CONTENTS Bar News The JOURNAL of the NSW BAR ASSOCIATION Summer 2002/2003 Editor’s note 1 Letters to the Editor 2 The Bali bombing 3 Recent developments Costs in criminal cases: Solomons v District Court of New South Wales & Ors 5 Exclusionary provisions under the Trade Practices Act 1974 7 Editorial Board Addresses Justin Gleeson S C (Editor) 2002 Maurice Byers Lecture 13 Andrew Bell Rodney Brender Norrish DCJ launches the SRACLS – Bar Association Pro Bono Scheme 20 Rena Sofroniou Bar profiles Ingmar Taylor Chris O’Donnell Working part-time at the Bar 23 Chris Winslow The Parramatta Bar – Definitely not the lost tribe 28 (Bar Association) Features Editorial Print/Production Expanded duties of barristers in damages cases 31 Rodenprint Liability of public officers 35 Centennary Bench and Bar 2002 38 Layout Hartrick’s Design Office Pty Ltd The war against terrorism: National security and the Constitution 42 Standard Minimum Sentencing 51 Advertising Opinion Bar News now accepts advertisements. For more Shoot the lawyers? 55 information, contact Practice Chris Winslow at the NSW Bar Association on Discovery before or after mediation? 56 (02) 9229 1732 or e-mail Professional conduct update 57 [email protected] Interviews Cover Karpal Singh 61 The barristers of the Parramatta Bar. The Hon Justice R P Meagher 69 Photo by Murray Harris. Personalia Justice Kishore Govind OBE 72 The Hon Justice Peter Jacobson 73 ISSN 0817-002 The Hon Justice Garry Downes AM 73 Views expressed by contributors to The Hon Justice Phillip Powell AM 73 Bar News are not necessarily those of the Bar Association of NSW. Book reviews 75 Vale Contributions are welcome and Peter Nygh 77 should be addressed to the Editor, Justin Gleeson SC, Charles Luland 77 7th Floor, Wentworth Chambers, 180 Phillip Street, Sydney, Adrian Philpot 78 NSW 2000. DX 399 Sydney Tim Ostin-Fitzgerald 79 or e-mail: [email protected] Circuit Food 81 EDITOR’S NOTE The role of the Bar Association David Jackson QC ended his speech questions of debate will be gratefully the Association was a memorable event at this year’s centenary Bench & Bar received and published. in the middle of the year and we have an Dinner by posing the question whether Another longer term trend is the interview conducted with him prior to the New South Wales Bar Association breakdown in the unity of the Bar itself. that address. This year Leslie Zines AO can perform adequately all the roles it Specialisation has dramatically delivered the Sir Maurice Byers lecture now has. The question is a valid one. increased. There are few barristers who and this is an important annual feature of The association currently seeks to could successfully conduct a criminal this journal. Norrish DCJ gave a stirring discharge a wide range of functions; jury trial and a commercial cause and speech at the launch of the Bar probably greater than those of most other few who would want to. In a few years Association - Aboriginal Legal Service professional organisations. Whereas none will be able to state (without fear of pro bono scheme, which we reproduce. once the role of the association was breaching the Trade Practices Act) as The CPD programme at the Bar is now largely confined to that of trade union, did, accurately, Tom Hughes QC in the well established and we include some of social club, ethical body and occasional New South Wales Barristers Directory the papers given. lobbyist to government on behalf of its under areas of practice: common law - Finally, the Bali Bombing was a members, it now has a general; equity – general; appellate law - terrible event. Bar News expresses its formal role in the statutory general. The physical fragmentation at sympathy to those affected. We include a structure for the the Bar continues to increase, certainly moving piece by Colin McDonald QC of Should the determination of consumer within the Sydney CBD. The Bar the Darwin Bar. and disciplinary common room, after continual decline in association be complaints which extends attendances, will be closed. All to the role of investigator, barristers face the succession of Justin Gleeson SC providing trade prosecutor and even in the demands on small businesses which case of bankruptcy and limit the time for communal activity. One union-like tax issues, judge and jury. of the common themes of the plight of It seeks to advise the many barristers who fell foul of the advice and government on what is disciplinary regime for bankruptcy and good legislation as well as tax offences was that it is just not easy to assistance to being a lobbyist for meet the demands of a busy court members. schedule and ensure that the finances of members Can this position a business are running smoothly. The successfully continue? sole