar Council and our staff Barristers cannot pick and choose their life memberships of the Bar Association. under the leadership of Professor Greg clients and for good reason. Unpopular The motion was passed by universal Tolhurst is undertaking to assist the bar. I or offensive people or persons associated acclamation of the Bar Council. Gleeson spoke about some of these matters when I with unpopular causes would be left SC has returned to the New South Wales was invited to address the Tasmanian without representation in courts of justice.
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