practitioner rule has all the virtues whose financial Should the association be of independence but requires a barrister providing trade union-like to spend considerable time on business affairs are advice and assistance to practices, even if only in engaging, members whose financial paying and overseeing the work of mismanaged, as affairs are mismanaged, as qualified experts. The association has, opposed to striking them perhaps belatedly, attempted to provide opposed to off? Should it hand back some services in this latter area, regulatory powers to some including seminars in the CPD striking them government body and act programme on business and tax solely in the defence of management. There is scope for greater off? members in trouble? activity in these areas. Again, these are Should the association be the topics which, if they are engaging the lobbying harder for minds of members, would be suitable for legislation which benefits members and contributions to this journal. leave other matters for law reform The aim of this journal is to provide commissions? Should the association be on a twice-yearly basis a forum in which concentrating on improving the delivery some of the different issues and aspects of services to members, for example such affecting barristers and the association as through the very successful BarCare can be aired. The Editorial Committee is scheme? These are valid questions particularly pleased that we have been which exercise the minds of members. able to bring forward in this issue a This publication is intended to be a piece on the Parramatta Bar, featured on magazine of the members for the the cover, and on part-time practice at members. Any views on these or other the Bar. The address of Karpal Singh to 1 LETTERS TO THE EDITOR Dear Sir from about $A100 to $A150 per week crime as well as being perpetrators. I note that recently, the Pope, John which would cover a leased house for 10 Barristers, as agents in the administration Paul II, has made a saint a person who children, food and a couple of workers to of justice, have a very real interest in appeared in two places at once. run the ‘home’. I have a contact in north seeing that these young people have an I suggest that this person be made the west Bengal who would for free oversee opportunity to rehabilitate. Patron Saint of the New South Wales Bar and monitor the whole project in Siliguri, The people who work with the Association. a town in North West Bengal, with residents of the farm have, and certainly Lindsay Ellison similar problems. need to have, enormous tolerance and Ted Baskerville resilience. But to keep going they, like PO Box 978 Auburn NSW 1835 everyone, need support. Dear Sir, Ph: (02) 9649 6253 The proposal is to form a ‘resource I'm laying on a typical hard wooden Fax: (02) 9646 1591 group’ of barristers. It is not intended to be bed in the small town of Jorabat up in the e-mail: [email protected] just another fund-raising committee. The thick forested mountains, about half an idea is to, first, let the foundation, the hour drive from the city of Guwahati in residents and the farm workers know that north east India. It is a pleasant day and Dear Sir a group of people are interested in, and the heavy rain of yesterday has stopped. Financial advisers often talk about the support what they are doing. Secondly, the The cool breeze generated by the ceiling need to match one's temperament with foundation can approach the group from fan is refreshing and its swirling swishing one's investments. The same can be said time to time if it needs specific assistance. sound is soothing. about charities - we probably have a Sometimes that assistance may be in the My mind goes back to yesterday in the natural inclination to prefer some types of form of the farm needing a microwave or a heart of Guwahati when amongst the rain charities over others. printer or some sporting equipment. and flooded roads small children, some as With that in mind, I have a proposal Someone in the group may have that item young as six or seven years of age, for people who may wish to contribute a to contribute or know someone who could rummaged in the foul stinking piles of little and get a lot in return. There is help. Or advice may be requested about garbage that were piled up on the sides of absolutely no risk. There is a guaranteed, what to do or who to speak to in relation to the road. What they were doing I’m not very high return. some problem that arises. sure but I presume they could get some Shortly before his death in 1990, Sir It is not intended that any person's money or other benefit from what they David Martin, former governor of New involvement will be onerous or that there could salvage from those vile piles.